Karnataka High Court
Laxman D/O. Dundappa Jagadale vs State Of Karnataka on 16 February, 2024
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CRL.A No. 2676 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 2676 OF 2012
BETWEEN:
LAXMAN S/O. DUNDAPPA JAGADALE,
AGE: 31 YEARS, OCC: SERVICE,
R/O: MAMADAPUR, TQ: CHIKKODI,
DIST: BELGAUM.
...APPELLANT
(BY SRI. , ADVOCATE)
AND:
STATE OF KARNATAKA,
BY LOKAYUKTA POLICE, BELGAUM,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI. ANIL KALE, SPL. PP)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
Digitally signed
by CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
SHIVAKUMAR
HIREMATH
Date: JUDGMENT OF CONVICTION AND SENTENCE DATED 30.04.2012,
2024.02.21
16:04:00 +0530
PASSED BY THE LEARNED SESSIONS JUDGE AND SPECIAL JUDGE
[PCA], BELGAUM IN SPECIAL CASE NO.111/2010 AND ON
PERUSAL OF THE SAME BE PLEASED TO SET ASIDE THE ORDER
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR HEARING HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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CRL.A No. 2676 of 2012
JUDGMENT
This appeal is preferred by the convicted accused
against the judgement of conviction and order of sentence
dated 30.04.2012 passed in SC.NO.111/2010 by the IV
Addl. District and Sessions Judge and Special Judge (PCA),
Belgaum, wherein, the Learned Special Judge has
convicted the accused for the offence punishable under
Section 7 and 13(1)(d) r/w Section 13 (2) of Prevention of
Corruption Act, 1988 (for short 'PC Act') and sentenced
him to undergo rigorous imprisonment for a period of one
year and to pay fine of Rs.5,000/- and in default of
payment of fine, he shall further undergo simple
imprisonment for a period of three months for the offence
punishable under Section 7 of PC Act and he is also
sentenced to undergo rigorous imprisonment for a period
of two years and to pay fine of Rs.10,000/- and in default
of payment of fine he shall further undergo simple
imprisonment for a period of two months for the offence
punishable under Section 13(1)(d) r/w Section 13(2) of PC
Act. Further, learned Special Judge has also ordered that
both the sentences shall run concurrently.
2. The case of the prosecution as presented before
the trail Court as borne out from the records are as under:
Complainant-PW.6, Maruti Barji, was residing with
his elder brother and sister-PW.11 who were handicapped
and receiving handicapped pension of Rs. 400/- in that
regard from the Government on monthly basis. Further,
PW.6 on receipt of knowledge of enhancement of
handicapped pension from Rs.400/- to Rs.1,000/-, filed an
application annexed with necessary documents for
enhancement of disability pension to the accused who was
working as Village Accountant, Mamadapur. The
consideration of said application was dragged for one or
the other reason by the accused for a period of 3 months
and when queried by PW.6, he demanded Rs.6,000/- for
processing the same. The prosecution further presented
the case that, without any alternative, complainant-PW.6
paid Rs.2,000/- to the accused to get the work done and
when accused demanded the balance amount of
Rs.4,000/-, constrained, PW.1 along with his friend
approached Lokayukta Police, Belgaum and filed the
complaint as per Ex.P10 before PW.12 and PW.12
registered the FIR as per Ex.P.28 for aforesaid offences
and subsequently, an Entrustment Panchanama as per
Ex.P17 was drawn in the presence of PW.6-complainant,
PW.7-shadow witness and PW.8-second pancha and
accordingly, trap was conducted by the Lokayukta Police
and Investigation officer post trap, conducted the
Panchanama and also recorded the statement of all the
witnesses so also gathered the necessary documents and
laid the charge-sheet against the accused before the
Special Court.
3. Post taking cognizance, Learned Special Judge
framed charges against the accused for the
aforementioned offences and read over the same to the
accused. However, accused denied the charges and
claimed to be tried.
4. In order to prove the charges leveled against
the accused before the Special Court, the prosecution in
total examined 12 witnesses as P.W.1 to P.W.12, so also
got marked 36 documents as Ex.P.1 to P.36 and got
identified 8 material objects as MOs.1 to 8.
5. After completion of the prosecution evidence,
the learned Special Judge read over the incriminating
evidence of the material witnesses to the accused as
contemplated under Section 313 of Cr.P.C. Though, the
accused denied the same, he has chosen not to examine
any witnesses. However, he has produced certain
documents, in support of his defense. Since, they were
not originals/certified copies, they remained unmarked.
6. Subsequently, after assessment of the oral and
documentary evidence placed before the Learned Special
Judge, learned Special Judge, convicted the
accused/appellant for the charges leveled against him and
sentenced him as stated supra. The legality and
correctness of the said judgment is challenged under this
appeal.
7. Heard learned Senior counsel Sri.P.P.Hegde for
Sri. Vinay.K.Naik learned counsel for the appellant and Sri.
Anil Kale, leaned Spl. SPP for the Lokayukta.
8. Learned Senior counsel would contend that the
prosecution miserably failed to prove the basic
requirement of law to prove the charges levelled against
the accused, under Section 7 and 13 of the P.C.Act, for
the reason that, the prosecution failed to establish that
the work of the complainant-PW.6 was pending with the
accused as on the date of trap, either by adducing cogent
evidence or by placing documents to that effect. It is the
case of the prosecution that, PW.6 filed application along
with necessary documents for enhancement of the
disability pension of his elder brother and elder sister-
PW.11 along with the medical certificate before the
accused. For approval of the said application, the accused
had demanded Rs.6,000/- as such, PW.6 paid Rs.2,000/-
initially and since he was unable to pay the balance
demanded amount i.e., Rs. 4,000/-, he lodged the
complaint before Lokayukta Police as per Ex.P10. But, the
prosecution utterly failed to prove that such application
has been filed by PW.6, either before the accused or
before the Tahsildar-PW.3. On perusal of the evidence of
PW.3, he categorically admitted that, there was no such
application filed before him by PW.6 nor he filed the same
before the accused who was the then Village Accountant.
Though the prosecution relied on Exs.P4 and P5, those
documents are dated 02.09.2009 i.e., post conducting the
trap, as those documents depict that, no such application
had been filed by PW.6 before the accused or before the
Tahsildar till 06.06.2009. Further, PW.4-Revenue
Inspector also admitted in his cross-examination that no
such application has filed by the PW.6 before the accused
or in the 'Nemmadi Kendra', which is the competent
authority to receive such application. Admittedly, the
prosecution has not seized any such documents from the
possession or from the office of the accused. Hence, it
can be easily concluded that, as on the date of trap, there
was no such work pending before the accused. According
to the learned Senior counsel, though the prosecution
relied on the evidence of PW.5-said to be the assistant of
the accused, to substantiate that accused had received the
application from PW.6 and handed over the same to PW.5
and subsequently, after sometime, PW.5 had returned
those documents to the accused, the said version of PW.5
cannot be relied for the reason that, PW.4 being the
Revenue Inspector has admitted in his cross-examination
that PW.5 was no way concerned to the Office of accused
or his own Office. Further, P.5 has also, by himself,
admitted that, on search conducted by Lokayukta Police,
during the course of raid, they did not trace any such
application in the office of accused. Further, the accused
has produced document dated 28.08.2008 issued by the
Chikkodi Tahsildar one Sri.Ghore in his 313 statement
which depicts that one Shivananda Siddappa Talavara,
was appointed as Assistant to the Village Accountant of
Chikkodi with effect from 01.09.2008. Hence, as on the
date of trap i.e., 04.06.2009, the said Shivananda
Siddappa was working as Assistant to the accused. In
such circumstances, it cannot be said that, PW.5 was
working as Assistant to accused at the time of alleged
incident.
9. The learned Senior counsel would also contend
that, the accused being the Village Accountant of
Mamadapura Village, submitted a report to Tahsildar for
cancellation of handicapped pension of sister of PW.6 on
09.04.2009. Based on the said report of accused, the
Tahsildar, in-turn forwarded a report to the Assistant
Treasury Officer, Chikkodi dated 06.10.2009 for
cancellation of pension of the sister of PW.6, one Kasavva
who examined as PW.11. Enraged by the same, a false
complaint has been foisted by PW.6 against the accused at
the instance of Lokayukta Police. The learned Senior
counsel would also contend that, Doctor of the
Government Hospital, Chikkodi, has not issued any
certificate from 01.01.2009 till 03.06.2009, either to the
sister or the brother of PW.6; as they have not filed any
application or appeared before him for examination, to
issue the disability certificate. However, it is depicted
that, they appeared before the said Doctor only on
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01.08.2009, which is post laying the trap and obtained the
disability certificate from the said Doctor. According to
the learned Senior counsel, in order to apply for the
disability pension, disability certificate is the primary
document that has to be annexed along with the
application. Since, they both obtained the Disability
Certificate only after the incident, it cannot be presumed
that they filed application through PW.6, seeking
enhancement of the disability pension before the accused.
Hence, viewed from any angle, the prosecution failed to
prove the basic ingredient of Section 7 of P.C. Act, that,
the work of complainant-PW.6 was pending as on the date
of the raid. Hence, the learned Senior counsel would
submit that, the prosecution failed to prove the basic
ingredient in order to convict the accused for the charges
levelled against him.
10. The learned Senior counsel would also submit
that the prosecution failed to prove the demand and
acceptance of the illegal gratification by the accused by
leading cogent evidence. On perusal of the evidence of
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PW.12-Investigation Officer, he admitted in his evidence
that on the date of alleged trap, though a tape recorder
was provided to PW.6, to record the conversation between
himself and the accused, but PW.6 failed to record such
conversation. Hence, except oral evidence of PW.6,
absolutely no other evidence is placed by the prosecution
to prove the demand. Even, PW.5, in his evidence, has
also not whispered anything about the demand made by
the accused to get the work done. Even the evidence of
PW.6 is perused, in respect of the demand is concerned,
he deposed that, on the date of incident, he contacted the
accused and after accused/appellant came out from his
Office and reached near public road, he requested PW.6 to
give Rs.2,000/-. Per contra, PW.7-shadow witness
deposed that the accused demanded the bribe amount
outside his Office itself. Hence, there is a contradiction in
the evidence of PWs.6 and 7 in respect of the alleged
demand made by the accused. As far as the acceptance
of the bribe amount is concerned, admittedly, the amount
was lying near a bush adjacent to the public road.
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According to the prosecution, after receiving the bribe
amount and witnessing the Officials, accused had
decamped from the spot and in the midst of escaping he
had fell down and at that time, the amount had also
slipped from his pocket, which is not justified by leading
cogent evidence. Learned senior counsel would
vehemence that, it is the defense of the accused that,
since he submitted a report to cancel the pension of the
sister of PW.6 to the Tahsildar, out of vengeance, PW.6
has lodged a false complaint before the Lokayukta and the
Lokayukta Police, in order to trap the accused, visited his
office and called him to the public road near the house and
forcibly made an attempt to thrush the tainted money in
his pocket. At that time, he refused the same and in the
scuffle, he fell down and sustained injuries. In spite of
which, the Lokayukta Police registered a false case against
him. Counsel would contend that, at no point of time, he
had received the illegal gratification from PW.6. The
learned Senior counsel also contend that PW.5 is a planted
witness by the prosecution and he is no way connected to
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the office of the accused, as such his version cannot be
relied to draw an inference against the accused.
Accordingly, the learned Senior counsel prays to allow the
appeal. In support of his contention, learned Senior
counsel would rely upon the following decisions -
Sl.No Case description Citation
1. State of Punjab v. Madan (2013) 14 SCC
2. Punjabrao v. State of (2002) 10 SCC
3. T. Subramanian v. State (2006) 1 SCC 401
of T.N.,
4. N. Vijayakumar v. State (2021) 3 SCC 687
of T.N.,
5. K. Shanthamma v. State (2022) 4 SCC 574
of Telangana,
6. Chandrasha V State of Crl.A.No.200105/
Karnataka 2015 dated
16.02.2022
7. B N Swamy V State of Crl.A.No.1339/20
Karnataka 10 dated
27.03.2015
8. Manohar Dundappa Crl.A.No.100066/
Kabbur V State of 2015
Karnataka dated18.01.2024
11. Per contra, the learned Special Public
Prosecutor contended that the prosecution successfully
proved the basic ingredients charged against the accused
by adducing cogent evidence. On perusal of the evidence
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of PW.6, he categorically deposed that, he filed necessary
application for enhancement of the disability pension of his
sister and brother before the accused who was a Village
Accountant of Mamadapura Village. It is to process the
same, the accused had demanded illegal gratification by
PW.6. This evidence of PW.6 corroborates with the
evidence of PW.5, who is none other than the assistant of
the accused working in his Office. PW.5 deposed that,
PW.6 filed an application to the accused and the accused
handed over the same to him and after sometime, he, in-
turn returned the said applications to accused. Hence,
according to the learned SPP, the prosecution has proved
the pendency of the work of PW.6, before the accused. As
far as the demand and acceptance of the illegal bribe
amount is concerned, the evidence of PW.6-complainant
coupled with the evidence of PW.7-shadow witness and
PW.8-co-pancha corroborates to each other and they
categorically deposed that on the date of incident i.e., on
04.06.2009, they initially visited the Office of Lokayukta
and entrustment panchanama as per Ex.P17 was
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conducted in their presence and subsequently, Lokayukta
Officials applied phenolphthalein powder to the currency
notes and handed over the same to PW.6 and thereafter,
PW.6 contacted the accused and as per his say, they all
went to the office of the accused and the accused
demanded the bribe amount and PW.6 handed over the
same to him and thereafter the Lokayukta Police caught
hold of the accused and seized the tainted money.
Pursuantly, Lokayukta Officials washed the hands of the
accused, which turned into pink colour. Which very much
envisages that accused had accepted the bribe amount as
per his demand. Further, they have also deposed that a
trap panchanama was drawn in the Tahsildar Office of the
accused as per Ex.P21. Nevertheless, the prosecution also
proved that, during the course of trap, the accused made
an attempt to escape from the clutches of Lokayukta
Police and fell down on the road near the bush and
sustained injuries and got treated before PW.2-Doctor,
who deposed to that effect and issued the Wound
Certificate. In such circumstances, learned SPP would
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contend that, the prosecution has proved the charges
levelled against the accused beyond all reasonable doubt.
12. Learned SPP would further contend that the
defense of the accused is not probable one and quite
contradictory for the reason that, initially, the accused
stated that PW.6 demanded RTC pertaining to his father's
property and the accused provided the same and
thereafter while he proceeding to Tahsildar Office the
accused thrusted the currencies in his pocket. Whereas,
during 313 Statement, he stated that, since he submitted
a report to cancel the disability pension of his sister-
PW.11, out of vengeance, the trap was conducted. Hence,
the defense of the accused cannot be believable. With
these grounds, he prays to dismiss the appeal.
13. Having heard the learned Senior counsel for the
appellant/accused so also the learned SPP and on perusing
the records made available before me, the point that
would arise for my consideration is:
"i. Whether the Judgment under this appeal
suffers from any perversity or illegality?
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ii. Whether the learned Sessions Judge is
justified in convicting the accused for the offence
punishable under Sections 7 and 13(1)(d) r/w 13(2)
of PC Act?"
14. As both points are inter-linked to each other,
they are taken up together for consideration. Accordingly,
on careful perusal and re-appreciation of the evidence
placed by the prosecution before the trial Court, I find
that;
PW.1-Vijaya, the then Assistant Executive Engineer,
drawn spot ketch as per Ex.P1
PW.2-Dr. Gurulingappa, Medical Officer, issued
report as per Ex.P3-Wound Certificate and gave his final
opinion that, the injuries are simple in nature and can be
caused on coming in friction with hard and rough
substance.
PW.3- Ramesh Desai, the then Thasildar, deposed
that, no application for enhancement of handicapped
pension filed by PW.6 was pending in his office and to
verify the same he has perused the inward and outward
register maintained by his office. He has further deposed
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that, since 2007, "Nemmadi Kendra's "are being set-up
with the purpose of receiving applications pertaining to
handicapped pensions. He has issued report as per Ex.P4
and Ex.P5 and testified that the accounts of brother and
sister of PW.6 comes under the jurisdiction of Chikkody
Sub-treasury. Further, he has also issued Ex.P6-certficate,
certifying the work attendance of the accused.
PW.4-Mandanaiah Hiremath, the then Revenue
Inspector, deposed that, no application regarding
handicapped pensions pertaining to PW.6 are pending for
consideration in his office and they have been neither
received in the 'Nemmadi Kendra' nor from the office of
the accused. He has further deposed that, as on the date
of ride, Lokayukta Officials have searched for the
applications filed by PW.6 both in his office and also in the
office of the accused and they have not found any
application pending in their offices. He has identified
Ex.P7-copy of the tappal book, which was recovered by
the Lokayukta Police during the trap proceedings. He has
further deposed that PW.5 is not employed in his office
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and also he is not aware as to the fact that PW.5 is
employed in the office of the accused. He has partly
turned hostile to the prosecution case and denied the
alleged statement given by him before Lokayukta Police as
per Ex.P9 and stated that PW.5 is no where connected to
the office of the accused and his office and denied his
involvement in the search of documents in the office of
accused and himself, by the Lokayukta Police.
PW.5-Shrishail Sarapure, independent circumstantial
witness, deposed that, he has worked under accused for a
period of one year as his writer, was writing the records
pertaining to inward register and accounts register. He has
deposed that, PW.6 had approached accused regarding
the application for handicapped pension and on the day of
the incident, he rushed to the spot post alarmed from the
noises outside the office and witnessed that, accused
being injured, was lying down near the bush, 50-52
meters away from the office and Lokayukta Officers were
also present near the incident and he also witnessed the
money on the ground, where the accused had allegedly
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fell down. Further, the officials washed the hands of the
accused in chemical solution and the water turned to pink
color and as such, they took away the injured accused for
treatment, to Government Hospital. He has also deposed
that he know PW.6.
PW.6.Maruti Barji, Complainant and younger brother
of PW.11, reiterated the versions of Ex.P10 and he further
deposed that, post his complaint, on 04.06.2009, an
entrustment punchanama was drawn by the Lokayukta
Officials in the presence of witnesses PWs.7 and 8 as per
Ex.P17 and the tainted moneys i.e, 2 notes of 500/-
denomination and 10 notes of Rs.100/- denominations
was mixed in phenolphthalein solution, post him giving
those currencies to the Lokayukta Officials and
accordingly, the same was kept in his shirt on a
suggestion that, the same should be given to the accused
on demand of bribe. As such, he also identified the
photographs taken during the course of drawing the
Ex.P17 as per Exs.P11 to 16. Subsequently, he contacted
the accused to know about his whereabouts and as per his
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say, along with Lokayukta officials and PWs.7 and 8 went
to the office of the accused. He further deposed that, he
reached to the office of the accused and went inside the
office and when enquired regarding the pending
application, accused along with him came outside the
office near the road and demanded Rs.2,000/- from him
and consequently, he handed over the same to the
accused and he deposed that, consequently, when the
accused collected the same from him, he enquired the
accused as to the pending application and accused
informed him that, he will visit the office of PW.3 and
confirm him the status of application. Accordingly, when
the accused was returning to the office, he witnessed the
Lokayukta Police officials and being afraid, when he tried
to escape, fell on the ground 50-60metres away from the
place where he had handed over the money to the
accused. Subsequently, the Lokayukta Police caught hold
of the accused. Further, post him falling down, the tainted
money had also fallen on the ground and accused picked
the same and inserted in his pocket and as such, the
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Lokayukta officials, seized the tainted money from his
pocket and when his hand was inserted in chemical
solution, it turned into pink color. As such, they took the
accused to the hospital for treatment and thenceforth,
again took him to the office of PW.3, at around 6 pm and
searched the applications submitted by PW.6. However,
the applications were untraced in the office. Thereafter,
officials also prepared the trap panchanama as per Ex.P21
and siezed the tainted clothes of the accused as per
M.O.1. Further, he has also identified the photographs
taken at the time of trap as per Exs.P18 to 20 and 22.
Additionally, he has also deposed that, Lokayukta Officials
recorded the statement of PW.5 in PW.3's office, who
admitted the factual aspects of submitting the application
by PW.6 and thereafter took the accused along with them.
PW.7- Gurilingayya Hiremath-Shadow witness,
veterinary officer, according to him, on the date of
incident, he was called to Lokayukata Office by Pw.12 as
per Ex.P23 and he deposed that, on the said date, he was
explained as to the contents of Ex.P10 and he witnessed
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that Lokayukta officials received the money from PW.6
and mixed it with the chemicals and handed it over to
PW.8 and in-turn PW.8 kept the same in the shirt pocket
of PW.6 and guided him as to indicating by gestures once
accused received the bribe amount, post demand. He is
also a witness to the entrustment panchanama as per
Ex.P17. Further, he would submit that, himself, PW.6 and
along with officials went to chikkodi from Belgavi.
Pursuant to which, PW.6 contacted the accused to know
about his whereabouts and accordingly, on receipt of such
information from the accused, they all reached the office
of PW.3 situated in Chikkodi. Further, he deposed that,
PW.6 went inside the office of the accused and came out
of the office along with accused and at that time, he
witnessed that, accused demanded the bribe amount from
PW.6 and PW.6 handed over the tainted money to the
accused and accused counted the money and inserted
them in the trouser pockets and as such the Complainant-
PW.6 made the gesture to the Lokayukta Police and they,
on such gesture, rushed towards the accused to trap him
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and witnessing the same, the accused tried to flee away
from the spot and fell down 50 meters away from the
alleged place of incident near the bush and tainted money
also fell down from his pocket near the bush. Further, he
deposes that, Lokayukta police caught hold of the accused
and also recovered the tainted money from the ground
and handed over to PW.8 to count the same and as such,
they also conducted the chemical test on the hands of the
accused and the hands of the accused turned into pink
color. He identified the tested chemical containers seized
by the Lokayukta police as per M.Os 3 and 4. The money
collected by the Lokayukta Police from the ground near
the bush was marked as M.O.5. He deposed that,
thenceforth, accused was taken to the hospital for the
treatment and pursuant to which, accused was against
brought back to the office of PW.3 and a search for the
documents were conducted and application pertaining to
the application filed by PW.6 was untraced and as such,
his hands were again tested in chemical solutions as per
Ex.P6 and the same turned into pink color. He is also
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witness to the trap punchanama as per Ex.P21, wherein,
the cloths of the accused as per M.O.1 was also marked.
Further they also searched for the applications in the office
of the accused and the same was not found and
accordingly, Lokayukta Police also seized the Tappal book
as per Ex.27. He has also identified the photographs at
Exs.P18 to 20 and Ex.P22.
PW.8- Sanjeevkumar Yadav, Co-pancha to the
entrustment mahazar, reiterated the version of shadow
witness-Pw.7 and deposed, on the date of incident he had
been to the police station of the respondent/police and
witnesses the tainted money so also the mahazar drawn
as per Ex.P17 and accompanied PW.6, shadow witness
and Lokayukta officials in their vehicle and reached the
office of accused at Chikkodi and he witnessed that, both
PW.6 and 7 went inside the office of the accused and when
they came outside the office along with the accused, PW.6
gestured him and Lokayukta officials and on his gesture,
when Lokayukta police rushed to catch the accused, being
alarmed, accused tried to flee away from the spot, but, fell
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down near the bush, 50 meters away from the office and
as such, he also witnessed that the tainted money had
also fell down on the ground near the bush and on
inference made by the authorities, he picked up the
tainted money from the ground and when examined, he
found that, those were the tainted money and as such, he
also identified the chemical examination samples as per
M.O.3 and M.O.4 so also the clothes of the accused as per
M.O.6. Further, he deposed that, as accused was injured,
he was taken to the hospital and after first aid he was
again brought to the office of PW.3 and the application
filed by PW.6 was searched in the office of both PW.3 and
accused and enquiries was also made with PW.5 and he
stated that, he know accused and he was working as
assistant to accused when PW.6 had approached the
accused for enhancement of handicapped compensation to
their elder sister and brother and also had filed an
application in that regard. Further, he is a co-panch to the
trap mahazar as per Ex.P21, drawn at the office of PW.3
and subsequently, he also deposed that the accused had
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also tendered his voluntary statement as per Ex.P25,
denying the demand and acceptance of bribe itself.
Further, he also deposed that when the documents were
untraced they took the accused along and left to Belgaum.
PW.9- Dr.ravishankar, the then, Commissioner,
issued sanction order as per Ex.P27
PW.10-Yallapa Hanji, scribe of the complaint-Ex.P.10
and also accompanied the complainant-Pw.6 to the office
of the Lokayukta Police.
PW.11- Kasavva Barji, elder sister of PW.6, on behalf
of whom PW.6 had presented the application, deposed
that, she has not filed the application for enhancement of
handicapped pension but, her brother PW.6 had informed
her as to filing an application for enhancement of the
same. She further deposed that, she is unaware of the
accused and also the documents produced along with the
application and as such, she deposed that, she lacks
memory as to the date of examination conducted in the
hospital to assess their disability percentage and also the
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date on which such certificate came to be issued to her
and her brother. She has also conceded to the fact that
she is retired Anaganwadi teacher.
PW.12- Wilson Ugargol, Investigation officer,
received the complaint from PW.6 and on receipt of the
complaint registered the FIR against the accused for the
above mentioned offences in Crime No.6/2009 as per
Ex.P28 and also conducted the entrustment panchanama
in the presence of witnesses and panchas as per Ex.P17
wherein, M.O.2 and M.Os.7 to 9 were seized. Further, he
along with PW.6 and panchas visited to the office of the
accused and laid the trap and seized the tainted money
and articles and has draws trap panchanama as per
Ex.P21 in the presence of witnesses. He, post trap,
recorded the statement of all the witnesses and after
obtaining the records from the concerned authorities laid
the charge-sheet against the accused for the
aforementioned offences.
15. Before proceeding with the case on hand, I
would refer to the decision of the Hon'ble Apex Court in
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Neeraj Dutta v. State (NCT of Delhi), reported in
(2023) 4 SCC 731, wherein, the Hon'ble Apex Court
while summarizing the principles and scope of Section 7
and 13 of PC Act has held in paragraph No. 88 as under-
"88. What emerges from the aforesaid
discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by
the prosecution is a sine qua non in order to
establish the guilt of the accused public servant
under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the
accused, the prosecution has to first prove the
demand of illegal gratification and the subsequent
acceptance as a matter of fact. This fact in issue can
be proved either by direct evidence which can be in
the nature of oral evidence or documentary
evidence.
88.3. (c) Further, the fact in issue, namely, the
proof of demand and acceptance of illegal
gratification can also be proved by circumstantial
evidence in the absence of direct oral and
documentary evidence.
88.4. (d) In order to prove the fact in issue,
namely, the demand and acceptance of illegal
gratification by the public servant, the following
aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-
giver without there being any demand from the
public servant and the latter simply accepts the
offer and receives illegal gratification, it is a case of
acceptance as per Section 7 of the Act. In such a
case, there need not be a prior demand by the
public servant.
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(ii) On the other hand, if the public servant makes a
demand and the bribe-giver accepts the demand
and tenders the demanded gratification which in
turn is received by the public servant, it is a case of
obtainment. In the case of obtainment, the prior
demand for illegal gratification emanates from the
public servant. This is an offence under Sections
13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by
the bribe-giver and the demand by the public
servant respectively have to be proved by the
prosecution as a fact in issue. In other words, mere
acceptance or receipt of an illegal gratification
without anything more would not make it an offence
under Section 7 or Sections 13(1)(d)(i) and (ii),
respectively of the Act. Therefore, under Section 7
of the Act, in order to bring home the offence, there
must be an offer which emanates from the bribe-
giver which is accepted by the public servant which
would make it an offence. Similarly, a prior demand
by the public servant when accepted by the bribe-
giver and in turn there is a payment made which is
received by the public servant, would be an offence
of obtainment under Sections 13(1)(d)(i) and (ii) of
the Act.
88.5. (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.
88.6. (f) In the event the complainant turns
"hostile", or has died or is unavailable to let in his
evidence during trial, demand of illegal gratification
can be proved by letting in the evidence of any
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other witness who can again let in evidence, either
orally or by documentary evidence or the
prosecution can prove the case by circumstantial
evidence. The trial does not abate nor does it result
in an order of acquittal of the accused public
servant.
88.7. (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 Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law
under Section 20 of the Act is distinct from
presumption of fact referred to above in sub-para
88.5(e), above, as the former is a mandatory
presumption while the latter is discretionary in
nature.
16. Keeping in view the norms by the Constitutional
Bench of the Hon'ble Apex Court, if the case on hand is
carefully perused as to the evidences tendered before the
Special Court, PW.6 being the Complainant in this case
deposed that he being the younger brother, had applied
for enhancement of handicap pension to his sister and
brother before the accused and on this account, accused
had demanded for a bribe of rs.6,000/- from PW.6 and
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PW. 6 though had paid Rs. 2,000/-, was unable to pay the
balance demanded amount of Rs.4,000/- and as such, he
approached the Lokayukta police and filed the complainant
seeking for necessary action against the accused and
Lokayukta officials has proceeded with the compliant and
drawn entrustment mahazar as per Ex.P17 in the presence
of Panchas and travelled to the office of accused and laid
the trap on the gesture of PW.6 and recovered the tainted
money of Rs.2,000/- and has drawn the Trap Mahazar as
per Ex.P21 in the office of PW.3 post taking accused for
treatment at Government Hospital and taken the custody
of the accused.
17. Further, in order to prove the pendency of work
with the accused, prosecution has primarily relied upon
the evidence of PW.6 to PW.8 and also the evidence of
PW.5. If the evidence of PW.6 as discussed supra,
juxtapose the evidence deposed by PW.3- Thasildar who
has categorically deposed that, since,2007 application of
such kind are not received in the office of Village
Accountant, as, in order to receive the same, "Nemmadi
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Kendras" are situated in every Tahsiladar office and as
such, he has deposed on verification of inward and
outward register maintained in his office and also
'Nemmadi Kendra' situated in his office that, he has not
found any documents or the applications filed by the
PW.6, seeking for the relief as described and he would
also submit that, it is that, post receipt of such
applications from the 'Nemmadi Kendra's, they will be sent
to Revenue Inspector and also village Accountants for
verification through internal channel. Hence, in the
absence of records being filed in the 'Nemmadi Kendra'
there arises no such occasion to forward it to the Village
Accountant internally as deposed by PW.6. Additionally,
the prosecution in order to prove this aspect has relied
upon the evidence of PW.5 so also the trap Mahazar drawn
as per Ex.P21, to state that the application was filed
before accused and work was pending as on the date of
trap. To enunciate this position, if the evidence of PW.5 is
perused, I observe that, PW.5 in his evidence, has
pictured himself as the assistant working in the office of
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the accused and he has also deposed that, he had
witnessed PW.6, as he had come to meet the accused;
some weeks prior and handed over the application to the
accused who in-turn, had handed over the same to PW.5
and thereupon, PW.5 had handed over the same to the
accused back. But, as contended by the learned Senior
counsel, so also keeping in view the evidence of both
PWs.3 and 4 are concerned, if the evidence of PW.5 is
examined, the prosecution has utterly failed to prove the
fact that, PW.5 is the employee, working under or in the
office of the accused. For the reason that, PW.3 has
clearly deposed in his evidence that, though he has
witnessed PW.5 outside his office, within the vicinity, he is
neither the staff of PW.3 nor the staff of accused; working
in their respective offices. Further, this version put forth
by PW.3 corroborates to the evidence of PW.4 who has
also deposed in a similar manner. In order to buttress his
stand, learned senior counsel would persuade this Court to
a G.O dated 28.08.2008 bearing No. VaTaNa/50/08-09,
copy of which was also produced before the trial Court and
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would submit that, almost a year prior to the date of trap
itself, PW.3 has passed an order appointing one Sri.
Shivanand Siddappa Talawar as assistant to accused in
view of the death of earlier assistant who happens to be
father of Shivanand Siddap Talawar, who was working in
the same place. As such, from this evidence, it is evidently
clear that, PW.5 is no where connected to the office of the
accused. Hence, in the absence of such crucial connection
of PW.5 to the office of the accused, the version of the
prosecution that PW.5 has witnessed the application
received by the accused from PW.6, inside the office of the
accused, seems too farfetched truth.
18. Nextly, learned Senior counsel has also drawn
the attention of this Court to page 199 of the paper book
submitted before this Court and submits that, in order to
file an application for enhancement or seeking
handicapped pension, handicapped certificate is a much
required document. As such, he would submit that, if the
certificate issued by the Chief Medical Officer, Government
Hospital, Chikkodi, who is the competent authority to
- 36 -
issue the disability certificate is seen, then he has clearly
stated in the certificate at page 199 supra, that both
PW.11 and her brother has neither approached nor filed
an application before him, during the period of 01.01.2009
to 03.06.2009, requesting the Chief Medical Officer for
grant of disability Certificate by examining them and Chief
Medical Officer has further certified that, they have only
obtained such certificate, on 01.08.2009, which is
evidently post conducting trap. Hence, it is amply clear
that, as on the day PW.6 is alleging that he had filed an
application before the accused, there existed no disability
certificate in the possession of PW.6. In countenance to
this position, PW.11 has also deposed in her evidence
that, PW.6 has informed her about the enhancement made
by the Government and had also informed her that he will
be filing an application in that regard. Further, though she
has deposed that she do not remember the date, she has
accepted that in order to apply for the enhancement, they
have approached the Government Hospital for
examination and obtaining the disability certificate.
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Further, it is also accepted by all the official witnesses so
also the shadow and panch witness that the Lokayukta
officials, post trap has searched for the application filed by
PW.6 in the office of PW.3 and also in the office of
accused, the efforts of which has turned totally futile.
Admittedly, no documents were seized from the office of
accused. Moreover, though PW.3 has deposed that, there
are instructions to the village accountants, to receive the
applications of such kind and forward it to 'Nemmadi
Kendra', if the applicants are illiterate. Admittedly, as
deposed by PW.3 in his evidence, office of the accused is
situated behind the office of PW.3, i.e. the competent
authority to receive such applications, through 'Nemmadi
Kendra' situated in his office building. In such
circumstances, it is difficult to believe the fact that, PW.6,
leaving behind the office of PW.3, approached accused
requesting to forward his application despite of the fact, as
deposed by the Tahsildar and Revenue Inspector that,
accused had submitted a report against awarding
handicapped pension to PW.11. As she being a retired
- 38 -
Anganwadi teacher, belong to above poverty line
category. It is on these aspects, I find no merit in the case
put forth by the prosecution that there was work pending
with the accused relating to PW.6 as on the date of trap.
19. Further, in order to prove the demand and
acceptance of tainted money by the accused, the
prosecution has relied mainly upon the evidence of PWs.6
to 8, who are the complainant, shadow witness and panch
witness to the case on hand. Pw.6 in his evidence deposed
that, on the date of trap i.e., on 04.06.2009, PW.6 along
with shadow witness and panch witness so also Lokayukta
officials had visited the office of the accused and PW.6
went inside the office of the accused and brought him
outside near the road and then, handed him the tainted
money of Rs.2,000/- as demanded by the accused on the
road and accused inserted the same in his trouser pocket
and then PW.6 gestured the officials and post being
alarmed, accused try to flee away from the spot and as
such, he fell down around 50-60 meters away from the
place where he had received the bribe, near the bush and
- 39 -
as a result of falling, the tainted money has also fallen
near the bush and as such, he again inserted it inside his
trouser pocket and the Lokayukta officials seized the
tainted money from the said place. On the other hand,
PW.7 deposed that, he had waited outside the office of the
accused and PW.6 and accused came out of the office and
there itself, PW.6 handed over the tainted money to the
accused on his demand and further on gesture made by
PW.6, when the officials tried to escape from the place, he
fell down near the bush 50-60 meters away and the said
tainted money had also fallen down from his trousers near
the bush and the officials seized the money from the
ground itself and confiscated them. Queerly, PW.8 has
deposed that, on the day of trap, when they reached the
office of the accused both PW.6 and PW.7 went inside the
office of the accused and came outside the office of the
accused and accordingly, PW.6 gestured the officials and
when they tried to catch hold of accused, alarmed,
accused tried to flee away and fell near the bush 50-60
meters away and as a consequence of which, the tainted
- 40 -
money had also fell down and the police seized the tainted
money and handed it over to him to check the details as
recorded earlier. In addition to, if the evidence deposed by
the Investigation Officer-PW.12 is looked into, he has also
deposed that PW.6 and PW.7 together went inside the
accused office and post acceptance of bribe money when
accused tried to flee away and fell down near the bush. He
further deposed that, as per the instructions of PW.6, they
have recovered the tainted money from the left pocket of
the shirt of the accused. Further in his cross-examination
he would also say that, the place where the accused had
fell down was near the 'Banyan Tree' and the tainted
money were recovered from the said spot. As such, there
are total contradictions in the evidence of PW.6,7,8 and 10
as to the place where the demand and acceptance took
place, as to who accompanied the complainant-PW.6 to
the office of the accused so also the place where the
accused had fell down. There are also contradictions in
their evidence as to who witnessed the incident and who
has acted upon the gesture of PW.6. Contradictions also
- 41 -
stretch to the aspect of place from where the recovery of
money is being made. Admittedly, the conversation
between the accused and PW.6 are not recorded by PW.6
in spite of handing over the tape recorder with the
instruction by the Investigation officer-PW.12. Moreover,
the trap panchanama Ex.P21 was conducted after delay of
nearly 45 minutes. Hence, I am of the view that, the case
put forth by the prosecution, in order to prove the demand
and acceptance of the bribe amount by the accused is
nothing but seems much like an anecdote which does not
corroborate either with the evidences of witnesses or the
documents and as such, I hold this contention in favour of
the appellant/accused is concerned.
20. Moreover, if the decision passed by the Co-
ordinate Bench of this Court in Chandrasha Vs The
State of Karnataka through Lokayukta Police,
Kalaburgi in Crl.A.No. 200105/2015 decided on
16.02.2012 is seen;
"17. The co-pancha is examined as PW.3. He
also supported the case of the prosecution. Other
material witnesses are PW.4 the Second Division
- 42 -
Assistant of SubTreasury, Afzalpur and PW.5 is the
Accounts Head, SubTreasury, Afzalpur. However, in
their evidence, Ex.P.8 came to be marked along with
annexure. On considering Ex.P.18, a sum of
`43,323/- being the bill has already been passed on
29.07.2009 itself, as could be seen from the
endorsement made on the bills itself. These two
documents were seized by the Lokayukta police in
the presence of panchas and it is relied on by the
prosecution themselves. As could be seen from
Ex.P.18 coupled with the oral testimony of PWs.4
and 5, it is seen that as on the date of trap i.e.,
05.08.2009 there was no work pending of the
complainant with the accused inasmuch as he has
already passed the bills on 29.07.2009. When the
bills are already been passed on 29.07.2009,
question of making a demand on 05.08.2009 and the
accused accepting the illegal gratification in a sum of
`2,000/- cannot be countenanced in law.
***
20. In view of the legal principles enunciated in
A.Subair's case (supra), since the work was not
pending before the accused as on the date of trap,
the important ingredient to attract and complete the
offence punishable under Sections 7, 13(1)(d) read
with Section 13(2) of the Prevention of Corruption
Act cannot be sustained. Accordingly, the finding
recorded by the learned trial Judge needs to be
interfered with....."
(Emphasis supplied by Me)
Juxtapose the case on hand, as discussed supra, if
the evidence of PWs.3,4 and 11 are seen collectively with
the documents produced by the appellant/accused before
the trial Court, same draws an inference in the mind of the
- 43 -
Court that, as on the date of trap i.e.,04.06.2009, there
was no work relating to PW.6 was pending with the
accused or in the office of the accused and it is also clear
that, the accused is not the competent authority to receive
such applications. Under such circumstances, in the
absence of prosecution proving the pendency of work, the
complaint-Ex.P10 so also the evidence of PW.6 as to the
demand and acceptance of the bribe amount is concerned,
does not effectively draw an opinion beyond all reasonable
doubt in the mind of this Court, as against the accused.
21. Further, the judgement relied by the learned
SPP i.e., Vinod Kumar Garg v. State (NCT of Delhi),
reported in (2020) 2 SCC 88, wherein, the Hon'ble Apex
court has held that, minor contradictions in the evidences
of witnesses, are bound to occur and they are natural
during the course of evidence and the witnesses are also
not required to recollect and narrate the entire version
with the photographic memory, notwithstanding the hiatus
and passage of time. However in the case on hand, the
prosecution failed to prove the basic ingredient of demand
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and acceptance so also the pendency of work by leading
cogent evidences and as such, the judgement cited by the
SPP would not be of much avail to the case of the
prosecution to prove the guilt of the accused, keeping in
mind the principles enunciated by the Hon'ble Apex Court
in the case of Neeraj Dutta v. State (NCT of Delhi)
supra.
22. In such circumstances, as discussed supra, I
am of the view that, since the prosecution has failed to
prove the, pendency of work and also basic ingredients of
demand and acceptance of the illegal gratification by the
accused, the prosecution has failed to prove the charges
leveled against the accused. Accordingly, the Judgment
rendered by the Sessions Court, in my opinion calls for
interference and consequently, I answer the point raised
above in affirmative and negative respectively and
proceed to pass the following:
ORDER
(i) The appeal is allowed;
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(ii) judgement of conviction and order of
sentence dated 30.04.2012 passed in
SC.NO.111/2010 by the IV Addl. District
and Sessions Judge and Special Judge
(PCA), Belgaum, for the offence
punishable under Section 7 and
13(1)(d) r/w Section 13 (2) of
Prevention of Corruption Act, 1988 is
hereby set-aside; The appellant/accused
is acquitted for the charges leveled
against him under Sections 7 and 13 (1)(d)
r/w. 13(2) of P.C.Act, 1988;
(iii) The bail bonds executed by the accused
stands cancelled;
(iv) The fine amount paid, if any, by the
accused shall be refunded to the accused
on proper identification.
Sd/-
JUDGE
Svh/-
