Karnataka High Court

State Of Karnataka vs Girish on 13 February, 2024

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                                                      NC: 2024:KHC:6257
                                                  CRL.A No. 555 of 2014




                  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. 555 OF 2014 (A)
             BETWEEN:
             STATE OF KARNATAKA,
             BY LOKAYUKTHA POLICE,
             MANDYA DISTRICT-571 401.
                                                          ...APPELLANT
             (BY SRI. B. S. PRASAD, SPECIAL PUBLIC PROSECUTOR)
             AND:
             1. GIRISH,
                S/O UGREGOWDA,
                AGED ABOUT 41 YEARS,
                S.D.A., SURVEY SECTION,
                TALUK OFFICE, SRIRANGAPATNA,
                R/AT HOSAHALLI VILLAGE,
                NARAYANAPURA POST,
                CHINAKURLI HOBLI, PANDAVAPURA,
                MANDYA DISTRICT-571 435.
             2.    MAHESH,
Digitally          S/O MARIGOWDA,
signed by          AGED ABOUT 55 YEARS,
SUDHA S
Location:
                   D GROUP EMPLOYEE,
HIGH COURT         SURVEY SECTION,TALUK OFFICE,
OF
KARNATAKA          SRIRANGAPATNA,
                   R/AT GANJAM,
                   S.R. PATNA TALUK,
                   MANDYA DISTRICT - 571 438.
                                                      ...RESPONDENTS
             (BY SRI. AMBAJI RAO NAJRE, ADVOCATE FOR R1 & R2)
                   THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C BY THE
             SPL. P.P. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
             JUDGEMENT AND ORDER OF ACQUITTAL DATED 17.7.2013
             PASSED BY THE PRINCIPAL SPECIAL JUDGE, MANDYA IN
             SPECIAL CASE NO.39/2009 AND ETC.,
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                                              NC: 2024:KHC:6257
                                        CRL.A No. 555 of 2014



     THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

1. This appeal is filed by the Lokayukta Police being

aggrieved by the judgment and order of acquittal dated

17.07.2013 in Special Case No.39/2009 on the file of

Principal Special Judge at Mandya, wherein the Trial Court

recorded the acquittal of the respondents herein for the

offences punishable under Sections 7 and 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. The case of the prosecution is that, the accused Nos.1

and 2 who are the public servants working as Second

Division Assistant and Group 'D' employee in Survey

section attached to the Taluk office at Srirangapatna.

PW.2 applied for survey to the property bearing Sy.

No.15/P-02 measuring 1 acre 20 guntas of Hebbadi

Village, Srirangapatna Taluk. It is alleged that accused

No.1 has demanded Rs.4,500/- as a bribe, initially

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amount of Rs.1,500/- was paid by PW.2 and the balance

of Rs.3,000/- has to be paid to get his work done.

4. Being aggrieved by the demand made by the accused

No.1, PW.2 has approached the respondent police and

lodged a complaint regarding the demand made by

accused No.1. On receiving the complaint, the

respondent police have conducted a pre-trap panchanama

in the police station and instructed PWs.1 and 2 to

approach the accused No.1 to pay illegal gratification as

demanded by him. Accordingly, on 20.08.2007 between

4.45 p.m. to 5.00 p.m., PWs.1 and 2 had been to the

office of accused No.1 and approached him. On

instruction being made by the accused No.1, the amount

of Rs.3,000/- was paid to accused No.2 as illegal

gratification. After having paid the said amount, signal

had been given to the respondent police as he was pre-

directed. The respondent police entered inside the office

of the Survey and apprehended accused No.2 and amount

was seized and his statement was recorded. A post-

panchanama was prepared in the presence of the panch

witnesses. After investigation, charge sheet came to be

filed by the respondent police.

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5. To prove the case of the prosecution, the prosecution

examined seven witnesses as PWs.1 to 7 and got marked

22 documents as Exs.P1 to P22 and identified the

material objects marked as M.O.1 to M.O.9. The Trial

Court after appreciating the oral and documentary

evidence on record, recorded the acquittal. Being

aggrieved by the same, the Lokayukta Police have

preferred this appeal.

6. Heard Sri.B.S.Prasad, learned Special Public Prosecutor

for the appellant-Lokayukta Police and Sri.Ambaji Rao

Najre, learned counsel for the respondents.

7. It is the submission of the learned Special Public

Prosecutor for the appellant-Lokayukta Police that the

judgment and order of acquittal passed by the Trial Court

is opposed to the facts and evidence on record.

Therefore, the said judgment is held to be perverse and

illegal and hence, the same is liable to be set aside.

8. It is further submitted that the evidence of all the

witnesses especially PWs.1 to 3 is consistent in respect of

demand and acceptance of illegal gratification. Once the

demand and acceptance is established, it mandates the

presumption to be raised in favour of the prosecution.

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Had the Trial Court raised the presumption, the impugned

judgment would not have been passed.

9. It is further submitted that the prosecution has proved

the pendency of work with the accused No.1 and it is also

proved that accused No.2 was working as Group 'D'

employee in the same office and has also proved that

accused No.2 has received a bribe amount and it was

seized at his instance in the presence of PW.3. The Trial

Court having failed to take note of the evidence both oral

and documentary on record, recorded the acquittal which

is liable to be set aside. Making such submission, the

learned Special Public Prosecutor for the appellant-

Lokayukta Police prays to allow the appeal.

10. Per contra, the learned counsel for the respondent

vehemently justified the judgment and order of acquittal

passed by the Trial Court and submitted that the

presence of accused No.1 has not been established. The

demand from the accused No.1 to get the work done of

PW.2 done has not been established. When the demand

and acceptance of illegal gratification by the accused is

not established, the conviction in such a case ought not to

be recorded. Therefore, the Trial Court has rightly

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appreciated both oral and documentary evidence on

record and opined that the prosecution has failed to prove

the case beyond all reasonable doubt. Hence,

interference with the said findings may not be necessary.

Making such submission, the learned counsel for the

respondent prays to dismiss the appeal.

11. Having heard the contentions of learned counsel for

respective parties and also perused the findings recorded

for acquittal by the Trial Court, the points which would

arise for my consideration are:

(i) Whether the judgment and order of acquittal passed by the Trial Court for the offences punishable under Sections 7 and 13(2) of Prevention of Corruption Act is justified?

(ii) Whether the appellant has made out grounds to interfere with the findings recorded for acquittal by the Trial Court?

12. It is the settled principle of law that, in a case of appeal

against acquittal, the Appellate Court has to interfere with

the findings only where it appears that the findings are

perverse and illegal.

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13. In the present case, the complainant stated to have

applied for conducting the survey of his land bearing

Sy.No.15/P-02 measuring 1 acre 20 guntas of Hebbadi

Village, Srirangapatna Taluk. The complainant has

approached the accused No.1 to get his work done. It is

alleged that the accused No.1 has demanded amount of

Rs.4,500/- as illegal gratification to get his work done. As

per the evidence of PW.2, amount of Rs.1,500/- was paid

as advance and the balance of Rs.3,000/- was to be paid

to accused No.1. Being not satisfied by the said demand,

PW.2 said to have approached the respondent - police.

The respondent - police have instructed the complainant

and PW.1 to act as per their instructions for the purpose

of conducting the trap. Accordingly, a trap has been

conducted and a case has been registered against

accused Nos.1 and 2.

14. As per the evidence of PW.1, he was called by the

respondent - police and instructed him to be a witness to

the trap. According to him, himself and PW.2 had been to

the office of the accused, wherein accused No.1 was

present and he had asked PW.2 regarding the amount

which PW.2 was supposed to give as illegal gratification.

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By that time, the accused No.2 entered the place, PW.2

was asked to hand over the said amount to accused No.2.

After having paid the amount, PW.2 signaled the

respondent police. When the respondent police entered

into the chamber, the accused No.1 was not there. Even

after thorough search, he was not found available.

According to him, the amount was seized at the instance

of accused No.2.

15. The evidence of PW.2 also reiterated the said fact and the

averments of the complaint. PW.3 who is the co-panch

has supported the case of the prosecution with regard to

the recovery of the amount from the accused No.2 and he

has further stated that recovered amount has been tallied

with the pre-trap panchanama and numbers of the

currency notes have also been tallied.

16. PW.4 being a Superintendent of Survey department has

deposed in his evidence that, PW.2 had applied for

conducting the survey. The said application had come to

him on 04.08.2007, after having verified the said

application, he had instructed the officer who took

necessary fee on the said application to proceed further.

On 20.08.2007 at about 5.10 p.m., the respondent police

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had been to the office and enquired him about the

accused No.1. He has stated that the accused No.1 had

been to Taluk office. The evidence of this witness is

relevant to the case on hand.

17. On conjoint reading of the evidence of these witnesses, it

makes it clear that there is a contradiction between the

evidence of PWs.1, 2 and 4 in respect of the presence of

accused No.1. When the presence of accused is doubtful

and when the prosecution has failed to prove the demand

and acceptance of illegal gratification by the accused

No.1, mere recovery of amount from accused No.2 does

not constitute an offence under Section 7 of the PC Act.

18. My view has been fortified by the dictum of the of the

Hon'ble Supreme Court in the case of C.M.SHARMA v.

STATE OF A.P1, wherein in para 23, it is held as under:

"23. We do not have the slightest hesitation in accepting the broad submission of Mr Rai that demand of illegal gratification is a sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money

(2010) 15 SCC 1

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knowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredients to bring the Act within the mischief of Sections 7 and 13(1)(d)(ii) of the Act are satisfied."

19. In another case, the Hon'ble Supreme Court in the case

of N.VIJAYAKUMAR v. STATE OF TAMIL NADU2, para

Nos.26 and 27 held as under:

"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 illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the

(2021) 3 SCC 687

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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 the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that

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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 not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on

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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 serious consequences on the service rendered. At the same time it is also to be noted that whether

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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."

On careful reading of the dictum of Hon'ble Supreme

Court, it makes it clear that, the prosecution has failed to

prove the demand and acceptance of illegal gratification

which is sine qua non to constitute an offence under

Section 7 of PC Act. In the absence of such proof, the

presumption would not arise. Therefore, the findings of

the Trial Court regarding acquittal appears to be

appropriate and there is no occasion of this Court to

interfere with such finding.

20. It is needless to say that the evidence of PWs.1, 2 and 3

consistently established that the amount was recovered

from accused No.2. However, mere recovery of the