Karnataka High Court
Arif S/O Maqboolsab Balurgi vs The State on 5 June, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200040 of 2018
C/W CRL.A No. 200039 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO.200040 OF 2018 (374)
C/W
CRIMINAL APPEAL NO.200039 OF 2018 (374)
IN CRL.A.NO.200040 OF 2018
BETWEEN:
MAHEBOOB PATEL S/O MAKTUM PATEL
NOW AGED 48 YEARS,
OCC: INCHARGE PDO,
GRAM PANCHAYAT HARAVAL,
TQ: JEWARGI, DIST: KALABURAGI.
R/O H.NO.187, NEAR SHAHA JILANI DARGA,
MADINA COLONY, MSK MILL,
KALABURAGI-585 103.
...APPELLANT
Digitally
signed by
SHILPA R (BY SRI ANIL KUMAR NAVADAGI, ADVOCATE)
TENIHALLI
Location:
HIGH COURT
AND:
OF
KARNATAKA
THE STATE THROUGH
LOKAYUKTA POLICE STATION,
KALABURAGI - 585103
REPRESENTED BY THE SPL.P.P
LOKAYUKATA,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
...RESPONDENT
(BY SRI SUBHASH MALLAPUR, SPL. COUNSEL)]
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CRL.A No. 200040 of 2018
C/W CRL.A No. 200039 of 2018
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF DATED 23.02.2018 PASSED BY
THE SPL.JUDGE (LOKAYUKTA) AND PRL.SESSIONS JUDGE
KALABURAGI IN SPL.CASE NO.8/2015 AND ACQUIT THE
APPELLANT HEREIN FOR THE CHARGES FOR WHICH HE WAS
CONVICTED.
IN CRL.A.NO.200039 OF 2018
BETWEEN:
ARIF S/O MAQBOOLSAB BALURGI
NOW AGED: 33 YEARS,
OCC: PLYWOOD BUSINESS,
R/O.PLOT NO.601,
NEAR SHAHA JILANI DARGA,
MADINA COLONY, MSK MILL,
KALABURAGI-585 103.
...APPELLANT
(BY SRI ANIL KUMAR NAVADAGI, ADVOCATE)
AND:
THE STATE THROUGH
LOKAYUKTA POLICE STATION,
KALABURAGI - 585103
REPRESENTED BY THE SPL.P.P
LOKAYUKATA, HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
...RESPONDENT
(BY SRI SUBHASH MALLAPUR, SPL. COUNSEL)]
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF DATED 23.02.2018 PASSED BY
THE SPL.JUDGE (LOKAYUKTA) AND PRL.SESSIONS JUDGE
KALABURAGI IN SPL.CASE NO.8/2015 AND ACQUIT THE
APPELLANT HEREIN FOR THE CHARGES FOR WHICH HE WAS
CONVICTED.
THESE APPEALS COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 200040 of 2018
C/W CRL.A No. 200039 of 2018
JUDGMENT
These two appeals under section 374(2) of Cr.P.C.
are filed by accused Nos.1 and 2 with a prayer to set aside
the judgment and order of conviction and sentence passed
by the Court of Special Judge (Lokayukta) and Principal
Session Judge, Kalaburagi (for short 'Trial Court') in
Special Case No.8/2015 dated 23.02.2018, convicting
accused No.1 for the offences punishable under Sections
7, 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988 (for short 'P.C.Act') and accused
No.2 for the offence punishable under Section 8 of the
P.C.Act.
2. Heard learned counsel for the
appellants/accused Nos.1 and 2 and learned counsel for
the respondent.
3. It is the case of the prosecution that the
complainant - Siddaram (PW.1) had approached the
Lokayukta Police, Kalaburagi on 02.09.2013 and lodged a
complaint alleging that for the year 2013-14 under the
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Mahatma Gandhi National Rural Employment Guarantee
Scheme (hereinafter referred to as 'scheme'), he and
other villagers had formed a bund and total estimated
amount for the work was Rs.40,25,000/- and out of the
same, only a sum of Rs.10,00,000/- was released and
when the complainant approached accused No.1, who was
then working as a Panchayat Development Officer (PDO)
of Harawal Gram Panchayat, accused had demanded bribe
of Rs.50,000/-. The complainant requested accused No.1
to reduce the bribe amount and after negotiation it was
reduced to Rs.30,000/. Since the complainant was not
willing to pay the bribe amount, he had approached the
Lokayukta police, who asked the complainant to record his
conversation with the accused and accordingly, after
recording the conversion in his mobile phone, he had
approached the Lokayukta Police, Kalaburagi on
02.09.2013 and based on complaint FIR was registered in
Crime No. 13/2013 by the Lokayukta Police against
accused persons for the offences punishable under
Sections 7, 13(1)(d) read with Section 13(2) and 8 of the
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P.C.Act. Thereafter, trap was laid and accused No.2 was
caught red-handed while receiving the bribe amount of
Rs.30,000/- from the complainant. The police seized the
bribe amount under a panchanama and after arresting
accused Nos.1 and 2, produced them before the
jurisdictional Court. The investigation in the case was
completed and charge sheet has been filed. The charges
framed by the Trial Court were read over and explained to
accused Nos.1 and 2, who pleaded not guilty and claimed
to be tried.
4. The prosecution in order to prove its case
against the accused examined in all 10 charge sheet
witnesses as PW.1 to PW.10 and got marked 63
documents as Ex.P1 to P63, 14 material objects were
marked as MO.1 to MO.14 and closed its side. The
statement of accused Nos.1 and 2 was recorded under
Section 313 of Cr.P.C. by the Trial Court and during the
course of recording statements under Section 313 of
Cr.P.C., separate written statement was filed by accused
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No.1 denying that he had received any bribe amount from
the complainant and no work was pending with him.
Accused No.2 has also filed separate written statement
stating that he had not demanded or received any bribe
amount from the complainant and the work of the
complainant was not pending with accused No.1 and the
complainant did not possess any job card under the
scheme. However, no defence evidence was led on behalf
of the accused nor was any document marked in support
of their defence.
5. The Trial Court thereafter heard the arguments
addressed on both sides and vide impugned judgment and
order of conviction and sentence, convicted the accused
persons for the offences punishable under Sections 7,
13(1)(d) read with Section 13(2) and 8 of the P.C.Act
respectively. Accused No.1 was sentenced to undergo
simple imprisonment for a period 3 years and to pay fine
of Rs.30,000/- for the offence punishable under Sections 7
of the P.C.Act and in default, to undergo further simple
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imprisonment for a period of 6 months. For the offence
punishable under Section 13(1)(d) read with Section 13(2)
of the P.C.Act, accused No.1 was sentenced to undergo
simple imprisonment for a period of 4 years and pay fine
of Rs.3,000/- and in default to undergo further simple
imprisonment for a period of 3 months. Accused No.2 was
sentenced to undergo simple imprisonment for a period of
3 years and pay fine of Rs.3,000/- and in default to
undergo simple imprisonment for a period of 3 months for
the offence punishable under Section 8 of the P.C.Act.
Being aggrieved by the same, accused Nos.1 and 2 are
before this Court in these two appeals.
6. Learned counsel for the appellants submits that
the Trial Court has erred in convicting the appellants for
the alleged offences. He submits that no work of the
complainant was pending before accused No.1 and
accused No.1 was already transferred as on the date of
registering FIR. He submits that the demand made for
payment of bribe by accused No.1 has not been proved in
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the present case by the prosecution. He also submits that
PW.2, who is the shadow witness in the present case, was
not at all present when accused No.1 allegedly demanded
the bribe and complainant allegedly paid the same to
accused No.2. He therefore prays to allow the appeals.
7. Per contra, learned counsel for the respondent
has opposed the prayer made in these appeals. He
submits that accused No.2 is the brother-in-law of accused
No.1. The demand made by accused No.1 for payment of
bribe has been recorded in the mobile phone of the
complainant and transcript of the conversation is available
on record. Accused No.2 had received the bribe amount
from de-facto complainant at the instance of accused No.1
and both were present at the time of trap. The
prosecution has successfully proved its charges against the
accused and therefore, there is no scope for interference.
Accordingly, he prays to dismiss the appeal.
8. The prosecution in order to prove its charges
against the accused persons has examined in all 10
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witnesses before the Trial Court as PW.1 to PW.10 and has
got marked 63 documents as Ex.P1 to P63. Fourteen
material objects have been marked as MO.1 to MO.14 by
the prosecution.
9. PW.1 - Siddaram is the de-facto complainant in
the present case. This witness has reiterated the
averments made in the complaint - Ex.P1 during the
course of his chief examination. However, during the
course of his cross-examination, he has admitted that
there was no job card in his name as on the date of
registration of FIR and there was no material to show that
he had worked under the scheme. He has also admitted
that in the conversation that was recorded in the transcript
of the conversation, which is found in Ex.P51 - seizure
panchanama, the alleged demand for payment of
Rs.30,000/- by accused No.1 is not found. This witness
has also stated that he was not aware of the fact that
whether said conversion is existing in the voice recording
made by him. During the course of his examination in
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chief, he has stated that on the date of trap, he had gone
along with panchas and Lokayukta Police to the bus-stand
at Kalaburagi and after reaching there, he had telephoned
accused No.1. Accused No.1 asked him to come inside
Kabini hotel in bus-stand at Kalaburagi. He has stated
that he alone went inside Kabini hotel. He has not stated
that PW.2, the shadow witness had followed him into the
hotel. On the other hand, he has stated that PW.2 was
somewhere around him. This witness has stated that
when he tried to give money to accused No.1, he refused
to receive the same and the same was handed over by
him to accused No.2 and thereafter, he gave a signal to
the police, who arrived at the spot and arrested accused
Nos.1 and 2 and recovered bribe amount from accused
No.2.
10. PW.2 is the shadow witness in the present case.
Though PW.1 has stated that he alone had gone inside
Kabini hotel to meet accused Nos.1 and 2, this witness has
stated that he also accompanied PW.1 and sat in the table
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adjacent to the table where PW.1 and accused Nos.1 and 2
were sitting. However, this witness has admitted that he
was not in a position to hear the conversation between
PW.1 and accused Nos.1 and 2. This witness also
admitted that in Ex.P1, there is no such conversation,
which shows that accused No.1 had demanded a sum of
Rs.30,000/-. This witness had also admitted that though
Ex.P51 was prepared in the Inspection Bungalow, the
same was signed by him as a panch in the Lokayukta
Office.
11. PW.3 is the panch witness to the entrustment
mahazar - Ex.P21. This witness had also accompanied
PW.1 along with police officers at the time of trap. This
witness also does not speak about PW.2 accompanying
PW.1 inside Kabini hotel.
12. PW.4 is a retired Executive Officer of Jewargi
Taluka Panchayat. This witness has stated that accused
No.1 was not the authority to make the payment for the
work done under the scheme. He also had admitted that
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PW.1 was not the beneficiary of the scheme and there is
no material to show that PW.1 had done any work under
the scheme.
13. PW.5 is the person, who had translated the
explanation offered by accused No.2, which was in Marathi
language to Kannada language and read over the same to
him. Ex.P54 is the document under which the translation
was recorded and Ex.P54(c) is the signature of PW.5.
Ex.P53 is the statement of accused No.2, which is in
Marathi language.
14. PW.6 and PW.7 are the persons, who have
worked under the scheme and who had job cards in their
names. PW.6 has stated that he was not aware of the
demand made by accused No.1 for payment of bribe and
he was so informed by PW.1. These witnesses have stated
that they paid a sum of Rs.5,000/- each to PW.1 as he had
demanded the same on the ground that he is required to
pay the same to somebody.
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15. PW.8 is the Assistant Agricultural Officer of the
jurisdiction and this witness has stated that as on the date
of registration of FIR, accused No.1 was not incharge as a
PDO of Jewargi Gram Panchayat. He has also stated that
name of PW.1 was not found in the register regarding
payment of balance under the scheme.
16. PW.9 is the Junior Assistant Engineer of PWD,
who had prepared the sketch of the spot as per Ex.P61
and his signature is marked as Ex.P61(a).
17. PW.10 is the Investigating Officer, who has
registered the case against the accused, carried on
investigation and filed charge sheet against the accused.
18. From appreciation of the oral and documentary
evidence available on record, it is very clear that PW.1 was
not a beneficiary of the scheme and he had no job card in
his name and his name was not found in Ex.P58 - Muster
Roll. Even PW.8 had admitted that the name of PW.1 was
not found in the register maintained regarding balance
payment in respect of the work done under the scheme.
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PW.4 has also admitted during the course of his deposition
that PW.1 is not the beneficiary under the scheme. This
witness has also stated that accused No.1 was not the
authority to make the payment under the scheme. PW.8
has stated that as on the date of registration of FIR,
accused No.1 was not incharge as a PDO and he had
already handed over charge as on the said date.
19. From appreciation of the oral and documentary
evidence available on record, it becomes highly doubtful
that PW.1 had done any work under the scheme and with
regard to such work was done by him, certain payments
were due to him and for processing such payment,
accused No.1 was the competent authority. In other
words, it can be said that the prosecution has failed to
prove that the work of PW.1 was pending before accused
No.1. PW.1 and PW.2 have admitted during the course of
their deposition that Ex.P51, in which the transcript of the
conversation between PW.1 and accused No.1 is recorded
does not mention of any such conversation where demand
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is made by accused No.1 for payment of Rs.30,000/-
towards bribe. PW.1 has also admitted that when he
handed over bribe amount to accused No.1 in Kabini hotel,
he refused to receive the same and asked him to pay the
said amount to accused No.2. It has come on record that
when PW.1 had handed over the bribe amount to accused
No.2, accused No.1 was speaking over phone.
20. PW.1 and PW.3 have not spoken about PW.2,
the shadow witness accompanying PW.1 into Kabini hotel
where PW.1 met accused Nos.1 and 2 and handed over
the bribe amount. Therefore, presence of PW.2, who is a
shadow witness at the spot of crime or at a distance from
where he could hear the conversation and see handing
over of bribe amount to accused persons by PW.1
becomes doubtful. PW.2 had stated that since there were
many people inside the hotel, he could not hear the
conversation between PW.1 and accused No.2 inside the
hotel. Therefore, statement of PW.1 regarding payment of
money to accused No.2 at the instance of accused No.1
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remains uncorroborated. Hence, it cannot be said that the
prosecution has successfully proved that accused No.1 had
demanded the bribe amount of Rs.30,000/- from PW.1
and at the instance of accused No.1, bribe amount was
handed over to accused No.2 by PW.1.
21. For the purpose of convicting the accused for
the offences punishable under Sections 7 and 13(2) of the
P.C.Act, the prosecution is required to prove the demand
and acceptance of bribe amount and the prosecution is
also required to prove that the work was pending before
accused No.2. It is trite that unless the aforesaid aspects
of the matter are successfully proved by the prosecution,
the accused cannot be convicted for the aforesaid
offences.
22. Accused No.2 has been convicted for the
offence punishable under Section 8 of the P.C.Act. Section
8 of the P.C.Act reads as follows:
"8. Offence relating to bribing of a public servant.--
(1) Any person who gives or promises to give an
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undue advantage to another person or persons with
intention --
(i) to induce a public servant to perform improperly a
public duty; or
(ii) to reward such public servant for the improper
performance of public duty, shall be punishable with
imprisonment for a term which may extend to seven
years or with fine or with both:
[
Provided that the provisions of this section shall not
apply where a person is compelled to give such
undue advantage:
Provided further that the person so compelled shall
report the matter to the law enforcement
authority or investigating agency within a period of
seven days from the date of giving such undue
advantage:
Provided also that when the offence under this
section has been committed by commercial
organisation, such commercial organisation shall be
punishable with fine.
Illustration.--A person, 'P' gives a public servant, 'S'
an amount of ten thousand rupees to ensure
that he is granted a license, over all the other
bidders. 'P' is guilty of an offence under this sub-
section.
Explanation.--It shall be immaterial whether the
person to whom an undue advantage is given or
promised to be given is the same person as the
person who is to perform, or has performed, the
public duty concerned, and, it shall also be
immaterial whether such undue advantage is given
or promised to be given by the person directly or
through a third party.
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(2) Nothing in sub-section (1) shall apply to a
person, if that person, after informing a law
enforcement authority or investigating agency, gives
or promises to give any undue advantage to another
person in order to assist such law enforcement
authority or investigating agency in its investigation
of the offence alleged against the later."
23. The allegation against accused No.2 is that he
had received the bribe amount of Rs.30,000/- from PW.1
on behalf and at the instance of accused No.1. Therefore,
the alleged offence punishable under Section 8 of the
P.C.Act does not get attracted against him. Section 8 of
the P.C.Act provides for an offence relating to bribing of a
public servant. The allegation against accused No.2 is that
he had received the bribe amount on behalf and at the
instance of accused No.1 and there is no allegation as
against him that he had given any bribe or promise to give
any bribe to accused No.1, who is a public servant.
Therefore, the Trial Court was not justified in convicting
accused No.2 for the offence punishable under Section 8 of
the P.C.Act,
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24. It is trite that unless the prosecution
successfully proves demand and acceptance of bribe
amount, the presumption under Section 20 of the P.C.Act
cannot be raised against the accused. The Constitution
Bench of the Hon'ble Supreme Court in the case of Neeraj
Dutta vs. State (Government of N.C.T. of Delhi)
reported in 2023 LIveLaw (SC) 211 has observed that
presumption under Section 20 of the P.C.Act can be raised
only in the event the prosecution has successfully proved
the demand and acceptance of bribe amount. In the case
of Soundarajan Vs. State Represented by the
Inspector of Police Vigilance Anticorruption Dindigul
reported in 2023 SCC OnLine SC 424, the Hon'ble
Supreme Court has reiterated the aforesaid principles laid
down in the case of Neeraj Dutta's case.
25. Under the circumstances, I am of the opinion
that the Trial Court was not justified in convicting accused
Nos.1 and 2 for the alleged offences. From the oral and
documentary evidence available on record, it cannot be
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said that the prosecution had proved its charges against
accused Nos.1 and 2 beyond reasonable doubt. Therefore,
I am of the view that the impugned judgment and order of
conviction and sentence passed by the Trial Court cannot
be sustained. Accordingly, following order is passed:
ORDER
a. The appeals are allowed.
b. The impugned judgment and order of conviction
and sentence passed by the Court of Special
Judge (Lokayukta) and Principal Sessions Judge,
Kalaburagi in Special Case No.8/2015 dated
23.02.2018 as against the appellants/accused
Nos.1 and 2 is set aside.
c. Consequently, the appellants/accused Nos.1 and 2
are acquitted.
d. The bail bonds, if any, executed by the
appellants/accused Nos.1 and 2 stands discharged
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and the fine amount, if any, deposited by them
shall be refunded.
Sd/-
JUDGE
SRT
