State By Lokayuktha Police vs Mahadevaswamy
2023 Latest Caselaw 7337 Kant

                           1       CRL.A NO. 117 OF 2012



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF OCTOBER, 2023

                        BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

          CRIMINAL APPEAL NO.117 OF 2012

BETWEEN:

STATE BY LOKAYUKTHA POLICE,
MYSORE
                                           ...APPELLANT
(BY SRI. VENKATESH S ARABATTI, ADVOCATE FOR
    APPELLANT VIDE ORDER DATED 29.10.2022)

AND:

MAHADEVASWAMY
S/O SUBBASHETTY,
ASSISTANT PUBLIC PROSECUTOR,
COURT OF 4TH ADDL. FIRST CIVIL JUDGE,
(JR.DN) & JMFC, MYSORE.
                                        .....RESPONDENT
(BY SRI. C G SUNDAR, ADVOCATE)

   THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CODE OF CRIMINAL PROCEDURE PRAYING TO a)
GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 16.06.2011 PASSED BY THE
LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE,
MYSORE,    IN  SPECIAL   CASE    NO.41/2008   THEREBY
ACQUITTING    THE   RESPONDENT-ACCUSED      FOR   THE
OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d) R/W.
SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT;
b) SET ASIDE THE AFORESAID JUDGMENT AND ORDER OF
ACQUITTAL 16.06.2011 PASSED BY THE LEARNED PRINCIPAL
DISTRICT AND SESSIONS JUDGE, MYSORE, IN SPECIAL CASE
NO.41/2008 BY ALLOWING THIS CRIMINAL APPEAL AND c)
CONVICT AND SENTENCE THE RESPONDENT-ACCUSED FOR
THE OFFENCES WITH WHICH HE HAS BEEN CHARGED IN
ACCORDANCE WITH LAW IN THE INTEREST OF JUSTICE.
                              2         CRL.A NO. 117 OF 2012




     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    18.07.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                      JUDGMENT

Being aggrieved by the acquittal of

respondent/accused for the offence punishable under

Sections 7, 13(1) (d) r/w Section 13(2) of Prevention of

Corruption Act, 1988 (for short 'PC Act'), the State

represented by Lokayuktha police has filed this appeal

Under Section 378 (1) and (3) of Cr.P.C, with a prayer to

set aside the impugned judgment and order passed by

the Special Court, convict the respondent/accused and

imposed appropriate punishment.

2. For the sake of convenience, the parties are

referred to by their rank before the trial Court.

3. A charge sheet came to be filed against the

accused for the offences punishable under Sections 7,

13(1) (d) r/w Section 13(2), alleging that with regard to

the death of Reshma Shetty daughter of complainant

Ranjan Shetty, a case came to be registered based on 3 CRL.A NO. 117 OF 2012

the complaint filed by him before the Udayagiri Police,

Mysuru. In the said case, accused gave threat to CW-4

Kavitha Shetty and with regard to the said incident, she

lodged a complaint before V.V.Puram police and a charge

sheet was filed in C.C.No.103/2006 on the file of IV Addl.

I Civil Judge & JMFC, Mysuru. In the said case accused

herein was working as Assistant Public Prosecutor,

representing the State, in order to effectively present the

case of the complainant, accused demanded bribe in a

sum of Rs.1000/-. Not willing to pay the bribe

complainant Ranjan Shetty filed a complaint and a trap

was laid on 18.01.2007. In the presence of shadow

witness Narendra Babu, accused demanded and received

bribe in a sum of Rs.1000/- and he was successfully

trapped by the Investigating Officer and thereby the

accused has committed offences punishable under

Sections 7, 13(1) (d) r/w Section 13(2).

4. During the course of complaint, the

complainant has stated that his daughter Reshma Shetty

entered into an inter-caste marriage with accused No.1.

4 CRL.A NO. 117 OF 2012

She died on 01.01.2006 and she has given a written

representation to the Tahsildar about her death. In this

regard case is registered in Udayagiri police station and

C.C.No.103/2006 is pending on the file of IV Addl. I Civil

Judge & JMFC, Mysuru. In the said case complainant

Ranjan Shetty and his wife Kavitha Shetty are witnesses.

They approached the accused who was the Assistant

Public Prosecutor in-charge of the said case and

requested him to get them justice.

5. Accused directed them to meet him on

16.01.2007 and demanded that he should be paid money

periodically. Accused informed them that the hearing is

fixed on 18.01.2007 and on that day they should pay him

Rs.1000/- to make effective representation. When

complainant questioned him as to why they should pay

money to him, accused replied that if they failed to pay

the money, he would not represent the case properly.

Having lost their daughter the complainant and his wife

were not ready to pay bribe to the accused and therefore

he has filed the complaint.

5 CRL.A NO. 117 OF 2012

6. Based on the complaint, case was registered

and accused was successfully trapped. After securing

sanction, charge sheet was laid before the Special Court.

7. In response to the summons, accused

appeared and contested the matter. He pleaded not

guilty and claimed trial.

8. In order to prove the allegations against the

accused, prosecution has examined four witnesses as

PW-1 to 4 and relied upon Ex.P1 to 21 and MOs-1 to 4.

9. During the course of his statement under

Section 313 Cr.P.C, the accused has denied the

incriminating evidence.

10. He has not stepped into the witness box.

However, during cross-examination of PW-1 he has got

marked Ex.D1 to 5.

11. Vide the impugned judgment and order, the

trial court acquitted the accused, holding that the 6 CRL.A NO. 117 OF 2012

prosecution has failed to prove the allegations against

accused beyond reasonable doubt.

12. Being aggrieved by the impugned judgment

and order, the State has filed this appeal, contending

that it is contrary to law and evidence on record and as

such liable to be set aside. The trial Court has not

properly appreciated the oral and documentary evidence

placed on record, resulting in miscarriage of justice. PW-

1, 2, 4 and 3 who are respectively the complainant,

shadow witness, Investigating Officer and the

Sanctioning Authority have consistently deposed with

regard to the complicity of the accused. Their testimony

clearly establish the fact that in order to carry out his

work, accused demanded and received illegal

gratification of Rs.1000/-. There are no major

contradictions or omission going to the root of the

prosecution case. The trial Court has erred in accepting

the defence of the accused that complainant forcibly

thrusted the tainted notes into his pocket, which finding

is contrary to the evidence placed on record. Admittedly, 7 CRL.A NO. 117 OF 2012

the tainted notes were recovered from the possession of

the accused and therefore it was obligatory on the part of

the Court to draw presumption under Section 20 of the

P.C. Act. Viewed from any angle the impugned judgment

and order is not sustainable and prays to allow the

appeal.

13. On the other hand, learned counsel for

respondent/accused supported the impugned judgment

and order and submitted that on appreciation of oral and

documentary evidence placed on record the trial Court

has come to a correct conclusion and absolutely there

are no justifiable grounds to interfere with the impugned

judgment and order and sought for dismissal of the

appeal.

14. Heard arguments of both sides and perused

the record.

15. As rightly observed by the trial Court there is

no corroboration between the complaint averments and

the oral testimony of complainant (PW-1) before the

Court. In the complaint, the allegations made against the 8 CRL.A NO. 117 OF 2012

accused was that he was in-charge of the case pertaining

to the death (suicide) of his younger daughter Reshma

Shetty and accused demanded bribe of Rs.1000/- to

make proper submissions to the Court. Having regard to

the fact that accused was working as an Assistant Public

Prosecutor, he was not in-charge of the said criminal

case pending before the Sessions Court for the death of

complainant's daughter Reshma Shetty.

16. However, during the course of his evidence

before the Court, the complainant has deposed that in

connection with the case pertaining to the death of

Reshma Shetty, one of the accused Prakash gave threat

to his wife i.e, wife of complainant and a complaint was

lodged in C.C.No.103/2006 of V.V. Puram police station

and the said case was pending before the IV Addl.I Civil

Judge & JMFC and accused was in-charge of the said

case. Although in the complaint, the complainant has

given the case number as C.C.No.103/2006, which

pertains to the threat given by one Prakash, who is one

of the accused in the case pertaining to the death of 9 CRL.A NO. 117 OF 2012

complainant's daughter Reshma Shetty, but the details of

the case given in the complaint refers to the death case

of Reshma which is S.C.No.235/2006.

17. It is relevant to note that during the cross-

examination of the complainant, the defence has elicited

that he has filed several complaints against number of

persons and some of them have been disposed of and

many cases are pending. He has admitted that during

2002, he had lodged a complaint against one Avva

Madesha in C.C.No.66/2002 and it is dismissed.

S.C.No.234/2003 is filed by him against the said one

Avva Madesha is pending before the Fast Track Court.

Complainant has denied that S.C.No.127/2006 filed by

him against one Ravi Kumar is pending. However, he has

admitted that S.C.269/2006 is filed by him against one

Satish Kumar is pending. He has explained that it was

the case pertaining to Kidnapping of his daughter. He has

admitted that in Cr.No.79/2004, based on his complaint,

the report is filed.

10 CRL.A NO. 117 OF 2012

18. The complainant has further admitted that

C.C.No.1050/2005, based on the complaint filed by

Satish Kumar against him and his wife Kavitha Shetty is

pending. Another case based on the complaint filed by

his daughter is registered against one Lokesh Prasad.

The complainant has further admitted that based on his

complaint filed against Inspector of V.V.Puram police

station, Departmental Enquiry was conducted. Though he

has denied a general suggestion that several cheque

bounce cases are pending against him and his wife

Kavitha Shetty, he has admitted that C.C.No.801/2008

and C.C.No.1815/2008 are pending on the file of II JMFC

against his wife Kavitha Shetty, but claim that they have

been disposed of.

19. This particular cross-examination of the

complainant with regard to number of cases pending

before various Courts indicate that he is involved in

several litigations and probably there was confusion while

filing the complaint or it may be a case where the

accused was deliberately implicated, especially in the 11 CRL.A NO. 117 OF 2012

light of the defence statement of accused at Ex.P7,

wherein he has stated that on the date of trap, on seeing

the complainant he said that complainant has filed so

many cases and very often unnecessarily he is

approaching him and at this stage, complainant forcibly

thrusted the currency notes in his hand and in his

pocket. Thus, the prosecution is not definite whether in

respect of the case pertaining to the death of Reshma

Shetty or in respect of the threat given by Prakash to

Kavitha Shetty, the accused demanded bribe of

Rs.1000/-.

20. During the cross-examination of the

complainant, it is elicited that the chamber of accused is

very small. Except space for chair on which accused was

sitting, a table in front of him and two chairs for the

visitors, there was no space and the door to his cabin

was having auto closure and used to close when the

hand is released. During the course of his evidence, the

complainant has stated that when he went inside the

cabin, he found one person sitting in the visitor's chair.

12 CRL.A NO. 117 OF 2012

He has not stated that when the accused demanded and

received the bribe of Rs.1000/- from him, the said

person had left. The reading of testimony of PW-1

indicate that when accused demanded and received the

tainted notes of Rs.1000/-, the said person was still

sitting in the chamber of the accused.

21. During his cross-examination before the Court

complainant has denied that the said person was Jagdish

one of the witness in the case of threat given to Kavitha

Shetty the wife of complainant and accused was briefing

him. However, this fact is admitted by PW-3 D Jayaram,

the Investigating Officer. If the complainant has handed

over tainted notes to the accused in the presence of the

said Jagdish, who is a person known to the complainant

and witness in the case of threat given to Kavitha Shetty,

it was most appropriate for the Investigating Officer to

cite him as a witness. His testimony would have

supported the case of the prosecution, especially in the

light of the fact that there is doubt as to whether PW-2

Narendra Babu was present inside the cabin, when the 13 CRL.A NO. 117 OF 2012

exchange of bribe money took place between the

complainant and accused.

22. In his evidence, the complainant has stated

that inside the cabin, he stood behind the visitor's chair

and on the demand made by accused handed over the

tainted notes to him. However PW-2 Narendra Babu has

denied that the cabin door of accused was having auto

closure and it closed after the complainant entering the

cabin. Though PW-2 has claimed that he was at a small

distance behind the complainant and saw the accused

demanding and complainant handing over the bribe

money, having regard to the specific admission of

complainant that the door automatically closed after him,

it creates doubt whether PW-2 was inside the cabin.

While complainant has stated that he stood behind the

visitor's chair and handed over the tainted notes, PW-2

has deposed that complainant sat in one of the visitor's

chair and handed over the tainted notes. This also

creates doubt regarding the presence of PW-2 inside the 14 CRL.A NO. 117 OF 2012

cabin of accused when he allegedly demanded and

received a bribe of Rs.1000/- from the complainant.

23. The sketch at Ex.P11 indicate that the cabin of

the accused is very small. It has not specified the exact

measurements. It shows the presence of the complainant

and shadow witness inside the cabin of the accused and

sitting/standing side-by-side, but their evidence is

otherwise. The sketch also does not indicate whether the

door of the cabin of the accused was having auto closure.

It is elicited through the cross-examination of PW-3 the

Investigating Officer that at the spot he prepared a

sketch. However, the same is not produced along with

the charge sheet, which is the normal practice. The

accused has taken up a specific defence that the sketch

at Ex.P11 does not depict the true facts existing at the

place and it contradicts the sketch prepared by him and

therefore he has not chosen to produce it with the charge

sheet. Of course the Investigating Officer has denied the

said suggestion. The production of the sketch prepared

by the Investigating Officer would have lent support to 15 CRL.A NO. 117 OF 2012

the case of the prosecution and clarified the confusion.

The perusal of evidence of PW-1 and 2 makes it evident

that they do not collaborate with each other and creates

doubt as to the case of the prosecution.

24. After the recovery of tainted notes from the

possession of the accused, he has given statement in his

handwriting to the effect that complainant forcibly

thrusted the notes inside his hand and in his pocket, and

before he could realise what happened, the Investigating

Officer entered his cabin. It is pertinent to note that the

during the course of their evidence, complainant, shadow

witness, as well as the Investigating Officer (PW-1 to 3)

have clearly stated that when both hands of accused

were washed in sodium carbonate solution, only his right

hand gave positive result for the presence of

Phenolphthalein. The chemical report also indicate that

the right hand wash having turned pink colour, whereas

the left hand wash was almost colourless, though the

presence of Phenolphthalein was found in a very slight

amount in the left hand wash also.

16 CRL.A NO. 117 OF 2012

25. When a person receives currency notes, his

natural instinct would be to count them to ascertain

whether the money given is correct or not. Normally, in

case of handing over of tainted notes, after the accused

received the same, in his natural instinct, he would count

them and in the process both of his hands would give

positive result to the presence of Phenolphthalein.

However, in the present case the fact that only right

hand gave positive result probabalize the defence of

accused that complainant forcibly thrusted the tainted

notes in his right hand and thereafter into his pocket.

Therefore, while his right hand and shirt pocket gave

positive result for the presence of Phenolphthalein his left

hand wash did not change colour.

26. After thorough examination of the oral and

documentary evidence placed on record, the trial Court

has come to a correct conclusion that no work was

pending with the accused and the prosecution has failed

to prove that he demanded and received bribe of

Rs.1000/- and acquitted the accused. On re-appreciation 17 CRL.A NO. 117 OF 2012

of the oral and documentary evidence placed on record,

this Court is of the considered opinion that no justifiable

grounds exist to interfere with the well reasoned

judgment and order of the trial Court. In the result, the

appeal fails and accordingly the following:

ORDER

(i) Appeal filed by the State/Lokayuktha Police is dismissed.

(ii) Impugned judgment and order dated

16.06.2011 in Spl.Case No.41/2008 on the

file of Prl.District and Sessions Judge,

Mysuru, is confirmed.

(iii) The Registry is directed to send back the

trial Court records along with copy of this

judgment forthwith.

Sd/-

JUDGE RR