Karnataka High Court
The State Of Karnataka vs Shakeel S/O Abdul Khadar Gunnapur on 6 August, 2024
Author: K Natarajan
Bench: K Natarajan
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CRL.RP No. 200068 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL REVISION PETITION NO.200068 OF 2019 (397)
BETWEEN:
THE STATE OF KARNATAKA
THROUGH A C B POLICE STATION,
KALABURAGI,
REP: BY SPL. PUBLIC PROSECUTOR FOR
A C B AT HIGH COURT BENCH.
...PETITIONER
(BY SRI. GOURISH S. KHASHAMPUR, ADVOCATE)
AND:
SHAKEEL S/O ABDUL KHADAR GUNNAPUR
AGE: 47 YEARS, OCC: COMMUNITY ORGANIZER,
IN CITY MUNCIPAL CORPORATION,
KALABURAGI-585102.
Digitally signed by
SHIVALEELA ...RESPONDENT
DATTATRAYA (BY SRI. ARUN CHOWDAPURKAR, ADVOCATE)
UDAGI
Location: High THIS CRIMINAL REVISION PETITION IS FILED UNDER
Court Of Karnataka
SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING
TO ALLOW THE TOP NOTED REVISION PETITION BY SETTING
ASIDE THE ORDER DATED 01.07.2019 PASSED BY THE
LEARNED PRINCIPAL SESSIONS JUDGE, KALABURAGI IN
SPL.CASE NO.09/2017 WHEREBY DISCHARGING THE ACCUSED
/ RESPONDENT FOR THE OFFENCES UNDER SECTIONS 7, 13(1)
(d) READ WITH SECTION 13(2) OF THE PREVENTION OF
CORRUPTION ACT.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 29.07.2024 THIS
DAY, THE ORDER WAS MADE THEREIN AS UNDER :
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CRL.RP No. 200068 of 2019
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
CAV ORDER
(PER: HON'BLE MR. JUSTICE K NATARAJAN)
This revision petition is filed by the ACB, Kalaburagi
under Section 397 read with Section 401 of Cr.P.C. for
setting aside the order passed by the Prl. Sessions Judge,
Kalaburagi in Special Case No.9/2017 for discharging the
respondent / accused for the offences punishable under
Sections 7 and 13 (i) (d) read with Section 13 (2) of the
Prevention of Corruption Act, (for short 'P.C. Act.').
02. Heard the learned special counsel for the
appellant - State and the learned counsel for the
respondent / accused.
03. The case of the prosecution is that the de-facto
complainant - Mahmed Ashraf has filed a complaint to
ACB, Kalaburagi on 28.05.2016 alleging that he has filed
an application before the accused who is a community
organizer in Municipality Corporation, at Kalaburagi. The
complainant requested to get loan of Rs.2,00,000/-.
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Accordingly, he has filed an application before him. The
accused demanded the bribe of Rs.20,000/- for the
purpose of sanctioning the loan. Accordingly, the
complainant required to pay Rs.10,000/- prior to sanction
and another Rs.10,000/- after completion of work.
Accordingly, he has paid Rs.10,000/-. Later the accused
did not do his work. On 27.05.2016 the complainant
contacted with the accused on phone and enquired about
the loan. The accused demanded Rs.15,000/- i.e.,
Rs.5,000/- more than what they agreed. The complainant
is not intended to pay the bribe. Hence, he has lodged the
complaint.
04. The police registered FIR and trap was set up.
Accordingly, the accused instructed to bring the money.
Hence, when the complainant while hand-over the money
to the accused, who was received the money in car in
front of the Mini Vidhan Soudha, at that time, the accused
was trapped. Accordingly, amount of Rs.15,000/- has been
seized under the panchanama. The hands of the accused
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has been washed through sodium carbonate, which was
turned into pink. Hence, the police have arrested the
accused. Subsequently, he was released on bail.
Thereafter, the police have filed the charge-sheet.
05. After filing of the charge-sheet before the
Special Court, the accused filed an application under
Section 227 of Cr.P.C. for discharging him mainly on the
ground that there is no demand and acceptance. The
currency notes which was seized by the police and the
currency notes given to the police by the complainant are
all together different in respect of Sl.No.4, 24, 33 and 38.
Therefore, it is nothing but false and concocted story.
Hence, prayed for discharging the accused.
06. The Special Public Prosecutor, objected the
application.
07. After hearing the arguments, the Special Court
discharged the accused vide impugned order. Hence, the
State is before this Court by way of revision petition.
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08. The learned Special Counsel for the ACB has
contended that the order passed by the Special Court is
contrary to the facts of the case. Without being any trial,
the Special Court came to the conclusion that there is no
sufficient evidence to prove the guilt of the accused, which
is not correct. There is a minor defect in the investigation
report that cannot be corroborated and the said principles
had not been appreciated by the Trial Court. The Special
Court ignored the facts that the special case cannot be
treated as summary trial. The Trap was successfully made.
There was demand and work is pending with the accused.
Therefore, the presumption is available to the prosecution
under Section 20 of the P.C. Act. If any minor discrepancy
according to the currency notes are mismatching, that
cannot be a ground for discharging the accused. Hence,
prayed for setting aside the impugned order.
09. In support of his argument the leaned Special
Counsel relied upon the judgment of the Hon'ble Apex
Court in the case of Neeraj Dutta vs. State (Govt. of
N.C.G. of Delhi) in Criminal Appeal No.1669 of 2009
and connected matters dated 15.12.2022.
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10. Whereas the learned counsel for the respondent
supported the order passed by the Special Court and
contended that the very currency is not matching with
each other that itself goes to the root of the case of the
accused. There is no pending work. There is no date on
which the complainant had given the money. The
telephone conversation is not acceptable one. There is no
evidence of demand of money and acceptance. The Trial
Court considered all the relevant facts and rightly
discharged the accused. He further contended that the
accused said to be come in Car bearing Reg.No.KA-32-
5449 in fact that is not a car which is a three wheeler
Tempo Goods vehicle. The 'B' extract registered is
produced which obtained from the RTO that reveals that it
is a goods vehicle. The Trial Court has rightly discharged
the accused. Hence, prayed to dismiss the revision
petition.
11. Having heard the arguments and perused. The
point that arises for my consideration as under:-
"Whether the Special Court committed an error
in discharging the respondent/accused, which
call for interference.?"
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12. On perusal of the records, which reveal that the
accused who is working in the City Municipality
Corporation as Community Organizer, before whom the
complainant filed an application for sanction of loan for
Rs.2,00,000/-, for that the accused said to be demanded
Rs.20,000/- and received Rs.10,000/- in advance, but he
has not done work. When the complainant contacted the
accused, he has demanded Rs.5,000/- extra i.e.,
Rs.15,000/- for doing the work. Hence, the de-facto
complainant approached the police. Accordingly, the
conversation between the complainant and accused were
recorded, which was placed before the police to confirm
the demand made by the accused. Then the police
registered the FIR and a pre-trap panchanama has been
prepared on the same day. The complainant has produced
Rs.15,000/- before the police and they have received it.
They mentioned the currency note numbers in the
panchanama. Then they proceeded for trapping the
accused.
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13. Accordingly, on 28.05.2016, the accused asked
the complainant to come near the Mini Vidhan Soudha. At
that time accused came in a car KA-32-5449 Maruti Suzuki
Celerio Silver color. The accused came and stopped the
car. The accused was sitting in the driver seat and asked
the complainant, whether he has brought money as
demanded by him, for that the complainant stated that he
was brought Rs.15,000/- and handed over to the accused.
The accused received the money and put in a plastic cover
and kept in the dashboard. Immediately, the signal has
been give to the police. The police have trapped the
accused and seized the money by preparing the
panchanama and arrested the accused. Subsequently, the
police have investigated the matter and charge-sheet has
been filed.
14. The learned Special Judge took the cognizance
for the offence against the accused. Accordingly, the
accused appeared before the Special Court and filed an
application for discharge under Section 227 of Cr.P.C.
Accordingly, the learned Sessions Judge discharged the
accused, which is under challenged.
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15. Looking to the contention of the accused and
arguments advanced by the learned counsel for the ACB is
that the main ground of the accused is that there is
discrepancy in the currency note numbers, which was
seized from the accused and in the currency note numbers
mentioned in the trap panchanama. In this regard, the
learned counsel for the ACB submits that there is no
discrepancy in mentioning the currency note numbers
while seizing the currency, that itself is not a ground to
discharge the accused, without examining the panch
witnesses and investigating officer.
16. I have perused the records and the impugned
order passed by the Special Court, wherein the Special
Court considered the charge-sheet at Page No.38 that
there was a list of currency note numbers prepared by
hand-writing. In the seizer panchanama as per Page
No.33, it is stated that there is a discrepancies in currency
note in Sl.No.1, which is currency note number
7ECO969J3. But as per Page No.38 the currency note
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number mentioned as 7EC096913. Further it is contended
that the Sl.No.2 currency note numbers at Page No.33 is
shown as 7AT38JJ30. But at Page No.38 the currency
number is shown as 7AT38JJBO. Another variation in the
currency note number in Sl.No.5 at Page No.33 is
6AU248993. But at page No.38 it is shown as note
Number 6AV24993. In Sl.No.24 the currency note number
is 6AA244740 in Page No.33. But in Page No.38 the
currency number 688244740.
17. The difference between the currency notes are
as under:
Sl.No. Currency Sl.No. Currency
Number
in in Number
Page No.33 Page No.38
1. 7EC0969J3 1. 7EC096913
2. 7AT38JJ30 2. 7AT38jjB0
5. 6AJJ248993 5. 6AV24993
24. 6AA244740 24. 688244740
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18. Therefore, the Special Court has contended that
the currency notes were manipulated by the Investigating
Officer.
19. The same was disputed by the ACB counsel. On
taking the first discrepancy in respect of Sl.No.1 currency
No.7EC0969J3 in Page No.33 and same was mentioned in
Page No.38 as 7ECO96913. On comparing the same which
reveals little changes in the last one number instead of 'J'
it is shown as '1'. Normally on dictation, another person
write the same. The '1' is little change looks like 'J' in
Page No.33. Therefore, the same cannot be considered as
'J' instead of '1'. The same in the typed copy in the pre-
trap panchanama. Therefore, it cannot imagine that there
is a defect in the currency note number.
20. Likewise, another Sl.No.2 of the currency is
7AT38JJ30 as per Page No.33. But in Page No.38 it is
numbered as 7AT38jjBO. But on careful perusal of the
Page No.33 it is mentioned as 7AT38JJ30, whereas while
writing in hand writing at Page No.38 the '38JJ' is
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mentioned. Subsequently, they mentioned over written '3'
looks as 'B'. Therefore, it cannot be said both the numbers
are altogether different. Until the same is placed before
the Court verified with the original seizer panchanama,
which cannot be confirmed which is correct?. In the seizer
panchanama is mentioned as 7AT38JJ30.
21. Therefore, on that ground, suspecting the
currency notes cannot be disbelieved. Likewise another
currency number at Sl.No.5 it is mentioned as 6AU248993
in page No.33, whereas as Page No.38, which is rough
paper prepared mentioned AV24993. On careful perusal
the 'U' written like letter 'V'. While speed dictation though
the '8' was mentioned and on the '8' it was over written
as '9'. So, the '8' is hiding with letter '9'. Therefore, it
cannot be made as defect. Likewise Sl.No.24 the currency
number at Pager No.33 it is mentioned as 6AA244740. But
in Page No.38 it is mentioned as 688244740. It appears
that while somebody dictating, the person who written the
currency number might have heard the sound as Eight
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instead of 'A' and it was written as '88'. But in the typed
pre-trap panchanama and the seizer panchanama is one
and the same.
22. If at all the Page No.38, the manuscript
regarding currency number is written by some person, it
cannot be used by the defence in the cross-examination
for confronting the same. But the pre-panchanama and
drawn panchanama a reveals the same currency number.
Therefore, I am of the view the Trial Court erred in
accepting the discrepancies in 04 currency notes and
disbelieved other 21 currency notes and not acceptance of
bribe amount, is not correct. On the other hand it is not a
good ground or legal ground for discharging the accused.
Therefore, on this ground, the order of discharge, is to be
set-aside.
23. The another ground for discharging the accused
is that the accepting the bribe of amount by coming in a
car. As per the case, of the prosecution on 28.05.2016 at
06.30 p.m. the accused came in Maruti Suzuki Celerio Car
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bearing Reg.No.KA-32-B-5449. In the trap panchanama it
was mentioned as KA-32-B-5449. The accused have
produced some 'B' register extract obtained from the RTO
wherein it shows that the vehicle bearing Reg.No.KA-32-B-
5449 was a goods vehicle. On that ground, the Special
Court discharged the accused.
24. On careful reading of the trap panchanama
which clearly mentioned in the car which in accused was
Maruti Celerio KA-32-N-5449. Whereas, the documents
produced by the prosecution while arguing the matter is a
'B' register extract which belongs to KA-32-N-5449. It is
contended the Sl.No.B and N was little discrepancy. The
small discrepancy cannot be considered a great error to
initiating the proceedings. The investigating officer shall be
impeached in the cross examination before the Special
Court. The entire case of the prosecution cannot be
doubted. That apart the crux of the matter required to be
considered he demands acceptance of bribe and work is
pending.
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25. The application filed by the complainant for
seeking loan has been seized from the accused. The
accused also collected the various papers for getting
sanction loan, which is clear that the work is pending. The
telephone conversation between the accused and the
complainant, there was demand made by the accused
instead of receiving Rs.10,000/- he further demand
Rs.5,000/- after receiving Rs.10,000/-. He had
categorically stated that he wants Rs.15,000/- which is
mentioned as "Pandhra Laga ke deo merako".
26. There was continuous telephone records
demanding of the bribe amount and registering the raid.
The cash of Rs.15,000/- seized form the accused, while
accepting the amount. The demand and acceptance are
sine quonon to establish the offence under Section 7 of the
P.C. Act. Both are available on record.
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27. In view of the latest judgment of the Supreme
Court in the case of Neeraj Dutta vs. State (Govt. of
N.C.G. of Delhi) in Criminal Appeal No.1669 of 2009
and connected matters dated 15.12.2022, the Ho'ble
Apex Court has categorically held that even the demand
may be proved by way of circumstantial, when the
complaint died or turned hostile. Such being the case, the
question of discharging the accused does not mean. There
is no question of convicting the case before the Trail Court
is erroneous. The Special Court is required the verify the
material for the purpose of framing charge and but not for
conviction or acquittal of the accused. There must be
serious circumstance for framing charge on the available
record, but the Special Court cannot go for searching
materials for the accused for conviction or acquittal.
Therefore, the impugned order passed by the Special
Court, is liable to be set-aside.
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ORDER
I. The Criminal Revision Petition is allowed.
II. The impugned order dated 01.07.2019 in Special
Case No.9/2017 passed by the Prl. Sessions Judge,
Kalaburagi, is hereby set-aside.
III. The original file is restored to the file of Prl.
Sessions Judge, Kalaburagi, for securing the
accused and proceedings with trial for framing of
the charge.
IV. The respondent - accused shall surrender before
the Court and he may be release on the terms of
earlier bail conditions.
V. The parties shall appear before the Trial Court
without any notice on 09.09.2024.
Sd/-
(K NATARAJAN)
JUDGE
KJJ
