Karnataka High Court

Jagannath S/O Malleshappa Bagodi vs The State Of Karnataka on 6 February, 2025

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                      CRL.A No. 200103 of 2020




                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                             DATED THIS THE 6TH DAY OF FEBRUARY, 2025

                                             BEFORE
                         THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY


                               CRIMINAL APPEAL NO. 200103 OF 2020
                                     (374(Cr.PC)/415(BNSS))
                      BETWEEN:

                      JAGANNATH S/O MALLESHAPPA BHAGODI,
                      AGE: 58 YEARS, OCC. GRADE II SECRETARY
                      GRAM PANCHAYATH, BATGERA-B AND IN-CHARGE
                      RPDO OF GRAM PANCHAYATH, RIBANPALLY,
                      R/O. QUARTERS NO.2, TALUKA PANCHAYATH
                      RESIDENTIAL QUARTERS, SEDAM,
                      DIST. KALABURAGI-585222.
                                                                  ...APPELLANT
                      (BY SRI SHIVA KUMAR MALIPATIL, ADVOCATE)

Digitally signed by
                      AND:
SHIVAKUMAR
HIREMATH              THE STATE OF KARNATAKA THROUGH
Location: HIGH        LOKAYUKTA POLICE STATION,
COURT OF              REPRESENTED BY SPP LOKAYUKTA,
KARNATAKA
                      HIGH COURT OF KARNATAKA,
                      KALABURAGI BENCH-585107.
                                                                 ...RESPONDENT

                      (BY SRI SUBHASH MALLAPUR, ADVOCATE FOR
                       RESPONDENT LOKAYUKTA)

                           THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
                      TO, CALL FOR RECORDS IN SPL.CASE NO.21/2015 ON THE
                      FILE OF PRINCIPAL SESSIONS JUDGE AND SPL JUDGE AT
                      KALABURAGI AND SET ASIDE THE IMPUGNED JUDGMENT
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                                           NC: 2025:KHC-K:892
                                    CRL.A No. 200103 of 2020




DATED 3.09.2020 CONVICTING THE APPELLANT FOR THE
OFFENCES PUNISHABLE UNDER SECTION 7, 13 (1)(D) R/W
SECTION 13(2) OF PREVENTION OF CORRUPTION ACT 1988
APPELLANT MAY BE ACQUITTED.

     THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY




                      ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

ORAL ORDER

This Appeal under Section 374(2) of Cr.P.C., is filed

assailing the judgment and order of conviction and

sentence dated 03.09.2020 passed by the court of

Principal Sessions Judge and Special Judge, Kalaburagi, in

Special Case No.21/2015.

2. Heard the learned counsel for the parties.

3. Appellant herein was charge sheeted for

offences punishable under Sections 7, 13 (1)(d) read with

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

short 'the Act, 1988') by Lokayukta Police, Kalaburagi. In

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the said case, appellant after appearing before the trial

Court had claimed to be tried. The prosecution in order to

substantiate its charges against the appellant, examined

11 witnesses as PW.1 to PW.11 and got marked 41

documents as Ex.P.1 to Ex.P.41. After the prosecution,

closed its side of evidence, statement of the

accused/appellant under Section 313 of Cr.P.C., was

recorded. However, no oral evidence was led on behalf of

the defence but one document was marked as Ex.D.1 in

support of the defence the material objects in the present

case were got marked on behalf of the prosecution as

MO.1 to MO.14. Thereafter, the arguments addressed on

both the sides were heard and vide impugned judgment

and order of conviction and sentence the trial Court has

convicted the appellant/accused/appellant for offences

punishable under Sections 7 and 13(2) read with Section

13(1)(d) of the Act, 1988. For the offence punishable

under Section 7 of the Act, 1988, the appellant has been

sentenced to undergo rigorous imprisonment for a period

of 3 years and pay fine of Rs.10,000/- and in default to

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undergo further rigorous imprisonment for a period of 6

months. For the offence punishable under Sections 13

(1)(d) read with 13(2) of the Act, 1988 appellant has been

sentenced to undergo rigorous imprisonment for a period

of 3 years and pay fine of Rs.10,000/- and in default to

undergo simple imprisonment for a period of 6 months.

Both the sentences are directed to run concurrently.

4. Being aggrieved by the impugned judgment and

order of conviction and sentence passed by the trial Court

in Special case No.21/2015, the appellant

accused/appellant is before this Court.

5. Learned Counsel for the appellant submits that

the demand for bribe has not been proved in the present

case. The complainant has turned hostile to the case of

the prosecution and the alleged conversation between the

complainant and the accused/appellant was not forwarded

to the Forensic Science Laboratory in the present case. He

submits that trial Court has therefore erred in convicting

the appellant for the alleged offences.

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6. Per contra, learned counsel appearing for the

respondent has argued in support of the impugned

judgment and order of conviction and sentence. He

submits that the shadow witness PW.2 has supported the

case of the prosecution. The accused/appellant has

admitted receipt of the money at the time of raid and

therefore there is a presumption against him under

Section 20 of the act which is not rebutted. The trial Court

was therefore justified in convicting the accused/appellant

for the alleged offences. Accordingly, he prays to dismiss

the appeal.

7. The accused/appellant was working as a

Panchayat Development Officer in Gram Panchayat

Ripanpally and the de-facto complainant Narasya Naik

(PW.1) was the Vice Chairman of the said Gram

Panchayat. Allegation against the accused/appellant is that

for sanctioning payment of Rs.47,895/- towards daily

wager's amount, he had demanded a bribe of Rs.3,000/-

from the de-facto complainant and it is in this background

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the de- facto complainant (PW.1) had approached the

Lokayukta police on 14.08.2013 and had lodged a

complaint. Thereafter, the conversation between the

appellant and the de-facto complainant was recorded in a

voice recorder and in a trap that was held on 17.08.2024,

the appellant was allegedly caught red handed while

receiving the bribe amount of Rs.2,500/- from PW.1.

8. The prosecution in order to prove its charges

against the appellant has examined de-facto complainant

as PW.1. PW.2 is the shadow witness, PW.3 is the Panch

to the pre-trap Panchanama and also to the trap

Panchanama at Ex.P.2 and Ex.P.29, PW.4 is the retired

Project Director of Jilla Panchayath, who has furnished the

NMR in respect of work under the Mahatma Gandhi

National Rural Employment Guarantee Scheme as per

Ex.P.1, which states that a sum of Rs.47,895/- was due in

respect of the daily wages, PW.5 is the Engineer of the

Minor Irrigation Department, who has spoken about the

work under the Mahatma Gandhi National Rural

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Employment Guarantee Scheme which was under

progress, PW.7 is the Assistant Director of Agriculture

Department and PW.8 is the Assistant Engineer, who has

issued the sketch of the spot at Ex.P.34, PW.9 is the

Officer of Forensic Science laboratory, who had issued

Ex.P.35 FSL report and PW.10 and PW.11 are the police

officers, who have registered the FIR and conducted the

investigation and submitted charge sheet.

9. PW.1 de-facto complainant has not supported

the case of the prosecution. He was treated as hostile

witness and he was cross examined by the public

prosecutor but nothing material has been elicited from his

mouth. He has denied about any demand by the

appellant/accused for payment of Rs.3,000/- as bribe and

he has also pleaded ignorance about recording of his

conversation with the appellant/accused. He has stated

that on the date of trap he had forcibly kept the bribe

amount in the pocket of the appellant/accused and

thereafter signalled the police. A reading of his deposition

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would also go to show that no work was pending before

the accused/appellant as alleged in the complaint. PW.2-

Hanmanth is the shadow witness in the present case. This

witness has not spoken about the demand made by the

accused/appellant for payment of bribe and he has also

said that he was not in a position to hear the conversation

of PW.1 with the accused/appellant on the date of trap. He

only has said that he had seen PW.1 paying the bribe

amount to the accused/appellant which he kept in his shirt

pocket. Mere recovery of bribe amount from accused is

not sufficient to convict him for the alleged offences. It is

trite that for the purpose of convicting an accused for the

alleged offences, where the allegation against the accused

is that he had demanded a bribe in exchange for doing a

favor and in furtherance of such demand had accepted the

bribe, the prosecution is primarily required to prove the

demand and acceptance of bribe and it is only thereafter

the presumption under Section 20 of the Act, 1988 can be

raised against the accused/appellant.

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10. The law in this regard has been laid down by

the Hon'ble Supreme Court in the case of B. Jayaraj vs.

State of Andhra Pradesh reported in (2014) 13 SCC

55 and subsequently the Constitutional bench of Hon'ble

Supreme Court in the case of Neeraj Dutta v. State

(NCT of Delhi) reported in (2023) 4 SCC 731 after

referring to all its earlier judgments in paragraph No. 88

has observed as follows:

88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal

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gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe-

giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

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88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.

88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory

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presumption while the latter is discretionary in nature.

11. From the aforesaid law declared by the Hon'ble

Supreme Court, it is very clear that since an allegation is

made against the accused/appellant in the present case

alleging demand and acceptance of bribe, the prosecution

was primarily required to prove the fact of demand by

direct evidence. In the case on hand the complainant has

not supported the case of the prosecution, he has pleaded

ignorance of recording his conversation with the

accused/appellant in a voice recorder. Undisputedly, the

voice recorder in which the conversation of the

accused/appellant and PW.1 was allegedly recorded was

not forwarded to Forensic Science Laboratory for the

purpose of comparing the voice sample. Therefore, the

prosecution has failed to prove by direct evidence in the

present case that accused/appellant had made a demand

for payment of bribe. The prosecution has not examined

any other witness to prove the alleged demand made by

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the accused/appellant for payment of bribe nor there is

any documentary evidence produced to show that such a

demand was made. On the other hand, the de-facto

complainant PW.1 has stated that no work was pending

before the accused/appellant as on the date of registration

of FIR.

12. In the case of Neeraj Datta (supra), the Hon'ble

Supreme Court has categorically held that the

presumption of fact with regard to demand and acceptance

or obtainment of an illegal gratification may be made by

Court of law by way of inference only when the

foundational facts has been proved by relevant oral and

documentary evidence and not in the absence thereof. In

the case on hand, the prosecution has failed to prove the

foundational facts necessary to raise a presumption. The

trial Court has observed that, the evidence of complainant

corroborates with the evidence of shadow witness and

based on such observation has proceeded to convict the

appellant for the alleged offences. Such an observation

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made by the trial Court would clearly go to show that the

trial Court has not properly appreciated the oral and

documentary evidence available on record and has erred

in convicting the appellant for the charge sheeted

offences.

13. Under the circumstances, I am of opinion that

the impugned judgment and order of conviction and

sentence dated 03.09.2020 passed by the court of

Principal Sessions Judge and Special Judge, Kalaburagi,

cannot be sustained. Accordingly, I pass the following:

ORDER

i. The Criminal Appeal is allowed;

ii. The Judgment of conviction and order of

sentence dated 03.09.2020 passed by

the court of Principal Sessions Judge and

Special Judge, Kalaburagi, in Special

Case No.21/2015, convicting the

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                appellant   for        the   charge   sheeted

                offences is set aside;