Karnataka High Court

The State Of Karnataka vs Moulahussain S/O. Fakruddin ... on 21 February, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                             CRL.A No. 2538 of 2012




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 21ST DAY OF FEBRUARY, 2024

                                                  BEFORE

                              THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

                                  CRIMINAL APPEAL NO. 2538 OF 2012 (A)

                       BETWEEN:

                            THE STATE OF KARNATAKA,
                            THROUGH LOKAYUKTA POLICE,
                            KOPPAL.
                                                                         ...APPELLANT

                       (BY SRI SANTOSH B.     MALAGOUDAR,    SPECIAL   COUNSEL   FOR
                       LOKAYUKTA)

                       AND:

                       1.   MOULAHUSSAIN S/O. FAKRUDDIN BISARAHALLI,
                            AGE: 52 YEARS, OCC: FDA,
                            TAHASIL OFFICE, GANGAVATHI,
                            R/O. TALKAL, TQ: YELBURGA,
                            DIST: KOPPAL.

                       2.   SOMASHEKHARAYYA S/O. MAHALINGAYYA,
          Digitally         AGE: 35 YEARS, OCC: GRADE-II, SURVEYOR,
          signed by
          ANNAPURNA         TAHASIL OFFICE, GANGAVATHI,
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL          R/O. BELLAKATTI, POST: MUNIYARU,
DANDAGAL  Date:
          2024.02.23
          10:25:05
                            TQ: TURVEKERE, DIST: TUMKUR.
          +0530

                                                                       ...RESPONDENTS

                       (BY SRI NEELENDRA D. GUNDE, ADVOCATE FOR RESPONDENT
                       NOS.1 AND 2)

                            THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF CR.P.C.
                       SEEKING TO GRANT LEAVE TO THE APPELLANT TO APPEAL AGAINST
                       THE JUDGMENT AND ORDER OF ACQUITTED DATED 20.09.2011
                       PASSED IN SPL. CASE NO. 02/2007 ON THE FILE OF THE SESSIONS
                       & SPL. JUDGE, KOPPAL AND ALLOW THE APPEAL AND SET ASIDE
                       THE AFORESAID JUDGMENT AND ORDER OF ACQUITTAL AND
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                                        CRL.A No. 2538 of 2012




CONVICT THE ACCUSED        FOR   THE    CHARGED      OFFENCES   IN
ACCORDANCE WITH LAW.

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

                           JUDGMENT

1. The State has filed this appeal under Section

378(1) and (3) of Cr.P.C. with a prayer to set aside the

judgment and order of acquittal passed by the Court of the

Sessions and Special Judge, Koppal in Spl.S.(P.C)

No.2/2007 dated 20.09.2011.

2. Heard the learned counsel for the parties.

3. Facts leading to filing of this appeal narrated

briefly as revealed from the records are, the complainant-

Vinayak (PW-1) had approached Koppal Lokayukta police

and had filed a complaint as per Ex.P-1, wherein it is

averred that he is a physically handicap person. His father

Manappa was granted 1 acre 20 guntas of land by the

Government, but while effecting mutation, only an extent

of 1 acre was mentioned in the revenue records of the

land and therefore in order to rectify the said mistake by

making necessary corrections with regard to the extent of

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land, his father had filed an application before the

Tahasildar, Gangavathi. Since the said application was not

considered by accused No.1, the complainant allegedly

had approached accused No.2 as well as the Sheristedar of

the Tahasildar Office. It is alleged that accused Nos.1 and

2 had demanded bribe from the complainant and since he

was not willing to pay the bribe amount, he had

approached the Koppal Lokayukta police on 16.01.2006

and lodged complaint Ex.P-1.

4. On the basis of the said complaint, Crime

No.1/2006 was registered against the accused and

thereafter the Investigating Officer prepared an

entrustment mahazar in accordance with law and on the

same day in the evening, a trap was laid and in the said

trap, accused Nos.1 and 2 were allegedly caught red

handed while receiving the bribe amount from the

complainant. Police thereafter had subjected the bribe

amount recovered from the accused to a pachanama and

the hands of accused Nos.1 and 2 also were subjected to

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chemical examination and thereafter the arrested accused

were produced before the Court and remanded to judicial

custody.

5. After completing investigation, charge sheet

was filed by the prosecution against accused Nos.1 and 2

for the offences punishable under Sections 7, 13(1)(d)

read with Section 13(2) of the Prevention of Corruption

Act, 1988 (for short, 'the PC Act'). The accused who had

appeared before the trial Court, had pleaded not guilty and

claimed to be tried. The prosecution in order to

substantiate its case and prove its charges against

accused beyond reasonable doubt, had examined 12

witnesses as PW-1 to PW-12 and also got marked 33

documents as Ex.P-1 to Ex.P-33. 17 material objects were

produced and marked by the prosecution as MO-1 to MO-

17. On behalf of the defence, 2 documents were marked

as Ex.D1 and Ex.D-2. The Trial Court after hearing the

arguments addressed on both sides, vide the impugned

Judgment and order, acquitted the accused Nos.1 and 2

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for the offences charged against them. Being aggrieved by

the same, the State is before this Court.

6. Learned counsel for the appellant submits that

the Trial Court was not justified in acquitting the accused.

He submits that though the complainant P.W.1 has not

supported the case of prosecution, the charge against the

accused is proved by the prosecution by the evidence of

P.W.3 - shadow witness and P.W.9 who is the

Investigating Officer in the case. He submits that the

demand and acceptance is proved in the present case not

only through direct evidence, but also through

circumstantial evidence. P.W.1 is found in the photographs

at Ex.P.5 to 19. He submits that the Forensic Science

Laboratory report also supports the case of prosecution.

Accordingly, he prays to allow the appeal.

7. Per Contra, the learned counsel appearing for

respondent/accused Nos.1 and 2 has supported the

impugned Judgment and order of acquittal. He submits

that the demand and acceptance of bribe has not been

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proved in the present case. Mere recovery of tainted

money from the accused is not sufficient to convict the

accused for the offences alleged against them. He submits

that no work was pending with the accused as on the date

of complaint. In support of his arguments, he has placed

reliance on the Judgment of the Hon'ble Supreme Court in

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

Delhi), reported in 2023 SCC Online SC 280. He has also

placed reliance on the Judgment of this Court in Criminal

Appeal No.100066/2015 and connected matters disposed

off on 18.01.2024 and the Judgment of this Court in

Criminal Appeal No.200105/2015, disposed off on

16.02.2022.

8. The prosecution in order to prove its charges

against the accused, has primarily placed reliance on the

evidence of P.W.1, 3 and 9. P.W.1 is the complainant in

the present case. P.W.3 is the shadow witness and P.W.9

is the Investigating Officer. P.W-1 has not supported the

case of prosecution and he was treated as hostile witness

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by the prosecution. Though, this witness was extensively

cross-examined, nothing material has been elicited from

his mouth, which is incriminating against the accused.

9. P.W.3 was a Government Servant, who is a

shadow witness in the present case. Though, this witness

has supported the case of prosecution during the course of

his examination-in-chief, in his cross-examination, this

witness has stated that when the complainant P.W.1 had

gone inside the office of accused, he was standing outside

the office and watching the complainant and the accused,

through a window. He has stated that he stayed near the

window for about half an hour and for the remaining

period of time, he was walking around. He has also stated

that he does not know what had happened inside the

office when he was walking around and not present near

the window. This witness has also stated that the

complainant and accused were speaking to each other and

he could not overhear them clearly. This witness has

stated that P.W.1 after coming out from the office of the

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accused, had given a signal by combing his hair, which

was at about 8.00 pm. It is only thereafter, the Police

came to the spot. P.W.9 Investigating Officer has spoken

about the complaint lodged by P.W.1 and about the

entrustment mahazar Ex.P.3 and also about preparing the

trap mahazar Ex.P.4. He has also spoken about subjecting

the hands of the accused for chemical examination and

thereafter sending the articles to the Forensic Science

Laboratory for the purpose of chemical examination. But

his evidence will not help the prosecution to prove the

demand and acceptance of bribe amount in the present

case.

10. P.W.2 who was working as Tahashildar had

provided service particulars of accused Nos.1 and 2 who

were working in his office. P.W.4 is pancha to Ex.P.3

entrustment mahazar and P.W.5 is the sanctioning

authority, who had issued sanction to prosecute accused

No.2. P.W.6 is the Head Constable, who had carried FIR to

the jurisdictional Court. P.W.7 was working as Head

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Constable in Lokayukta police Station, Raichur, and he was

a party to the raid that was held on 16.01.2006, in the

office of P.W.2 Tahashildar. P.W.8 is the person who had

issued the spot sketch Ex.P.29 and P.W.9 is the

Investigating Officer in the present case, who has initially

investigated the case. P.W.10 is the Police Officer, who

had further investigated the case and P.W.11 is Police

Officer, who had completed the investigation and filed the

charge sheet. P.W.12 is the Officer of Social Welfare

Department, who had issued sanction for the purpose of

prosecuting accused No.1.

11. For the purpose of convicting the accused for

the alleged offences, the prosecution is required to

principally prove the demand and acceptance of bribe

amount and also should show that the work of the

complainant was pending as on the date of trap, with the

accused.

12. In the present case, the complainant has

completely turned hostile to the case of prosecution. The

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conversation of the complainant with the accused with

regard to the demand made by the accused for payment

of bribe has not been recorded in the present case. From a

reading of the statements made by P.W.3 during the

course of his cross-examination, a doubt arises as to

whether he could hear the conversation of complainant

with the accused. P.W.3 has stated that for a period of

about half an hour, he was standing outside the window of

the office when the complainant was inside the office.

Thereafter, he was roaming around and he was not aware

what happened inside the office when he was not standing

near the window. He has also stated that he could not

correctly overhear the conversation of the complainant

with the accused person.

13. It is trite that mere recovery of the bribe money

from the accused is not sufficient for the purpose of

convicting the accused for the charge sheeted offences.

Demand and acceptance of bribe amount has to be proved

by the prosecution and it is only thereafter the

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presumption under Section 20 of the P.C.Act is available

against the accused. The Hon'ble Supreme Court in the

case of Neeraj Dutta (2022 SCC Online SC 1724) in

paragraph No.74 has observed as follows :

"74. What emerges from the aforesaid discussion is summarised as under:

(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.

(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.

(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.

(d) In order to prove the fact in issue, namely, the demand and acceptance of Criminal Appeal No.1669 of 2009 illegal gratification by the public servant, the following aspects have to be borne in mind:

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(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 the 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.

(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 Section 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 Section 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 Criminal Appeal No.1669 of 2009 a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.

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(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) 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 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.

(g) In so far 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 Criminal Appeal No.1669 of 2009 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.

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(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."

(emphasis added)

The referred question was answered in paragraph 76 of the aforesaid judgment, which reads thus:"

"76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under :

In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution."

(emphasis added)

14. In its subsequent judgment in the case of Neeraj

Dutta's (2023 SCC OnLine SC 280), at paragraph No.18 the

Hon'ble Supreme Court has observed as follows :

"18. 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

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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."

15. In the present case, since the statements made

by the shadow witness P.W.3 are inconsistent, it would be

difficult to place reliance on the evidence of this witness

and convict the accused for the alleged offences. Though,

the Hon'ble Supreme Court in the case of Neeraj Dutta's

supra has observed that in the absence of direct evidence,

the prosecution can place reliance on the circumstantial

evidence to prove the demand for illegal gratification, the

prosecution must establish each and every circumstance

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from which the prosecution wants to draw the conclusion

of guilt. It is also further observed that facts so

established must be consistent with only one hypothesis

that there was a demand made for gratification by the

accused. In the present case, undisputedly the work was

not pending with the accused as on the date of trap.

Ex.D.1 and 2 and Ex.P.33 would clearly demonstrate that

in the month of December, 2005 itself, the work of the

complainant's father was completed by the accused.

Complaint was lodged in the present case on 16.01.2006

and trap was also laid on the very same day. Therefore, as

on the date of trap, no work of the complainant or his

father was pending with the accused.

16. The co-ordinate Bench of this Court in the case

of Chandrasha S/o. Madarsha Katba vs. The State of

Karnataka, Criminal Appeal No.200105/2015 disposed off

on 16.02.2022 at paragraph No.20 has observed as

follows :

"20. In view of the legal principles enunciated in A. Subair's case (supra), since the work was not pending

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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. In view of the foregoing discussion, point No.1 is answered in the negative and point No.2 is answered in the affirmative."

17. In the case of N. Vijaykumar Nadu Vs. State of

Tamil Nadu, reported in (2021) 3 SCC 687, at paragraph

No.26 the Hon'ble Supreme Court has observed as follows:

"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 the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh. 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 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

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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."

18. In the present case, the prosecution has failed

to prove the demand made by the accused for payment of

bribe amount. There are no such circumstances to arrive

at definite conclusion that there was demand for payment

of bribe by the accused. It is trite that mere recovery of

tainted money is not sufficient to convict the accused for

the charged offences. The material on record would go to

show that as on the date of trap, the work of the

complainant or his father was not pending with the

accused. Under the circumstances, I am of the considered

view that the Trial Court had rightly acquitted the accused

for the offences alleged against them. Unless it is pointed