R.Nagaraju vs State By Lokayukta Police
2024 Latest Caselaw 4710 Kant

Karnataka High Court

R.Nagaraju vs State By Lokayukta Police on 16 February, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

                                1




   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF FEBRUARY, 2024

                          BEFORE

 THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR

            CRIMINAL APPEAL No.659/2013


BETWEEN :

R Nagaraju
S/o Rangaiah
Aged about 37 years
Civil Police Constable
Ashokapuram Police Station
R/at No.4, Kabini Block
Jyothinagar
Mysore.
                                               ... APPELLANT

(By Sri Tigadi Veeranna Gadigeppa, Advocate)

AND :

State By Lokayukta Police
Mysore
Represented by State Public
Prosecutor, High Court Building
Bangalore.
                                         ... RESPONDENT

(By Sri B S Prasad, Spl. P P)
                                 2




      This Criminal Appeal is filed under Section 374(2)
Cr.P.C praying to set aside the Judgment/order of
conviction and sentence dated 22.06.20213 passed by
the III Additional Sessions and Spl. Judge, Mysore in Spl.
Case No.105/2010 - Convicting the appellant/accused for
the offence P/U/S 7 and 13(1)(d) R/W Section 13(2) of
the prevention of corruption Act, 1988 and etc.,

    This Criminal Appeal having been heard and reserved
for   judgment,     this     day,    SHIVASHANKAR
AMARANNAVAR J, delivered the following;


                         JUDGMENT

1. This appeal is filed challenging the judgment of

conviction dated 22.06.2013 and the order of sentence

dated 24.06.2013 passed in Spl.C. No. 105/2010 by the III

Additional Sessions and Special Judge, Mysuru. The

appellant - accused has been convicted for offence under

Sections 7 and 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act (hereinafter referred to as `the

Act'). The appellant - accused is sentenced to undergo

rigorous imprisonment for a period of 1 year and to pay fine

of Rs.5,000/- for offence under Section 7 of the Act and

further sentenced to undergo rigorous imprisonment for a

period of 2 years and to pay fine of Rs.5,000/- for offence

under Section 13(2) of the Act. The trial Court has ordered

both the sentences to run concurrently.

2. Factual matrix of the prosecution case is as

under:

A. That the appellant - accused was working as a Civil

Police Constable in Ashokapuram Police Station, Mysuru

during November 2008; that the complainant - Basavaiah is

a retired person and there was marital dispute between his

daughter and son-in-law and in this regard, the brother-in-

law of the daughter of the complainant by name Sri.

Bhaskar quarreled with the complainant and in this regard,

he has lodged a complaint with Ashokapuram Police Station

which is registered in Crime No. 73/2008. It is the further

case that, Sri. Bhaskar has also lodged a complaint against

the complainant and others in Ashokapuram Police Station

on 30.09.2008 which is registered in Crime No. 74/2008.

When the complainant after lodging the complaint on

29.09.2008 went to Police Station for furnishing the

property extract of his house, the appellant - accused being

an Assistant to the Investigating Officer brought to his

notice that a complaint was lodged against him and his

family members and asked him to obtain necessary bail in

this regard.

B. Thereafter the complainant approached the

Sessions Court and on 05.11.2008, he got anticipatory bail

order from the Court. On 17.11.2008, when the

complainant along with his friend Sri. B. Gurusiddaiah went

to Police Station for offering surety, as the Officer was not

there, he approached the appellant - accused and the

appellant - accused directed them to get the matter

compromised and threatened that in case they do not get it

settled, he will fix his family members in other crimes and

also demanded Rs.5,000/- as illegal gratification. In this

regard, the complainant has lodged a complaint with

Lokayuktha Police on 21.11.2008, which was registered in

crime No. 15/2008.

C. Then the Investigating Officer has secured two

panchas and drawn Entrustment Panchanana and got

produced Rs.2,000/- to be paid to the appellant - accused

and then along with his staff and panchas laid the trap and

on the same day between 06.10 pm and 06.15 pm, in front

of the Police Station when the complainant approached the

appellant - accused along with shadow witness Sri.

Venkatesh, it is alleged that the appellant - accused has

demanded and accepted the illegal gratification of

Rs.2,000/- from the complainant and at that time, the

appellant - accused was trapped red handed. It is also

alleged that the amount was also recovered from the

custody of accused and his hand wash was taken as well as

his pant pocket was taken which had shown positive to the

Phenolphthalein Test and the Investigating Officer has

drawn a trap panchanama. It is also alleged that, thereafter

the Investigating Officer seized certain records from the

Police Station and after necessary sanction and after

completing the investigation submitted the charge sheet

against the appellant - accused.

3. The trial Court framed charge for offence under

Section 7 and Section 13(1)(d) and 13(2) of the Act. In

order to prove the charge, the prosecution examined P.W.1

to P.W.10 and got marked Ex.P.1 to Ex.P.29 and M.O.1 to

M.O.11. Statement of the appellant - accused came to be

recorded under Section 313 of Cr.P.C. The appellant -

accused got himself examined as one of the defence

witnesses, i.e., D.W.1 and also got examined one witness

as D.W.2 and got marked Ex.D.6 to Ex.D.16. Ex.D.1 to

Ex.D.5 came to be marked in the cross-examination of

prosecution witnesses. The trial Court after hearing

arguments formulated points for consideration and after

appreciating the evidence on record convicted the appellant

- accused for the offence as noted supra and also passed

order on sentence as noted supra. The said judgment of

conviction and order of sentence has been challenged in

this appeal.

4. Heard learned counsel for the appellant -

accused and learned Spl.PP for respondent.

5. Learned counsel for appellant - accused would

contend that the appellant - accused was not in a position

to give official favour to P.W.1 and it is the officer who has

to take the bail bond. If the appellant - accused had refused

to take bail bond, there were other officers in the Police

Station and P.W.1 - complainant could have approached

them for executing the bail bond. He contends that getting

executed bail bond is not the work of appellant - accused as

he is working as a Police Constable. He contends that it was

not the intention of P.W.1 - complainant to execute the bail

bond but somehow to trap the appellant - accused as

appellant - accused is related to one Sri. Bhaskar who was

the complainant in crime No. 74/2008 and he insisted

P.W.1 - complainant to compromise the matter. He

contends, that P.W.1 in his evidence has stated that he has

been falsely implicated in crime No. 74/2008 and appellant

- accused forced him to compromise the said case and

therefore, he approached the Lokayuktha and filed a

complaint. P.W.1 has also admitted in his cross-

examination that he was upset as the appellant - accused

forced him to compromise the case. He further contends

that the complaint filed by the said Sri. Bhaskar is at Ex.P.7

and the statement of witnesses in the said crime No.

74/2008 which are at Ex.P.10 to Ex.p.18 indicate serious

allegations against P.W.1 - complainant. The appellant -

accused had an opportunity to demand bribe or arrest

P.W.1 when he visited him instead he advised him to apply

for grant of anticipatory bail. It is the case of prosecution

that P.W.8 who is a surety to P.W.2 went with him to the

Police Station to execute bail bond, but, P.W.8 has not

supported the case of the prosecution in that regard and as

he is a retired Principal of college his version before the

Court cannot be discarded. It is his contention that the

prosecution in order to establish the charge has to prove

the demand of bribe and also acceptance. He contends that

P.W.1 switched on the tape recorder after sometime of

meeting the appellant - accused and it is the deliberate act

of the appellant - accused to hide the conversation between

him and appellant - accused. Said deliberate act of P.W.1

is only to implicate appellant - accused as he is the relative

of Sri. Bhaskar who has lodged the complaint. He contends

that on perusal of Ex.P.2 - Entrustment Mahazar and

evidence of P.W.1, P.W.2 and P.W.5, it is clear that the spot

is inside the Police Station, but, mahazar is drawn showing

the spot as outside the Police Station. In Ex.P.2 -

Entrustment Mahazar it is stated that tainted money is kept

in the shirt pocket of P.W.1 but evidence of P.W.1, P.W.2

and P.W.5 show that when P.W.1 took out from his pocket

envelop containing cash and he gave it to the appellant -

accused. Said aspect clearly indicates that P.W.1 has

handled the tainted currency notes after Ex.P.2 -

Entrustment Mahazar and before reaching the spot which is

the Police Station. The appellant - accused has received the

said envelop as P.W.1 told that it contained a letter and not

as bribe. Except P.W.1 there are no other witnesses to

speak about the demand of bribe. P.W.5 - shadow panch

has stated that he was not able to hear the conversation

due to traffic sound. Handing over of the envelop said to be

containing tainted currency notes by P.W.1 to the appellant

- accused is by deceitful means stating that it contained a

letter and appellant - accused received the same as if it

contained a letter and he did not receive it as bribe. As per

the evidence of P.W.1 one person accompanied P.W.1 who

went inside the Police Station and that person has not been

examined by the Investigating Officer and therefore,

adverse inference is required to be drawn. The appellant -

accused, immediately after the incident, gave a statement

in writing stating that he received the envelop as if it

contained a letter. That itself establishes that he has not

received the cover as bribe money. The appellant - accused

has rebutted the presumption raised under Section 20 of

the Act. The prosecution has not proved the foundational

facts to raise presumption under Section 20 of the Act. The

prosecution has to prove foundational facts, i.e., position of

the appellant - accused to make official favour, demand and

acceptance of bribe. Learned counsel for appellant -

accused placed reliance on the decision of the Hon'ble Apex

Court in the case of Neeraj Dutta Vs. State (Govt. of

N.C.T. of Delhi) rendered on 17.03.2023. On these

grounds, learned counsel for appellant - accused prays to

allow the appeal and acquit the appellant - accused.

6. Per contra, learned Spl.P.P. appearing for the

respondent would contend that the very fact that P.W.1

stated that he stood at gunman point itself show that he

was standing outside the Police Station. It corroborates with

the evidence of P.W.5 who has stated that the spot is

outside the Police Station compound. He contends that the

evidence of P.W.1 and P.W.5 establish the demand of bribe.

The appellant - accused was incharge of the Police Station

and has demanded bribe for executing the bail bond and

settlement of his case. He contends that P.W.8 might have

not supported the case of the prosecution due to time gap

and due to his age. There is no cross-examination regarding

pre-trap, post-trap mahazar and FSL report. The appellant -

accused has not rebutted the presumption raised under

Section 20 of the Act. The said one person has stated that

P.W.1 may be the person in the Police Station and therefore

there is no question of examination by the Investigating

Officer. The appellant - accused has not given any

explanation at the time of recording of his statement under

Section 313 of Cr.P.C. He contends that pendency of work

is not the criteria. There is minor discrepancy with regard to

envelop handed over by P.W.1 to appellant - accused and

on perusal of the FSL report it is clear that hand wash of

appellant - accused turned pink and wash contains

Phenolphthalein powder. Learned Spl.PP has relied upon the

following decisions.

1. "Neeraj Dutta V. State (Govt. of N.C.T. of Delhi), AIR 2023 SC 330.

2. Phula Singh V. State of Himachal Pradesh, AIR 2014 SC 1256.

3. M. Narsinga Rao v. State of A.P., AIR 2001 SC

318.

4. State of A.P. V. C Uma Maheswara Rao and another, AIR 2004 SC 2042.

5. C.M Sharma V. State of A.P. TH.I.P, AIR 2011 SC

608.

6. C.I. Emden Appellant V. State of U.P., AIR 1960 SC 548.

7. V.D.Jhingan V. State of U.P., AIR 1966 SC 1762.

7. Having heard the learned counsel for the parties and

on perusal of the record the following point arises for my

consideration.

"Whether the trial Court erred in convicting the appellant - accused for offence under Section 7 and Section 13(2) of the P.C. Act?"

8. My answer to the above question is in the

affirmative for the following reasons.

8A. The Constitution Bench of the Hon'ble Apex Court

in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of

Dehli), reported in AIR 2023 SC 330 has considered what

are the requirements to raise presumption under Section 20

of the Act and has held as under:

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the

basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

(f) --------------------

(g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.

(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."

8B. The Hon'ble Apex Court by referring to the

judgment of the Constitution Bench rendered in the case of

Neeraj Dutta (supra) has observed in the case of Neeraj

Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in

2023 Live Law (SC) 211 as under:

"11. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj and P. Satyanarayana Murthy. There is another decision of a three Judges' bench in the case of N. Vijayakumar v. State of Tamil Nadu, which follows the view taken in the cases of B. Jayaraj' and P. Satyanarayana Murthy. In paragraph

9 of the decision in the case of B. Jayaraj, this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9 this Court held thus:

"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 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."

(emphasis added)

The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification

shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.

12. In the case of N.Vijayakumar, another bench of three Hon'ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held 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 [C.M. Girish Babu v. CBI, (2009) 3 SCC 779: (2009) 2 SCC (Cri) 1] and in B.

Jayaraj v. State of A.P. [B. Jayaraj v.

State of A.P., (2014) 13 SCC 55: (2014) 5 SCC (Crl) 543] 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 criminal jurisprudence gets doubled by acquittal recorded by the trial court."

(emphasis added) Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.

14. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand."

8C. Learned counsel for respondent, with regard to

presumption under Section 20 of the P.C. Act has relied

upon a decision of the Hon'ble Apex Court in the case of M.

Narasinga Rao Vs. State of A.P. reported in AIR 2001

SC 318 wherein it is held as under:

"17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.

18. For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. However, as a caution of

prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra (1998) 7 SCC 337 : (1998 AIR SCW 3182: AIR 1998 SC 3258:

1998 Cri LJ 4592). "A presumption can be drawn only from facts and not from other presumptions - by a process of probable and logical reasoning."

19. Illustration (a) to Section 114 of the Evidence Act says that the Court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." That illustration can be profitably be used in the present context as well when prosecution brought reliable materials that appellant's pocket contained phenolphthalein smeared currency notes for Rs.500/- when he was searched by PW-7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other

circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the Court to draw a factual presumption that appellant had willingly received the currency notes."

8D. In the judgment relied upon the by the learned

counsel for respondent in the case of State of A.P. Vs. C.

Uma Maheswara Rao and another reported in AIR 2004

SC 2042 with regard to presumption the Court has

observed thus:

"12. Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 20(1) of the Act, it must have the same import of compulsion.

13. When the sub-section deals with legal presumption, it is to be understood as terrorem ie in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. (See M. Narsinga Rao v. State of A.P., 2001 (1) SCC 691).

14. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton, L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB

988) observed as follows:

"Proof does not mean proof to rigid mathematical demonstration, because that is impossible, it must mean such evidence as would induce a reasonable man to come to a particular conclusion."

15. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.

16. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final

conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.

17. For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra (1998 (7) SCC 337) "A presumption can be drawn only from facts- and not from other presumptions - by a process of probable and logical reasoning."

9. In the light of the above it is required to

consider whether the prosecution has established the

foundational facts to raise presumption under Section 20 of

the Act. Said foundational facts are;

a. whether the appellant - accused was in a

position to make official favour;

b. demand and acceptance of bribe;

c. acceptance of money knowing it to be bribe.

10. P.W.1 is the complainant and he had filed

complaint against one Sri. Bhaskar and others which came

to be registered in crime No. 73/2008 and said Sri.

Bhaskar, inturn, had also filed counter complaint against

P.W.1 and his family members which came to be registered

in crime No. 74/2008. As per the evidence of P.W.1 when

he met the appellant - accused on 30.09.2008 to furnish his

wound certificate the appellant - accused told him regarding

registration of complaint of Sri. Bhaskar in crime No.

74/2008 and asked him to get bail in that case or otherwise

he will be arrested. It is further evidence of P.W.1 that

when he went and met the appellant - accused on

17.11.2008 to execute bail bond and furnish surety as per

the order of the Sessions Court, Mysuru, at that time, the

appellant - accused told him to enter into compromise and

also demanded Rs.5,000/-. According to P.W.1, on

17.11.2008 he was accompanied by P.W.8 who had agreed

to stand as a surety to him. It is alleged that appellant -

accused did not take the bond and accepted the surety and

therefore, they returned. It is the case of P.W.1 that, at

that time on 17.11.2008, the appellant - accused asked him

to compromise the matter and demanded Rs.5,000/-. P.W.8

is a friend of P.W.1 and he has denied having gone along

with P.W.1 to Ashokapuram Police Station, Mysuru, to stand

as surety to P.W.1. P.W.8 is a retired Principal of

Government First Grade College. Therefore, this testimony

of P.W.1 regarding demand of bribe by appellant - accused

is not corroborated by P.W.8 who had accompanied P.W.1

on 17.11.2008.

11. The appellant - accused is working as a Police

Constable in Ashokapuram Police Station, Mysuru and is not

the Police Officer who is having authority to accept the bail

bond and surety bond in compliance of the order of Courts.

There were other Police officers in Ashokapuram Police

Station, Mysuru, namely, Sri. Chinnaswamy to whom P.W.1

had showed his bail order and the said Sri. Chinnaswamy

was the Police Inspector. P.W.1 did not approach any of the

Police Officers in Ashokapuram Police Station, Mysuru to

accept his bail bond and surety.

12. P.W.1 in his cross-examination has admitted that

as appellant - accused insisted him to compromise the

matter with the family members of his son-in-law, it had

caused him annoyance against appellant - accused and in

that regard he had talked with his friend and thereafter

decided to file complaint to the Lokayuktha.

13. P.W.1 even in the cross-examination has

admitted that prior to the filing of the complaint by him to

the Lokayuktha Police he had executed bond in the Court.

Therefore, P.W.1 is not upset because of non-acceptance of

bail bond and surety bond by the appellant - accused but, it

is because that the appellant - accused insisted P.W.1 to

compromise the matter with the family members of his son-

in-law. If the appellant - accused insisted P.W.1 to

compromise the matter, there is no question of he

demanding bribe for the said purpose. P.W.1 found that the

appellant - accused was favouring Sri. Bhaskar who is the

brother of his son-in-law and to take grudge against the

appellant - accused he had filed the complaint to the

Lokayuktha. P.W.1 even admitted that the appellant -

accused is favouring the said Sri. Bhaskar and he was upset

as the appellant - accused was in favour of the said Sri.

Bhaskar and as the appellant - accused insisted him to

compromise the matter.

14. Therefore, it appears, that prior to filing of the

complaint there is no demand of bribe by the appellant -

accused and it is the created story of P.W.1 against the

appellant - accused as he found appellant - accused

favouring Sri. Bhaskar and insisting him to compromise the

matter and it caused him annoyance. Therefore, the

prosecution has not established that there is demand of

bribe by the appellant - accused prior to filing of complaint

by P.W.1.

15. Even on the date of trap P.W.1 has stated that

he met the appellant - accused in the Police Station. The

appellant - accused asked him whether he had brought the

money and he asked him to give money and he gave

currency notes kept in his pocket which were smeared with

Phenolphthalein powder and appellant - accused took them

with the right hand and kept in his right side pant pocket.

P.W.5 is a shadow panch who had accompanied P.W.1 when

P.W.1 met appellant - accused in the Police Station. P.W.5

has not stated any demand of bribe by the appellant -

accused with P.W.1. He has stated that he was standing at

10 feet distance and he could not hear the conversation

between P.W.1 and appellant - accused. Therefore, even

demand at the time of trap is only stated by P.W.1 and it is

not corroborated by P.W.5. Therefore, the prosecution has

not proved the demand of bribe by the appellant - accused

with P.W.1 on the date of trap.

16. The Entrustment Mahazar - Ex.P.2 and evidence

of panch to the Entrustment Mahazar, i.e., P.W.2 and P.W.5

will show that the currency notes smeared with

Phenolphthalein powder were kept in the shirt pocket of

P.W.1. P.W.1 in his cross-examination has stated that

currency notes were kept in a small white envelop which

was kept in his pocket and he has given said envelop to the

appellant - accused. Considering the said aspect, learned

counsel for appellant - accused argued that when the

tainted currency notes were kept in the shirt pocket of

P.W.1, he had handled the tainted currency notes and kept

them in an envelop. Therefore, he has tampered the

currency notes smeared with Phenolphthalein powder.

17. P.W.1 gave envelop said to contain the tainted

currency notes to appellant - accused. It is the defence of

appellant - accused that he received the said envelop when

P.W.1 gave said envelop stating that there is some letter to

be looked into by him and he has not received the said

envelop as a bribe. Said contention of the appellant -

accused can be fortified in his statement given in writing

immediately after the trap which is at Ex.P.20. In Ex.P.20 it

is stated that P.W.1 and another person came to the Police

Station when appellant - accused was on duty and asked

him to come out as they intended to talk to him and when

he came out and when he was talking in front of Police

Station, at that time, P.W.1 stated that there is some letter

with regard some matter and he has to read it and to help

them and gave envelop and he attempted to return the said

envelop, at that time, the Lokayuktha Police caught him. In

view of grudge by P.W.1 against the appellant - accused as

he was insisting for compromise of the case and counter

case filed by P.W.1 and Sri. Bhaskar and tampering the

tainted currency notes kept in his pocket by keeping in an

envelop indicates that P.W.1 intended to take revenge

against the appellant - accused. Said aspect also goes to

show that the appellant - accused has not received the said

envelop containing tainted currency notes in it as bribe but

as a letter. Therefore, said aspect will not establish that the

appellant - accused has accepted the bribe amount.

18. Ex.P.25 is the sketch of the scene of offence and

on perusal of the same it is clear that giving of the bribe

and accepting the bribe have taken place outside the

compound and gate of Ashokapuram Police Station, Mysuru.

In Ex.P.25, P.W.1, P.W.2, P.W.5 and position of the

Investigating Officer and his staff are shown outside the

compound and gate of Ashokapuram Police Station, Mysuru.

Even as per P.W.2 - panch and P.W.5 - shadow panch the

spot is outside the Police Station. Even in Ex.P.21 - rough

sketch prepared by the Investigating Officer the spot of the

incident is shown as outside the compound of Ashokapuram

Police Station, Mysuru. P.W.1 has stated in his chief

examination that the spot is inside the Police Station.

Therefore, there is contradiction in the evidence of P.W.1

with regard to the spot as per the prosecution case and

evidence of P.W.2, P.W.5 and P.W.10.

19. P.W.5 in his chief examination has stated that

along with P.W.1 one more person went inside the Police

Station and he did not know his name and P.W.1 and that

another person who came with P.W.1 went upstairs and

thereafter P.W.1 and that another person and appellant -

accused came out and all the three persons went near the

Police Station compound and gate. Said another person is

supposed to be the eye witness to the trap, i.e, demand

and acceptance. The Investigating Officer has not enquired

with regard to that another person who had accompanied

P.W.1 when he met the appellant - accused person.

Therefore, adverse inference requires to be drawn with

regard to non-examination of that another person who had

accompanied P.W.1 when he met the appellant - accused at

Ashokapuram Police Station, Mysuru.

20. P.W.1 has stated that he did not have the phone

number of appellant - accused and he has not contacted the

appellant - accused over phone. The appellant - accused

who has been examined as D.W.1 has stated that P.W.1

and his acquainted person Sri. Puttaswamy had contacted

him over phone and in order to establish the same he has

produced the call details of the phone numbers of himself,

P.W.1 and said Sri. Puttaswamy which are at Ex.D.8 to

Ex.D.10. Ex.D.8 to Ex.D.10 contains the details of phone

calls made by P.W.1 to appellant - accused, phone call by

D.W.2 to the appellant - accused on the date of trap and

also on the previous dates. Therefore, said evidence of

P.W.1 that he is not having the phone number of the

appellant - accused and he and Sri. Puttaswamy - P.W.2

have not contacted the appellant - accused over phone

appears to be false. It appears, that P.W.1 with an intention

to take revenge against the appellant - accused had stated

all these aspects in his evidence. All these above aspects

would go to show that the prosecution has not established

the foundational facts to attract presumption under Section

20 of the Act. The appellant - accused by the cross-

examination of the witnesses and examining himself as

D.W.1 and examining another witness as D.W.2 and his

statement - Ex.P.20 has rebutted the presumption under

Section 20 of the Act. The appellant - accused has not

received envelop given by P.W.1 to him knowing it to be

bribe. The trial Court without considering all these aspects

has erred in convicting the appellant - accused for the

offence under Sections 7 and 13(2) of the Act.

In the result, the following;

ORDER

I. The appeal is allowed.

II. The impugned judgment of conviction dated

22.06.2013 and order of sentence dated

24.06.2013 passed in Spl.C. No. 105/2010 by

the III Additional District and Sessions and

special Judge, Mysuru is set aside.

III. The appellant - accused is acquitted for offence

under Sections 7 and 13(2) of the P.C. Act.

Sd/-

JUDGE

LRS.