Karnataka High Court
State Of Karnataka vs Kum T R Hamsa on 13 February, 2024
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CRL.A No. 51 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. 51 OF 2014 (A)
BETWEEN:
STATE OF KARNATAKA
BY KARNATAKA LOKAYUKTHA
CHIKMAGALAUR POLICE - 577 101.
...APPELLANT
Digitally
signed by (BY SRI. B S PRASAD, ADVOCATE)
SUDHA S
Location: AND:
HIGH COURT
OF KUM T R HAMSA
KARNATAKA
D/O LATE RAMESHMURTHY
AGED ABOUT 23 YEARS
SDA, REVENUE AND JUDICIAL SECTION
D.C.OFFICE, CHIKMAGALUR DISTRICT - 577 101.
...RESPONDENT
(BY SRI. I S PROMOD CHANDRA, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(1) & (3) CR.P.C PRAYING
TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT OF
ACQUITTAL DATED 28.5.2013 IN SPL. CASE (CORRUPTION)
13/2011 ON THE FILE OF PRINCIPAL SESSIONS AND SPECIAL
JUDGE, CHIKMAGALUR DISTRICT AND ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 51 of 2014
JUDGMENT
1. This appeal is arising out of the judgment and order of
acquittal dated 28.05.2013 in Spl.Case (Corruption)
No.13/2011 on the file of the Principal Sessions and Special
Judge, Chikmagalur, wherein the Trial Court recorded the
acquittal of the accused/respondent herein for the offences
punishable under Sections 7 and 13(1)(d) r/w 13(2) of the
Prevention of Corruption Act, 1988 (for short 'P.C Act').
2. The rank of the parties in the Trial Court will be considered
henceforth accordingly for convenience.
Brief facts of the case:-
3. It is the case of the prosecution that the accused was
working as Second Division Assistant in the office of the
Deputy Commissioner, Chikmagalur. Smt.Hoovamma who
is examined as PW.6 is the owner of the land bearing
Sy.no.403 measuring 1 acre 2 guntas situated at
Mathavara village. She had intention to get half acre of
her land to be converted for the purpose of construction of
residence. As per the averments of the complaint, an
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application dated 22.03.2010 was filed before the Deputy
Commissioner, Chickmagalur for conversion. The work of
conversion of land was not got over even after lapse of two
months. PW.1 being a son of PW.6 had approached the
office of the Deputy Commissioner and on enquiry, he was
told that the file had been to the Town Planning Office.
4. PW.1 approached the Town Planning office and asked the
officers to get his work done. PW.1 was informed that the
entire documents pertaining to the property were not
received by the Town Planning office and instructed him to
approach the Deputy Commissioner and request them to
send the record. Accordingly, PW.1 approached the office of
the Deputy Commissioner and received the information
that the accused was the in-charge of the said file.
5. PW.1 requested the accused to send the records, however,
he was asked to pay Rs.2,000/- as illegal gratification.
Being aggrieved by the same, he approached the
respondent police and lodged a complaint against the
accused. Upon the complaint, a case came to be registered
in Crime No.4/2010 against the accused for the offences
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stated supra. After conducting the investigation, charge
sheet came to be filed by the respondent police.
6. To prove the case of prosecution, the prosecution
examined ten witnesses as PWs.1 to PW.10 and got
marked Ex.P1 to P16 and also identified the material
objects as M.O.1 to M.O.10. After appreciating the oral and
documentary evidence on record, the Trial Court recorded
the acquittal. Hence, this appeal by the Lokayukta police-
State.
7. Heard Sri Prasad B.S., learned Special Public Prosecutor for
appellant - Lokayukta Police and Sri I.S.Pramod Chandra,
the learned counsel for the respondent.
8. The learned Special Public Prosecutor for the appellant-
State submitted that the judgment and order of acquittal
passed by the Trial Court is perverse and illegal and
therefore, the judgment and order of acquittal has to be set
aside.
9. It is further submitted that the evidence of PWs.1, 2 and 3
is consistent with regard to demand and acceptance of the
illegal gratification for the purpose of getting the work done
which was pending with the accused. The Trial Court failed
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to take note of the evidence of independent witnesses even
though they have supported it.
10. It is further submitted that once the demand and
acceptance of the illegal gratification is established, the
Trial Court ought to have raised presumption stipulated
under Section 20 of the Prevention of Corruption Act and
the burden heavily lies on the accused to rebut the
presumption. Since the Trial Court failed to raise the
presumption resulted in passing the impugned judgment
which is required to be set aside. Making such submission,
the learned Special Public Prosecutor for the appellant-
State prays to allow the appeal.
11. Per contra, Sri. I.S.Pramod Chandra, the learned counsel
for the respondent vehemently justified the judgment and
order of acquittal passed by the Trial Court and submitted
that the Trial Court after appreciating the oral and
documentary evidence on record, recorded the acquittal
which is appropriate and interference with the said findings
may not be necessary.
12. It is further submitted that the prosecution has failed to
prove that the accused had demanded bribe as illegal
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gratification from PW.1 to get his work done. In fact, the
file pertaining to Sy.No.403 had already been gone to the
office of the Town Planning for further transaction. Mere
making allegations regarding demand of bribe is not
sufficient to establish the ingredients of the provisions as
stated supra.
13. It is further submitted that the evidence of all the
witnesses is consistent with regard to recovery of tainted
notes in the drawer of the table where the accused was
working, however, that recovery of amount is not sufficient
to prove the ingredients of Section 7 of PC Act. The
evidence of PW.1 clearly indicates that when PW.1 went
inside the office of the accused, she was not there in that
seat and it also admitted that PW.1 kept the amount in the
drawer which was opened. The Trial Court rightly
appreciated the evidence on record and recorded the
acquittal which is appropriate and interference with the said
findings may not be necessary. Making such submission,
the learned counsel for the respondent prays to dismiss the
appeal.
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14. After having heard the learned counsel for the respective
parties and also perused the findings of the Trial Court, the
points which would arise for my consideration are:-
a) Whether the judgment and order of acquittal
passed by the Trial Court is sustainable?
b) Whether the appellant herein made out a
grounds to interfere with the said order of
acquittal?
15. Before adverting to the facts of the case, it is relevant to
take note of the proposition of law regarding acquittal and
interference by the Appellate Court in the case of appeal
against acquittal. It is well settled principles of law that in
case of appeal against acquittal, the Appellate Court is
refrained from being interfered with the findings of the Trial
Court as a matter of routine. Nonetheless, the Appellate
Court can interfere where it finds perversity or illegality in
the findings of acquittal recorded by the Trial Court.
16. Having regard to the said proposition of law, now it is
relevant to refer to the provisions under Sections 7, 13(1)
(d) and 13(2) of P.C Act which reads as under:
"[7. Offence relating to public servant being
bribed.--Any public servant who,--
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(a) obtains or accepts or attempts to obtain
from any person, an undue advantage, with the
intention to perform or cause performance of
public duty improperly or dishonestly or to
forbear or cause forbearance to perform such
duty either by himself or by another public
servant; or
(b) obtains or accepts or attempts to obtain
from any person, an undue advantage, with the
intention to perform or cause performance of
public duty improperly or dishonestly or to
forbear or cause forbearance to perform such
duty either by himself or another public
servant; or
(c) performs or induces another public servant
to perform improperly or dishonestly a public
duty or to forbear performance of such duty in
anticipation of or in consequence of accepting
an undue advantage from any person,
shall be punishable, with imprisonment for a term
which shall not be less than three years but which may
extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section,
the obtaining, accepting, or the attempting to obtain an
undue advantage shall itself constitute an offence even
if the performance of a public duty by public servant, is
not or has not been improper.
Illustration.--A public servant, 'S' asks a person,
'P' to give him an amount of five thousand rupees to
process his routine ration card application on time. 'S'
is guilty of an offence under this section.
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Explanation 2.--For the purpose of this
section,--
(i) the expressions "obtains" or "accepts" or "attempts
to obtain" shall cover cases where a person being a
public servant, obtains or "accepts" or attempts to
obtain, any undue advantage for himself or for another
person, by abusing his position as a public servant or
by using his personal influence over another public
servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a
public servant obtains or accepts, or attempts to obtain
the undue advantage directly or through a third party.]
13. Criminal misconduct by a public servant.--[(1)
A public servant is said to commit the offence of
criminal misconduct,-
(d) if he,-
(i) by corrupt or illegal means, obtains for
himself or for any other person any valuable thing or
pecuniary advantage; or
(ii) by abusing his position as a public servant,
obtains for himself or for any other person any
valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant,
obtains for any person any valuabale thing or
pecuniary advantage without any public interest; or
(2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment for a
term which shall be not less than [four years] but
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which may extend to [ten years] and shall also be
liable to fine."
17. On careful reading of the above said provisions, it makes it
clear that the prosecution has to establish the demand and
acceptance of the illegal gratification by producing the
cogent and relevant evidence and prove the same beyond
all reasonable doubt. In the present case, PW.1 said to
have filed an application for the purpose of conversion of
agricultural land into non-agricultural. The said work was
not got over. Hence, he approached the authority and
verified the stages of the file. PW.1 learnt that the said file
was sent to Town Planning authority, however, full papers
pertaining to the said land were not sent.
18. PW.1 further learnt that the said file was pending with the
petitioner and approached her and requested to send entire
file to the Town Planning authority. He was demanded to
pay an illegal gratification of Rs.2,000/- to send the
records. According to him, he paid the amount as per the
direction of the respondent police and further procedure
was carried out by the respondent police in the office of the
petitioner.
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19. PW.2 said to be the shadow witness and said to have
accompanied PW.1 to approach the petitioner. However,
PW.2 was asked to wait outside the office and PW.1 went
inside the office. There is a contradiction between the
evidence of PWs.1 and 2 regarding the presence of the
petitioner in the office. As per the evidence of PW.1, when
he entered inside the office where the petitioner was
working, he did not find the petitioner. However, he had
noticed that the drawer of the table was kept open and he
kept the amount inside the drawer. On the other hand, the
evidence of PW.2 discloses that PW.1 has approached the
petitioner and asked the petitioner, as per the direction of
the petitioner, PW.1 kept the amount inside the drawer.
The said contradiction has been rightly noticed by the Trial
Court and recorded the acquittal which requires no
interference.
20. It is needless to say that to constitute an offence as stated
supra, the prosecution must prove that there was a
demand of illegal gratification and acceptance of the said
amount by the person who said to have do or not to do
official favour, being a public servant. The demand and
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acceptance is sine qua non to constitute an offence. In the
absence of the same, it cannot be said that the prosecution
has proved the case beyond reasonable doubt. Hence, I
am of the considered opinion that on reading of the
evidence of PWs.1 and 2, it may be inferred that the
prosecution has failed to prove the demand of the illegal
gratification by the accused.
21. The evidence of PW.3 and all official witnesses even though
consistently held that the amount of Rs.2,000/- which is
considered as illegal gratification demanded by the accused
was recovered, it is needless to say that mere recovery of
the tainted notes in the drawer of the table where the
petitioner was using is not sufficient to record the
conviction.
22. To fortify my view regarding the recovery of amount is not
sufficient to record the conviction, it is appropriate to refer
to the judgment of the Hon'ble Supreme Court in the case
of MEENA v. STATE OF MAHARASHTRA1 , wherein it is
held that:
(2005) 5 SCC 21
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"PREVENTION OF CORRUPTION ACT, 1947 -
Section 5(1)(d) and Penal Code Ss 161, Trap,
Evidence, charge against the appellant
Revenue Record Keeper in Collectorate of
demand and accepting Rs.20 as illegal
gratification for doing an official act of
sending the relevant records to copying
section/--- Currently note of Rs.20
denomination found to be lying on the pad of
the table - phenolphthalein test showing
positive result- defence version was that the
currency note when attempted to be thrust
into appellants hand by PW1, appellant
pushed it away and in the process the note
fell on the pad of the table - One shadow
witness in the trap party not examined and
another shadow witness treated as hostile by
prosecution - Other material witnesses not
examined by prosecution. Corroboration of
trap evidence wanting. Held, mere recovery
of the currency note ,, and positive result of
the phenolphthalein test not enough in the
peculiar circumstances of the case, to
establish guilt of the appellant on the basis of
perfunctory nature of materials and
prevaricating type of evidence. Charge must
be proved beyond reasonable doubt.
Testimony of complainant needs
corroboration."
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23. It is also necessary to rely on the judgment of the Hon'ble
Supreme Court in the case of SURAJ MAL v. THE STATE
(DELHI ADMINISTRATION)2 , where it is held that if two
inconsistent statements are made by the witnesses in their
evidence either at one or two stages, the testimony of
those witnesses become unreliable and unworthy of
credence and in the absence of special circumstances no
conviction can be based on the evidence of such witnesses.
It is well settled principles of law that if two views are
possible from the case of the prosecution evidence , the
one which is favourable to the accused has to be
considered.
24. In the light of the foregoing reasons stated supra, it may
be inferred that the findings of the Trial Court in recording
the acquittal appears to be proper and the appellant-State
has not made out any grounds to interfere with the said
findings.
25. In the light of the observations made above, the points
which arose for consideration answered as follows:
AIR 1979 SC 1408
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Point No.(i) - "Affirmative"
Point No.(ii) - "Negative"
26. Hence I proceed to pass the following:
ORDER
The criminal appeal is dismissed.
Sd/-
JUDGE
UN,
