Karnataka High Court
Dr Siddagangaiah vs State Of Karnataka on 22 May, 2023
Bench: K.Natarajan
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CRL.A No. 797 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 797 OF 2011
BETWEEN:
1. DR SIDDAGANGAIAH
S/O LATE A SIDDAPPA,
AGE : MAJOR,
HEALTH & FAMILY WELFARE OFFICER (RETD.)
BANGALORE CITY,
PRESENTLY R/AT "SISHRUTHA",
6TH CROSS, ASHOKANAGAR,
TUMKUR- 572 103
...APPELLANT
(BY SRI. KARTHIK YADAV V., ADVOCATE
FOR SRI. S.K. VENKATA REDDY.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY POLICE INSPECTOR,
POLICE WING,CITY DIVISION,
Digitally signed by KARNATAKA LOKAYUKTA,
SHOBHA C
Location: High BANGALORE- 560 001
Court of Karnataka
...RESPONDENT
(BY SRI. VENKATESH S. ARBATTI, SPECIAL COUNSEL)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 13.7.11 PASSED
BY SPECIAL JUDGE, PREVENTION OF CORRUPTION ACT, BENGALURU
URBAN DISTRICT, BENGALURU CITY, IN SPL.C.C.NO.48/06 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 7 OF PREVENTION OF CORRUPTION
ACT AND SECTION 13(1)(d) PUNISHABLE UNDER SECTION 13(2) OF
PREVENTION OF CORRUPTION ACT, 1988 AND ETC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 797 of 2011
JUDGMENT
This appeal is filed by the appellant-accused under
Section 374(2) of Cr.P.C. for setting aside the judgment of
conviction and order of sentence passed by the Special Judge in
Spl.C.C.No.48/2006 dated 13.07.2011, found guilty and
convicted and sentenced to undergo rigorous imprisonment for
a period of 9 months for the offence punishable under Section 7
of the Prevention of Corruption Act, 1988 (for short 'P.C. Act')
and to pay fine of Rs.5,000/- in default to undergo simple
imprisonment for 3 months and further sentenced to undergo
rigorous imprisonment for one year for the offence punishable
under Section 13(1)(d) read with Section 13(2) of the P.C. Act
and to pay fine of Rs.5,000/- in default to undergo simple
imprisonment for 3 months. Both substantive sentences of
imprisonment shall run concurrently.
2. Heard the learned counsel for the appellant and
Sri Venkatesh S. Arbatti, learned Special counsel for the
respondent-Lokayukta.
3. The rank of the parties before the Trial Court is
retained for the sake of convenience.
CRL.A No. 797 of 2011
4. The case of the prosecution is that PW.3-
Gnanaprakash who is said to be the Medical Officer has filed a
complaint to the Lokyuktha Police as per Ex.P.19 on
12.08.2005 alleging that he was working as a Medical Officer at
Government Hospital, Anekal and his District Health Officer was
Dr.Siddagangaiah (the present appellant) harassed him from
past 4 months for demand of money for various needs. As he
did not respond for the same, the appellant wrote a letter to
the Deputy Commissioner and Government on various
occasions, as a result, the complainant was suspended. In
order to revoke the suspension order, a letter from the accused
(present appellant) was necessary, therefore, the complainant
contacted him on 11.08.2005 in the afternoon in his office at
District TB Office, Sajjanrao Circle. The appellant is said to be
asked to come on 12.08.2005 morning along with money to his
office i.e., DHO Office, Old Madras Road, Bengaluru where the
appellant is said to be demanded Rs.15,000/- from him as
bribe amount. Since the complainant was not interested to give
the bribe, he lodged a complaint before PW.4-Lokayuktha
Dy.S.P. In turn, PW.4 endorsed the complaint to PW.5-the
Police Inspector of Lokayuktha to register the case.
CRL.A No. 797 of 2011
Accordingly, the complaint came to be registered by PW.5 and
PW.5 set up a trap by preparing the pre trap panchanama and
subsequently, sent Rs.15,000/- through PW.3-defacto
complainant. PW.2-Bettaiah also sent along with PW.3 as a
shadow witness to the office of the appellant-accused. At that
time, the appellant said to be in the meeting in his office and
after seeing the defacto complainant, he came out near the
parking area and the complainant said to be asked about his
revocation of the suspension order. For that, the appellant said
to be demanded the money, then, the complainant handed over
the tainted money of Rs.15,000/- to the accused and
thereafter, the accused went inside his office, then, the
complainant gave signal to the Investigating Officer,
immediately, the accused was trapped, they seized Rs.15,000/-
from his pocket under the panchanama. His hands were
washed with the sodium carbonate solution, it turned pink and
the same was seized under the panchanama. Subsequently, the
police arrested the appellant and in turn, they produced him
before the Special Court and after completion of the
investigation, the police filed the charge-sheet against the
appellant for the offence punishable under Sections 7, 13(1)(d)
CRL.A No. 797 of 2011
read with Section 13(2) of the P.C. Act. The presence of the
accused was secured by the Trial Court. The charges were
framed against him. He has pleaded not guilty and claimed to
be tried. Accordingly, the prosecution examined 5 witnesses
and got marked 34 documents and also marked 18 material
objects as per MOs.1 to 18. After completion of the evidence of
the prosecution, the statement of the accused under Section
313 of Cr.P.C. has been recorded. The case of the accused was
one of the total denial and he has given a reply statement
under Section 313(5) of Cr.P.C. After hearing the arguments,
the trial Court found the accused guilty, convicted and passed
sentences as stated above which is under challenge.
4. The learned counsel for the appellant has contended
that the trial Court committed error in convicting the accused
by finding him guilty as there is no corroboration of the
evidences between the PW.2-the shadow witness and PW.3-the
complainant. The complainant also turned hostile. The police
said to be seized the audio cassette from PW.3 where he said
to be recorded in respect of the demand made by the accused.
But the said cassette was not sent to the FSL, the same was
admitted by PW.5 in his cross-examination. Even the
CRL.A No. 797 of 2011
conversation is not able to hear properly as it is not audible.
Therefore, the demand was not proved by the prosecution and
further contended that in order to prove the voice of the
accused, the Police Officer or Investigating Officer have not
examined any of the officials working in the DHO office to
identify the voice of the accused. He further contented that
there is no entrustment of work with the accused. He has no
role to play in order to send any revocation order of suspension
in order to show official favourism as he has no authority or
capacity to recommend the Commissioner or Government for
revocation of suspension. As per the Notification issued by the
State Government under K.C.S. (C.C.A.) Rules, 1957, the DHO
is the Authority to recommend only the officials working under
him under Table I and II. Whereas, the complainant was the
Medical Officer does not come under the control of the DHO.
Therefore, there is no work pending with him, hence, the
question of recommending the Government for revocation of
suspension does not arise. The learned counsel further
contended that there is no proper evidence in respect of
demand made by the appellant. The evidences of PWs.2 and 3
are silent in this regard and there is a contradiction in their
CRL.A No. 797 of 2011
evidences. The witnesses especially PWs.2 and 3 have stated
that they have not given any statement to the Investigating
Officer stating that the accused demanded the bribe and
accepted. Mere recovery of money from the accused-appellant
is not a ground to convict the accused. When the demand is
not proved, mere acceptance is not yet proved. Therefore, the
trial Court committed error in accepting the evidence and
presuming the offence committed by the accused under Section
20 of the P.C. Act is not correct and hence, prayed for
acquitting the appellant by setting aside the judgment of
conviction and sentence. In support of his contention, the
learned counsel has relied upon the judgment of the
Co-ordinate Bench of this Court in the case of R.Srinivasan
and Anr. v. State in Crl.A.No.702/2015 reported in 2016
CRI.L.J. 3066 and another judgment of the Hon'ble Supreme
Court in the case of C.M.Girish Babu v. CBI, Cochin, High
Court of Kerala reported in (2009) 3 SCC 779.
5. The learned counsel for the appellant also
contended that there is a defect in framing of charge as the
date of commission of offence is stated as 20.06.2005 which is
CRL.A No. 797 of 2011
not correct. Therefore, on that ground the appeal shall be
allowed.
6. Per contra, learned Special counsel for the
respondent has strenuously contended that the judgment of
conviction and sentence is in accordance with law where the
appellant was a District Health Officer who has an authority to
recommend for revocation of suspension as he himself
admitted in the statement under Section 313 of Cr.P.C. He
himself has given report and based upon his report, the
complainant has been suspended by the State Government.
The learned counsel also contended that regarding framing of
charge, there is a typographic error in respect of date, it was
not elicited either in the cross-examination of the witnesses or
before the Investigating Officer and not brought to the notice of
the Court. Therefore, as per Section 464 of Cr.P.C., if there is
any error in the charge, the finding of sentence cannot be set
aside. The learned counsel for the respondent further
contended that the evidence of PWs.2 and 3 are very clear
regarding demand and acceptance of the tainted notes by the
accused on 12.08.2005. In the evidence of PWs.2 and 3, they
have categorically stated that when the complainant
CRL.A No. 797 of 2011
approached the accused for revocation, the accused demanded
first to pay money, though there is little discrepancy in the
demand where the money has to be paid first, that itself is not
a ground to say that there is no demand and infact, there is
corroboration between both the witnesses i.e., complainant as
well as the shadow witness. They have categorically stated that
there was demand made by the accused except the
complainant turned hostile in respect of the statement given by
him before the police and he has stated that at the time of
recovery of money from the accused, he stood outside near the
office, but in the factual aspect, he has given evidence
regarding demand and acceptance. Therefore, the question of
disbelieving the evidence of PWs.2 and 3 does not arise. The
learned counsel for the respondent also contended that as on
the date of complaint, the appellant made first demand, it was
revealed in the complaint as well as in the pre-trap
panchanama and the evidence of PW.2 also reveals that the
accused demanded Rs.15,000/- for recommending for
revocation of suspension. Therefore, the initial demand also
proved by way of pre trap panchanama and the complaint and
evidence of the PWs.2 and 3. The evidence of PWs.4 and 5
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CRL.A No. 797 of 2011
who are the Dy.S.P and the Police Inspector also corroborated
with their evidence as there was a demand and the complaint
was filed against the appellant before PW.4 and in turn, PW.5
registered a case and issued FIR. The learned counsel also
contended that in the statement under Section 313 of Cr.P.C.,
the accused himself has admitted that on his report only the
complainant has been suspended. Therefore, the presumption
is available under Section 20 of the P.C. Act which is in favour
of the prosecution. The accused is required to rebute, but he
has not entered into the witness box and not impeached the
evidence of PWs.2 and 3 in the cross-examination. Therefore,
prayed for dismissing the appeal.
7. Having heard the arguments and on perusal of the
records, the point that arises for my consideration are:
1) Whether the prosecution prove beyond all
reasonable doubt that the appellant-accused
being a DHO demanded Rs.15,000/- as bribe
from PW.3 on 11.08.2005 for sending a
recommendation letter for revocation or
cancellation of suspension order, which is
punishable under Section 7 of the P.C. Act?
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CRL.A No. 797 of 2011
2) Whether the prosecution proves beyond all
reasonable doubt that the accused being the
public servant abused the official position and
demanded Rs.15,000/- by taking advantage,
thereby committed the offence punishable
under Section 13(1)(d) read with Section
13(2) of the P.C. Act?
3) Whether the judgment of conviction and
sentence passed by the Trial Court call for the
interference by this Court? "
8. Before discussing with regard to the appreciation of
the evidence of the prosecution, it is worth to mention the
evidence of the prosecution witnesses which are as follows:
PW.1-M.G.Subba Rao is the Investigating Officer who was
filed the charge sheet after receiving the investigation papers
from PW.5.
PW.2-R.Bettaiah is the shadow witness who is the SDA
working in the Child and Women Welfare Department who has
been summoned by the Investigating Officer for the purpose of
preparing panchanama and to act as panchas who is also
shadow witness supported the case.
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CRL.A No. 797 of 2011
PW.3-Gnanaprakash is the defacto complainant who is
the suspended Medical Officer worked in the Anekal, Primary
Health Centre who comes under the DHO of Bengaluru Rural
District.
PW.4-A.N.Rajanna is the Dy.SP before whom the
complaint came to be filed and in turn, the complaint has been
sent to PW.5 for registering the FIR.
PW.5-R.C.Lokesh Kumar is the Investigating Officer who
registered the FIR, conducted the trap, arrested the accused
and part of the investigation was done by him and
subsequently handed over the investigation papers to PW.1 and
in turn PW.1 filed the charge sheet.
PW.3 - the defacto complainant namely
Dr. Gnana Prakash has given evidence stating that from August
2005 he was worked as Administrative Medical Officer at Anekal
General Hospital, Anekal. In the year 2005, the accused was
also working as District Health Officer at Bengaluru Rural
District, Anekal General Hospital which was coming within his
jurisdiction. On 06.03.2005, he was kept under suspension by
the Government on the recommendation made by the Deputy
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CRL.A No. 797 of 2011
Commissioner, Bengaluru Urban District for not attending
National pulse polio programme meeting. He further deposed
that on 11.08.2005 at 3.00 p.m., he met the accused in
connection with the revocation of his suspension and requested
the accused to write recommendation letter for revocation of
his suspension to the Government. Before meeting the accused
on that day morning, he telephoned him, at that time, the
accused asked him to meet him in his office at District TB Office
located near Sajjanrao Circle, Bengaluru and the accused
demanded Rs.15,000/- from him as bribe. Since he was not
willing to pay the bribe amount, on 12.08.2005, he went to the
Lokayuktha office, M.S. Building and met the Dy.SP and filed a
written complaint as per Ex.P.19 (it was wrongly mentioned as
PW.1 in the deposition). Then the complaint was entrusted to
the Lokesh Kumar-PW.5 and subsequently the Lokesh Kumar
asked him to withdraw Rs.15,000/- from his Bank i.e., Canara
Bank which should be of Rs.500/- denomination. Accordingly,
he withdrew the cash of Rs.15,000/- consisting of Rs.500/-
denominations of 30 currency notes and later, the Lokayuktha
police-Inspector called two officials as panch witnesses and
phenolphthalein powder has been smeared on the currency
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CRL.A No. 797 of 2011
notes. Later, he was asked to wash his hand in the solution
which turned into red colour which was seen by them and
subsequently the police handed over the currency notes to him
which was said to be kept in his pocket and ordered to hand
over to the accused after his demand. He also sent the tape
recorder and asked him to switch on while meeting the accused
and after payment, he should give signal by wiping the face in
hand kerchief and he prepared the detailed panchanama and
the denomination of currency notes are mentioned in the paper
as per Ex.P.2. The panchanama also identified by him as per
Ex.P.3. Subsequently, he further says that at 3.00 p.m., the
police along with the panch witness went near the DHO office,
the vehicle was parked 300 meters away from the DHO office.
Then himself and PW.2-Bettaiah went near the office of the
accused, the accused was sitting in his chamber. The meeting
was going on and after seeing him, the accused came out from
his chamber. They went near the parking area, at that time,
the accused asked about PW.2, then he has stated that he is
his man, nothing to worry. Then he asked the accused for the
favour to get rid of the suspension. Then the accused asked
him to give the money first and afterwards he would see. Then
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CRL.A No. 797 of 2011
he handed over Rs.15,000/- to the accused. The accused took
the money in one of his hands and kept it in the backside pant
pocket and thereafter, he gave signal to the Lokayuktha
Inspector, who were sitting below the tree at the distance of 20
meters from them. Then the accused went to his chamber,
himself and PW.2 were also went near the chamber, then the
Lokayuktha police caught the accused, seized the articles and
prepared the panchanama, he also affixed his signature on it
and identified Ex.P.5. He has identified M.O.11 as an amount
of Rs.15,000/- cash and the cover which was seized as per
M.O.12 and subsequently, this witness is treated as hostile in
respect of giving statement to the police as per Exs.P.3 and 5.
Subsequently, these witnesses have admitted that he has given
some of the statements and he has stated that the accused
received money in his right hand and kept in his pocket which
was marked as Ex.P.20, but he has stated that he has not
stated in his statement that applying the sodium
carbonate solution in two hands and seizing the same by
washing the hand of the accused. In the cross-examination
of the accused counsel, he has stated that he has not stated in
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CRL.A No. 797 of 2011
the statement before the police that the accused took tainted
money from him in his right hand.
In the cross examination by the Public Prosecutor, P.W.3-
complainant has further stated that the accused, after receiving
the amount, has kept in the right hand side pocket. However,
in the cross examination by the learned counsel for the
accused, there is no denial of receiving the money and keeping
the same in his pant pocket. Although the complainant denied
the cassette (M.O.9), which was seized by the police and it was
stated that the cassette was not audible, however, he has
stated that there was conversation between the accused and
himself in the cassette. In the further cross examination, the
complainant has stated that he did not see the investigation
officer dipping the hands of the accused in sodium carbonate
solution and also not seen the investigation officer seizing the
pant (M.O.7). The complainant has further admitted that the
accused was responsible for passing the suspension order
(Ex.P.1).
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CRL.A No. 797 of 2011
Perusal of the entire cross examination of P.W.3, it
indicates that there is no denial of acceptance of the amount of
Rs.15,000/- and seizing Rs.15,000/- from his possession.
9. P.W.2-R Bettaiah is the shadow witness in the trial.
He has deposed, in his evidence, that, on 12.08.2005, as per
the instruction of his superior, he went to the office of
Lokayuktha at 12.15 p.m. The Lokayuktha police introduced
the complainant and also mentioned about the demand by the
accused of Rs.15,000/- for revocation of the suspension of
order. Therefore, note sheet was prepared as per Ex.P.2 and it
was signed and Rs.15,000/- has been handed over to the
complainant. Subsequently, the police as well as the
complainant and the shadow witness went near the office of
the accused by 3.00 p.m., where the police officer instructed
the complainant to hand over the amount demanded to
accused only on demand. P.W.2 has further deposed that when
himself and the complainant went near the office, the accused
came to the complainant and told him that he is the person.
They went near the parking area, at that time, the accused is
said to be asked the complainant to come. The complainant
given amount to the accused and the accused took money from
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CRL.A No. 797 of 2011
his hand and kept it in his hand pocket. The accused asked the
complainant to come next day. The complainant went outside
giving signal to police. Immediately, the police went to the
office of the accused and trapped him. The hands of the
accused were washed in the sodium carbonate solution and
both the hands turned into pink colour. The police seized the
solution in the bottles and marked as M.Os.1 to 4 containing
the pink as well as blue colour. The accused took out money
and handed over to the police and the same was seized under
the panchanama. P.W.2 also stated that the pant of the
accused was seized. The right side inner pocket of the pant of
the accused was also washed by the police in the solution,
which turned into pink colour and the same was seized in the
bottles and identified as M.Os.5 and 6. The pant of the accused
was seized as per M.O.7. A cover kept in the pant pocket was
identified as M.O.8. P.W.2 also deposed that when the accused
was asked in respect of receiving money by him, he gave an
explanation as per Ex.P.4 that the complainant received
Rs.20,000/- from him and returned Rs.15,000/- and he has
also stated the same in writing. The investigation officer seized
the cassette from the complainant, wherein the accused is said
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CRL.A No. 797 of 2011
to be stated "PÉÆr PÉÆr, ¤ÃªÀÅ £Á¼É §¤ß ¤ªÀÄä PÉ®¸ÀªÁUÀÄvÉÛ". The
police seized the same under panchanama and he identified the
cassette at M.O.9 and the sealed cover at M.O.10, currency
notes of Rs.500 x 30 at M.O.11 and cash sealed cover at
M.O.12. The police also prepared detailed mahazar as per
Ex.P.5 and P.W.2 identified his signature as Ex.P.5(a). The
police also prepared the sketch at Ex.P.6 and the photos at
Exs.P.7 to 16. The police also seized attendance extract copy
as per Ex.P.17.
During the cross examination, P.W.2 has deposed that he
has not stated about the accused that the demanded the
complainant as "£Á£ÀÄ ºÉýzÀÝ£ÀÄß PÉÆr PÉÆr", but in the statement,
he has stated that the accused demanded the complainant as
"ªÉÆzÀ®Ä ºÀt PÉÆqÀÄ ºÀt PÉÆqÀÄ". Further, it is admitted by P.W.2 in
the cross examination that in the statement given before the
police, he has not stated about the Lokayuktha Inspector
asking him to make telephonic call to Doctor Siddalingaiah and
asking him at what time, he should come to office of the
accused. He has further stated that he has not stated before
the police about the Lokayuktha inspector instructing him to
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CRL.A No. 797 of 2011
give signal if the bribe amount is accepted by the accused. He
has also admitted that he has not stated before the police
about recording in the cassette about the accused saying as
"PÉÆr PÉÆr, ¤ÃªÀÅ £Á¼É §¤ß ¤ªÀÄä PÉ®¸ÀªÁUÀÄvÉÛ". Further, it is
admitted that he has not stated about the tallying of the serial
numbers of the currency notes seized during trap mahazar with
the serial numbers noted during the entrustment mahazar.
Except this admission, there is nothing elicited in the evidence
of P.W.2 in the cross examination.
10. P.W.4-A.N. Rajanna is a formal witness who received
the complaint from the complainant as per Ex.P.19 and asked
the police inspector to register FIR.
10. The evidence of P.W.5-R.C. Lokesh Kumar shows
that on the basis of the complaint (Ex.P.19), he registered FIR
as Ex.P.29 and he identifies both the complainant and FIR as
per Exs.P.19 and 29 respectively. He has deposed that he sent
requisition to Director, Women and Child Welfare Department,
and Commissioner, Transport Department, M.S. Building,
Bangalore for sending an official to act as panch witness in the
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CRL.A No. 797 of 2011
trap proceedings. P.W.2 from Women and Child Welfare
Department and C.W.3 from Transport Department came to his
office to act as witnesses. P.W.5 has also stated that the
complainant produced the intended bribe amount of
Rs.15,000/- consisting of 30 currency notes of Rs.500/-
denomination. P.W.2 noted down the serial numbers of the said
currency notes on Ex.P.2, and both P.W.2 and C.W.3 have
signed on Ex.P.2. Phenolphthalein powder was smeared on
the said currency notes and given to C.W.3 who kept the same
after verification in the right side pant pocket of the
complainant. P.W.5 has also stated that he instructed the
investigation officer to send the complainant and the witness
with the amount, which shall be given to the accused only on
demand. Thereafter, P.W.2 and P.W.3 and C.W.3 went to the
office of accused. Subsequently, the complainant (P.W.3) and
P.W.2 went near the office of accused and thereafter, both of
them came out from office building of the accused with the
accused. They went to the vehicle parking stand located by the
side of the house of Dr. Ghouse. Subsequently, the accused
went inside the office. Immediately, the complainant gave pre-
arranged signal and P.W.5 and other staff, went to the office
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CRL.A No. 797 of 2011
room of the accused, who received the amount. They seized
the said amount under the panchanama and the hands of the
accused were washed and the pant was also seized under
panchanama. Thereafter, they arrested the accused and
further investigation was handed over to P.W.1.
11. P.W.1-M.G. Subba Rao, in his evidence, has also
stated that he has further investigated the matter and filed
charge sheet.
12. Perused the evidence of the prosecution witnesses,
especially, P.Ws.2 and 3, who are the star witnesses. It is well
settled that the Hon'ble Supreme Court in catena of cases has
held that demand and acceptance of bribe is illegal and
convicted the accused for illegal gratification.
13. Learned counsel for the appellant has relied upon the
judgment of Co-ordinate Bench of this Court in R.
SRINIVASAN AND ANOTHER Vs. STATE BY POLICE
INSPECTOR, LOKAYUKTHA, BANGALORE reported in 2016
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CRL.A No. 797 of 2011
CRL.L.J. 3066. Paragraph 15 of the said judgment reads as
under:
"15. In a trap case relating to the role of a public
servant receiving bribe money, prosecution is expected
to discharge its initial burden to prove that the public
servant in question had capacity to do some official
favour in order to demand bribe and that the said bribe
amount was received only after demand as
contemplated under Section-7 of the Act. In the case of
State through Inspector of Police, Andhra Pradesh v. K.
Narasimhachary (2006 Cri LJ 518 (SC) : ((2005) 8 SCC
364 : AIR 2006 SC 628), the Hon'ble Supreme Court has
specifically held that the Court is expected to look into
closely as to whether the accused had the official role to
play in order to do an official favour. As per the facts in
the said case, the accused was merely a recommending
authority and not the authority to issue valuation
certificate. The accused therein was not even a clerk for
issuing property valuation certificate. In fact the
certificate had already been forwarded and sent to the
official authority before the alleged demand for bribe
was made by the accused. The above said
circumstances created a doubt in the mind of the trial
Court and hence accused came to be acquitted. In the
challenge before the High Court, the order of the trial
Court was confirmed, and the matter was taken up in
further appeal before the Hon'ble Supreme Court which
has confirmed the order of the Special Court as well as
the High Court."
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CRL.A No. 797 of 2011
In the aforesaid judgment, the Co-ordinate Bench, at
paragraphs 48 and 81, has held as under:
"48. In the case of C.M. Girish Babu v. C.B.I.,
Cochin ((2009) 3 SCC 779) : (AIR 2009 SC 2022), in a
matter pertaining to recovery of money from the
accused, it is held that the presumption under Section
20 of the Act cannot be raised automatically as the
burden lies of the State to prove demand and
acceptance beyond all reasonable doubt.' In the case of
State of Maharashtra v. Dnyaneshwar Laxman Rao
Wankhede ((2010) 2 SCC (Cri) 385) : (2009 AIR SCW
5411), the Hon'ble Apex court has considered the
provisions Sections 101 and 102 of the Evidence Act at
length and has specifically held that 'before the accused
is called upon to explain how the tainted money was
found to be in his possession, the foundational facts
must necessarily be established by the prosecution.' As
already discussed, it is incumbent upon the court to
consider the explanation offered by the accused when
examined under Section 313, Cr.P.C. and the same will
have to be tested on the touchstone of preponderance of
probabilities and proof beyond reasonable doubt should
not be insisted."
"81. The learned trial Judge should have
assessed the entire evidence in the light of the defence
taken up by the accused and their written statement
furnished under Section 313, Cr.P.C. If two views are
possible in a criminal case, one in favour of the
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prosecution and the other in favour of the accused, the
latter would normally prevail."
14. The learned counsel for the appellant has also relied
upon the judgments of the Hon'ble Supreme Court in the case
of SURAJ MAL VS. STATE (DELHI ADMINISTRATION)
reported in (1979)4 SCC 725 and also C.M. GIRISH BABU
VS. CBI, COCHIN, HIGH COURT OF KERALA reported in
(2009)3 SCC 779. The Hon'ble Supreme Court in the case of
C.M. Girish Babu (supra), at paragraphs 21 and 22, has held
as under:
"21. It is equally well settled that the burden of proof
placed upon the accused person against whom the
presumption is made under Section 20 of the Act is not
akin to that of burden placed on the prosecution to
prove the case beyond a reasonable doubt.
"4. ... It is well established that where the burden of an
issue lies upon the accused, he is not required to
discharge that burden by leading evidence to prove his
case beyond a reasonable doubt. That is, of course, the
test prescribed in deciding whether the prosecution has
discharged its onus to prove the guilt of the accused;
but the same test cannot be applied to an accused
person who seeks to discharge the burden placed upon
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him under Section 4(1) of the Prevention of Corruption
Act. It is sufficient if the accused person succeeds in
proving a preponderance of probability in favour of his
case. It is not necessary for the accused person to prove
his case beyond a reasonable doubt or in default to incur
a verdict of guilty. The onus of proof lying upon the
accused person is to prove his case by a preponderance
of probability. As soon as he succeeds in doing so, the
burden is shifted to the prosecution which still has to
discharge its original onus that never shifts i.e. that of
establishing on the whole case the guilt of the accused
beyond a reasonable doubt."
(emphasis supplied)
22. It is against this background of principles we have
examined the contention of the appellant that the
charges under Section 7 of the Act have not been
proved against him.
15. I have perused the judgments of the Hon'ble
Supreme Court as well as the judgment of the Co-ordinate
Bench of this Court, where the demand and acceptance of bribe
was not proved.
16. In R. SRINIVASAN's case (Supra), the Co-ordinate
Bench of this Court, at paragraph 81, has held that the trial
court should have assessed the entire evidence in the light of
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the defence taken up by the accused and their written
statement furnished under Section 313, Cr.P.C. If two views
are possible in a criminal case, one in favour of the prosecution
and the other in favour of the accused, the latter would
normally prevail. There is no second thought in respect of the
decision of the Co-ordinate Bench of this Court.
17. Here, in the present case, there is no such stand that
the accused has not accepted any tainted money, because
Rs.15,000/- has been seized from the pant of the accused, and
for acceptance of the said money, his hand was washed in
sodium carbonate solution, which turned into pink colour, which
reveals the acceptance of currency by the accused.
18. The main contention of the learned counsel for the
appellant is that the appellant-accused has not at all demanded
any amount and there is no entrustment mahazar. In this
regard, the learned counsel has also relied upon the notification
issued under KCS (C.C.A) Rules, 1957, by the Government of
Karnataka in No.DPAR 11 SDE 2002(1), Bengaluru dated
19.06.2002. As per the said notification, the District Health and
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Family Welfare Officer is empowered to suspend the
government servants holding 'C' and 'D' group, but not 'A' or 'B'
Group officers. The complainant is the medical officer. The
power is vested only in the Health and Family Welfare
Department.
19. It is also an admitted fact that as per Ex.P.1, the
suspension order is issued by the Health and Family Welfare
Department. Though the prosecution is not able to show the
issue of notification of complainant's suspension, but in the
statement under Section 313 of Cr.P.C, the accused himself has
admitted that there was complaint against the complainant by
the local persons including the officials and in this regard, he
has given a report to higher officers and based upon said
report, the complainant was suspended. Therefore, statement
under Section 313 of Cr.P.C reveals that there is no authority
to suspend the complainant, but the District Health Officer
being the head of department, can recommend for suspension
and also recommend for revocation of suspension order. Based
upon his recommendation, the Government or Commissioner
can suspend or revoke the suspension order. Therefore, the
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learned counsel for appellant submitted that the appellant-
accused has no authority to issue the suspension order.
Therefore, the aforesaid notification would not be applicable.
20. As regards the acceptance of bribe as proved by the
prosecution as per Ex.P.19 and Exs.P.3 and 5, P.Ws.2 and 3
have stated that the complainant approached the accused for
revocation of suspension, and the accused demanded for
Rs.15,000/- on 11.08.2005. Subsequently, the accused asked
the complainant to go to his place on 12.08.2005. Accordingly,
the complainant went to the place of accused where he
demanded Rs.15,000/-. Since the complainant was not
interested to pay demand, he approached Lokayuktha office.
The officer in the Lokayuktha office instructed the complainant
to give the amount only on demand by the accused.
Accordingly, P.W.2 and P.W.3 went to the office of the
accused. When the accused came out from his office and went
near parking area, the complainant asked him to send the
report, but the accused demanded for money. It is mentioned
by P.W.3, in his evidence, that when he asked the accused to
get revoke the order of suspension, the accused asked him to
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give the money first. Then, the complainant handed over the
same to accused and he kept in his pocket. P.W.2-the trap
mahazar witness stated that accused demanded money and the
complainant paid the money, which was received by the
accused. P.W.2 has further stated that accused has stated
"PÉÆr PÉÆr, ¤ÃªÀÅ £Á¼É §¤ß ¤ªÀÄä PÉ®¸ÀªÁUÀÄvÉÛ". But it is not in
corroboration with what was stated by him. Once again, P.W. 2
was recalled for further cross examination, where P.W.2 said
that accused demanded amount from the complainant and the
accused asked "ªÉÆzÀ®Ä ºÀt PÉÆqÀÄ ºÀt PÉÆqÀÄ", but not "£Á£ÀÄ
ºÉýzÀÝ£ÀÄß PÉÆr PÉÆr". Learned counsel for the appellant-accused
stated that the amount demanded by the accused is made to
be discovered in the evidence given by P.W.2 that he has not
stated in his admission that the accused has demanded from
the complainant '"£Á£ÀÄ ºÉýzÀÝ£ÀÄß PÉÆr PÉÆr", but he has stated
that "ªÉÆzÀ®Ä ºÀt PÉÆqÀÄ ºÀt PÉÆqÀÄ". Once again, the same is
repeated. The evidence of P.W.2 is corroborated with the
evidence of P.W.3 that the accused first demanded money. Of
course, P.Ws.2 and 3 stated about the conversation of accused
at M.O.9, but it is not audible, at the time when it was heard by
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P.W.2, but it was not by P.W.3. The cassette was sent for FSL,
but the report is not yet received and hence the prosecution
failed to prove the demand. On the other hand, the evidence
of P.W.2 and 3 corroborates with each other regarding the
demand made by the accused and he has received Rs.15,000/-
from the complainant (P.W.3).
21. The Hon'ble Supreme Court in a recent decision in
Neeraj Dutta Vs. State (Government of NCT of Delhi) reported
in 2022 Live Law (SC) 1029 has held that even if the
complainant has turned hostile or for some reason, he was not
able to examine the witnesses, the Court can rely upon the
evidence of complainant to convict the accused. Paragraph 67
of the said judgment reads as under:
"67. Therefore, this Court cautioned that even if
a witness is treated as "hostile" and is cross-examined,
his evidence cannot be written off
altogether but must be considered with due care and
circumspection and that part of the testimony which is
creditworthy must be considered and acted upon. It is
for the judge as a matter of prudence to consider the
extent of evidence which is creditworthy for the purpose
of proof of the case. In other words, the fact that a
witness has been declared "hostile" does not result in an
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automatic rejection of his evidence. Even, the evidence
of a "hostile witness" if it finds corroboration from the
facts of the case may be taken into account while
judging the guilt of the accused. Thus, there is no legal
bar to raise a conviction upon a "hostile witness"
testimony if corroborated by other reliable evidence."
22. In the present case, the complainant (P.W.3) has
partly turned hostile, only in respect of recording statement,
but in respect of demand and acceptance, there is entrustment.
The evidence of P.W.2 and P.W.3 corroborates with the
evidence of P.W.5. Therefore, I am of the view that the
prosecution has succeeded in proving the demand and
acceptance of illegal gratification by the accused for doing
official favour. The accused has misused the official position
which is punishable under Section 13(1)(d) read with Section
13(2) of the P.C. Act. The trial Court has considered in all the
aspects and has rightly convicted the accused and sentenced to
undergo imprisonment.
23. Therefore, this Court cannot interfere with the said
judgment of conviction passed by the trial Court Therefore, the
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impugned judgment of conviction and sentence does not call for
interference.
24. Learned counsel for the appellant-accused submits
that the accused is now aged 77 years and he has retired from
service in the year 2005 itself and therefore, prayed for
reducing the sentence.
25. Perused the sentence imposed by the trial Court for
the offence punishable under Section 7 of PC Act. The trial
Court has imposed only 9 months imprisonment and for the
offence punishable under Section 13(1)(d) read with Section
13(2) of the P.C. Act, one year imprisonment is imposed in the
Unamended Act. Therefore, it is mandate on the part of the
Court to impose sentence for a minimum period of six months
for the offence punishable under Section 7 of PC Act and one
year for the offence punishable under Section 13(2) of the P.C.
Act. Therefore, considering the facts and circumstances of the
case and by looking into the age of the accused, the order and
sentence passed by the trial Court under Section 7 of P.C. Act
is to be reduced to six months from nine months, which is the
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minimum sentence. In respect of the sentence passed under
Section 13(1)(d) read with Section 13(2) of the P.C. Act, the
sentence passed by the trial Court remains the same.
26. Accordingly, the appeal is allowed in part. The
judgment of conviction passed by the Court of the Special
Judge, Bangalore Urban District, Bangalore in Spl.C.C.
No.48/2006 dated 13.07.2011, is hereby confirmed. However,
the sentence passed by the said Court under Section 7 of P.C.
Act is reduced to six months from nine months, and the
sentence passed under Section 13(1)(d) read with Section
13(2) of the P.C. Act, remains the same.
27. The appellant is hereby directed to pay the fine
amount, if any, within six weeks from the date of receipt of
certified copy of this order i.e., not depicted.
Sd/-
JUDGE
GBB/CS
