Karnataka High Court
Rukkappa vs The State Of Karnataka on 2 April, 2024
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CRL.A No. 200142 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL APPEAL NO.200142 OF 2017
BETWEEN:
RUKKAPPA S/O CHANDAPPA HANGARGI
AGE: 57 YEARS, OCC: VILLAGE ACCOUNTANT OF
YELGODA,
R/O TADKAL, TQ. JEWARGI,
TQ. ALAND, DIST. KALABURAGI-585102.
...APPELLANT
Digitally signed (BY SRI ARUN CHOUDAPURKAR, ADVOCATE)
by KHAJAAMEEN
L MALAGHAN
AND:
Location: HIGH
COURT OF
KARNATAKA THE STATE OF KARNATAKA
THROUGH LOKAYUKTA P.S.,
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR,
HON'BLE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585102.
...RESPONDENT
(BY SRI SUBHASH MALLAPUR, SPL.SPP)
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CRL.A No. 200142 of 2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C, PRAYING TO CALL FOR THE RECORDS, TO
ALLOW THE CRIMINAL APPEAL BY SETTING ASIDE THE
IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 09-10-2017 IN SPECIAL CASE NO.3/2013
PASSED BY THE HON'BLE SPECIAL JUDGE (LOKAYUKTA) AND
PRINCIPAL SESSIONS JUDGE, KALABURAGI, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 7 AND 13 (1) (D) READ WITH 13 (2) OF THE
PREVENTION OF CORRUPTION ACT, 1988 AND AWARDING
SENTENCE T UNDERGO FOR A PERIOD OF THREE YEARS
IMPRISONMENT AND FINE OF RS.1,000/- IN DEFAULT
FURTHER PERIOD OF ONE MONTH IMPRISONMENT UNDER
SECTION 7 OF PREVENTION OF CORRUPTION ACT AND ALSO
SENTENCED FOR IMPRISONMENT FOR A PERIOD OF FOUR
YEARS WITH FINE OF RS.2,000/- AND IN DEFAULT FURTHER
IMPRISONMENT FOR A PERIOD OF ONE MONTH FOR THE
OFFENCE PUNISHABLE UNDER SECTION 13 (1) (D) READ WITH
13 (2) OF PREVENTION OF CORRUPTION ACT, THE ABOVE
SENTENCES SHALL RUN CONCURRENTLY AND ACQUIT THE
APPELLANT AND ETC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.03.2024, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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CRL.A No. 200142 of 2017
JUDGMENT
Being aggrieved by the judgment and conviction in
Special Case No.3/2013 dated 09.10.2017 by the learned
Special Judge (Lokayukta) and Principal Sessions Judge at
Kalaburagi, for the offences punishable under Sections 7
and 13 (1) (d) read with Section 13 (2) of Prevention and
Corruption Act, 1988 (for short 'P.C. Act,') the accused is
before this Court in appeal under Section 374 (2) of the
Cr.P.C.
02. The factual matrix of the case is as below:
On 19.05.2012 the complainant - Siddanna (PW1)
lodged a complaint before Lokayuktha Police alleging that
there was a partition between him, his younger brother
and mother, wherein 05 acres 07 guntas of land was
allotted to his brother and remaining to his mother. When
his brother died, he filed an application to enter his name
in respect of the land which was allotted to his younger
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brother. The application was forwarded to the accused
herein, who was working as Village Accountant. The
accused demanded a bribe of Rs.1,500/-. When
complainant expressed his inability, but paid a sum of
Rs.500/- to the accused. Again, the PW1 approached the
accused on 18.05.2012, he was told that only if the
balance of Rs.1,000/- is paid, the file will be processed.
Therefore, he approached the advocate Sri. Girimallappa
(PW5), who took him to the Lokayuktha police. The
Lokayuktha police gave him a voice recorder and asked
him to record the demand made by the accused.
Accordingly he went to the accused, recorded the
conversation and came back to Lokayuktha police station
and lodged the complaint. The complainant was
registered in Crime No.7/2012 for the offences punishable
under Sections 7, 13(1)(d) read with Section 13(2) of
Prevention and Corruption Act, 1988. The Investigating
Officer summoned panch witnesses i.e. PW.2 and PW.3.
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After apprising them about the demand of bribe by the
accused, explained about the laying a trap. Then an
entrustment mahazar was prepared as per Ex.P2. The
PW.1 along with PW.2 as shadow witness went to the
accused and when the accused received the money, he
was trapped and a trap mahazar was prepared as per
Ex.P.23. The accused was arrested and after completion of
the investigation, the Investigating Officer has filed the
charge-sheet against the accused.
03. After taking the cognizance, the Trial Court
framed charges against the accused, where he claimed to
be tried. In order to prove the guilt of the accused, the
prosecution examined PWs.1 to PW.10 and Exs.P1 to
Ex.P.41, MO-1 to MO-19 were marked. The statement of
the accused under Section 313 of Cr.P.C. was recorded.
The accused examined himself as DW.1 and Ex.D.1 was
marked.
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04. After hearing the arguments, the Trial Court
framed the following points for consider.
I. Whether the prosecution proves that sanction
accorded to prosecute the accused is valid.?
II. Whether he prosecution proves that accused
being a public servant working as Village
Accountant of Yalagod village in Jewargi Taluk
demanded illegal gratification of Rs.1,000/- from
the complainant - Siddana Bavoor to show the
official favour in the matter of mutation of land
bearing Sy.No.6/2 measuring 05 acres 07
guntas situated at Anajagi village and on
19.05.2012 at 04.20 p.m. received or obtained
the illegal gratification amount of Rs.1,000/-
from the complainant - Siddanna Bavoor in the
premises of Special Tahasildar's Office of
Yadrami Town that too in the presence of PWs.2
and 5 as motive or reward for doing the
aforesaid work and thereby committed an
offence punishable under Section 7 of the
Prevention of Corruption Act.?
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III. Whether the prosecution further proves that on
the above said date, time and place accused
being a public servant abused his official
position, as such obtained himself a pecuniary
advantage to the tune of Rs.1,000/- from the
complainant - Sri. Siddanna Bavoor by
demanding and accepting the same as illegal
gratification and thereby committed an offence
of criminal misconduct under Section 13 (1) (d)
punishable under Section 13 (2) of the
Prevention of Corruption Act, 1988.?
IV. What order.?
05. By impugned judgment, the Trial Court
answered points No.1 to 3 in the affirmative and
proceeded to convict the accused for the offences
punishable under Sections 7, 13(1)(d) read with Section
13(2) of Prevention and Corruption Act, 1988 and imposed
a sentence of three years and a fine of Rs.1,000/- for the
offence punishable under Section 7 and four years and a
fine of Rs.2,000/- for the offence under Section 13 (2) of.
P.C. Act, with adequate default sentences.
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06. Assailing the said judgment, the accused has
approached this Court in appeal. The learned Special
Public Prosecutor has appeared on issuance of notice for
the respondent - Lokayukta. On admitting the appeal, the
Trial Court records have been secured.
07. The arguments by learned counsel appearing
for the accused - appellant and the learned Special Public
Prosecutor are heard.
08. The learned counsel for the accused submitted
that his arguments on following aspects.
a) The voice recording prior to the complaint is not
supported by the certificate as required under
Section 65 (b) of the Evidence Act.
b) He submitted that the complainant PW.1 had
given the application for entry of his name in
the revenue records on 12.01.2012 as per
Ex.P.39, but on the other hand in Ex.P.1 he
states that the application was filed on
01.02.2012. Therefore, the question as to when
the PW.1 has paid a sum of Rs.500/- become
doubtful.
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c) It is submitted that the PW.1 in his evidence
has not properly stated when he gave
application, when he had paid a sum of
Rs.500/- to the accused and he doesn't say
about the signaling the Investigating Officer at
the time of the trap, counting of the notes by
the accused. Further, he states that the panch
witnesses and Investigating Officer together
went to the office of the accused and therefore,
his evidence is not trustworthy.
d) He submits that according to PW.1 the police
had held the hand of the accused as soon as
they went to the accused and it was near a
Kirani store adjacent to the office of the
accused. He further submits that the PW.2, who
is a shadow witness states about a different
place away from the Kirani store.
e) It is contended that the shadow witness PW.2
do not say about the demand made by the
accused.
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f) The PW1 seizure pancha say that the spot of
the trap is near the hotel and therefore there is
different version regarding the spot where the
trap was laid.
g) It is contended that none of the witnesses say
about the presence of PW.5 - Girimallappa at
the time of the trap, but he had accompanied
the PW.1, PW.2 and the Investigating Officer to
the spot. Therefore, he had taken a dominant
participation in a trap.
h) It is contended that the involvement of PW.5
raises doubt since there was enmity between
the accused and the PW.5 in regard to an
earlier incident of snatching away registers. A
case was also filed against the PW5 by the
police.
i) The evidence of PW.7 who indicate that a
computer notice was generated on 01.02.2012
and therefore, there was no such pending work
with the accused as on the date of the
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complaint. Accused has sent the application to
PW.6 for approval and due to computers not
working, the approval was pending.
j) The Investigating Officer PW.10 says that it was
2011 and he do not speak about the presence
of PW.5 with PW.1.
k) It is submitted that the Trial Court has not
considered the evidence of DW.1 in the right
perspective. It is submitted that the demand of
Rs.500/- + Rs.1,000/- is not clear and the
voice is not identified to the that of the
accused. The demand at the time of the trap is
not spoken to by any of the witnesses and it
being a sine-qua-non, the prosecution had
failed to prove the guilt.
l) The enmity between the accused and PW.5,
who played a prominent and active role is not
properly appreciated by the Trial Court.
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m) When the accused was taken from the case of
the trap to his room, to his hands were held by
the Investigating Officer and this is a
circumstance where the manipulation for trap
might have occurred on account of the
prominent role played by PW.5.
09. Therefore, the learned counsel for the appellant
submits that the impugned judgment is not sustainable in
law. In support of his contention he had placed reliance
on the following decisions:-
I. Kurshid Hussain V/s State of Karnataka1,
concerning possession of tented notes alone will
not prove the offence.
II. Jnanoba vs. State of Karnataka2, concerning
non pendency of work and presumption under
Section 20 of the P. C. Act.
Crl.A.No.200102/2015 D.D.09.02.2022
Crl.A.No.200099/2016 D.D.14.06.2023
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III. T. Venkatesh vs. State of Karnataka 3,
concerning no pendency of work and recovery of
notes.
IV. Ramappa vs. State of Karnataka4, concerning
explanation by the accused cannot be considered
under Section 6 of the Evidence Act.
V. Mukhtiar Singh vs. State of Punjab5,
concerning the mere recovery and possession of
notes not sufficient to prove the demand and
acceptance of the bribe.
10. Per contra, the learned Special Public
Prosecutor submitted that the accused had received a
bribe of Rs.500/- earlier to the filing of the complaint and
a sum of Rs.1,000/- was in arrears as per the agreed
amount. However, the accused did not choose to pay the
said amount, therefore he approached to the Lokayaukta
and trap was laid wherein the accused was caught red-
Crl.A.No.306/2017 D.D.19.07.2023
Crl.A.No.2612/2010 D.D.20.02.2021
AIR 2017 SC 3382
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hand. He submits that the evidence regarding the trap is
clear and conclusive. It is submitted that all the witnesses
have categorically stated that the accused was sitting near
the Tahasildar Office, on a bench. Obviously, it was in a
place where tea was served beneath a tree. He submits
that it cannot be construed to be three different places as
argued by the defence. He submits that though a
computer notice was generated to effect the mutation
entry, accused had not signed the same till 03.04.2012. It
is evident that from 03.03.2012 that it was not signed by
him and was not uploaded to the computer. Therefore, the
work was pending with the accused. The document at
Ex.P.39 clearly establishes the same.
11. It is contended that the statement of the
accused at Ex.P.32 clearly shows that he had accepted a
sum of 1,000/-, but the defence put-forth by him is that
he had not demanded it. However, the evidence of PW.5
show that there was a demand, therefore, he contended
that the finding of the Trial Court is proper and correct. He
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also submitted that the presence of the PW.5 -
Girimallappa cannot be viewed as a doubtful circumstance,
since PW.1 has stated that he had taken the assistance of
PW.5 and that the PW.1 was the rustic villager. Hence, he
prayed for dismissal of the appeal.
12. After hearing the arguments of the both sides,
the points that would arise in this appeal are as under :-
i. Whether the prosecution establishes the
demand and acceptance of illegal gratification
by the appellant.?
ii. Whether the trap procedure followed
establishes the recovery of tainted notes from
the custody of the appellant.?
iii. Whether the impugned judgment suffers from
perversity and illegality.?
13. It is trite law that the demand and acceptance
are sine-qua-non of an offence under Section 7 of the P.C.
Act. The demand by the accused as illegal gratification for
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the work which he officially should have done is essential.
According to the prosecution, in order to mutate the name
of the PW.1, the accused had demanded Rs.3,000/- and
later it was negotiated and agreed with Rs.1,500/-. There
were phone calls between the PWs.1, 5 and the accused.
The voice recording was also done. Though, the voice
recording CDs have been marked, as M.O.19, a certificate
as required under Section 65B of the Evidence Act, is not
available on record. Therefore, the electronic evidence
cannot be considered by the Court as it is inadmissible. So
also the call details records at Ex.P.40 establishing the
phone calls between the accused and the PW.1 also cannot
be admitted in evidence.
14. A perusal of the testimony of PW.1 would show
that prior to filing of the complaint, when the request for
mutation entry was made, the accused has demanded the
money. Therefore, he along with PW.5 went to Lokayukta
police. He does not say that he had met the accused with
PW.5 prior to lodging complaint to Lokayukta. Whereas the
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complaint shows that he had met the accused even prior
to lodging of complaint, when the first demand was made.
Though, a transcription of the said recording is narrated in
the entrustment mahazar at Ex.P.2, I am afraid it may be
admitted in the evidence as the said recording as
electronic evidence has not been produced. Obviously, the
PW.5 was also present, when the accused allegedly made
the first demand prior to registration of the FIR. The PW.1
states that after preparing for the trap, he along with the
PWs.2, 3 and 5 and the Lokayutka Police went to Yedrami,
stopped the Jeep at Bus-stand and then he and PWs.2, 3
and 5 went to Tahasildar Office. He states that the
accused was sitting in front of a Kirani Store. He states
that the accused asked for Rs.1,000/- and therefore he
paid it and notes were kept in the pant pocket. He states
that the police were standing there itself and they held the
hands of the accused and took him to Tahasildar office
where the hands were washed in sodium bicarbonate
solution.
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15. The evidence of PW.2 - Subhash shows that
after preparing for the trap, they went to Tahasildar Office,
the accused was sitting under the Tree on the Table. He
says that PW.1 went there and gave Rs.1,000/- to the
accused and asked him to count. The accused counted and
kept in pant pocket. He does not say that the accused had
demanded the money.
16. PW.5 - Girimallappa states that after preparing
for trap, he went to the Tahasildar Office and the accused
was sitting near a Kirani stores. He, PW.1 and PW.2 went
to the accused and when the PW.1 asked about his work,
the accused demanded the money and the PW.1 gave the
money to him. Then the police came and took the accused
into the office of the Tahasildar by holding his hands. All
these three witnesses state that the recovery mahazar
was prepared in the Tahasildar Office itself. In the cross-
examination it was suggested to him that he(PW 5) had
grudge against the accused since the accused had filed a
criminal case regarding snatching away of the registers
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and cheques while compensation was distributed by the
government officials. Though, this suggestion is denied by
him, the evidence of PW.6 who was the Tahasildar, at
Jewargi, shows that such case is filed against the PW.5.
17. The above evidence shows that PW.2 does not
mention the demand made by the accused. Obviously, he
was at a distance of about 06 feet from the PW.1. It is also
evident that PW.5 has reason to have hostility towards the
accused. PW.5 was an advocate, who was assisting the
PW.1. If he was only assisting PW.1, there was no reason
for him to speak to the accused, negotiate the bribe
amount and forge a deal as can be seen from the Ex.P.2.
Therefore, it is evident that PW.5 acted a de-facto
complainant. Hence, the evidence of PW.5 cannot be
termed as that of independent witnesses. In that view of
the matter, it is the evidence of PW.2 which gains pivotal
importance.
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18. As can be seen from the evidence of PW.2, he
does not say that there was any demand by accused when
he and PW.1 approached the accused. Therefore, the
evidence available on record regarding the demand at the
spot is in the form of the testimony of PWs.1 and 5 who
are interested witnesses in the case. Therefore, the
demand of illegal gratification is doubtful as it is not
corroborated by the independent witness.
19. The second aspect to be considered is whether
any work was pending with the accused. Ex.P.39 is the
application given by the PW.1 and though it is dated as
12.01.2012, it was received by an official of the Tahasildar
office on 01.02.2012. The Ex.P.39 also includes a
notebook. The entry pertaining to the PW.1 shows that
though the proceedings are written on 03.04.2012, it is
not signed by the accused, whereas, the subsequent
entries in the month of May-2012 are signed by him. It is
evident that subsequent to 03.04.2012 certain entries
have been signed by him. A notice generated, which may
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be found as part of Ex.P.39 shows that it was generated
on 02.03.2012. Thus, it evident that the notice was
already generated in the month of March-2012. The
testimony of the PW.7, who was the revenue inspector at
relevant point of time shows that on 03.03.2012, he had
made his endorsement and the file was with the accused
till 19.05.2012. In the cross-examination, he admits that
there was no delay on the part of the accused and since
the uploading was delayed, the file went to Tahasildar
Office with delay.
20. The above evidence, coupled with the testimony
of the DW.1, wherein he says that as on the date of the
trap, there was no such pending work with him, shows
that it is doubtful that any work concerning the
complainant was pending with the accused. The defence of
the accused is supported by the PW.7.
21. Another important aspect to be noted is that
soon after the trap, the accused was held by the police
inspector and his staff. The evidence of PW.1 shows that
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the Investigating Officer and his staff held the hands of the
accused and took him inside the Tahasildar Office. In other
words, the hands of the accused were not tested for
phenolphthalein before the hands of the accused were
touched by anybody. This circumstance that could be
found in the testimony PWs.1, 2 and 5 would show that
the phenolphthalein test is not sacro-sanct. What was
required is that such test should have been done before
the hands of the accused were held by anybody. This
requirement gains importance, since PW.5 had an interest
in getting the accused trapped, owing to the FIR which
was registered by accused as per Ex.D.1.
22. From the above evidence, it is clear that there
existed doubt as to whether the accused had made
demand to PW.1 when he had approached the accused
with tainted currency notes in his pocket. The demand
made by the accused prior to the registration of the case
is not of much of relevance. Obviously, the voice recording
done at the time of the trap was not audible and it was not
transliterated. Further, the trap itself has a doubtful
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circumstance, since the hands of the accused where
touched by the Investigating Officer and his staff before
they were tested for phenolphthalein. Thirdly, it is doubtful
that the accused had kept the file with him intentionally as
it is an admitted fact by PW.7 that the uploading to the
system was not possible during the relevant period.
Hence, it is evident that the Trial Court had not gone into
the depth of the veracity of the testimony of the witnesses
and documents, while coming to the conclusion that the
prosecution has proved the guilt of the accused.
23. In that the view of the matter, the finding of
the Trial Court is not sustainable in law. Consequently, the
point No.1 and 2 are answered in the Negative.
Evidently, the trial court has not gone into the depth
of the documents which are part of the Ex.P39 to find out
whether any work was pending with the accused. It also
did not bestow its attention regarding the demand by the
accused is not spoken by the PW 2, but it was spoken by
the PW1 and 5, who are interested witnesses. It also
placed reliance on Ex.P32, which is inculpatory in nature
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and as such it was not permissible to be placed reliance.
Therefore, the trial court has erred in coming to proper
conclusion. Hence, the following;
ORDER
i. The appeal is allowed.
ii. The judgment dated 09.10.2017 and order of
conviction dated 09.10.2017 passed in
Spl.Case No.3/2013, by the learned Special
Judge (Lokayukta) and Principal Sessions
Judge, at Kalaburagi, is hereby set-aside.
iii. The accused is acquitted for the offences
punishable under Sections 7 and 13 (1) (d)
read with Section 13 (2) of the Prevention of
Corruption Act, 1988.
iv. The bail bonds cancelled and fine if any paid
by the accused be refunded to him.
Sd/-
JUDGE
SMP/KJJ
CT:PK
