Karnataka High Court
Bhimashappa S/O Mogalappa vs The State Through on 30 May, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200035 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200035 OF 2017 (374)
BETWEEN:
BHIMASHAPPA S/O MOGALAPPA
AGE: 32 YEARS,
OCC: COMMUNITY ASSISTANT
EDUCATION OFFICER,
MADNA,
R/O. RAGHAPUR,
TQ.SEDAM,
DIST.KALABURAGI.
...APPELLANT
(BY SRI BABURAO MANGANE, ADVOCATE)
AND:
Digitally
signed by THE STATE THROUGH
SHILPA R LOKAYUKTA P.S.,
TENIHALLI
Location: KALABURAGI.
HIGH COURT
OF
KARNATAKA ...RESPONDENT
(BY SRI SUBHASH MALLAPUR, ADVOCATE)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
ALLOW THE APPEAL AND SET ASIDE THE IMPUGNED
JUDGMENT AND ORDER PASSED BY THE HON'BLE PRINCIPAL
SESSION JUDGE AT KALABURAGI IN SPL. CASE NO.497/2011
DATED:28.01.2017 AND ACQUIT THE ACCUSED/APPELLANT
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CRL.A No. 200035 of 2017
FROM THE CHARGES PUNISHABLE U/S 7, 13(i) (d) R/W 13(2)
OF PC ACT 1988.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
ORDER
This appeal is filed under Section 374(2) of Cr.P.C,
filed by the sole accused challenging the judgment and
order of conviction and sentence passed by the Principal
Sessions Judge, Kalaburagi in Spl.C.No.497/2011 dated
28.01.2017 convicting the appellant for the offences
punishable under Sections 7, 13(i)(d) R/w Section 13(2) of
Prevention of Corruption Act, 1988 (for short, 'P.C.Act').
2. Heard the learned counsel appearing for the
parties.
3. Facts leading to filing of this appeal as revealed
from the record narrated briefly are, first informant PW1
had approached the Lokayukta Police station, Kalaburagi
on 02.04.2009 and had submitted first information, based
on which FIR in Crime No.4/2009 was registered by
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Lokayuktha police against appellant herein for the
aforesaid offences. In the first information it was averred
that the first informant PW1 Jai bheem was appointed as
an Assistant Teacher, Government Primary School,
Gorigudda Tanda, Sedam Taluk, Kalaburagi District and his
probation was belatedly declared in the year 2005.
Therefore, he was entitled for arrears of salary for delayed
period from 2005 to 2007. Accordingly, he had submitted
an application for payment of arrears of his salary.
4. The appellant who was working as Community
Assistant Education Officer was the competent authority to
process the application of PW1. He had demanded a bribe
of Rs.5,000/- from PW1 and after negotiation it was
brought down to Rs.3,000/-. Since PW1 did not intend to
pay the bribe amount, he had approached the Lokayuktha
police on 28.03.2009, who in turn had handed over the
tape recorder for recording his conversation with
appellant. Subsequently, on 31.03.2009, PW1 recorded
the conversation of demand made by the appellant and
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thereafter had approached the Lokayukta Police, who in
turn had registered FIR in Crime No.4/2009 on the basis of
first information submitted by PW1. Thereafter, the
appellant was successfully trapped while receiving bribe
amount of Rs.3,000/- from PW 1. The tainted currency
notes recovered from the appellant were subjected to
panchanama and forwarded for chemical examination.
Thereafter, investigation was completed and charge sheet
was filed against the appellant for the aforesaid offences.
5. The trial court framed charges against the
appellant for the aforesaid offences and the same was
read over and explained to the appellant. The appellant
pleaded not guilty and claimed to be tried. The prosecution
in order to prove its charges examined 9 witnesses as PW1
to 9 and got marked 28 documents as Ex.P1 to P28. The
prosecution also produced 12 material objects as M.O.1 to
M.O.12 and closed its side.
6. The trial court recorded the statement of
appellant under section 313 of Cr.P.C. The appellant had
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filed a written statement in support of his evidence during
the course of recording his statement under section 313 of
Cr.P.C. However, no defence evidence was lead nor was
any documents marked on behalf of the appellant.
7. The trial court after hearing arguments
addressed on both sides vide judgment and order dated
28.01.2017 had convicted the appellant for the aforesaid
offences and sentenced him to undergo imprisonment for
a period of six months and to pay fine of Rs.3,000/- and in
default of payment of fine to undergo further
imprisonment for a period of two months for the offence
punishable under Section 7 of the P.C. Act. For the offence
under Sections 13(1)(d) of the P.C. Act punishable under
Section 13(2) of the P.C. Act, the appellant was sentenced
to undergo imprisonment for a period of two years and to
pay a fine of Rs.5,000/- and in default to undergo further
imprisonment for a period of six months. Being aggrieved
by the order of conviction and sentence passed by the trial
court, the appellant is before this Court.
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8. Learned counsel appearing for the appellant
submits that the trial court was not justified in convicting
the appellant for the offences punishable under section 7
and 13(2) of the P.C. Act. He submits that the demand of
bribe allegedly made by the appellant has not been
proved. He also submits that no work was pending with
the appellant as on the date of registration of FIR against
him. He submits that the prosecution has failed to prove
that the conversation recorded in the voice recorder by
PW1 was between the appellant and PW1. He submits
therefore the trial Court was not justified in convicting the
appellant for the aforesaid offences.
9. Per contra, learned counsel appearing for
respondent has strenuously opposed the appeal. He
submits that as on the date of registration of FIR, the
request of PW1 for payment of arrears of salary was
pending before the appellant. He submits that PW5 Block
Education Officer has stated that the appellant was the
competent authority to process the application of PW1.
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PW5 has identified the voice of the appellant that was
recorded. The appellant had never disputed his voice
before the trial Court. He also submits that the first
informant PW1 and shadow witness PW2 have fully
supported the case of the prosecution and their evidence
corroborates with each other. Therefore, there is no
illegality or irregularity in the judgment and order of
conviction and sentence passed by the trial Court.
Accordingly, he prays to dismiss the appeal.
10. The prosecution in order to prove the charges
leveled against the appellant has totally examined 9
witnesses before the trial court as PW1 to 9.
11. PW1 Jai bheem, who is the first informant in the
present case has stated that he had made an application
before the appellant on 26.03.2009 claiming arrears of
salary for the period from 2005 to 2007 and for
consideration of the said application and settling the claim,
the appellant had demanded bribe amount of Rs.5,000/-
which was negotiated and brought down to Rs.3,000/-.
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This witness has also spoken about recording of his
conversation with the appellant and also about preparation
of trap mahazar after registration of FIR. He has also
deposed about handing over bribe amount to the appellant
and arrest of the appellant thereafter. Ex.P18 is the
transcription of conversation between the appellant and
the first informant that was recorded in the voice recorder
by first informant PW1. A perusal of the same would
clearly go to show that there was a clear demand made by
the appellant for payment of Rs.3,000/- for doing the work
of the first informant.
12. PW5 who was the jurisdictional BEO during the
course of his deposition has stated that the appellant was
the competent authority to consider the claim of PW1 for
payment of arrears of his salary.
13. Learned counsel for the appellant strenuously
contended that as on the date of registration of FIR, there
was no work pending before the appellant. It is the specific
case of the first informant that he had submitted an
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application before the appellant on 26.03.2009 claiming
difference of salary for the period from 2005 to 2007.
According to the appellant he had forwarded the claim of
PW1 to the competent authority on 30.01.2009 and in
support of his arguments he has placed strong reliance on
ExP24.
14. The material on record would go to show that
during the course of recording statement of accused under
section 313 of Cr.P.C, by the trial court, a written
statement has been filed by the appellant wherein he has
specifically admitted about receipt of application from PW1
on 26.03.2009. He has also admitted that earlier
application which was forwarded by him to jurisdictional
BEO was returned to him and the same was pending
consideration.
15. PW5 who was the then jurisdictional BEO has
clearly stated that the appellant was the competent
authority to consider the claim of PW1 for payment of
arrears of salary. Therefore, contention of appellant that
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no work of PW1 was pending before him as on the date of
registration of FIR is liable to be rejected.
16. The appellant has also raised a contention that
there was no demand for payment of bribe and in Ex.P19
explanation offered by him immediately after the trap, he
has stated that PW1 was forcing him to receive
consideration for the work to be done by him. In Ex.P19
he has also admitted that there was delay on his part for
considering application for the reason that he was
assigned some other work in the department. The demand
made by the appellant for payment of bribe amount has
been recorded by PW1 in the voice recorder and
transcription of conversation is produced at Ex.P18.
Therefore, it is clear that there was demand for payment
of bribe made by the appellant. In addition to the same,
PW5 who is the higher officer of the appellant had
admitted during the course of his deposition that voice
recorded was heard by him and he has also identified the
voice of the appellant.
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17. PW2 is the shadow witness in the present case
and he has spoken about pre trap mahazar prepared by
the Police and also about handing over the tainted money
to PW1. He has also spoken about he accompanying PW1
on the date of trap and he has stated that the appellant
and PW1 had gone to juice centre of PW.4 and sat in a
chair facing each other. He has stated that he
accompanied them and sat in a chair near them and he
was able to hear the conversation. He has also stated
about PW1 handing over the tainted money to the
appellant and appellant receiving the same from him and
keeping the same in his shirt pocket. He has also spoken
about signal given by PW1 to the police and subsequent
arrest of the appellant by the police and recovery of
tainted currency notes from the shirt pocket of the
appellant. The evidence of PWs1 and 2 fully corroborates
with each other. Though they have been extensively cross-
examined nothing has been elicited from their mouth by
the defence.
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18. PW3 Abdul Naseer Ahamad is a panch witness
to Ex.P17 trap mahazar. Ex.P18 is the conversation
between appellant and PW1. Ex.P19 is the explanation
offered by the appellant after he was trapped while
receiving bribe amount from PW1. This witness has also
supported the case of the prosecution.
19. PW4 Rajendra is the owner of the juice centre.
His evidence is not very material and relevant to the case
on hand.
20. PW5 Gangappa was the then Block Education
Officer for the relevant period and this witness has
admitted that video record was played before him and he
has identified the voice of the appellant. He has also
admitted that certain documents were handed over by him
to the Investigating officer during the course of
investigation. This witness has stated that the appellant
was the competent authority to consider the claim of PW1
for payment of arrears of salary during the relevant
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period. Even this witness has supported the case of the
prosecution.
21. PW6 Ninga Reddy is the Asst. Engineer of PWD
who has prepared Ex.23 which is the sketch of the spot
where the trap was held.
22. PW7 B.S. Parmesh is the sanctioning authority
who has issued sanction order under Section 19 of the P.C
Act as per Ex.26. This witness has admitted issuance of
sanction order and he has also stated that since it was
pointed to him that earlier sanction order suffered from
certain defects he has issued revised sanction order as per
Ex.P26.
23. PW8 Chinnappa is the Investigating Officer who
had carried major portion of the investigation in the
present case. This witness has registered the FIR. He has
spoken about preparation of pre trap mahazar and also
about trap mahazar after the appellant was successfully
trapped. He had forwarded tainted currency notes and
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solution containing sodium carbonate in which the hands
of the appellant was dipped and sent to the FSL for
examination.
24. PW9 Zakeer is the Police Officer who has
carried further investigation after receipt of chemical
examination report from FSL and had filed charge sheet
against the appellant.
25. The Trial Court having appreciated oral and
documentary evidence placed on record by the prosecution
in support of its charges has passed a well reasoned order
convicting the appellant for the alleged offences. I do not
find any illegality or irregularity in the impugned judgment
and order of conviction passed by the Trial Court. Even the
sentence imposed by the Trial Court is just and proper and
therefore no interference is called for as against the
impugned judgment and order of conviction and sentence.
I do not find any merit in this appeal and therefore the
following:
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ORDER
The appeal is dismissed.
Sd/-
JUDGE
NMS
