Karnataka High Court
The State Of Karnataka By vs Sri Krishnamurthy on 28 November, 2023
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CRL.A No. 199 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 199 OF 2014 (A)
BETWEEN:
THE STATE OF KARNATAKA BY
POLICE INSPECTOR
LOKAYUKTHA POLICE STATION
BANGALORE RURAL DISTRICT
BANGALORE - 562 123.
...APPELLANT
(BY SRI. B.S.PRASAD, SPL. P.P.)
AND:
SRI KRISHNAMURTHY
S/O. LATE GANGAPPA
AGED ABOUT 47 YEARS
POLICE CONSTABLE 1541
VISHWANATHAPURA POLICE STATION
DEVANAHALLI TALUK
PRESENTLY WORKING AT:
MADANAYAKANAHALLI POLICE STATION
NELAMANGALA TALUK
BANAGLORE RURAL DIST - 562 123.
...RESPONDENT
(BY SRI. I.S.PRAMOD CHANDRA, ADVOCATE)
THIS CRL.A IS FILED U/S.378(1) & (3) OF CR.P.C PRAYING TO
GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER
DATED 26.04.2013 PASSED BY THE PRINCIPAL SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE IN SPL. CASE
NO.453/2011 ON HIS FILE ACQUITTING THE ACCUSED/RESPONDENT
OF THE OFFENCES PUNISHABLE U/S 7, 13(1)(D)R/W 13(2) OF THE
P.C. ACT AND ETC.,
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT BEFORE THE PRINCIPAL BENCH AT BENGALURU ON
31.08.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
BEFORE DHARWAD BENCH, THROUGH VIDEO CONFERENCING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 199 of 2014
JUDGMENT
1. This appeal is filed by the State being aggrieved
by the judgment and order of acquittal dated 26.04.2013 in
Spl. Case No.453/2011 on the file of the Principal Sessions
Judge, Bengaluru Rural District, Bengaluru, wherein the Trial
Court recorded the acquittal for the offences punishable under
Sections 7, 13(1) (d) and 13(2) of the Prevention of Corruption
Act, 1988 (for short, 'P.C. Act').
2. The rank of the parties in the Trial Court henceforth
will be considered accordingly for convenience.
Brief facts of the case
3. It is the case of the prosecution that, the accused
was working as a Police Constable at Vishwanathpura Police
Station, Devanahalli Taluk. The relative of the complainant
Smt.Dyavamma had lodged a complaint against her husband.
The complainant had been to the police station to negotiate the
matter for settlement between the couple. At that time, the
Sub-Inspector was not there, the accused had informed the
complainant to come on the following day. However, the
complainant did not go to the police station. Thereafter, the
accused has called the complainant through his mobile and
asked him to meet him. When the complainant met him, he
was told that the Sub-Inspector was demanding Rs.25,000/- to
Rs.30,000/- for settlement. The complainant expressed his
inability to pay the huge amount. The matter has been
negotiated and settled for a sum of Rs.4,000/-.
4. The accused said to have demanded Rs.4,000/- as
illegal gratification. The complainant was not happy about the
demand made by the accused. Hence, he approached
Lokayukta Police and lodged a complaint 20.01.2009.
Thereafter, a pre-trap panchanama in the presence of panch
witnesses was done. Thereafter, the complainant was asked to
come near Byadarahalli Gate. Accordingly, PW.1 along with
shadow witness gone to the Byadrahalli Gate to contact the
accused.
5. It is further stated that the amount said to have
given by the complainant to the accused and signaled the
Lokayukta Police. Thereafter, the Lokayukta Police has seized
the amount and prepared post trap panchanama and
apprehended the accused. After registration of the case,
conducted investigation and submitted the charge sheet.
6. To prove the case of the prosecution, the
prosecution examined five witnesses as PWs.1 to PW.5 and got
marked 19 documents as Exs.P1 to P19 and also identified 11
material objects as M.O.1 to M.O.11. The Trial Court after
appreciating the oral and documentary evidence on record,
recorded the acquittal.
7. Heard Sri B.S.Prasad, learned Special Public
Prosecutor for the appellant/State and Sri I.S.Pramod Chandra,
learned counsel for the respondent.
8. It is the submission of the learned Special Public
Prosecutor for the appellant/complainant that the judgment
and order of acquittal passed by the Trial Court is perverse and
illegal and therefore, the same is liable to be set aside.
9. It is submission of the learned Special Public
Prosecutor that the Trial Court has failed to take note of the
evidence of PWs.1 to 3. Even though PWs.1 to 3 have turned
hostile, their evidence to the extent of supporting the case of
the prosecution should have been considered by the Trial
Court. The evidence of PW.2 is clinching and unblemished.
However, it was not considered properly, resultantly, the
impugned judgment is passed which is required to be set
aside..
10. It is further submitted that the Trial Court should
have considered the pendency of work and also the amount
seized at the instance of the accused to record the conviction
by raising the presumption which is provided under Section 20
of the P.C. Act. It is his further submission that merely
because the witnesses have turned hostile, the entirety of the
evidence could not be brushed aside. The amount which was
seized at the instance of the accused, tallied with the pre-trap
panchanama. The facts and the circumstances of the case
clearly indicate the involvement of the accused. However, the
Trial Court recorded the acquittal which is required to be set
aside. Making such submission, the learned Special Public
Prosecutor prays to allow the appeal.
11. Per contra, the learned counsel for the accused
vehemently justified the judgment and order of acquittal
passed by the Trial Court and submitted that to convict the
accused under the P.C Act for the offences stated supra, the
essential ingredients of the Prevention of Corruption Act is that
there must be some demand and acceptance of illegal
gratification. The prosecution has to prove the pendency of
the work. The amount which was seized should not be the
legal remuneration.
12. It is further submitted that the evidence of PWs.1
and 3 who are the shadow and co-panch witnesses has not
supported the case of the prosecution. Even though PW2 lead
his evidence who is the complainant in this case and supported
the case, the said evidence has not inspired the confidence of
the Court. The Trial Court after considering both oral and
documentary evidence on record, recorded the acquittal, which
is appropriate and not required to be interfered with the
findings. Making such submission, the learned counsel for the
accused prays to dismiss the appeal.
13. After having heard the learned counsel for the
respective parties and also perused the findings of the Trial
Court, it is relevant to refer to the evidence of all the witnesses
and also the law on the Prevention of Corruption Act.
14. Before adverting to the facts of the case, it is
relevant to refer to the provision under Sections 7, 13(1)(d)
and 13(2) of the P.C. Act which reads thus:-
"[7. Offence relating to public servant being
bribed.--Any public servant who,--
(a) obtains or accepts or attempts to obtain
from any person, an undue advantage, with the
intention to perform or cause performance of
public duty improperly or dishonestly or to
forbear or cause forbearance to perform such
duty either by himself or by another public
servant; or
(b) obtains or accepts or attempts to obtain
from any person, an undue advantage, with the
intention to perform or cause performance of
public duty improperly or dishonestly or to
forbear or cause forbearance to perform such
duty either by himself or another public
servant; or
(c) performs or induces another public servant
to perform improperly or dishonestly a public
duty or to forbear performance of such duty in
anticipation of or in consequence of accepting
an undue advantage from any person,
shall be punishable, with imprisonment for a term
which shall not be less than three years but which may
extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section,
the obtaining, accepting, or the attempting to obtain an
undue advantage shall itself constitute an offence even
if the performance of a public duty by public servant, is
not or has not been improper.
Illustration.--A public servant, 'S' asks a person,
'P' to give him an amount of five thousand rupees to
process his routine ration card application on time. 'S'
is guilty of an offence under this section.
Explanation 2.--For the purpose of this
section,--
(i) the expressions "obtains" or "accepts" or "attempts
to obtain" shall cover cases where a person being a
public servant, obtains or "accepts" or attempts to
obtain, any undue advantage for himself or for another
person, by abusing his position as a public servant or
by using his personal influence over another public
servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a
public servant obtains or accepts, or attempts to obtain
the undue advantage directly or through a third party.]
"13(1)(d) A public servant is said to commit the
offence of criminal misconduct, - if he, -
(i) by corrupt or illegal means, obtains for
himself or for any other person any valuable
thing or pecuniary advantage; or
(ii) by abusing his position as a public servant,
obtains for himself or for any other person
any valuable thing or pecuniary advantage;
or
(iii) while holding office as a public servant,
obtains for any person valuable thing or
pecuniary advantage without any public
interest.
13 (2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment for a
term which shall be not less than (four years) but which
may extend to (ten years) and shall also be liable to
fine."
15. On reading of the above provisions, it makes it
clear that to constitute an offence, the person who demands
illegal gratification must be a public servant. There must be a
demand and acceptance of illegal gratification and there must
be some work pending for consideration.
16. In the present case, as per the averments of the
complaint, the accused said to have demanded a sum of
Rs.25,000/- to Rs.30,000/- as illegal gratification to get the
matter settled between the couple who are the friends of the
complainant. The said mater was pending in the police
station. The prosecution in order to prove the case examined
PWs.1 and 3 as independent witnesses. Both the witnesses
have turned hostile and not supported the case. Even though,
PW.2 has supported the case, since he is interested witness in
that case, the independent corroboration is required to be
considered to record the conviction. Unless, independent
witnesses have supported the case of the prosecution in
respect of demand and acceptance of illegal gratification,
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recording the conviction on the strength of sole witness would
not be proper and relevant.
17. The object of securing the shadow and co-panch
witnesses is to prove the case independently. In the Special
Act, the Act empowered certain benefits and presumption to
deal with the case. Appreciation of evidence in the P.C Act is
entirely different from any other Act. Mere recovery of the
amount in presence of panch witness is not sufficient to prove
the case of the prosecution. To record the conviction under
the P.C Act, there must be established the demand and
acceptance of illegal gratification.
18. The evidence of PW.2 indicates that, he has called
the accused through his mobile phone near Byadarahalli Gate
and paid the amount as illegal gratification. However, the
prosecution has not secured the tower location to prove that
PW.2 had been to the spot or the accused had gone to the spot
at 2.00 p.m.
19. It is noted here that as per the evidence of PW.2,
he has paid amount to the accused and the accused had kept
the amount in his right pant pocket. However, PW.3 says that
the complainant has removed the amount from his right pocket
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of his shirt and the accused has received the same and was
keeping the amount in the pocket of his shirt, in the meantime,
the accused was surrounded by the Lokayukta Police. It is
further stated that the accused on seeing the Lokayukta Police
has thrown the currency notes on the ground. On reading of
the evidence of PWs.2 and 3, there is a contradiction in respect
of accepting the amount by the accused. The said contradiction
can be considered as material contradiction and it creates a
doubt about the presence of PW.3 at the spot.
20. Even assuming that the amount has been
recovered by the respondent police at the spot, that itself is
not sufficient to prove that the accused has committed an
offence. It is a settled principle of law that mere possession of
currency notes is not sufficient to record the conviction in
respect of Sections 7 and 13(1)(d) of the P.C. Act. To prove
the case of the prosecution in respect of offences stated supra,
there must be a demand and acceptance of illegal gratification.
The prosecution has failed to prove that there is a demand and
acceptance of illegal gratification by the accused. Therefore, I
am of the considered opinion that the Trial Court has rightly
recorded the acquittal by taking into consideration the
evidence, facts and circumstances of the case. Hence,
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interference with the judgment and order of acquittal is not
made out by the prosecution.
21. In the light of the observation made above, I
proceed to pass the following:
ORDER
The Criminal Appeal is dismissed.
The judgment and order of acquittal dated
26.04.2013 in Spl.Case No.453/2011 on the file of
the Principal Sessions Judge, Bengaluru Rural
District, Bengaluru is confirmed.
Sd/-
JUDGE
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