Karnataka High Court
Parameshwara Basri vs The State By Sp on 1 April, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 924 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO. 924 OF 2012
BETWEEN:
1. PARAMESHWARA BASRI
S/O LATE NARAYANA BASRI
AGED ABOUT 56 YEARS
DEPUTY TAHSILDAR
KUNDAPURA TALUKA OFFICE
UDUPI DISTRICT-577 001.
...APPELLANT
(BY SRI. P.B.UMESH, ADVOCATE FOR
SRI. R.B.DESHPANDE, ADVOCATE)
AND:
1. THE STATE BY SP
LOKAYUKTHA,
Digitally signed UDUPI - 577 001.
by DEVIKA M ...RESPONDENT
Location: HIGH
COURT OF (BY SRI. VENKATESH S. ARABATTI, SPECIAL COUNSEL
KARNATAKA VIDE ORDER DATED 21.08.2024)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE CONVICTION
AND SENTENCE DATED 30.07.2012 PASSED BY THE
SPECIAL/SESSIONS JUDGE, UDUPI IN SPL. CASE NO.4/2010 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 7 AND 13(1)(d) R/W 13(2) OF
PREVENTION OF CORRUPTION ACT, 1988.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 924 of 2012
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for the appellant and learned
Special counsel for respondent-Lokayuktha.
2. The factual matrix of the case of the prosecution
before the Trial Court is that the accused being a public servant
employed as Deputy Tahsildar, Kundapura Taluk Office, Udupi
District on 03.12.2007 accepted Rs.500/- from the complainant
B. Jayasheela Shetty, as gratification other than legal
remuneration, as a motive or reward for doing favour to the
complainant in getting records for clarifying about the
declarations in Form Nos.7 and 7A in relation to sale of the
properties bearing Sy.No.85/4-027 acre, Sy.No.85/5-0.28 acre,
Sy.No.87/2-0.87 acre, Sy.No.87/6B2-0.49 acre and
Sy.No.85/3A-2.35 acre of Belur Village, Kundapura Taluk and
thereby committed an offence punishable under Section 7 of
the Prevention of Corruption Act, 1988 and he also took
pecuniary advantage to the extent of Rs.500/- from the
complainant as gratification for the said purpose and thereby
committed the offence punishable under Section 13(1)(d) read
with Section 13(2) of the Prevention of Corruption Act, 1988.
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3. The prosecution, in order to prove the charges
levelled against the accused examined the witnesses as P.Ws.1
to 9 and got marked the documents as Exs.P1 to P26(a). The
accused did not lead any evidence before the Court and marked
M.Os.1 to 14.
4. The Trial Court having considered the evidence of
prosecution and also the fact that complainant turned hostile
relying upon the evidence of P.W.6, who is shadow witness and
also P.W.7, the Investigating Officer and also the trap mahazar,
comes to the conclusion that the prosecution proved the case
against the accused and the accused committed the offence
under Section 7 and 13(1)(d) read with Section 13(2) of
Prevention of Corruption Act, 1988. Being aggrieved by the said
conviction and imposing of sentence for a period of 1½ year
and imposition of fine of Rs.5,000/-, present appeal is filed
before this Court.
5. The main contention of learned counsel for the
appellant before this Court is that no work was pending with
the accused and Investigating Officer admitted in the cross-
examination that no work was pending and file was cleared by
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Tahsildar on 27.11.2007. Learned counsel would contend that
complainant had turned hostile and there was delay in filing the
complaint and contend that in terms of complaint Ex.P3 marked
before the Trial Court, it is contended that he had visited the
office of Tahsildar on 12.10.2007 and Tahsildar asked him to
come after one week and when he went after one week and
met the accused, he told that file has been sent to office of
Tahsildar and asked him to come after one week and said that
while coming, he should bring amount of Rs.500/- and
accordingly, he went to office on 29.11.2007 and on enquiry,
he told that he has not yet received the file from the office of
Tahsildar and also he made remarks that he is coming and
going and not having respect and only if he pays money, work
will be done. Hence, the complainant has told that he has not
brought the money and he will come back after some time and
then he went and gave the complaint on 30.11.2007 and police
gave the tape recorder to record the conversation and
accordingly, he went to office of accused and he recorded the
same and in the said tape recorder, a conversation was made
with regard to payment of money and he came to know that
there was a meeting on 01.12.2007 and hence, he went and
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met the accused on 03.12.2007 and formalities was done in the
office of Lokayuktha i.e., entrustment mahazar and thereafter
raid was conducted.
6. Learned counsel would vehemently contend that
there was a delay in lodging the complaint and according to the
complainant, he went and met the accused on 12.10.2007 and
according to him, after one week, when he went to office of
Deputy Tahsildar, the demand was made, but he did not take
the money on 29.11.2007, but only after lodging the complaint
only, formality was done and there was inordinate delay in
lodging the complaint. Learned counsel would vehemently
contend that P.W.2 is the trap mahazar witness and his
evidence is also very clear that file was with Nagarathna and
not with the accused. P.W.2 says that signal was given by one
Ramesh, but the case of the prosecution is that signal was
given by complainant after handing over of money. Learned
counsel also brought to notice of this Court Exs.P23 and P24,
wherein also no conversation with regard to demand and
learned counsel would contend that in the conversation also
there was no demand and no work was pending with the
accused and evidence of shadow witness, who has been
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examined as P.W.6 also not corroborates with the case of the
prosecution and he only says that accused demanded money
and there was no evidence of what conversation has taken
place between the complainant and accused. Learned counsel
would contend that when the complainant has turned hostile
and evidence of shadow witness not corroborate the case of the
prosecution, there cannot be any conviction and it requires
interference of this Court.
7. Per contra, learned Special counsel for the
respondent-Lokayuktha would contend that in the complaint at
Ex.P3 categorically made the statement with regard to demand
made by the accused for amount of Rs.500/-. P.W.6, shadow
witness categorically deposes before the Court that demand
was made by the accused, though no details stated in the
evidence, but with regard to the demand is concerned, he has
stated before the Court. Apart from that the evidence of
shadow witness is very clear that after the payment of money,
subjected the hand wash of the accused and the same turned
to pink colour and his evidence is very clear regarding
acceptance of money. The Trial Court in detail discussed the
evidence of witnesses and even though no work was pending
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with the accused, but the fact that he had approached the
complainant on the earlier dates and demand made by the
accused is very clear in the complaint-Ex.P3. When such
material is found before the Trial Court, Trial Court rightly
appreciated the evidence of P.W.2 and P.W.6 and so also
Investigating Officer P.W.7 and no grounds are made out to
interfere with the findings of the Trial Court.
8. Having heard learned counsel for the appellant and
learned Special counsel for the respondent-Lokayuktha and also
considering the material on record, the points that would arise
for consideration of this Court are:
(1) Whether the Trial Court has committed an
error in convicting the accused for the offence
under Section 7 and Section 13(1)(d) read with
Section 13(2) of the Prevention of Corruption
Act, 1988 and whether it requires interference
of this Court by exercising appellate
jurisdiction?
(2) What order?
Point No.(1)
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9. Having heard learned counsel for the appellant and
learned Special counsel for respondent-Lokayuktha, it is the
specific accusation against the accused that with regard to the
clarification of declaration is concerned in respect of Form
Nos.7 and 7A, the complainant gave the application in the
Taluka Office. In the complaint also, an allegation is made that,
he demanded an amount of Rs.500/- and consistently visited
the Taluka Office and ultimately, he was not interested to pay
the bribe amount and hence, lodged the complaint and he went
and recorded the conversation of demand and gave the tape
recorder to the Investigating Officer. Having considered the
document of Exs.P23 and P24 regarding tape recorder
conversation, there is nothing with regard to the demand of
money and the tape recorder conversation does not disclose
anything with regard to the demand and acceptance. Hence,
Exs.P23 and P.24 as rightly pointed out by learned counsel for
the accused, nothing on record regarding demand is concerned.
10. It is important to note that complainant, who gave
the complaint has been examined as P.W.1 and he has turned
hostile and he has not supported the case of the prosecution,
but he only says he went and gave the application on
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12.10.2007, since he was in need of Clearance Certificate from
Taluka Office. It is also his evidence that accused was Deputy
Tahsildar at Kundapura and Exs.P1 and P2 are marked for
having given application and also endorsement. Ex.P3 is the
complaint and he reiterates the complaint averment regarding
asking him to come later and when he met the accused, he told
him that he has already put up the file and file is pending with
the Tahsildar and he says that once again, when he went and
enquired with the Deputy Tahsildar, he said that file has been
sent to Taluka Office and same has not yet come and someone
told him to give complaint in the Lokayuktha. Hence, he went
to Lokayuktha office on 29.11.2007 to give complaint and again
he went to office of Lokayuktha on 30.11.2007 and he
reiterates that tape recorder was given to him and he met the
accused and he had returned the tape recorder and when he
enquired, he told him that not to worry and he behaved like a
respected person and says that Lokayuktha police took his
signature in Ex.P3 but, he did not see what has been written in
complaint and he turned hostile.
11. This witness was cross-examined and nothing is
elicited in the cross-examination of P.W.1 with regard to the
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contents of Ex.P3. The prosecution mainly relies upon the
evidence of P.W.2, who is a panch witness to entrustment
mahazar and he came to know that demand was made i.e.,
Rs.500/-. But, he was not an eye witness to the incident of
demand and acceptance. This witness was also subjected to
cross-examination and in the chief evidence, he says that after
entrustment mahazar, all of them went to office of accused and
instruction was given to give signal and later on, after receiving
the information for having made the payment, they went to
office of the accused and they did formalities and also asked
accused to produce the file and he replied that file is with
Nagarathna and Nagarathna produced the same which is
marked as Ex.P5.
12. The material witness is P.W.5 and P.W.4 also says
that file was put up and file was placed before the Deputy
Tahsildar and also categorically says that file was cleared by
Tahsildar on 27.11.2007 and in the evidence of P.W.5, she says
that file was given to her and accused did not tell anything to
her when he met her and on 28.11.2007, the complainant went
and met her and she told that file is cleared and to take the
same. In the cross-examination, treating the witness as hostile,
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suggestion was made that she gave the statement in terms of
Ex.P19 and the same was denied.
13. The other material witness is P.W.6, who is a
shadow witness. The shadow witness says that on 03.12.2007,
he went to office of the Lokayuktha and Lokayuktha police
requested to become a witness to trap and accordingly, he
gave consent. The other panch witness is also secured and got
introduced the witness and formalities of entrustment mahazar
was done in the presence of Lokayuktha, Investigating Officer
and the panch noted the same in terms of Ex.P11. It is also his
evidence, at around 2.20 p.m., they left the office to go to
office of the accused and he accompanied the complainant and
accused was sitting in the office and the complainant enquired
with the accused and accused demanded money and
immediately, the complainant took out the money which was
kept in the left pocket and gave it to the accused and accused
received the same in his right hand and kept the same in his
left pocket and immediately, the complainant gave signal to the
Investigating Officer and all of them rushed to the office of the
accused and Investigating Officer not asked anything in the
office and only done formalities of trap mahazar and seized the
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same and speaks about the conversation and seizure of M.O.11
and drawing of mahazar in terms of Ex.P12. On enquiry, the
accused revealed that file was not with him and the same is
with Nagarathna. In the cross-examination, question and
answer was recorded and in the cross-examination, when
question was put regarding whether signal was given and he
says that signal was given and when another question was put,
whether the same was noticed by the Investigating Officer, he
says he is not aware of the same. He says that Ramesh was
standing near jeep and he says his left hand did not turn to
pink colour, since he did not touch the bribe money in the left
hand. He admits that when the accused was asked with regard
to demand is concerned, he gave the reply that he has not
demanded the money and not accepted any money and he also
states that his work was done on 22nd itself and no work was
pending with him and also he gave the reply that file was not
with him.
14. The other witness is P.W.7, Investigating Officer,
who conducted entrustment mahazar as well as trap mahazar.
He reiterates in chief evidence and in the cross-examination
admits that no work was pending with him. He also admits
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that when cognizable offence was brought to his notice, he was
aware of the same and he has to conduct the enquiry in writing
and also in the cross-examination, he admits that he did not
make any entry with regard to entrusting of the tape recorder
and also with regard to returning of the same, no
acknowledgement was given to the complainant and categorical
admission was given that when the raid was conducted, file was
already ready and file was cleared on 27.11.2007 itself, but
volunteers to state that file was not given to the accused on
30.11.2007 and earlier to that and also admits that
complainant gave it in writing and that no work was pending
with the accused.
15. Having considered both oral and documentary
evidence placed on record, it is very clear that complainant
gave complaint in terms of Ex.P3 and no doubt there is
reference in Ex.P3 regarding demand is concerned when he had
visited the office, but no specific date was mentioned as to
when the demand of Rs.500/- was made and only he says
when he later on went to office of Tahsildar, demand was made
and subsequently he had visited on 29.11.2007 also. On that
day, replied that he has not brought the money and he will
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bring the money. The fact that P.W.1 complainant has turned
hostile and even he gone to the extent of saying that he is not
aware of contents of Ex.P3 and Lokayuktha police took his
signature and he had signed the same. It is also important to
note that application was given on 12.10.2007 and later on,
complainant says that he visited 2 to 3 times, but record is very
clear that as on the date of trap, file was not with the accused
and no work was pending with the accused and file was cleared
on 27.11.2007 itself and the same has emerged in the evidence
of witnesses P.W.2 and other panch witness also say the same.
P.W.6 shadow witness also says that work was not pending and
the same was cleared and even P.W.7, Investigating Officer
also admits that no work was pending with the accused and
even accused given the statement that he had cleared the file
on 22.11.2007 and he also gave reply immediately after trap
and evidence is clear that no work was pending. It has to be
noted that when no work was pending with the accused,
question of demand does not arise.
16. It is also important to note that complainant went
to Lokayuktha office only on 30.11.2007 and P.W.5-Nagarathna
categorically says that complainant came and met her on
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28.11.2007 and she replied that file was already cleared by
Tahsildar and witness P.W.2 also categorically says that file was
with Nagarathna i.e., P.W.5 and P.W.2 says signal was given by
one Ramesh and not by complainant but, P.W.6 says that
signal was given by the complainant. Having taken note of the
fact that there was no conversation with regard to demand is
concerned in terms of Exs.P23 and P24, though tape recorder
conversation was transcribed, nothing is found with regard to
the demand or acceptance. It is also important to note that
complainant has turned hostile and even shadow witness
though says demand was made, nothing is stated before the
Court what was the conversation between the complainant and
the accused at the time of demand and acceptance of money
and mere recovery of money from the accused cannot be a
ground to convict the accused for the offence punishable under
Section 7 and 13(1)(d) and in order invoke the same, there
must be a demand and acceptance and unless demand and
acceptance of sine qua non is proved by prosecution, the
question of convicting the accused does not arise. The Trial
Court failed to take note of the fact that very complainant has
turned hostile and he did not support the case of the
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prosecution and even he had gone to the extent of denying the
contents of complaint Ex.P3 and even with regard to
substantiating the contents of complaint-Ex.P3, there are no
material before the Court and shadow witness evidence is also
not clear with regard to the conversation between the
complainant and accused and very purpose of sending the
shadow witness along with the complainant is that he has to
state regarding what was the conversation between the
complainant and accused with regard to demand and
acceptance of money and except omnibus statement that
money was demanded, nothing is stated with regard to what
was the conversation between the complainant and the accused
and only based on the statement of P.W.6 shadow witness that
too omnibus statement of demand, there cannot be conviction
for the offence punishable under Section 7 and 13(1)(d) and
there must be material before the Court, in order to invoke the
same.
17. It is also settled law that there must be sine qua
non of demand and acceptance to convict the accused for the
offence under Section 7 and 13(1)(d). Hence, the Trial Court
committed an error in coming to the conclusion that
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prosecution has proved the case and also in the charges framed
before the Trial Court invoking Section 7, nothing is stated with
regard to demand is concerned, in the charge, only it is stated
that accepted the amount of Rs.500/- and Section 7 is very
clear with regard to demand is concerned and Section 13(1)(d)
is with regard to acceptance. When specific charge is not found
and while framing the first charge, it is mentioned that on
03.12.2007 accepted Rs.500/- from the complainant and no
specific word used in the charge while framing the charge with
regard to demand is concerned and very framing of charge
itself is also erroneous and regarding acceptance is also
concerned, no credible evidence before the Court.
18. Apart from that, on the date of trap, no work was
pending and file was cleared on 27.11.2007 itself. When even
approached the Lokayuktha police after the clearance of the file
by the Tahsildar on 27.11.2007, but complaint was given on
03.12.2007 and having perused Ex.P3 complaint, though
accused went to Lokayuktha office on 30.11.2007 and
investigation process was commenced by handing over tape
recorder on 30.11.2007 itself and when the cognizable offence
was brought to the notice of the Investigating Officer and
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Investigating Officer in the cross-examination also categorically
admitted that, if any cognizable offence is brought to his notice,
he should make it in writing and no such complaint was
received on 30.11.2007 and only on the date of trap i.e., on
03.12.2007, complaint was given. Having considered all these
material on record, prosecution material does not inspire the
confidence of this Court to confirm the judgment of the Trial
Court and the Trial Court failed to take note of all these
anomalies found in the evidence of prosecution. Hence, it
requires interference of this Court by exercising the appellate
jurisdiction. Accordingly, I answer point No.(1) as 'affirmative'.
Point No.(2)
19. In view of the discussion made above, I pass the
following:
ORDER
(i) The criminal appeal is allowed.
(ii) The impugned judgment of conviction and
sentence for the offence under Section 7 and
13(1)(d) read with Section 13(2) of
Prevention of Corruption Act, 1988 is hereby
set aside. Consequently, if any fine amount is
deposited by the appellant, the same is
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ordered to be refunded to the appellant on
proper identification.
(iii) The bail bond executed by the appellant and
sureties stand cancelled.
Sd/-
(H.P.SANDESH)
JUDGE
ST
