Karnataka High Court

The State Of Karnataka vs L Dorairaj S/O Lakshmanan on 13 February, 2024

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                                                      NC: 2024:KHC:6258
                                                 CRL.A No. 665 of 2011




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                  DATED THIS THE 13TH DAY OF FEBRUARY, 2024
                                      BEFORE
                      THE HON'BLE MR JUSTICE S RACHAIAH
                     CRIMINAL APPEAL NO. 665 OF 2011 (A)
             BETWEEN:
                THE STATE OF KARNATAKA
                REPRESENTED BY C.B.I.
                ANTI CORRUPTION BRANCH
Digitally
                GANGANAGAR, BELLARY ROAD
signed by       BANGALORE.
SUDHA S
Location:
HIGH COURT                                                 ...APPELLANT
OF           (BY SRI. NITIN GOWDA K C, ADVOCATE FOR
KARNATAKA        SRI. P PRASANNA KUMAR, ADVOCATE)

             AND:
                L DORAIRAJ
                S/O LAKSHMANAN
                AGED MAJOR
                OCC: ENFORCEMENT OFFICER
                REGIONAL PROVIDENT FUND
                COMMISSIONER OFFICE, BANGALORE
                R/A NO. 63, 4TH CROSS, PILLANNA GARDEN
                I STAGE, BANGALORE - 560 084.

                                                         ...RESPONDENT
             (BY SRI. CHANDRASHEKARA K, ADVOCATE)

                  THIS CRL.A. IS FILED U/S. 378(1) & (3) CR.P.C PRAYING
             TO GRANT SPECIAL LEAVE TO FILE APPEAL AND ALLOW THIS
             CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND
             ORDER OF ACQUITTAL DATED 24.12.2010 PASSED BY THE
             XXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
             BANAGALORE AND SPECIAL JUDGE FOR CBI CASES,
             BANGALORE CITY (CCH-34) AND ETC.,

                  THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
             DAY, THE COURT DELIVERED THE FOLLOWING:
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                                                  NC: 2024:KHC:6258
                                             CRL.A No. 665 of 2011




                             JUDGMENT

1. This Criminal Appeal is filed by the appellant-State,

being aggrieved by the judgment and order dated 24.12.2010

in Spl.C.C. No.39/2004 on the file of the XXXII Additional City

Civil and Sessions Judge and Special Judge for CBI Cases,

Bangalore (CCH.34), wherein the Trial Court acquitted the

respondent / accused for the offences punishable under

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

Corruption Act, 1988 (for short 'PC Act').

2. The rank of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case are as under:

3. It is the case of the prosecution that the accused

being the public servant working in the capacity as

Enforcement Officer in the Department of Employees' Provident

Fund Commissioner, Mysuru, was authorized to recommend in

settling the issues of M/s.VST Precision Components Ltd.,

Mysuru under the EPF Act. It is alleged that on 09.10.1997 and

17.10.1997, the accused by abusing his official position as a

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public servant, said to have demanded Rs.5,000/- as illegal

gratification from the complainant to do some official favour to

the complainant. The complainant being unhappy about the

demand made by the accused, has approached the Lokayukta

Police at the first instance, thereafter, he was advised to

approach CBI. The complainant contacted CBI Officer and

lodged a complaint against the accused regarding the demand

of bribe by the accused to do some official favour.

4. The complainant on 17.10.1997 visited the office of

the Investigating Officer where PWs.6 and 7 were introduced to

the complainant and pre-trap panchanama was drawn. On the

same day, the complainant along with panch witnesses and

also the Investigating Officer have left the office by van. As per

the direction of PW.9, the complainant had to take shadow

witness along with him. Accordingly, the complainant and the

shadow witness said to have visited the office of the accused

and said to have paid the amount of Rs.5,000/- as demanded

by the accused. After having paid the said amount, the

complainant signaled the Investigating Officer. Immediately,

the Investigating Officer along with co-panch entered into the

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chamber of the accused and trap mahazar was drawn and

seizure of tainted notes had taken place. The said seizure

mahazar is marked as Ex.P10. The CBI conducted investigation

and submitted the charge sheet.

5. To prove the case of the prosecution, the

prosecution has examined 11 witnesses as PW.1 to PW.11 and

got marked 24 documents as Exs.P1 to P24 and got identified

material objects as M.O.1 to M.O.7. On the other hand, the

respondent herein got marked Ex.D1 which is a transfer order

and the respondent has not marked any documents on his

behalf. The Trial Court after appreciating the oral and

documentary evidence on record, opined that the prosecution

has failed to prove the ingredients of Sections 7, 13(1)(d) r/w

13(2) of the PC Act and recorded the acquittal. Being

aggrieved by the same, the Lokayukta police have preferred

this appeal.

6. Heard Sri.Nitin Gowda K.C., learned counsel

appearing for Sri P.Prasanna Kumar, learned counsel for the

appellant and Sri Chandrashekar K., learned counsel for the

respondent.

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7. It is the submission of the learned counsel for

appellant that the findings of the Trial Court in recording the

acquittal which appears to be perverse and illegal and the same

is liable to be set aside.

8. It is the submission of the learned counsel for

appellant that the Trial Court failed to appreciate the evidence

of PW.6 who is the panch witness to the incident, PW.7 who is

shadow witness and the evidence of PW.11 who is the

complainant in this case properly, consequently, the impugned

judgment is passed which is required to be set aside.

9. It is further submitted that all the witnesses

supported the case of the prosecution with regard to demand

and acceptance of illegal gratification and also proved the

pendency of work with the respondent. In spite of having

proved the demand and acceptance of illegal gratification, the

Trial Court failed to take note of the same and passed the

impugned judgment which is liable to be set aside. Making

such submissions, learned counsel for the appellant prays to

allow the appeal.

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10. In support of his contentions, learned counsel relied

on the judgments of the Hon'ble Supreme Court in the following

cases:-

1. BHAGWAN JAGANNATH MARKAD AND OTHERS V. STATE OF MAHARASHTRA1

2. SHANKERBHAI LALJIBHAI ROT V. STATE OF GUJARAT2

3. VINOD KUMAR GARG V. STATE (GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI)3

4. D VELAYUTHAM V. STATE REPRESENTED BY INSPECTOR OF POLICE, SALEM TOWN, CHENNAI4

5. C M SHARMA V. STATE OF ANDHRA PRADESH5

6. SURESH CHANDRA JANA V. STATE WEST BENGAL & ORS.6

7. VINUBHAI RANCHHODBHAI PATEL V. RAJIVBHAI DUDABHAI PATEL AND OTHERS7

8. PHULA SINGH V. STATE OF HIMACHAL PRADESH8

9. NEERAJ DUTTA V. STATE (GOVT OF NCT OF DELHI)9

10. INDRA VIJAY ALOK V. STATE OF MADHYA PRADESH10

(2016) 10 SCC 537

(2004) 13 SCC 487

(2020) 2 SCC 88

(2015) 12 SCC 348

(2010) 15 SCC 1

(2017) 16 SCC 466

(2018) 7 SCC 743

(2014) 4 SCC 9

(2023) 4 SCC 731

(2016) 1 SCC 709

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11. CHAITANYA PRAKASH AUDICHYA V. CENTRAL BUREAU OF INVESTIGATION11

12. STATE OF GUJARAT V. NAVINBHAI CHANDRAKANT JOSHI & OTHERS12

13. NAGANNA V. STATE OF KARNATAKA13

11. Per contra, Sri.Chandrashekar.K, learned counsel

for the respondent, vehemently justified the judgment of

acquittal passed by the Trial Court and submitted that the

evidence of PW.6 who is panch witness contrary to the

evidence of PW.7 who is shadow witness and on conjoint

reading of evidence of these two witnesses, it appears some

contradictions in their evidence. Having considered the said

contradictions, it may be inferred that they were not present at

the scene of occurrence. Therefore, their evidence ought to be

discarded as eyewitnesses to the incident. The Trial Court

rightly appreciated their evidence and acted upon it properly.

12. It is further submitted that the evidence of PW.11

who is said to be the complainant has even though supported

the case of the prosecution, in the absence of independent

(2015) 7 SCC 720

(2018) 9 SCC 242

CRL.A.NO.214/2007 [KARNATAKA HC]

NC: 2024:KHC:6258

corroboration, his evidence ought not to have been considered.

Therefore, PW.11 being an interested witness, even though

supported the case of the prosecution, conviction cannot be

based on such evidence.

13. It is further submitted that the prosecution has

failed to prove the demand and acceptance of illegal

gratification which is sine qua non to constitute offences stated

supra. Therefore, the findings of the Appellate Court required

to be maintained. Making such submission, learned counsel for

the respondent prays to dismiss the appeal.

14. In support of his contentions, learned counsel for

the respondent relied on the following judgments:

1. N.VIJAYAKUMAR v. STATE14

2. NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. DELHI)15

15. Having heard learned counsel for the respective

parties and also perused the averments of the appeal memo

along with findings of the Trial Court, the points which would

arise for my consideration are:

(2021) 3 SCC 687

(2023) 4 SCC 731

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i) Whether the findings of the Trial Court in

recording the acquittal for the offences under

Sections 7, 13(1)(d) r/w 13(2) of the PC Act is

justifiable?

ii) Whether the appellant has made out grounds to

interfere with the findings of acquittal passed by

the Trial Court?

16. It is relevant to take note of the proposition of law

regarding appeal against acquittal. It is needless to say that, in

a case of appeal against acquittal, there is double presumption

in favour of the accused. Firstly, the presumption of innocence

is available to him under the fundamental principle of criminal

jurisprudence that every person shall be presumed to be

innocent unless he is proved guilty by a competent court of

law. Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reinforced, reaffirmed

and strengthened by the Trial Court. If the two reasonable

conclusions are possible on the basis of the evidence on record,

the Appellate Court should not disturb the finding of acquittal.

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17. Having regard the proposition of law, now it is

relevant to refer to the facts of the case. The case of the

prosecution is that, the accused / respondent was discharging

the duty as a public servant in the office of Employees'

Provident Fund Commissioner at Mysuru. There are some

issues in the complainant - Company regarding Provident Fund.

The respondent being an officer proposed for settlement and

assured that the matter would be resolved amicably. Having

said that, the respondent said to have demanded illegal

gratification for a sum of Rs.5,000/- from the complainant. The

complainant being aggrieved by the same and he is not having

interested to make such payment, approached the ACB at first

instance and subsequently, he was advised to approach CBI.

Accordingly, a complaint came to be registered by the

complainant who is examined as PW.11 and the said complaint

is marked as Ex.P14. The appellant herein directed the

complainant to act as per their instructions. Accordingly, the

complainant was invited to the office and PWs.6 and 7 have

been introduced to the complainant.

18. On the following day, PW.11 was directed to take

PW.7 along with him and approach the respondent. As per the

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direction, both PWs.7 and 11 went to the Company of the

complainant expecting the arrival of the respondent. However,

the respondent had not been there. Thereafter, they came

back to the office and as per the direction, again went to the

office of the respondent.

19. As per the evidence of PW.7, both himself and

PW.11 entered inside the building, where the respondent was

working and he was standing 10 feet away from the chamber of

the respondent. PW.11 went inside the chamber and handed

over the amount. The respondent after receiving the amount,

kept it on his left side chest pocket of the shirt. PW.11 as

pre-directed by the authority, gave signal by removing his pen

from the pocket. Whereas, PW.6 being a panch witness has

stated in his evidence that, PW.11 gave signal to them by

removing the kerchief and wiped his head. PW.11 has stated in

his evidence that, he was directed to remove his spectacle and

give signal. On conjoint reading of the evidence of all the three

witnesses, it appears that, each witnesses have stated different

version regarding signal given by PW.11.

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20. Assuming that, the appellant herein and his team

conducted raid and seized the tainted notes from the

respondent that may not be sufficient to constitute an offence.

In other words, mere recovery of the amount is not sufficient to

constitute an offence, unless, the demand and acceptance is

proved by the prosecution. In this regard, it is relevant to refer

to the judgment of the Hon'ble Supreme Court in the case of

N.VIJAYAKUMAR, stated supra, paragraph Nos.26 and 27 which

read thus:

"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI and in B. Jayaraj v. State of A.P. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of

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illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.

27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj read as under: (SCC pp. 58-59) "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI.

8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in

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the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P- 11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.

9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and

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not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."

The abovesaid view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment [State of T.N. v. N. Vijayakumar, 2020 SCC OnLine Mad 7098] of the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from

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serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record."

21. On careful reading of the dictum of Hon'ble

Supreme Court, it makes it clear that, mere recovery of the

amount by itself is not sufficient to prove the charge of the case

of the prosecution against the accused and to raise the

presumption under Section 20 of the PC Act, the prosecution

has to prove the demand and acceptance of illegal gratification.

In order to prove the offence under Section 7 of the PC Act, it is

settled position of law that demand of illegal gratification is sine

qua non to constitute the said offence. The Hon'ble Supreme

Court further observed that, once the conviction is recorded

under the provision of the Prevention of Corruption Act, it casts

a social stigma on the person in the Society apart from serious