Karnataka High Court

Shanthamalleshappa vs The State By Lokayuktha Police on 9 May, 2024

                            -1-
                                            CRL.A.325/2012


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 9TH DAY OF MAY, 2024

                          BEFORE
       THE HON'BLE MR. JUSTICE VENKATESH NAIK T.
            CRIMINAL APPEAL NO.325 OF 2012
BETWEEN:


    SHANTHAMALLESHAPPA
    S/O. LATE B.C. NAGAPPA
    AGED ABOUT 49 YEARS
    ASSISTANT DIRECTOR OF SERICULTURE
    NO.143/G, 12TH MAIN, 13TH CROSS
    SARASVATHIPURAM
    MYSURU.

                                                  APPELLANT

    (BY SRI C.H. JADHAV, SENIOR ADVOCATE, ALONG WITH
        SRI L. SRINIVASABABU, ADVOCATE)

AND:

    THE STATE BY LOKAYUKTHA POLICE
    MYSURU.

                                              ...RESPONDENT

    (BY SRI B.S. PRASAD, SPECIAL PUBLIC PROSECUTOR)

                              ***

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER ON SENTENCE DATED 13-3-2012 PASSED
BY THE III ADDITIONAL SESSIONS AND SPECIAL JUDGE, MYSURU,
IN   SPECIAL   CASE   NO.81    OF   2010  CONVICTING    THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 7 AND 13(1)(d) READ WITH SECTION13(2) OF THE P.C.
ACT.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 22-4-2024, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
                               -2-
                                           CRL.A.325/2012


                       JUDGMENT

The appellant/accused has preferred this appeal

under Section 374(2) of the Code of Criminal Procedure

Code, 1973 (for short 'Cr.P.C.') to set aside the judgment

of conviction and order on sentence dated 13-3-2012

passed by the III Additional Sessions and Special Judge,

Mysuru (for short 'Special Court'), in Special Case No.81 of

2010, wherein he has been convicted for the offences

punishable under Sections 7 and 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, 1988

(for short 'P.C.Act'). The appellant also prayed to acquit

him of the alleged charges.

2. For the sake of convenience, the parties are

referred to as per their rankings before the Special Court.

The appellant is the accused and the respondent-State is

the complainant.

3. The brief facts of the prosecution case are that

Sri Basavaraju N. (PW3/complainant) was working as

Sericulture Assistant and the accused was working as

Assistant Director of Sericulture at Sericulture Farm,

Department of Sericulture, Nanjangud. During the year

2008, PW3 was appointed in Excise Department and he

was relieved from his duties from Sericulture Department.

After revision of salary under the Fifth Pay Commission,

Rs.45,881/- towards arrears of salary and Rs.11,300/-

towards surrender leave encashment was due to him.

Hence, on 14-8-2008, PW3 went to Sericulture Farm, met

the accused and requested him to pass the bill in respect

of arrears of salary and surrender leave encashment, at

that time, the accused demanded and accepted a sum of

Rs.3,000/- as bribe in order to pass the bill. Again on

21-8-2008, PW3 met the accused and requested him to

pass the bill, at that time, the accused further demanded

Rs.2,000/- as arrears of salary was more and asked him to

pay the amount on 22-8-2008. Therefore, PW3

approached Lokayukta Police Station, Mysuru, and lodged

a complaint against the accused as per Ex.P20. Hence,

Lokayukta Police registered a case in Crime No.11 of 2008

against the accused for the offence punishable under

Section 7 of the P.C. Act. On the same day,

PW9/Investigating Officer secured two panchas

(PWs.1 and 2), drew entrustment mahazar as per Ex.P2,

explained the importance of entrustment mahazar to the

witnesses, and thereafter proceeded to the Office of the

accused, but the accused did not turn up to the Office

though they waited till 5:30 p.m. On 23-8-2008, PWs.1 to

3 and 9 again went to the Office of the accused and the

accused came to the Office at 1:00 p.m. After meeting the

accused, PWs.1 and 3 came outside and gave signal to

PW9 and informed that the accused demanded the amount

and asked him to keep the amount under the writing pad

of his table. Later, PW3 took PW9 inside the chamber of

the accused and shown him the bribe amount, PW9 took

the accused into custody, seized a sum of Rs.2,000/- and

other relevant documents under seizure mahazar as per

Ex.P4.

4. The Investigating Officer recorded the statement

of the witnesses, collected service particulars of the

accused, obtained sanction, sent seized articles to the

Forensic Science Laboratory and after completion of

investigation, filed the charge-sheet against the accused

for the aforesaid offences.

5. After filing of the charge-sheet, the Special Court

took cognizance of the offences under Section 190(1)(b) of

Cr.P.C. and after hearing the parties on both sides, framed

the charges against the accused for the aforesaid offences

and read over the same to the accused, the accused

pleaded not guilty and claimed to be tried.

6. The prosecution in order to bring home the guilt of

the accused examined in all nine witnesses as PWs.1 to 9,

got marked thirty-eight documents as Exs.P1 to P38 and

fourteen material objects as MOs.1 to 14 and closed its

case.

7. The Special Court after closure of the evidence,

recorded the statement of the accused under Section 313

of Cr.P.C. by explaining the incriminating material

appearing in the prosecution evidence to the accused, he

denied all the suggestions and the case of the accused was

of total denial. The accused examined

Sri Siddalingappa S. as DW1, Sri Satyanarayana as DW2

and himself as DW3 and got marked twenty documents as

Exs.D1 to D20.

8. The Special Court having heard both parties

framed the following points for consideration:

"Whether the prosecution has proved beyond reasonable doubts that,

(i) Accused being a public servant working as Assistant Director in Sericulture Department at Sericulture Farm, Nanjangud had demanded the complainant on 14-8-2008 to pay Rs.3,000/- as illegal gratification other than the legal remuneration as a motive for sending the Service Register of the complainant to Excise Department and also to draw and disburse salary arrears and also surrender leave salary and had received that amount and further he had demanded additional amount of Rs.2,000/- from the complainant on 21-8-2008 and afterwards on 22-8-2008 he had demanded and accepted a sum of Rs.2,000/- from the complainant and thereby committed an offence punishable under Sec.7 of the Prevention of Corruption Act, 1988? and

(ii) Further accused being a public servant working as Assistant Director in Sericulture Department by misusing his official position as public servant by corrupt or illegal means had obtained pecuniary advantage to an extent of Rs.2,000/- from Sri Basavaraju as a motive or reward to show official favour to him and therefore guilty of committing criminal misconduct within the meaning of Sec.13(1)(d) of the Prevention of Corruption Act punishable under Sec.13(2) of the Prevention of Corruption Act?

9. Considering the evidence on record, the Special

Court convicted the accused for the aforesaid offences.

Aggrieved by the judgment of conviction and order on

sentence passed by the Special Court, the appellant has

preferred this appeal.

10. The Special Court records were called for and the

same are placed before this Court.

11. Heard the arguments from both sides. Perused

the material placed before this Court including

the memorandum of appeal, impugned judgment and the

Special Court records.

12. Sri C.H. Jadhav, learned Senior Counsel for the

appellant/accused, has contended that the judgment of

conviction and order on sentence passed by the Special

Court is against the law, procedure, facts and probabilities

of the case. The Special Court erred in believing

uncorroborated testimonies of the prosecution witnesses.

The Special Court committed an apparent error in

overlooking major discrepancies that appeared in the

evidence of the prosecution witnesses. It is contended

that complainant-PW3 was not discharging his duties

properly in the Office of Sericulture Department and in

that regard, the accused had sent a report against PW3

and therefore, PW3 was having ill will against the accused

and due to aforesaid animosity, PW3 managed the stage

to show that the accused demanded a sum of Rs.2,000/-

from him and thus, approached the Lokayukta Police and

filed a false complaint against him and this fact was

disclosed by the accused in his explanation furnished to

the Investigating Officer on the day of the alleged trap.

Though this aspect has been brought on record, the

Special Court has not properly appreciated this aspect. It

is contended that the seized amount was not recovered

from the possession of the accused and on the other hand,

it was seized under the writing pad kept on the table of

the accused, that too, more amount than the amount,

which was entrusted to PW3. Further, as per the evidence

of PWs.1 and 3, they went inside the Office of the accused

before his arrival to the Office and hence, taking

advantage of the absence of the accused, PW3 might have

kept the amount under the writing pad, which clearly

establishes that there was no demand on the part of the

accused. It is contended that Ex.P4-seizure mahazar was

not submitted to the Special Court along with remand

application, but it was submitted to the Court on

25-8-2008, which shows that the investigation was not

conducted properly and it was conducted with malafide

intention. Further, in order to prove the demand, the

Investigating Officer provided a tape-recorder to PW3, but

the conversation between the accused and PW3 were not

clearly audible. Further, the Investigating Officer has not

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furnished the voice-recorder before the Court. Further, as

per Ex.P5-explanation offered by the accused, he was not

aware of the money kept under the writing pad of his

table. It is contended that as per the evidence of PWs.1 to

3, as soon as PW3 left the chamber of the accused, the

accused was counting money, but this aspect has not been

mentioned in Ex.P4-seizure mahazar. Further, the

Investigating Officer seized Rs.2,500/-, but the

prosecution has not explained as to how Rs.500/-

recovered excessively under the writing pad. It is

contended that the writing pad has not been seized and

the writing pad was made up of wood and therefore, one

cannot see the articles kept underneath it. It is contended

that there was Departmental Enquiry against PW3 and in

the said Departmental Enquiry, the accused was a

Presenting Officer and hence, in order to avoid the penalty

to be imposed in the Departmental Enquiry, PW3 has

lodged a false complaint against the accused. Further,

PW3 did not take charge and he was unauthorisedly

absent for forty days and thus, there was issue with

regard to payment of arrears of salary and surrender leave

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encashment. It is contended that the accused had cleared

the bills and credited arrears of salary to the account of

PW3 two days prior to lodging of the complaint and there

was no pending work. Hence, there is no question of

demand and acceptance by the accused. Mere recovery of

amount in the absence of demand has no relevance in the

eye of the law. Hence, on all these grounds, he prayed to

set aside the judgment of conviction and order on

sentence and to acquit him the accused of the charges

leveled against him.

13. Per contra, Sri B.S. Prasad, learned Special Public

Prosecutor for the respondent-Lokayukta, has contended

that from the evidence of PWs.1 to 3 and 9, it has been

clearly proved that on 23-8-2008, the appellant/accused

demanded and accepted the bribe of Rs.2,000/- to process

arrears of salary, surrender leave encashment and return

of service records. Further, these witnesses have clearly

stated about drawing of the entrustment mahazar and

seizure of MOs.1 to 14 in their presence by the

Investigating Officer. The FSL report-Ex.P31 stands

corroborated with the oral testimonies of aforesaid

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witnesses. The acceptance of illegal gratification whether

preceded by a demand or not would be covered by Section

7 of the P.C. Act. The acceptance of illegal gratification is

in pursuance of demand by the accused and thus, it falls

under Section 13(1)(d) of the P.C. Act. The prosecution

has been able to prove that the alleged act against the

accused of demanding and accepting illegal gratification of

Rs.2,000/- constitute the offences punishable under

Sections 7 and 13(1)(d) of the P.C. Act. The Special Court

based upon the oral and documentary evidence on record

has rightly convicted the accused and as such, there are

no grounds to interfere with the same. Thus, he prayed to

dismiss the appeal.

14. After hearing the learned counsel from both

sides, the points that arise for Court's consideration in this

appeal are:

i. Whether the prosecution has proved beyond reasonable doubt that the accused, being a public servant, working as Assistant Director in Sericulture Department, at Sericulture Farm, Nanjangud, on 14-8-2008

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had demanded PW3/complainant to pay Rs.3,000/- as illegal gratification and accepted it and again on 23-8-2008, the accused further demanded and accepted Rs.2,000/- from PW3 to clear his bills in respect of arrears of salary, surrender leave encashment and return of service records and thereby, has committed the offence punishable under Section 7 of the P.C. Act?

ii. Whether the prosecution has proved beyond reasonable doubt that the accused, being a public servant, working as Assistant Director in Sericulture Department, misused his official position by corrupt or illegal means obtained pecuniary advantage to an extent of Rs.2,000/- from PW3/complainant as a motive or reward to show official favour to him and thereby, has committed the offence punishable under Section 13(1)(d) of the P.C. Act punishable under Section 13(2) of the P.C. Act?

iii. Whether the judgment of conviction and order on sentence passed by the Special Court warrants any interference at the hands of this Court?

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15. In the instant case, the prosecution has made

allegations that the accused, being a public servant,

working as Assistant Director in Sericulture Department,

misused his official position by corrupt or illegal means

obtained pecuniary advantage to an extent of Rs.2,000/-

from PW3/complainant as a motive or reward to show

official favour to him. Hence, to attract the offence

punishable under Section 7 of the P.C. Act, the prosecution

has to establish that the accused voluntarily demanded

and accepted the bribe amount.

16. Section 7 of the P.C. Act reads as under:

"7. [Offence relating to public servant being bribed. [Substituted by Act No.16 of 2018, dated 26.7.2018.]

- Any public servant who,-

(a)obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

(b)obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for

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the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

Illustration. - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.

Explanation 2. - For the purpose of this section,-

(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

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(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."

17. In view of the above proposition of law, facts and

circumstances of the case, let me analyse the evidence.

18. In order to prove the demand and acceptance,

the prosecution examined:

a. PW3-Basavaraju N., complainant, who has stated

that he is presently working as Excise Guard in Excise

Department and during the year 2007-2008, he was

working as Assistant and the accused was working as

Assistant Director in Sericulture Department, Nanjangud.

He has further stated that after he was appointed in Excise

Department, he had been to the Office of Sericulture

Department and requested the accused to draw and

disburse the arrears of salary due to him and also to send

his service records to Excise Department. Even though he

visited the Office several times and requested the accused

to clear arrears of salary and to send the service records

to Excise Department, the accused did not heed his

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request. He has further stated that on 14-8-2008, when

he met the accused and enquired about the arrears of

salary and also about sending his service records, the

accused demanded him to pay Rs.3,000/- to do the work

and at that time, he gave Rs.3,000/- to the accused and

thus, the accused promised him that he would clear the

bills and send the service records, however, he did not do;

on 21-8-2008, he again went to the Office and requested

the accused to draw the arrears of salary and at that time,

the accused asked him to pay additional sum of Rs.2,000/-

as bribe stating that the amount which is due to him as

arrears of salary is huge amount and he asked him to pay

that amount on the next day morning. Hence, he went to

Lokayukta Police Station on 22-8-2008 and gave a

complaint as per Ex.P20 and handed over Rs.2,000/- to

Lokayukta Police Officer; the Police Officer secured two

panchas, i.e. PW1/Ramanna and PW2/Dharmaraju M.,

from the Office of Commercial Tax, Mysuru, and the

complaint given by him was given to them to read and

later, the Police Officer smeared phenolphthalein powder

on the amount with the help of his sub-ordinates and gave

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that amount to PW2 with instructions to note down the

serial numbers and denominations of the currency notes

and accordingly, serial numbers and denominations of the

currency notes were noted down by PW2; he kept the

amount in his shirt pocket and the Police Officer instructed

him to handover the amount to the accused, if he

demands for money and later, when the hands of PW1

were dipped in sodium carbonate solution, the colour of

the solution turned to pink and the same was seized; the

Police Officer prepared entrustment mahazar as per Ex.P2

regarding the procedure conducted in Lokayukta Police

Station; the Police Officer gave a tape recorder to him with

instructions to record the conversation between him and

the accused; he along with the witnesses and the Police

Officer and his staff went to Nanjangud in the official

vehicle and the vehicle was stopped near Sericulture Farm

and the Police Officer sent him and PW2 went inside the

Office; when he and PW2 went and enquired about the

accused, the accused was not in the Office and hence,

they waited for him till 5:30 p.m., but the accused did not

come to the Office and therefore, they came back to

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Lokayukta Police Station, Mysuru; the amount which was

kept in his shirt pocket and also the tape recorder were

taken out and kept in the almirah and a mahazar was

prepared to that effect; the Police Officer asked him and

the witnesses to come on the next day morning, i.e. on

23-8-2008.

On 23-8-2008 at 9:15 a.m., he visited Lokayukta

Police Station and PWs.1 and 2 were also present and the

amount and the tape recorder which were kept in the

almirah were taken out and given to him and again, all of

them went to Nanjangud in the official vehicle and the

vehicle was stopped near Sericulture Farm and the Police

Officer sent him and PW2 inside the Office of the accused;

when he and PW2 went inside the Office, the accused was

not in his chamber and they waited for him till 1:10 p.m.

After arrival of the accused, he asked for clearance of the

bills, at that time, the accused questioned him about the

amount of Rs.2,000/-. Hence, he took out the amount

from his shirt pocket and offered the amount to the

accused, by that time, PW5/B.M. Lingappa came to the

chamber along with a file and the accused told him to

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keep the amount under the writing pad on his table and

accordingly, he kept the amount under the writing pad;

after departure of PW5, the accused informed him that he

would finish his work and later, he and PW2 came out of

the chamber of the accused and when he looked back, he

noticed that the accused had taken the amount kept under

the writing pad and was counting the same. Thus, PWs.2

and 3 after coming out of the chamber gave signal to the

Police Officer about handing over the money to the

accused and thus, the Police Officer went to the chamber

of the accused and questioned the accused about the

amount and the accused informed that the said amount is

kept under the writing pad of his table, later the amount

was taken out and the serial numbers and denominations

of the currency notes were compared with the serial

numbers and denominations noted down in Lokayukta

Police Station and PWs.1 and 2 informed that the serial

numbers were tallying with each other and the said

amount was seized. It is his further evidence that the

Police Officer prepared sodium carbonate solution and the

hands of the accused were dipped in the solution

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separately and the colour of the solution turned to pink

and the said solution was also seized in a separate bottle;

when the Police Officer questioned the accused about the

amount, the accused gave a written explanation stating

that he was not aware of the amount kept under the

writing pad; he handed over the tape recorder given to

him and when the tape recorder was played, the

conversation recorded in the tape recorder was not

properly audible; when the amount was seized under the

writing pad, they found additional sum of Rs.500/-

currency note and the Police Officer questioned about the

same and at that time, PW7/Fameeda Nusrat, who was

working in that Office, informed that she had given that

amount to the accused for sanction of Provident Fund

Advances and the said amount was also seized.

PW3 was subjected to cross-examination. In his

cross-examination, he admits that as soon as the accused

demanded the amount, PW5 entered the chamber of the

accused, hence, the accused instructed him to keep the

amount under the writing pad on his table. Soon after

departure of PW5, the accused took out the amount and

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counted the currency notes. It shows that there are

contradictions in the testimonies of PWs.2 and 3 as to the

amount kept under the writing pad, whether in the

presence of PW5 or after departure of PW5. Further, he

admits that the Investigating Officer handed over voice

recorder to him with a direction to record while interacting

with the accused, but voice recorded by him was not

audible. He further admits that the Police have collected a

sum of Rs.2,000/- along with Rs.500/- currency notes

under the writing pad. According to him, the Police

enquired PW7 and she said that she paid a sum of

Rs.500/- as bribe to the accused in order to clear her

Provident Fund Advances. But, PW7 denied this aspect.

He further admits that he signed on Ex.P4-seizure

mahazar on 25-8-2008, which was drawn on 23-8-2008.

It shows that on the date of trap, he has not signed on the

said document. He further admits that earlier, he was

working in the Office of Sericulture Department,

Nanjangud, and thereafter, he has been appointed as Excise

Guard in Excise Department and in this regard, he submitted

an application to the Deputy Commissioner, Mysuru, to merge

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his previous service, accordingly, the accused issued

show-cause notice to him and called for his explanation.

He further admits that Departmental Enquiry was held

against him in respect of sexual harassment made against

his colleague. He further admits that he was not attending

the Office on time and he was not properly doing his work.

In that regard, his higher authority had issued a memo.

Further, he was unauthorisedly absent for forty days and it

was entered in the attendance register maintained in the

Office of Sericulture Department. He further admits that

the accused issued six memos to him vide Exs.D6 to D18

while he was working in the Office. He further admitted

that on 23-3-2007, he was not accorded any permission

by the accused to take in-charge post at Mysuru. He

further admits that his arrears of salary bill was cleared on

19-8-2008 and the amount was credited to his bank

account on 21-8-2008. He further admits that he

enquired with PW5 as to clearance of bill and service

records, however, PW5 informed him that in order to clear

revised pay-scale in terms of Fifth Pay Commission,

service register was required in the Office of Sericulture

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Department. More importantly, the service records was

not at all required to him, as no order was issued to him

by Excise Department to join for duty from 23-5-2008.

Further, service register is normally transmitted from

parent department to another department where the

employee gets posted.

It is pertinent to note that PW3 had insisted the

accused to send his service records to Excise Department.

In fact, PW3 had not joined the Office of Excise

Department till 24-9-2008. Hence, the question of

sending the service records of PW3 from parent

department (Office of Sericulture Department, Nanjangud)

to Excise Department would not arise at all.

b. In order to corroborate the oral testimony of

PW3/complainant, PW1-Ramanna and PW2-Dharmaraju M.

have been examined. They have stated that on

22-8-2008, as per the directions of their higher

authorities, they appeared before PW9/Lokayukta Police

Inspector/Investigating Officer, at that time, PW3 was in

the Station, who had lodged a complaint against his higher

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officer alleging that he was demanding bribe to draw the

arrears of salary due to him and PWs.1 and 2 had gone

through the contents of the complaint lodged by PW3.

They have further stated that PW9 conducted entrustment

mahazar as per Ex.P2 and its importance. They have

further stated that on the same day, they went to the

Office of the accused at Nanjangud, but due to non-

availability of the accused, they came back to Mysuru and

on 23-8-2008, again they went to the Office of the

accused at Nanjangud. PW2, shadow witness, has

specifically stated that he and the complainant, went

inside the Office of the accused, the accused was sitting in

the chair and PW3 wished him and asked the accused

about his arrears of salary and also asked him to send

service records, at that time, the accused asked PW3 as to

whether he has brought Rs.2,000/- as said by him earlier.

It is further evidence of PW2 that when the accused

demanded money, another official of the same Office

entered the chamber of the accused and after couple of

minutes, said official left the chamber of the accused and

thereafter, PW3 took out the bribe amount from his shirt

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pocket and offered the amount to the accused and in turn,

the accused asked PW3 to keep the amount beneath the

writing pad of his table, thus, PW3 kept the amount and

later, the accused informed the complainant that he would

finish his work. It is further evidence of PW2 that he and

PW3 came out of the chamber of the accused, at that

time, the accused took the amount from the place where it

was kept and was counting the same in his hands.

Therefore, PW3 gave signal to PW9/Investigating Officer

by wiping his head with his hand as instructed by him.

Hence, PW9 and his sub-staff, PWs.1 and 2, entered the

chamber of the accused, enquired the accused, seized the

amount, drew seizure mahazar as per Ex.P4. PWs.1 and 2

further stated that PW9 seized the sum of Rs.500/- along

with Rs.2,000/- during the trap proceedings. PW9 also

seized the records pertaining to arrears of salary of PW3

under the mahazar.

In the cross-examination, PW1 admits that

permission was not accorded in writing to participate in

trap proceedings and there is no Office order in this

regard. PW1 has not obtained permission from his higher

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authority to accompany Lokayukta Police on 23-8-2008.

He admits that there is half-shutter spring door installed to

the door of the accused and hence, once cannot see the

accused from outside. He further admits that he collected

the amount under the writing pad and handed over to

PW9/Investigating Officer. He also handed over a sum of

Rs.500/- and a note book to PW9.

In the cross-examination, PW2 has stated that while

the accused was demanding the bribe amount, one

Assistant of the same Department entered the chamber of

the accused. Hence, PW3 did not handover the amount to

the accused and later, after his return, PW3 took out

tainted amount from his pocket and tried to handover the

same to the accused, but the accused instructed to keep

the same under the writing pad on his table. Accordingly,

PW3 kept the tainted amount under the writing pad on the

table of the accused.

c. PW4-D. Puttaswamy has stated that during the

relevant period, he was working as Superintendent in the

Office of the Assistant Director of Sericulture Department,

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Nanjangud. On 23-8-2008, he was present when the

Lokayukta Police had come to the chamber of the accused

and when the Police verified under the writing pad on the

table of the accused, they found the amount and the Police

seized the amount. He further stated that as per the

instructions of PW9, he handed over the documents

belonging to PW3 as per Exs.P6 to P8.

d. PW5-B.M. Lingappa has stated that during the

year 2008, he was working as Second Division Assistant in

the Office of Sericulture Department, Nanjangud. He has

stated that when the Lokayukta Police came, he was also

present in the Office and on that day, the Police Officer

called him to the chamber of the accused and later, the

Police took photographs. Apart from his evidence, he does

not know anything about the case and hence, he has been

treated as hostile witness and was subjected to cross-

examination. Even in the cross-examination, he has not

stated anything about the incident.

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e. PW6-Devika, Under Secretary to the Government,

has stated about according sanction to prosecute the case

against the accused.

f. PW7-Fameeda Nusrat, an employee of Sericulture

Department, has stated that she was not present when the

Lokayukta Police trapped the accused and on the date of

trap, she had not met the accused and she was not having

any work with the accused. Hence, she was treated as

hostile witness and subjected to cross-examination. Even

in the cross-examination, she denied the suggestions that

she had given a sum of Rs.500/- as bribe to the accused

for sanction of Provident Fund Advances.

g. PW8-A.V. Subramanya has stated that on the

request of the Lokayukta Police, he visited the Office of

the accused and drew sketch as per Ex.P26.

h. PW9-D. Jayaram, Inspector of Police, Lokayukta

Police Station, Mysuru, has stated that he was working as

Police Inspector in Lokayukta Police Station, Mysuru,

during the year 2008. On 22-8-2008 at about 10:45 a.m.,

when he was in the Station, PW3 appeared in the Police

- 30 -

Station and gave a written complaint as per Ex.P20 stating

that the Assistant Director of Sericulture at Sericulture

Department, Nanjangud, is demanding bribe amount to

draw and disburse arrears of salary and also to send his

service records to Excise Department. Hence, he received

the complaint and registered a case and sent F.I.R. to the

Court; he secured PWs.1 and 2 as panch witnesses and

introduced the complainant to those witnesses and also

gave the complaint given by PW3 to the witnesses to go

through its contents and after reading the complaint, they

agreed to act as panch witnesses; the complainant gave

Rs.2,000/- to him and he handed over that amount to

PWs.1 and 2 with instructions to note down the serial

numbers and denominations of the currency notes and

accordingly, PWs.1 and 2 noted down the serial numbers

and denominations of the currency notes as per Ex.P1;

later with the help of his sub-ordinates, phenolphthalein

powder was smeared on the currency notes and again

the amount was given to PW1 with instructions to verify

the amount and to keep the amount in the shirt pocket

of PW3 and accordingly, PW1 kept the

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amount in the shirt pocket of PW3; he instructed the

complainant that the said amount should be given to the

accused, if he again demands for money and also gave a

tape recorder to the complainant with instructions to

switch on the tape recorder when he goes and meet the

accused; the sodium carbonate solution was prepared and

the hands of PW1 were dipped in the solution and the

colour of the solution turned to pink and the said solution

was seized and the remaining phenolphthalein powder was

also seized in a pocket cover. In this regard, entrustment

mahazar was prepared as per Ex.P2 about the procedure

conducted in the Lokayukta Station and in this regard,

Exs.P9 to P13-photographs were taken; he instructed PW2

to be with the complainant when the complainant visits

the accused and to observe the happenings.

PW9 has further stated that he along with the

complainant, panch witnesses and his staff went to

Nanjangud in the department vehicle and the vehicle was

stopped near the Office of the Director of Sericulture.

Though PWs.2 and 3 along with the complainant were

waiting for the accused, the accused did not turn up on

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that day. Hence, they came back to the Station and the

amount and the tape recorder were taken back from the

complainant and were kept in almirah and a mahazar was

prepared as per Ex.P3 to that effect; further, the

complainant and the witnesses were instructed to come on

the next day morning.

It is his further evidence that on 23-8-2008, the

complainant and PWs.1 and 2 again came to the Police

Station in the morning and the amount and the tape

recorder which were kept in the almirah were taken out

and entrusted to the complainant. Later, he along with

the complainant, panch witnesses and his staff went to

Nanjangud in departmental vehicle and the vehicle was

parked near Sericulture Farm and PWs.2 and 3 were sent

inside the Office; after some time, PWs.2 and 3 came back

and informed him that the accused is yet to come to the

Office and therefore, they waited for the accused till 1:00

p.m. and later, the complainant informed him that the

accused came to the Office and therefore, PWs.2 and 3

went inside the Office at 1:10 p.m.; at about 1:45 p.m.,

PWs.2 and 3 came out of the Office of the accused and the

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complainant signaled about handing over the bribe amount

to the accused and immediately, he along with PW1 and

his staff went near the complainant and enquired him. The

complainant informed him that the accused received the

bribe amount from him and the amount is kept under the

writing pad on the table of the accused and also took him

to the chamber of the accused and showed him; he

informed the accused about the complaint given by PW3,

he was taken to custody, sodium carbonate solution was

prepared and the hands of the accused were separately

dipped in sodium carbonate solution and colour of solution

turned to pink and the same was seized; when he

questioned the accused about the amount received from

the complainant, the accused informed him that the

amount is kept under the writing pad on his table and

later, the amount was seized and he instructed PWs.1 and

2 to compare the serial numbers and denominations of the

currency notes which were found under the writing pad

with the serial numbers and denominations of the currency

notes noted down in Lokayukta Police Station and the

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serial numbers and denominations were tallying with each

other.

It is his further evidence that when the writing pad

was removed, there was a book and also additional sum

Rs.500/- under the writing pad and when he made

enquiry, PW7, who was an employee in the Office, stated

before him that she had given the currency note of

Rs.500/- to the accused on that day for sanctioning

Provident Fund Advances and therefore, he seized the said

amount also; further, he seized the book which was found

under the writing pad and also the sample of distilled

water used for preparing the solution and sodium

carbonate powder. When he asked the accused to give his

explanation about receiving the amount, the accused gave

written explanation as per Ex.P5 and when he enquired

PWs.2 and 3 about explanation of the accused, they

denied the explanation offered by the accused and

informed that the accused demanded for money and

therefore, the bribe amount was given to him. He has

taken back the tape recorder which was given to the

complainant and played it before the witnesses, however,

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the conversation recorded in the tape recorder was not

properly audible, however, the cassette was also seized. In

this regard, the photographs were also taken when the

procedure was conducted in the chamber of the accused

and a seizure mahazar was prepared as per Ex.P4;

thereafter, he conducted further investigation and

recorded the statement of witnesses and after completion

of investigation, he filed the charge-sheet.

PW9 was cross-examined by the learned counsel for

the accused. In the cross-examination, he admits that

prior to 22-8-2008, he never visited PW3/complainant. At

the time of lodging complaint, PW3 was not working in

Sericulture Department, Nanjangud. He further admits

that he does not know from which chemical unit the

phenolphthalein and sodium carbonate solutions are

prepared, but he knows that if phenolphthalein is mixed

with sodium carbonate solutions, the same turns to pink

colour. He submitted F.I.R. to the Court before drafting

entrustment mahazar vide Ex.P2. He handed over micro

voice recorder to PW3 and instructed him to record voice

conversation and he ensured that micro voice recorder

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was in order and audible condition. He further admits that

on 22-8-2008, himself and PWs.1 and 2/panch witnesses,

returned to Mysuru as they could not find the accused. But

he did not seek any permission from the higher authorities

of PWs.1 and 2 to accompany him on 23-8-2008. On

23-8-2008, he handed over tainted amount, the note

containing details of currency notes and micro voice

recorder to PW3, but he did not prepare any mahazar to

that effect. He further admits that the sodium carbonate

solution stored in MO5-bottle was precipitate and the

sodium carbonate solutions stored in MOs.3 and 4-bottles

were not precipitate. In this regard, he pleads ignorance.

He further admits that he did not examine Rs.500/-

currency note as to whether the said currency note

contained phenolphthalein powder or not. He did not

secure any signatures of the colleagues of the accused. On

23-8-2008, he secured signatures of PWs.1 and 2 on

seizure panchanama-Ex.P4. On the day of production of the

accused before the Court, he had no impediment to submit

entrustment mahazar and seizure mahazar along with

remand application to the Court. He further admits that he

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secured the signature of PW3 on seizure mahazar on

25-8-2008, i.e., after two days of the incident. PW7 did

not lodge any complaint against the accused alleging any

bribe. Further, he did not make any request to PW4 to

handover service records of PW3. PW9 specifically denied

the suggestions that on 23-8-2008, the bill was cleared

and the amount was credited to the account of PW3.

PW9 in his cross-examination dated 15-2-2012, after

hearing voice recorder in the Court, clearly admits that

initially PW3 wished the accused saying "Namaskara Sir"

and later, he enquired about his bill, in reply, the accused

told him that his one bill was prepared three days ago.

Thus, PW3 again enquired about his second bill, thus, the

accused replied that, the former bill was also prepared

yesterday and thus, told him to enquire PW5 and asked

him to leave his chamber. Hence, PW3 replied him saying

that "Okay Sir, I will return". From the above evidence of

this witness, it is clear that there was no demand of bribe

amount from the accused.

- 38 -

19. In order to rebut the prosecution case, the

accused got examined:

a. DW1-Siddalingappa S., Sericulture Inspector,

Mysuru. In his evidence, he has stated that he knows

PW3/complainant, who was working under him.

b. The accused also got examined DW2-

Satyanarayana. In his evidence, he has stated that

PW3/complainant was not attending his duty properly and,

in that regard, the accused had got issued notice to PW3.

c. The accused-B.N. Shanthamalleshappa, Assistant

Director, Sericulture Department, Mysuru, examined

himself as DW3. He has stated that he affixed his

signature on Ex.P4-seizure mahazar on 25-8-2008 in the

Lokayukta Office, Mysuru, and not in the Office of

Sericulture Department, Nanjangud.

20. In this case, it is to be noticed that

PW3/complainant is a key witness. He was working as

Assistant in the Office of Sericulture Department,

Nanjangud. It is evident from the depositions of PWs.1 to

3 and 9 that they reached the Office of Sericulture

- 39 -

Department, Nanjangud, on 22-8-2008 at 10:30 a.m. and

at that point of time, the accused was not found in the

Office and they waited for him till 5:30 p.m. Since the

accused did not turn up, they came back to Mysuru from

Nanjangud. On the following day, i.e. on 23-8-2008 at

10:30 a.m., PWs.1 to 3 and 9 reached Sericulture

Department, Nanjangud, but the accused was not found in

the Office and thus, they waited for him and the accused

came to the Office at 1:10 p.m. and took his seat.

PW3/complainant, in his deposition, has stated that when

he met the accused along with PW2, the accused made a

demand of Rs.2,000/-. He has further stated that in lieu

of such demand by the accused and as per instructions of

the accused, he kept the powder coated currency notes

under the writing pad on the table of the accused. The

official witnesses, i.e. Ramanna and Dharmaraju M., were

examined as PWs.2 and 3 and they have stated that when

they reached the Office of the accused, the accused was

not in his seat. Therefore, they waited and the accused

arrived to the Office at 1:10 p.m. PW3, in his deposition,

has clearly stated that he met the accused earlier several

- 40 -

times and again when he met on 23-8-2008 along with

PW2, the accused demanded the bribe amount of

Rs.2,000/- as illegal gratification.

21. As per the defence of the accused, PW3 was not

regular in his work, he was coming late to the Office, he

was not attending his duty properly, hence, several show-

cause notices and memos were issued to him, a

Departmental Enquiry was held against him and the

accused was a Presenting Officer in the said Departmental

Enquiry.

22. From the oral testimony of PW3, it is clear that

they were ill feelings between the accused and PW3. It is

also clear from the evidence that after handing over the

currency notes, he and PW2 came out of the Office and

signaled to PW9/Investigating Officer. From perusal of the

evidence of PWs.1 to 3 and 9, the amount was seized

under the writing pad kept on the table of the accused.

PW4/Superintendent in the Office of Sericulture

Department, Nanjangud, PW5/Second Division Assistant in

the Office of Sericulture Department, Nanjangud, who is

- 41 -

stated to have visited the chamber of the accused at the

time of handing over of the bribe amount, and

PW7/employee of the Sericulture Department, Nanjangud,

who is stated to have handed over Rs.500/- to the

accused, have not supported the case of the prosecution

to any extent. There are contradictions in the testimonies

of PWs.2 and 3 as to the bribe amount tendered by PW3

before the accused. Further, Ex.P4-seizure mahazar was

drawn on 23-8-2008, but PW3 affixed his signature on

25-8-2008. It is also admitted fact that as on 23-8-2008,

there was no bills pending with respect to PW3.

23. Further, PW9/Investigating Officer, after hearing

micro voice recorder in open Court during his cross-

examination dated 15-2-2012, has stated that, the

moment PW3 visited the chamber of the accused and

enquired about his two pending bills, the accused in

categorical terms stated that his one bill was cleared about

three days ago and second bill was cleared on previous

day and thus, asked him to enquire with one Lingappa and

also insisted PW3 to leave the chamber. In these

conversations, the accused has not made any demand for

- 42 -

bribe and there is no interaction between the accused and

PW3 regarding demand of bribe amount. Further, in the

said interaction, it is not revealed that PW3 handed over

Rs.2,000/- as demanded by the accused. From the

admission made by PW9, it clearly establishes that as on

the date of the alleged trap, there was no bills pending

with respect to PW3 and the accused has not demanded

any bribe amount from PW3.

24. It is fairly well settled that mere recovery of

tainted money divorced from circumstances under which

such money is found is not sufficient to convict the

accused when the substantive evidence in the case is not

reliable.

25. The Hon'ble Supreme Court in the case of

N. VIJAYAKUMAR v. STATE OF TAMIL NADU reported

in AIR 2021 SUPREME COURT 766 at paragraph No.12

has held as under:

"12. 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

- 43 -

case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 : (AIR 2009 SC 2022) and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 : (2014 AIR SCW 2080). 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 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. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under :

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and

- 44 -

mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] : (AIR 2011 SC 608) and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] : (AIR 2009 SC 2022 : 2009 AIR SCW 1693).

8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext.P-

11) before LW9, and there is no other

- 45 -

evidence to prove that the accused had made any demand, the evidence of PW1 and the contents of Ext.P11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused.

We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.

- 46 -

9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."

The above said view taken by this Court, fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a "possible view" as such the judgment of the High

- 47 -

Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record."

26. In this case, there is no proof of demand.

Absence of proof of demand for illegal gratification and

mere possession of, or recovery of currency notes is not

sufficient to constitute the offences under Sections 7

and 13(1)(d) of the P.C. Act. Though demand is not

proved, but the Special Court has wrongly raised

presumption under Section 20 of the P.C. Act in the

absence of proof of demand and acceptance of illegal

gratification. Further, the complainant/PW3 prosecuted

the accused with ill-motive as he was irregular in his

work, several memos and show-cause notices were

issued to him by the accused and in one of the

- 48 -

Departmental Enquiry held against him, the accused

was the Presenting Officer. Therefore, in order to avoid

the penalty to be imposed in the Departmental Enquiry,

PW3 has lodged this false complaint against the

accused. The prosecution though not proved its case

beyond reasonable doubt that the accused made

demand and accepted bribe amount of Rs.2,000/- from

PW3, however, the Special Court on uncorroborated

testimony proceeded to convict the accused, which

requires interference by this Court.

27. In view of the material contradictions as

noticed above in the deposition of key witness and the

fact that the prosecution failed to prove the demand,

the benefit of doubt has to be extended in favour of the

accused. Accordingly, I pass the following:

ORDER

i. The appeal is allowed.

ii. The judgment of conviction and order on sentence

dated 13-3-2012 passed by the III Additional

Sessions and Special Judge, Mysuru, in Special Case