Karnataka High Court
Somshekhar vs State Of Karnataka on 26 July, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200214 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200214 OF 2023 (374)
BETWEEN:
SOMSHEKHAR
S/O KASHEPPA PATIL
AGE: 58 YEARS,
OCC: FDC,
R/O. GADWANTH,
TQ: HUMNABAD
DIST: BIDAR-585 353.
...APPELLANT
(BY SRI AVINASH A. UPLOANKAR &
SRI RAVI K. ANOOR, ADVS.)
AND:
Digitally
signed by STATE OF KARNATAKA THROUGH
SHILPA R LOKAYUKTA POLICE STATION BIDAR,
TENIHALLI
Location: NOW REPRESENTED BY
HIGH SPECIAL PUBLIC PROSECUTOR
COURT OF
KARNATAKA (LOKAYUKTA)
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH, KALABURAGI.
...RESPONDENT
(BY SRI SUBHASH MALLAPUR, ADV.)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT PASSED BY THE LEARNED
SPECIAL JUDGE AND PRINCIPAL SESSIONS JUDGE AT BIDAR
FOR CONVICTING THE APPELLANT BY ITS JUDGMENT DATED
19TH JULY 2023, IN THE INTEREST OF JUSTICE AND EQUITY.
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CRL.A No. 200214 of 2023
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. Accused is in appeal under Section 374(2) of Cr.PC with a
prayer to set aside the judgment and order of conviction dated
19.07.2023 and the order of sentence dated 20.07.2023
passed by the Court of Special Judge and Principal Sessions
Judge at Bidar, in Special Case (Corruption) No.32/2013.
2. Heard the learned Counsel for the parties.
3. Facts leading to filing this appeal narrated briefly are, the
appellant herein was charge sheeted for the offence under
Sections 7, 13(1)(d) read with 13(2) of the Prevention of
Corruption Act, 1988 (for short, 'P.C.Act') by the Karnataka
Lokayuktha Police, Bidar, in Crime No.6/2012.
4. It is the case of the prosecution that the first informant
(PW-1) had approached the appellant who was working as First
Division Clerk in the office of the Deputy Commissioner with a
request to convert agricultural land bearing Sy. No.6/2
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measuring 4 acres 20 guntas situated at Hamilapura village, in
the name of his wife, into non-agricultural land. It is alleged
that the appellant demanded a sum of Rs.10,000/- as bribe
from PW-1 and PW-1 allegedly had paid a sum of Rs.5,000/- to
him. The appellant, allegedly had demanded payment of
balance bribe amount of Rs.5,000/- from PW-1 and since PW-1
was not willing to pay the said amount, he allegedly had
approached the Police Inspector of Lokayuktha, Bidar (PW-8)
who inturn had asked PW-1 to record his conversation with the
appellant. Thereafter, PW-1 allegedly recorded his conversation
with the appellant and on the next date i.e., 28.08.2012, he
submitted his first information as per Ex.P-1. PW-8,
subsequently prepared the Entrustment Mahazar in the
presence of PW-3 & PW-5 and a trap was successfully laid
inside the canteen in the premises of Deputy Commissioner's
office, Bidar. The bribe amount was recovered from the
appellant which was subjected to panchanama and the trap
mahazar was prepared. Explanation of the appellant was also
recorded, and thereafter, he was arrested and produced before
the jurisdictional court.
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5. Investigation was completed and charge sheet was filed
against the appellant after obtaining necessary sanction from
the competent authority. Before the Trial Court, after charges
were framed and read over to the appellant, since he pleaded
not guilty and claimed to be tried, the prosecution in order to
prove its charges against the appellant examined eight
witnesses as PWs-1 to 8 and got marked 42 documents as
Exs.P-1 to P-42. 12 MOs were marked as MOs-1 to 12 on behalf
of the prosecution. After closure of the prosecution case, the
statement of the appellant under Section 313 Cr.PC was
recorded by the Trial Court. However, no defence evidence was
led on behalf of the appellant, but he got marked five
documents as Exs.D-1 to D-5 in support of his defence.
6. The Trial Court, thereafter, heard the arguments
addressed by both the sides and vide the impugned judgment
and order convicted the appellant for the offences punishable
under Sections 7, 13(1)(d) read with 13(2) of the P.C.Act. For
the offence punishable under Section 13(1)(d) read with 13(2)
of the P.C.Act, the appellant was sentenced to undergo simple
imprisonment for a period of five years and pay fine of
Rs.1,00,000/- and in default to undergo simple imprisonment
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for a period of one year. For the offence punishable under
Section 7 of the P.C.Act, the appellant was sentenced to
undergo simple imprisonment for a period of three years and
pay fine of Rs.50,000/- and in default to undergo simple
imprisonment for a period of six months. Being aggrieved by
the same, the appellant is before this Court.
7. Learned Counsel for the appellant having reiterated the
grounds urged in the Memorandum of Appeal, submits that the
Trial Court has erred in convicting the appellant for the alleged
offences. He submits that the prosecution has not proved the
demand and acceptance of bribe by the appellant. He submits
that PW-1 - complainant and PW-3 - shadow witness have
turned hostile to the case of the prosecution. Though the Public
Prosecutor had cross-examined them, nothing material has
been elicited from their mouth which is incriminating against
the appellant. No work of the complainant was pending before
the appellant as on the date of complaint.
8. Per contra, learned Counsel for the respondent has
argued in support of the impugned judgment and order of
conviction and sentence and has prayed to dismiss the appeal.
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9. The prosecution, in order to prove its charges against the
appellant, has examined eight witnesses in the present case as
PWs-1 to 8.
10. PW-1 is the defacto complainant in the present case. He
has turned hostile to the case of the prosecution. He has denied
that the appellant had made any demand for payment of bribe
from him. He has also denied that he had made any application
for conversion of the land bearing Sy. No.6/2. He has also
denied about the alleged incident that had taken place inside
the canteen near the Deputy Commissioner's office. Though
this witness was cross-examined extensively by the Public
Prosecutor, nothing material has been elicited from his mouth.
11. PW-2, who was working as Assistant Engineer in Public
Works Department, is the person who has prepared the sketch
of the spot where the trap was laid. Ex.P-26 is the sketch
prepared by him and Ex.P-26(a) is his signature.
12. PW-3 is the shadow witness in the present case. Though
this witness has stated about the preparation of Entrustment
Mahazar etc., during the course of his examination-in-chief,
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however, he has not supported the case of the prosecution with
regard to payment of bribe amount by PW-1 to the appellant
inside the canteen near Deputy Commissioner's Office at Bidar.
This witness has stated that he was at a distance and he could
not hear the conversation between the appellant and PW-1. He
also has stated that since there were many people inside the
canteen, he could not properly see the appellant and the victim
and since six years had lapsed after the date of incident, he
was not in a position to remember what had happened inside
the canteen. This witness was treated as hostile witness and
cross-examined by the prosecution, but nothing material has
been elicited from his mouth with regard to payment of bribe
by the appellant inside the canteen near the Deputy
Commissioner's office at Bidar.
13. PW-4 was the incharge Deputy Commissioner of Bidar
District. He has stated that because of disturbance, he is not in
a position to identify the voice of the parties that was recorded
in MO-10. During his cross-examination, this witness has stated
that conversion orders of the land relating to PW-1 was
dispatched on 27.08.2012 itself. He has also stated that there
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was no complaint either from PW-1 or from his wife about any
delay in processing their file.
14. PW-5 is another panch witness to the Entrustment
Mahazar - Ex.P-2 and trap mahazar - Ex.P-23. He is also a
panch witness along with PW-3 to the seizure document at
Ex.P-28. This witness has supported the case of the
prosecution.
15. PW-6 is the Clerk in the dispatch section of Deputy
Commissioner's office at Bidar. She has spoken about the
dispatch of the order of conversion. This witness was treated
partially hostile by the prosecution.
16. PW-7 is the sanctioning authority. The sanction order
issued by him was marked as Ex.P-33.
17. PW-8 is the Investigating Officer. He has deposed about
PW-1 approaching him on 27.08.2012 and also about PW-1
recording the voice conversation in MO-9. He has spoken about
the preparation of Entrustment Mahazar and also about the
subsequent trap conducted in the present case. This witness
has admitted that conversion order was passed as on
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22.08.2012 itself and it was received in the office of the
Tahsildar on 28.08.2012.
18. For the purpose of convicting the accused for the offence
under Sections 7, 13(1)(d) read with 13(2) of the P.C.Act, the
prosecution is required to prove the demand and acceptance of
bribe. In the present case, PW-1 - complainant as well as PW-3
- shadow witness have turned hostile to the case of the
prosecution with regard to demand and acceptance of bribe
amount. PW-1 has categorically denied about the demand
made by the appellant for payment of bribe amount. PW-4
incharge Deputy Commissioner of Bidar in whose office the
appellant was working as First Division Clerk, has failed to
recognize the voice of the appellant recorded in MO-10.
19. PW-3 - Shadow witness has stated that he could not see
payment of bribe amount by PW-1 to the appellant since he
was standing at a distance. He has also stated that he could not
over hear the conversation between the appellant and PW-1.
Therefore, the prosecution has failed to prove the demand and
payment of bribe amount in the present case.
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20. Though PWs-1 & 3 have not supported the case of the
prosecution to prove the demand and acceptance of bribe in
the present case, the Trial Court on the strength of Section 20
of P.C.Act, has drawn presumption against the appellant and
has proceeded to convict him for the alleged offences.
21. The Hon'ble Supreme Court in the case of NEERAJ DUTTA
VS STATE (GOVT. OF N.C.T. OF DELHI) - 2023 SCC OnLine SC
280, in paragraph 11, has observed 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 12 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:
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"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)(4)(1) 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."
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,
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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."
22. The allegation of demand and acceptance of bribe by a
public servant has to be proved beyond reasonable doubt. This
can be either by direct oral, documentary evidence or
circumstantial evidence. In the present case, there is no direct
evidence to show that there was demand and acceptance of
bribe by the appellant. The complaint has been lodged in the
present case on 28.08.2012. The material on record would go
to show that conversion order was passed on 22.08.2012 itself
vide Ex.P-28(a) and prior to 28.08.2012 it was also dispatched.
Therefore, it cannot be said that work relating to the
complainant - PW-1 with the appellant was pending as on
27.08.2012 or on the date of complaint i.e., 28.08.2012. Under
the circumstances, it cannot be also said that by circumstantial
evidence, the allegation against the appellant has been proved
by the prosecution.
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23. In the case of DR. MANOHAR DUNDAPPA KABBUR VS
THE STATE OF KARNATAKA - Crl.A.No.100066/2015 and
connected cases disposed of on 18.01.2024, in paragraphs 10
& 15, this Court has observed as under:
"10. For the purpose of convicting the
accused for the offences punishable under Sections
7 and 13 of the PC Act, demand for gratification
and its acceptance must be proved beyond
reasonable doubt. It is trite that in the event of the
prosecution failing to prove such demand or its
acceptance, the accused cannot be convicted for
the offences punishable under Sections 7 and 13 of
the PC Act. Mere recovery of the illegal gratification
collected by the accused cannot be a ground for
conviction in the absence of proof or demand made
by the accused for payment of gratification.
15. The Hon'ble Supreme Court in catena of
decisions has observed that 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. 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
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accused. Since the applications of beneficiaries
were not pending before accused no.1 for his
recommendation as on the date of complaint, a
serious doubt arises with regard to the allegation of
demand made against him for payment of
gratification."
24. In almost identical circumstances wherein the defacto
complainant had completely turned hostile to the case of the
prosecution, the shadow witness had not supported the case of
the prosecution with regard to payment of bribe by the defacto
complainant to the accused and the voice of the accused in the
conversion recorded was not identified by his higher officer, this
Court in the case of THE STATE OF KARNATAKA VS
MOULAHUSSAIN - CRL.A.No.2538/2012 disposed of on
21.02.2024, in paragraph 11 to 13, has observed as under:
"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 conversation of the complainant
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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 presumption under
Section 20 of the P.C.Act is available against the
accused. ......"
25. The necessary ingredients for the offences under Section
7 of the P.C.Act was not established by the prosecution in the
present case and consequently, the offences under Section
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13(1)(d) of the P.C.Act will also not be attracted. The Trial
Court has failed to appreciate this aspect of the matter and has
erred in convicting the appellant for the charge sheeted
offences. Under the circumstances, the impugned order of
conviction and sentence cannot be sustained. Accordingly, the
following order:
26. Criminal appeal is allowed. The impugned judgment and
order of conviction dated 19.07.2023 and the order of sentence
dated 20.07.2023 passed by the Court of Special Judge and
Principal Sessions Judge at Bidar, in Special Case (Corruption)
No.32/2013, is set aside. The appellant is acquitted of the
offences under Sections 7, 13(1)(d) read with 13(2) of the
P.C.Act. Bail bonds of the appellant, if any, stands cancelled.
Fine amount, if any, deposited by the appellant is ordered to be
refunded to him.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
KK
