Sri S M Byregowda S/O S Muniswamy Gowda vs State Of Karnataka
2025 Latest Caselaw 3515 Kant

Karnataka High Court

Sri S M Byregowda S/O S Muniswamy Gowda vs State Of Karnataka on 4 February, 2025

Author: V Srishananda

Bench: V Srishananda

                       1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
  DATED THIS THE 04TH DAY OF FEBRUARY, 2025
                    BEFORE
   THE HON'BLE MR. JUSTICE V. SRISHANANDA
               CRL.A.NO.828/2011
BETWEEN

SRI S M BYREGOWDA
S/O S MUNISWAMY GOWDA
AGED ABOUT 60 YEARS
NO.72, CHAMUNDESHWARI EXTENSION,
VIDYARANYAPURA MAIN ROAD,
BANGALORE - 560 097
                                     ...APPELLANT
(BY SRI C M KEMPEGOWDA, ADVOCATE)

AND

1 . STATE OF KARNATAKA
    BY POLICE INSPECTOR,
    POLICE WING, CITY DIVISION,
    KARNATAKA LOKAYUKTA
    BANGALORE -560 001
    BY :STATE PUBLIC PROSECUTOR
    FOR KARNATAKA LOKAYUKTA
    HIGH COURT BUILDING COMPLEX,
    BANGALORE -560 001
                                     ...RESPONDENT
(BY SRI VENKATESH S. ARABATTI, ADVOCATE)

      THIS CRL.A IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
30.7.11 PASSED BY THE SPL.JUDGE, PREVENTION OF
CORRUPTION ACT, B'LORE URBAN DISTRICT, B'LORE IN
SPL.C.C.NO.34/05-CONVICTING    THE    APPELLANT/
ACCUSED FOR THE OFFENCE P/U/S 7 OF PREVENTION OF
                              2

CORRUPTION ACT AND SEC.13(1)(d) P/U/S 13(2) OF
PREVENTION OF CORRUPTION ACT, 1988.

     THIS APPEAL HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:-

CORAM:    HON'BLE MR JUSTICE V SRISHANANDA

                     CAV JUDGMENT

(PER: HON'BLE MR JUSTICE V SRISHANANDA)

Appeal is filed by the accused who has suffered an

order of conviction in Spl.C.C.No.34/2005 by judgment

dated 30.07.2011 on the file of Special Judge, Bangalore

Urban District, Bangalore City for the offence punishable

under Section 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988.

2. Facts in the nutshell which are necessary for

disposal of the appeal are as under:

2.1. An application was filed by an association

known as Dakshina Kannada District Ex. Servicemen

Association, Mangalore praying for five cents of the land

for construction of the building of the association. Said

request was pending for last 15 to 20 years but the file

was not cleared by the concerned department. Finally, five

cents of the land in Sy.No.19/A of Attavara Village,

Mangaluru Taluk was ear marked pursuant to the request

made by the Association. Application was favorably

recommended by the Deputy Commissioner, Mangalore

vide letter dated 15.11.2002 and said recommendation

reached the office of the accused. Application was not

further processed for a period of two years and after

repeated reminders and follow up made by the office

bearers of the association, file was sent to the Government

on 13.02.2003. Accused being the concerned person in

the Secretariat, who had to further process the matter, has

demanded sum of Rs.35,000/- as bribe amount to process

the file and demanded sum of Rs.500/- to himself and

Rs.100/- to the lady attender to move the file to the next

table. There was also a demand of Rs.20,000/- as first

installment out of the total bribe amount to be paid.

2.2. Complainant was not interested in parting

away with the said bribe amount and therefore, he gave

sum of Rs.500/- to the accused and sum of Rs.100/- to the

lady attender on 13.02.2004 and addressed a letter to the

Principal Secretary regarding demand of the bribe amount

informing the Principal Secretary that he would arrange

the said money in order to get the accused trapped.

2.3. A case came to be registered in Crime

No.07/2004 for the offences punishable under Section 7,

13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act,1988. Thereafter, accused was successfully

trapped on 10.03.2004 and he was arrested.

3. After thorough investigation, charge sheet

came to be filed by the Lokayuktha Police, Bengaluru

alleging that accused demanded bribe of Rs.35,000/- in

the form of Rs.20,000/- as first installment for clearing the

file of the complainant in respect of grant of the land for

construction of the building at Attavara Village, Mangalore.

4. Presence of the accused was secured and

charges were framed. Accused pleaded not guilty and

therefore, trial was held.

5. In order to bring home the guilt of the

accused, prosecution examined six witnesses as P.W.1 to 6

and placed on record thirty three documents which were

exhibited and marked as Exs.P.1 to P.33 and fourteen

material objects were marked as M.O.1 to 14.

6. On conclusion of recording of the prosecution

evidence, accused statement as is contemplated under

Section 313 of Cr.P.C. was recorded wherein, accused has

denied all the incriminatory circumstances.

7. He has furnished a written submission and filed

an application under Section 233 of Cr.P.C. producing the

notification. Same was taken on record.

8. Later on, learned Special Judge heard the

parties in detail and on cumulative consideration of the

oral and documentary evidence placed on record,

convicted the accused for the aforesaid offences and

sentenced him as under:

"It is ordered that the Accused S.M.Byregowda, is sentenced to undergo Rigorous imprisonment for a

period of 6 months for the offence punishable under Section 7 of the Prevention of Corruption Act and to pay fine of Rs.5,000/- (Rupees fine thousand) in default to undergo simple imprisonment for 3 months and the accused is further sentenced to undergo Rigorous imprisonment for a term of 1½ for offence defined under Section 13(1)(d) which is punishable under Section 13(2) of Prevention of Corruption Act and to pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo simple imprisonment for 6 months.

The substantive sentences of imprisonment shall run concurrently.

MO.5 Currency notes Rs.500 X 40 = Rs.20,000/- shall be confiscated to the State Government and Mos.1 to 4 and 6 to 13 shall be destroyed after the expiry of appeal period and MO.14 metal seal shall be returned to the Lokayukta after appeal period is over."

9. Being aggrieved by the same, accused is

before this Court, in this appeal on following grounds:

 The judgment and order passed by the court below is opposed to law, facts and circumstances of the case and the same is liable to be set aside by this Hon'ble Court.

 The court below erred in not considered the cross- examination of the prosecution witnesses and only on the basis of the examination-in-chief the learned judge has convicted the appellant.

 The court below erred in convicting the appellant only on the basis of improvement evidence given by the prosecution witnesses.

 The court below erred in not considered the facts that as on the date of alleged incident there was no Government to considered the file of granting the land to the complainant's Association and also a guide lines by the Cabinate that government lands should not be granted to any Association and there is no question of keep pending the file.

10. Sri.C.M.Kempegowda, learned counsel for the

appellant reiterating the grounds urged in the appeal

memorandum vehemently contended that impugned

judgment is based on surmises and conjectures without

there being any basic material evidence on record resulting

in miscarriage of justice and sought for allowing the

appeal.

11. He pointed out that the sanction order is

invalid as draft sanction order was furnished to the

sanctioning authority and there is no independent

appreciation of the material on record before issuing

sanction order marked at Ex.P.1.

12. He further pointed out that tainted money was

thrusted into the pant pocket of the appellant which fact

has been brought out in the cross-examination of the

prosecution witnesses and learned Special Judge has failed

to appreciate the same and wrongly convicted the

appellant.

13. He also pointed out that appellant could not

have finished the processing of the file of the complainant

as admittedly, there was code of conduct on the account of

declaration of assembly elections which has been admitted

by the prosecution witnesses. Therefore, question of

appellant demanding illegal gratification for processing the

file of the complainant by misusing his official position

would not arise and said aspect of the matter is not at all

appreciated by learned Special Judge in the impugned

judgment and sought for allowing the appeal.

14. Per contra, while supporting the impugned

judgment, Sri.Venkatesh S. Arabatti, learned counsel for

the respondent/Lokayukta vehemently contended that

validity of the sanction order cannot be questioned by the

appellant in view of the suggestions that has been made in

the cross-examination of the sanctioning authority.

15. He also pointed out that very content of the

sanction order to prosecute the appellant itself shows that

there is sufficient application of mind by the sanctioning

authority before issuance of the sanction order.

16. He further pointed out that accepting the bribe

is not an official duty and therefore, appellant cannot take

shelter under the validity of the sanction order and thus,

sought for dismissal of the appeal.

17. He further pointed out that if the money is

actually thrusted into the pant pocket, colour test would

not have resulted in positive and very fact that colour test

stood positive shows that appellant has handled the

tainted currency which has been established by oral and

documentary evidence placed on record by the

prosecution. More so, trap has taken in the public park.

Thus, sought for dismissal of the appeal.

18. Insofar as third point on which the impugned

judgment is attacked on behalf of the appellant is mainly

the application of the complainant could not have been

processed by the appellant on account of prevailing code of

conduct of assembly elections is nothing but an escape

route adopted by the appellant to somehow get rid of the

rigors of law inasmuch as application was pending for more

than two years and there was no code of conduct for

period of two years. As such, impugned judgment needs

to be confirmed by dismissing the appeal.

19. Having heard the parties in detail, this court

perused the material on record meticulously.

20. On such perusal of the material on record,

following points would arise for consideration:

i. Whether the appellant makes out a case that the sanction order to prosecute the appellant issued at Ex.P.1 is invalid and thus, trial stood vitiated?

ii. Whether the material evidence placed on record on behalf of the prosecution is sufficient enough to maintain the order of conviction for the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988?

iii. Whether the appellant makes out a case that impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

iv. Whether the sentence is excessive?

v. What order?

REG.POINT No.1:

21. To prove the validity of the sanction order,

prosecution examined the sanctioning authority as P.W.1.

In his oral testimony, he deposed that pursuant to the

letter received from Inspector General of Police, Lokayukta

to issue sanction order to prosecute Sri.S.M.Byregowda -

FDA working in Land And Revenue Department

(Appellant).

22. He further deposed that when the file was

placed before him, he perused the FIR, complaint, pre-trap

mahazar, trap mahazar, statement of witnesses, chemical

examination report and sketch.

23. He further deposed that after being satisfied

with the other material on record, there was a

typographical error which has been noticed by him and

after verifying the records, he was satisfied with the case

papers whereby there was a sufficient ground for according

sanction to prosecute the appellant and as such, he issued

the sanction order vide Ex.P.1 and corrigendum vide

Ex.P.2.

24. In his cross-examination, he has answered

that he is acquainted with Kannada language in both

reading and writing. He admits that among the enclosures

that were sent to him, proforma sanction order was also

sent and same was available in his file. Proforma sanction

order was taken out from the file which has been brought

by P.W.1 and it was marked as Ex.D.1 which consisted of

three sheets.

25. He denied the suggestion that there was no

independent application of mind by P.W.1 and he has

signed Ex.P.1 and 2 based on the draft prepared by his

sub-staff. He admits that accused was not competent to

grant Government land. He also admits that he has not

mentioned in sanction order that he dictated the contents

of Ex.P.1 but he has volunteered to say that said fact is

found from note sheet. He admits that he has not read a

book called '®AZÀ ¤gÉÆÃzsÀ PÁAiÉÄÝ'. He denied the suggestion

that he has issued the sanction order mechanically and

blindly.

26. Contents of Ex.P.1 reads as under:

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3. vÀ¤SÁ¢üPÁjUÀ¼ÁzÀ ²æà J£ï.JA.zsÀªÀÄð¥Àà, DgÀPÀëPÀ ¤jÃPÀëPÀgÀÄ, ¥ÉÆÃ°Ã¸ï «¨sÁUÀ, £ÀUÀgÀ «¨sÁUÀ, PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ ¨ÉAUÀ¼ÀÆgÀÄ, EªÀgÀÄ ²æà J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ(CªÀiÁ£ÀwÛ£À°è), PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ CªÀgÀ «gÀÄzÀÝ zÀAqÁºÀð ¥ÀgÀPÀgÀtªÀ£ÀÄß PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ, ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ ¥ÉÆÃ°Ã¸ï «¨sÁUÀ oÁuÉAiÀÄ°è UÀÄ£Éß ¸ÀA:7/2004gÀ°è ®AZÀ ¤gÉÆÃzsÀ PÁ¬ÄzÉ 1988gÀ PÀ®A 7, 13(1)(r) eÉÆvÉAiÀÄ°è NzÀ¯ÁzÀ PÀ®A 13(2) gÀrAiÀÄ°è zÁR°¹gÀÄvÁÛgÉ.

4. D¥Á¢vÀ ²æà J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ (CªÀiÁ£ÀwÛ£À°è), PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ CªÀgÀÄ ¦AiÀiÁðzÀÄzÁgÀgÁzÀ ²æà PÉ.ªÀÄxÁ¬Ä, ªÀÄAUÀ¼ÀÆgÀÄ, CªÀjAzÀ zÀQët PÀ£ÀßqÀ f¯Éè ªÀiÁf ¸ÉʤPÀgÀ ¸ÀAWÀPÉÌ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆèPÀÄ CvÁÛªÀgÀ UÁæªÀÄzÀ ¸ÀªÉð £ÀA:19J AiÀÄ°è 0.5 JPÀgÉ d«ÄãÀ£ÀÄß ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä ¢:13.02.2004gÀAzÀÄ gÀÆ.35,000/- UÀ¼À CPÀæªÀÄ ¸ÀA¨sÁªÀ£ÉUÁV MvÁ۬ĹzÀÄÝ CzÀgÀ°è gÀÆ.500/- UÀ¼À£ÀÄß CAzÉà ¦AiÀiÁðzÀÄzÁgÀjAzÀ ¥ÀqÉzÀÄ gÀÆ.100UÀ¼À£ÀÄß PÀbÉÃjAiÀÄ ªÀÄ»¼Á CmÉAqÀgïUÉ PÉÆr¹ ®AZÀzÀ ºÀtzÀ ªÉÆzÀ®£É PÀAvÁV gÀÆ.20,000/- UÀ¼À£ÀÄß PÉ®ªÀÅ ¢£ÀUÀ¼À°è PÉÆqÀĪÀAvÉ w½¹zÀÄÝ ¦AiÀiÁð¢AiÀÄÄ ®AZÀzÀ ºÀtªÀ£ÀÄß PÉÆqÀ®Ä §AiÀĸÀzÀ PÁgÀt ¸ÀzÀj ¸ÀPÁðj £ËPÀgÀgÀ «gÀÄzÀÝ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉƼÀÄîªÀ §UÉÎ PÀ£ÁðlPÀ ¯ÉÆÃPÁAiÀÄÄPÀÛ ¥ÉÆðøÀjUÉ zÀÆgÀ£ÀÄß PÉÆnÖgÀÄvÁÛgÉ.

5) ¸ÀzÀj zÀÆj£ÀAvÉ vÀ¤SÁ¢üPÁjUÀ¼ÀÄ §¯É ©Ã¸ÀĪÀ ªÉÆzÀ°£À J¯Áè OavÀå¥ÀÆtð PÁAiÀÄðPÀæªÀÄUÀ¼À£ÀÄß £ÉgÀªÉÃj¹zÀ £ÀAvÀgÀ ¢:10.03.2004gÀAzÀÄ PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄzÀ°è ©Ã¹zÀ mÁæ¥ï §¯ÉAiÀÄÄ AiÀıÀ¹éAiÀiÁV ²æà J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ PÀAzÁAiÀÄ E¯ÁSÉ, PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ, CªÀgÀÄ CPÀæªÀÄ ¸ÀA¨sÁªÀ£ÉAiÀiÁzÀ gÀÆ.20,000UÀ¼À£ÀÄß ¸ÀzÀj ¸ÀPÁðj PÉ®¸ÀªÀ£ÀÄß ªÀiÁqÀ®Ä PÉý ¥ÀqÉAiÀÄÄwÛzÁÝUÀ ¹Q̺ÁQPÉÆArgÀÄvÁÛgÉ. D¥Á¢vÀ ¸ÀPÁðj £ËPÀgÀ£À §®UÉÊ ªÀÄvÀÄÛ JqÀUÉÊ ¨ÉgÀ¼ÀÄUÀ¼À£ÀÄß ºÁUÀÆ D¥Á¢vÀgÀÄ zsÀj¹zÀÝ ¥ÁåAn£À §®¨sÁUÀªÀ£ÀÄß ¸ÉÆÃrAiÀÄA PÁ¨ÉÆÃð£ÉÃmï zÁæªÀtzÀ°è ªÀiÁdð£É ªÀiÁr ¦ü£Á¥ÀÛ°Ã£ï ¥ÀjÃPÉëUÉ M¼À¥Àr¹zÁUÀ CzÀÄ ¸ÀPÁgÁvÀäPÀªÁV ¥ÀæwPÀæ¬Ä¹zÀÄÝ, gÀ¸ÁAiÀĤPÀ vÀdÕgÀ ¥ÀjÃPÁë ªÀgÀ¢¬ÄAzÀ®Æ ¸ÀºÀ zÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ. £ÉgÀ¼ÀÄ ¸ÁQëAiÀÄÄ CPÀæªÀÄ ¸ÀA¨sÁªÀ£ÉAiÀÄ ¨ÉÃrPÉ ªÀÄvÀÄÛ ¥ÀqÉAiÀÄÄ«PÉUÉ ¸ÀA¨sÀA¢ü¹zÀAvÉ ¦AiÀiÁ𢠺ÁUÀÆ C¥Á¢vÀ ¸ÀPÁðj £ËPÀgÀgÀ £ÀqÀÄ«£À ªÀåªÀºÁgÀªÀ£ÀÄß UÀªÀĤ¹gÀÄvÁÛgÉ ªÀÄvÀÄÛ ¸ÀA¨sÁµÀuÉAiÀÄ£ÀÄß D°¹gÀÄvÁÛgÉ. CPÀæªÀÄ ¸ÀA¨sÁªÀ£ÉAiÀiÁzÀ gÀÆ.20,000/-UÀ¼À£ÀÄß ²æà J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ, CªÀjAzÀ ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ ¨ÉAUÀ¼ÀÆj£À PÉ.Dgï.¸ÀPÀð¯ï ¥ÀPÀÌzÀ°ègÀĪÀ ²æà PÀȵÀÚgÁeÉÃAzÀæ ¹®égÀ dÆå©è vÁAwæPÀ ªÀĺÁ«zÁå®AiÀÄzÀ ªÀÄÄAzÉ «±ÉéñÀégÀAiÀÄå ¥ÀæwªÉÄ EgÀĪÀ aPÀÌ ¥ÁPïð£À°è ªÀ±À¥Àr¹PÉƼÀî¯ÁVzÉ.

6. CzÀgÀAvÉ F ¥ÀæPÀgÀtPÉÌ ¸ÀA§A¢ü¹zÀ vÀ¤SÁ zÁR¯ÉUÀ¼ÁzÀ ¥ÀæxÀªÀÄ ªÀvÀðªÀiÁ£À ªÀgÀ¢, mÁæ¥ï ¥ÀƪÀðzÀ ªÀĺÀdgï mÁæ¥ï £ÀqÀªÀ½UÀ¼ÀÄ, ¸ÁQëUÀ¼À ºÉýPÉUÀ¼ÀÄ, gÁ¸ÁAiÀĤPÀ ¥ÀjÃPÀëPÀgÀ ªÀgÀ¢, mÁæ¥ï ¸ÀܼÀzÀ £ÀPÉë ªÀÄvÀÄÛ vÀ¤SÁ¢üPÁjAiÀÄ CAwªÀÄ ªÀgÀ¢UÀ¼ÀÄ C¥Á¢vÀ ¸ÀPÁðj £ËPÀgÀ£À «gÀÄzÀÝ EgÀĪÀ C¥ÁzÀ£ÉUÀ¼À£ÀÄß ¸ÀªÀÄyð¸À®Ä ¤uÁðAiÀÄPÀ ¸ÁPÀëöåUÀ¼ÁVgÀÄvÀÛªÉ. £ÉgÀ¼ÀÄ ¸ÁQëAiÀiÁzÀ ²æà JA.«.GªÉÄñÀ gÀªÀgÀÄ mÁæ¥ï ¥ÀAZÀ£ÁªÉÄAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è ¦AiÀiÁðzÀÄzÁgÀgÀ eÉÆvÉ DgÉÆævÀ C¢üPÁjAiÀĪÀgÀ PÀbÉÃjUÉ ºÉÆÃVzÀÄÝ ¦AiÀiÁðzÀÄzÁgÀgÀÄ ªÀÄvÀÄÛ DgÉÆævÀ £ËPÀgÀgÀ £ÀqÀÄªÉ £ÀqÉzÀ ªÀiÁvÀÄUÀ¼À£ÀÄß PÉý¹PÉÆAqÀÄ WÀl£ÉAiÀÄ£ÀÄß «ÃQë¹zÀÄÝ, DgÉÆævÀ £ËPÀgÀgÀÄ ¦AiÀiÁðzÀÄzÁgÀgÁzÀ ²æà PÉ.ªÀÄxÁ¬Ä CªÀjAzÀ zÀQët PÀ£ÀßqÀ f¯Áè ªÀiÁf ¸ÉʤPÀgÀ ¸ÀAWÀPÉÌ ªÀÄAUÀ¼ÀÆgÀÄ vÁ®ÆèPÀÄ CvÁÛªÀgÀ UÁæªÀÄzÀ ¸ÀªÉÃð £ÀA:19J £À°è 0.5 JPÀgÉ d«ÄãÀ£ÀÄß ¸ÀzÀj ¸ÀAWÀPÌÉ ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä ®AZÀzÀ ºÀtªÀ£ÀÄß PÉý ¥ÀqÉ¢gÀĪÀÅzÀ£ÀÄß zÀÈqÀ¥Àr¹gÀÄvÁÛgÉ. JgÀqÀ£Éà ¸ÁQëzÁgÀgÁzÀ ²æà JA.«dAiÀÄPÀĪÀiÁgï CªÀgÀÄ ¥ÁæAiÉÆÃVPÀ ¥ÀAZÀ£ÁªÉÄ ¸ÀªÀÄAiÀÄzÀ°è ¦ü£Á¥ÀÛ°£ï ¥ÀÄrAiÀÄ£ÀÄß ¯ÉÃ¥À£À ªÀiÁrzÀ £ÉÆÃlÄUÀ¼À£ÀÄß Jt¹zÀ §UÉÎ ¸ÉÆÃrAiÀÄA PÁ¨ÉÆÃð£ÉÃmï zÁæªÀtzÀ°è PÉÊUÀ¼À£ÀÄß vÉƽ¹zÀ §UÉÎ ¥ÀæPÀgÀtzÀ mÁæ¥ï ¸ÀªÀÄAiÀÄzÀ°è ªÀ¸ÀÄÛUÀ¼À£ÀÄß CªÀiÁ£ÀvÀÄÛ ªÀiÁrPÉÆAqÀ ªÉƺÀgï ªÀiÁqÀ®Ä G¥ÀAiÉÆÃV¹zÀ ¹Ã®£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀĪÀ §UÉÎ ¥ÀAZÀ£ÁªÉÄ «µÀAiÀĪÀ£ÀÄß w½zÀÄPÉÆArgÀĪÀ §UÉÎ zÀÈqsÀ¥Àr¹gÀÄvÁÛgÉ.

7. F J¯Áè PÁgÀtUÀ½AzÀ D¥Á¢vÀgÀÄ ®AZÀ ¤gÉÆÃzsÀ PÁ¬ÄzÉ 1988gÀ PÀ®A 7, 13(1)(r) eÉÆvÉ NzÀ¯ÁzÀ PÀ®A 13(2)gÀrAiÀÄ°è ²PÁëºÀð C¥ÀgÁzsÀªÀ£ÀÄß J¸ÀVgÀĪÀÅzÀÄ ªÉÄïÉÆßÃlPÉÌ £À£ÀUÉ ¸ÀA¥ÀÆtðªÁV ªÀÄ£ÀªÀjPÉAiÀiÁVzÉ. DzÀÝjAzÀ EªÀgÀ£ÀÄß ®AZÀ ¤gÉÆÃzsÀ PÁ¬ÄzÉ 1988gÀ PÀ®A 7,13(1)(r) eÉÆvÉ NzÀ¯ÁzÀ PÀ®A 13(2)gÀrAiÀÄ°è C©üAiÉÆÃd£ÉUÉ M¼À¥Àr¸ÀĪÀÅzÀÄ CªÀ±Àå JAzÀÄ £Á£ÀÄ ªÀÄ£ÀUÀArzÉÝãÉ.

8. 1957gÀ PÀ£ÁðlPÀ £ÁUÀjÃPÀ ¸ÉêÁ (¹¹J) ¤AiÀĪÀiÁªÀ½AiÀÄ 9(2)(¹) ¤AiÀĪÀÄzÀr PÉ®¸À¢AzÀ vÉUÉzÀÄ ºÁPÀ®Ä ¸ÀPÀëªÀÄ ¥Áæ¢üPÁjAiÀiÁzÀ £Á£ÀÄ C¢üPÁgÀªÀżÀîªÀ£ÁVgÀÄvÉÛãÉ. DzÀÝjAzÀ ®AZÀ ¤gÉÆÃzÀ PÁ¬ÄzÉ 1988gÀ PÀ®A 19(1)(¹) Cr C¥Á¢vÀ £ËPÀgÀ ²æà J¸ï.JA ¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ, (ºÁ° CªÀiÁ£ÀwÛ£À°è) PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ EªÀgÀ£ÀÄß PÀ®A 7 ªÀÄvÀÄÛ 13(1)(r) eÉÆvÉUÉ 13(2)gÀrAiÀÄ°è C©üAiÉÆÃd£ÉUÉ M¼À¥Àr¸À®Ä ªÀÄAdÆgÁw ¤ÃqÀĪÀ C¢üPÁgÀªÀ£ÀÄß £Á£ÀÄ ºÉÆA¢gÀÄvÉÛãÉ.

DzÉñÀ ¸ÀA: ¹C¸ÀÄE 07DPÉÆÃE 2004 ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ :22.01.2005.

¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è «ªÀj¹gÀĪÀ »£É߯ÉAiÀÄ°è DgÉÆævÀ £ËPÀgÀ ²æà J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ (ºÁ° CªÀiÁ£ÀwÛ£À°è) PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ EªÀgÀ£ÀÄß ºÀÄzÉݬÄAzÀ vÉUÉzÀÄ ºÁPÀĪÀ/ªÀeÁ ªÀiÁqÀĪÀ C¢üPÁgÀªÀżÀî ¸ÀPÀëªÀÄ ¥Áæ¢üPÁj PÉ.PÉ.«Ä±Àæ, ¸ÀPÁðgÀzÀ ªÀÄÄRå PÁAiÀÄðzÀ²ð, PÀ£ÁðlPÀ ¸ÀPÁðgÀ

DzÀ £Á£ÀÄ ²æà J¸ï.JA.¨sÉÊgÉÃUËqÀ, »jAiÀÄ ¸ÀºÁAiÀÄPÀ (ºÁ° CªÀiÁ£ÀwÛ£À°è) PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀaªÁ®AiÀÄ, EªÀgÀ£ÀÄß ®AZÀ ¤gÉÆzsÀ PÁ¬ÄzÉ 1988gÀ PÀ®A 7 ªÀÄvÀÄÛ 13(1)(r) eÉÆvÉAiÀÄ°è NzÀ¯ÁzÀ PÀ®A 13(2)gÀ ¥ÀæPÁgÀ ²PÁëºÀð C¥ÀgÁzsÀPÁÌV C©üAiÉÆÃUÀUÉƽ¸À®Ä F ªÀÄÆ®PÀ ªÀÄAdÆgÁwAiÀÄ£ÀÄß ¤ÃrzÉÝãÉ."

27. On careful perusal of the contents of Ex.P.1

and Ex.D.1, which is a proforma sanction order, this Court

does not accept the arguments that there was mere

copying of Ex.D.1 in Ex.P.1 and Ex.P.1 is prepared

mechanically.

28. Admittedly, proforma is usually sent along with

the requisition of grant of sanction order only with an

intention to have a sanction order in a proper format.

Same would not ipso facto suggest that there is no

independent appreciation of material on record.

Accordingly, there is no substance in the argument put

forth on behalf of the appellant that sanction order is

invalid. Hence, point No.1 is answered in negative.

REG.POINT Nos.2 AND 3:

29. In the case on hand, complainant is examined

as PW.5. He supported the case of the prosecution and

deposed that he was working as the President of Dakshina

Kannada District, Ex. Serviceman Association, Mangalore

and he was acquainted with the accused; in respect of the

application seeking grant of five cents of land to the said

association, the file had reached the office of the

appellant; appellant said to have demanded sum of

Rs.500/- as bribe for himself and Rs.35,000/- in all for

finalization of grant of five cents of land. He also deposed

that appellant said to have demanded sum of Rs.20,000/-

as first installment and balance sum of Rs.15,000/- to be

paid after the work is completed.

30. It is his further deposition that on 10.03.2004,

he met the appellant. Thereafter, he met Deputy

Superintendent of Police, Lokayukta and Police Inspector

and thereafter, lodged written complaint vide Ex.P.18.

31. In his further deposition, he deposed about the

formation of raid team by securing independent panch

witnesses and demonstrating the chemical reaction of

phenolphthalein powder with sodium carbonate solution

and directing him to hand over sum of Rs.20,000/- which

were 500 currency notes of forty in number. Serial

numbers of the currency notes were noted separately and

phenolphthalein powder was smeared on the currency

notes and directed him to hand over the tainted currency

only on demand made by the appellant and one of the

shadow witness was directed to accompany the

complainant and observe the proceedings especially with

regard to demand and acceptance of bribe money.

32. He also deposed about drawing up of

entrustment mahazar and visiting the office of the

appellant. He further deposed that entire raid team went

near the office of the appellant and himself and

Sri.M.V.Umesh went into the room of the appellant where

he was sitting on the chair. Sri.M.V.Umesh was introduced

to the appellant. Appellant said to have told him and

Sri.M.V.Umesh to wait outside. Thereafter, within five

minutes, appellant came out from his room and told that

all of them should go for tea. Then all of them proceeded

to the tea stall near K.R.Circle and walked towards

K.R.Circle and mini park in front of Vishveshwaraiah

statue. There they sat on a cement bench and there

appellant demanded to hand over the bribe money.

33. It is specific say of P.W.5 that appellant took

tainted currency in his right hand and counted the same

with both the hands and kept the money in the right side

of the pant pocket. P.W.5 further deposed that thereafter

he gave a predesignated signal to the raid party.

Immediately, raid party appeared and hands of the

appellant were washed in sodium carbonate solution

separately. Both the solutions turned into pink colour

which was collected in the bottle and sealed. Thereafter,

appellant was directed to produce the tainted money.

Appellant, took out the tainted currency from his right side

pant pocket and all of them proceeded to the office of the

appellant where an alternate pant was secured to the

appellant and pant worn by the appellant was also seized

and inside of the right side pant pocket was also washed in

sodium carbonate solution which turned into pink colour.

Same was also collected in the bottle, sealed and seized by

the police. File containing the application given by him on

behalf of the association was also summoned and said file

was also seized. Cassette was taken out from the tape

recorder and same was also seized. Photographs of the

seizure mahazar were taken.

34. In his cross-examination, he has answered

that he is M.A., L.L.B. graduate and he served in Indian Air

Force as Warrant Officer for about 19 years and thereafter,

practiced as an Advocate for about seven years.

35. He has further answered that as on the date of

cross-examination, he was working as Tahsildar for past

three years. He admits that he had contested for

Mangalore Assembly constituency as candidate from

Kannada Nadu party. He further admits that office of the

appellant is located in 5th or 6th floor of M.S. Building. He

further answered that on 10.03.2004, when he met the

appellant, he had told him that he should have come one

week early so that the application could have been

favorably disposed of as there is an election code of

conduct, his work will be deferred till 15th May. He denied

the suggestion that when he had met the appellant on

13.02.2004, he had told to get the work done early.

36. He denied the suggestion that accused never

demanded sum of Rs.500/- on 13.02.2004 nor accused

demanded sum of Rs.35,000/- which were to be paid in

two installments. He had answered that after the demand

made by the appellant, he had discussed the issue with the

members of association and it was resolved that such

person must be trapped by Lokayukta. He has answered

that he did not complain to the Revenue Secretary about

the demand of the bribe by the appellant. He has

answered that land was granted to his association

immediately after the trap.

37. Shadow witness is examined as PW.2. He

deposed in line with the examination-in-chief of the

complainant about the entrustment mahazar and

accompanying the complainant to the office of the

appellant at about 2:45 p.m. on the day of trap, wherein

complainant has enquired the pending work with the

appellant.

38. He further deposed that appellant told him if

he had come little earlier, election code of conduct would

not be enforced and work would have been done.

Thereafter, appellant told him and the complainant to wait

outside for ten minutes. He further deposed that later

appellant came out from his chamber and all of them had a

tea. He also deposed about the proceeding to the park

located near K.R.Circle in front of S.J.Polytechnic College

and sitting on the bench in the park.

39. He further deposed about the enquiry made by

the complainant with regard to the pending work, wherein

the appellant has replied that work cannot be done now in

view of the election code of conduct and it cannot be done

till 15th May. It is also in his oral testimony that later

appellant enquired PW.5 about the bribe money. He

further deposed that at that juncture, PW.5 handed over

the tainted currency to the accused which he received in

the right hand and kept in the pant pocket.

40. He also deposed that complainant thereafter,

gave a pre-designated signal of keeping the pen behind his

ear and at that juncture all the members of the raid team

surrounded the accused and his hands were washed in the

colourless solution which turned into pink colour and same

was stored in the bottle, sealed and seized. It is also his

deposition that the tainted currency was recovered from

the pant pocket of the appellant and numbers were tallied

in comparison with the entrustment mahazar and

thereafter, appellant was taken to his office and file

containing the pending work of PW.5 was seized and

accused was arrested and an alternate pant was secured

to the appellant and paint worn by the appellant was also

seized. He further deposed about drafting of mahazar in

the office of the appellant.

41. In his detailed cross-examination, no useful

material is elicited so as to disbelieve his version except

stating that he is deposing falsely to help the prosecution

which has been denied by him.

42. Deputy Superintendent of Police, Karnataka

Lokayukta is examined as PW.3 who deposed about

lodging of the complaint by PW.5 and directed the

Inspector - Sri.N.M.Darmappa to register the case based

on the complaint and proceed in accordance with law. In

his cross-examination, he admits that he has not made

any endorsement on P.W.18 (complaint)

43. Under Secretary to Revenue Department by

name Smt.R.Nirmala was examined as PW.4. She has

handed over the document sought for by the Lokayukta

Police. She is not cross-examined.

44. Investigation Officer is examined as PW.6 who

received the complaint and registered the case in Crime

No.07/2004 as per the directions of PW.3 and formed raid

team, secured punch witnesses, explained them the

contents of the complaint, details of intended trap and

preparing the FIR vide Ex.P.20.

45. He also deposed that Sri.M.V.Umesh has been

secured from Transport Department and Sri.M.Vijaykumar

from Agricultural Department to act as panchas. He

further deposed about the entrustment mahazar details

and instructing PW.5 and PW.2 to go to the office of the

appellant and only on demand, the tainted currency to be

handed over to the appellant. He also deposed about the

appellant, P.W.5 and PW.2 coming out of the office and

they have followed them near the park at K.R.Circle and

they were waiting for the pre-designated signal. After

P.W.5 gave pre-designated signal in the park, immediately

co-pancha and other sub-staffs proceeded to the spot and

thereafter, raided the appellant, got washed his hands in

sodium carbonate solution which turned into pink colour

and seizure of the pink colour solution in bottles and

seizure of tainted currency which were in 500

denominations and bringing the appellant back to his

chambers, collecting the documents, getting removed the

pant worn by him by securing alternate pant and seizure of

the pant, washing of the pant pocket, solution being

seized, cassette in the tape recorder was also seized and

drafting of trap mahazar.

46. He further deposed about the arrest of the

appellant and producing him before the learned Special

Judge, completing further investigation by examining

witnesses, collection of documents and filing of charge

sheet.

47. In his cross-examination, he denied the

suggestion that false case has been foisted against the

appellant. He admits that K.R.Circle in Bengaluru City is a

heavy traffic junction area. However, he denied the

suggestion that even if two persons are standing at the

distance of two feet each other, he cannot hear the

conversation because of the sound of vehicular movement.

He also admitted that place where the accused was

surrounded by him and other members of the raid team in

the pathway and there is no separate mahazar conducted

as to the place where accused has been apprehended. He

further admits that complainant is an ex-servicemen and

he was practicing Advocate in Mangalore. Except those

admissions all other suggestions put to him that trap is a

motivated trap and appellant was innocent and he has

been falsely implicated in the case on hand is denied by

him.

48. The above evidence on record is sought to be

reappreciated by Sri.C.M.Kempegowda, learned counsel for

the appellant by holding that the sanction order is invalid

and reappreciating the fact that money was thrusted into

the pant pocket and work would not be completed on

account of code of conduct of the assembly which was in

force on account of assembly elections.

49. Per contra, as referred to supra, Sri.Venkatesh

S. Arabatti, learned counsel for the respondent opposed

each of those grounds.

50. In the light of rival the contentions, when the

material evidence on record is reappreciated, it is crystal

clear and duly established by the prosecution that

appellant was a public servant and application form filed

by the complainant for its association was pending

consideration with the appellant even on the date of trap.

Material on record would go to show that application was

pending for more than two years. It is in that regard,

appellant was consulted by P.W.5. On the first day, when

the appellant met P.W.5, there was a demand of sum of

Rs.500/- which P.W.5 parted away and demand of

Rs.30,000/- was discussed with the members of the

association and unanimously decision was taken to trap

the appellant.

51. Admittedly, after the trap, when there was no

proper explanation offered by the appellant, the

investigation officer has investigated the matter thoroughly

and then placed entire materials collected by him during

the course of investigation before sanction order was

obtained from P.W.1.

52. In the absence of any previous enmity or

animosity, why would P.W.1 accord sanction to prosecute

the appellant is a question that is not satisfactorily

answered on behalf of the appellant. Further, admittedly,

demanding the bribe money for showing favour by

misusing the official position would not come under the

discharging of the official function in the normal course.

53. Likewise, the sanction to prosecute is a

prudent cautionary method to save a honest Government

official and is not for a person who demands illegal

gratification for misuse of his official position.

54. There is no material on record which would

indicate that appellant could be protected by resorting to

the insulation mechanism provided under the Prevention of

Corruption Act, 1988 as the actual trap has taken place

outside his office that too in the public place. What was

the necessity for the appellant to move out of his work

place along with P.W.5 and P.W.2 that too in office hours is

not explained by the appellant. Therefore, the argument

put forth on behalf of the appellant that sanction order is

invalid cannot be countenanced in law.

55. Insofar as the second limb of the argument on

behalf of the appellant that money was thrusted into the

pant pocket of the appellant is concerned, as could be seen

from the material evidence on record, appellant when

consulted by P.W.5 and P.W.2 in his office. They were told

to wait outside for ten minutes. Later, appellant came out

of his work place in the guise of having a tea. All the three

persons, then proceeded to tea shop and had tea.

Subsequently, it is appellant who took P.W.2 and 5 to a

park near K.R.Circle. Then the appellant has demanded

bribe money. No doubt, P.W.2 has answered that he could

not recollect the entire conversation that took place

between P.W.5 and appellant but he said that he

remembers partly the conversation.

56. It is settled principles of law and requires no

emphasis that a witness is required to depose before the

Court what transpired on a particular day and if the gist is

spoken to by the witness that has to be appreciated.

Witness is not a tape recorder to recapitulate the entire

conversation in verbatim. Further, witness who has been

cross-examined by the defence is not undergoing a

memory test.

57. Therefore, when the material evidence on

record is appreciated in a cumulative manner keeping the

above principles in the background, demand made by the

appellant with P.W.5 have been observed and heard by

P.W.2 has been established sufficiently by the prosecution.

58. In the working hours, why would the appellant

leave his seat and come out of the office and move to

K.R.Circle which is roughly about 300 to 400 feet away

from his working place is a question that needs to be

explained by the appellant. No such explanation is

forthcoming on record. Inference that could be drawn

from the above circumstance is that admittedly, the

appellant was knowing the consequence of accepting the

illegal gratification in the office. Therefore, he has

proceeded away from his official seat in the guise of taking

tea and then accepted the tainted currency in a place

which is far away from his office. After the pre-designated

signal is received by the raid team, immediately the raid

team surrounded the appellant in the pathway near the

park which is situated in K.R.Circle and hand wash of the

appellant was made in the said spot itself.

59. After the hand wash, head of the raid team

directed the appellant to take out the tainted currency

which was kept by him in his pant pocket. Later, he was

taken to his office and pant worn by him was got removed

and seized by the head of the raid party and secured

alternate pant for the appellant. Cloth inside of the right

side pant pocket was also dipped in the sodium carbonate

solution which turned into pink colour which was also

seized in the bottle and procedure that took place near the

K.R.Circle, bringing back the appellant to the office, seizing

the pant worn by the appellant and washing the pant

pocket are all recorded in the mahazar. Mahazar

witnesses have supported these aspects of the matter in

toto. Admittedly, mahazar witnesses are responsible

officials who did not nurture any previous enmity or

animosity against the appellant nor they possessed extra

affinity towards P.W.5.

60. Taking note of these aspects of the matter, the

theory put forward on behalf of the appellant that money

was thrusted into his pant pocket cannot be countenanced

in law as a the colour test stood positive even before the

money was actually asked to be taken out from the pant

pocket of the appellant. If the appellant has not at all

handled the tainted currency, then the colour test of hand

wash should not have turned into pink colour. Therefore,

the second point that the money was thrusted into the

pant pocket and there was no demand and acceptance by

the appellant, has no merit and needs to be rejected.

61. Now coming to the question of pending work of

the complainant so as to find out whether there was a

demand made by the appellant for completing the work by

misusing his official position.

62. P.W.5 and 2 categorically deposed before the

Court that appellant had told them if the complainant had

come a week earlier, paper could have been processed and

necessary orders would have been given. He told them

that since the election code of conduct is in force, nothing

can be done till 15th May. However, the explanation

offered by the appellant since there was no possibility of

processing the application in view of the code of conduct

cannot also be countenanced in law inasmuch as the said

application was pending with the appellant for a period of

more than two years.

63. Why anyone will keep the file not processing

for a period of two years is a question that remains again

unanswered. Therefore, the case of the prosecution that

he had kept the file without processing, expecting the

illegal gratification assumes sufficient significance.

64. All these factors when viewed cumulatively,

this Court does not find any legal infirmity or perversity in

the finding of guilt recorded by the learned Special Judge.

Reappreciation of the material on record did not improve

the case of the appellant to any extent.

65. In view of the foregoing discussion, this Court

is of the considered opinion that the finding recorded by

the learned Special Judge to maintain the conviction of the

appellant for the offences punishable under Section 7,

13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act, 1988 needs no interference in the absence

of any legal infirmity or perversity established by the

appellant. Accordingly, point Nos.2 and 3 is answered in

affirmative and negative respectively.

REG. POINT No.4:

66. In the case on hand, as could be seen from the

material on record, learned Special Judge has imposed

punishment of six months for the offence punishable under

Section 7 with fine of Rs.5,000/- with default sentence and

rigorous imprisonment for a period of 1.5 years for the

offence punishable under Section 13(1)(d) read with

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

No mitigating circumstances are placed on record on behalf

of the appellant to reduce the sentence. Accordingly,

sentence needs no modification in the case on hand.

Accordingly, point No.4 is answered in negative.

REG.POINT No.5:

67. In view of the findings of this Court on point

Nos.1 to 4 as above, following order is passed:

ORDER

i. Appeal grounds sans merit.

ii. Consequently, appeal is dismissed.

iii. Time is granted for the appellant to surrender

before the Trial Court for serving remaining

sentence till 28.02.2025.

iv. Office is directed to return the Trial Court

Records with copy of this order forthwith.

Sd/-

(V. SRISHANANDA) JUDGE

KAV