Karnataka High Court
Uday K H S/O Holadde Gowda vs The State By Police Inspector on 10 February, 2025
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2025:KHC:5823
CRL.A No. 561 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 561 OF 2012
BETWEEN:
1. UDAY K.H,
S/O HOLADDE GOWDA,
AGED ABOUT 38 YEARS,
LICENSED SURVEYOR, SURVEY SECTION,
KUNDAPUR, UDUPI DISTRICT.
2. M.M. NAGARAJ,
S/O MUDANANJAPPA,
AGED ABOUT 60 YEARS,
RTD. GOVERNMENT OFFICER,
R/O MIRAGA HALLI,
T. NARASIPURA TALUKA, MYSORE.
...APPELLANTS
(BY SRI. P.B. UMESH, ADVOCATE FOR
SRI. R.B. DESHPANDE, ADVOCATE)
Digitally
signed by
MALATESH
KC AND:
Location: THE STATE BY POLICE INSPECTOR,
HIGH
COURT OF KARNATAKA LOKAYUKTHA, UDUPI.
KARNATAKA ...RESPONDENT
(BY SRI. B.B. PATIL, SPL.P.P)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE CONVICTION AND SENTENCE DATED: 3.5.12
PASSED BY THE SESSIONS/SPECIAL JUDGE UDUPI DISTRICT
IN SPL.CASE NO.27/08- CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 8 OF PREVENTION OF CORRUPTION ACT,
-2-
NC: 2025:KHC:5823
CRL.A No. 561 of 2012
1988; THE APPELLANT-ACCUSED NO.2 CONVICTING FOR THE
OFFENCE PUNISHABLE UNDER SECTION 7, 8, 13(1)(D) READ
WITH 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988,
THE APPELLANT-ACCUSED NO.1 IS SENTENCED TO SUFFER
IMPRISONMENT FOR A PERIOD OF ONE YEAR AND PAY A FINE
OF RS.6,000/- AND IN DEFAULT TO UNDERGO FURTHER
IMPRISONMENT FOR A PERIOD OF 1 MONTH FOR THE OFFENCE
UNDER SECTION 8 OF THE PREVENTION OF CORRUPTION ACT;
THE APPELLANT-ACCUSED NO.2 IS SENTENCED TO UNDERGO
IMPRISONMENT FOR A PERIOD OF ONE YEAR AND PAY A FINE
OF RS.2,000/- AND IN DEFAULT TO UNDERGO FURTHER
IMPRISONMENT FOR A PERIOD OF 1 MONTH FOR THE OFFENCE
UNDER SECTIONS 7, 8, 13(1)(D) READ WITH 13(2) OF THE
PREVENTION OF CORRUPTION ACT, 1988.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Shri P.B. Umesh, learned counsel for
Shri R.B. Deshpande, learned counsel for the appellants and
Shri B.B. Patil, learned counsel for the respondent -
Lokayuktha.
2. Appellants are accused Nos.1 and 2, who suffered
an order of conviction in Special Case No.27/2008 by judgment
dated 03.05.2012, on the file of the Sessions/Special Judge,
Udupi, whereby accused No.1 is convicted for offence
punishable under Section 8 of the Prevention of Corruption Act,
1988 and accused No.2 is convicted for the offence punishable
NC: 2025:KHC:5823
under Sections 7, 8, 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 and sentenced as under:
"Accused No.1 is convicted and sentenced to
suffer imprisonment for a period of one year and
pay a fine of Rs.6,000/- and in default to undergo
further imprisonment for a period of 1 month for the
offence under Section 8 of the Prevention of
Corruption Act.
Accused No.2 is convicted and sentenced to
undergo imprisonment for a period of one year and
pay a fine of Rs.2,000/- and in default to undergo
further imprisonment for a period of 1 month for the
offence under Sections 7, 8, 13(1) (d) r/w 13(2) of
the Prevention of Corruption Act, 1988."
3. Facts in the nutshell which are utmost necessary for
the disposal of the present appeal are as under:
A complaint came to be lodged by Rajendra Shettigar
with Lokayuktha Police contending that he owns a land in
Sy.No.70/1P1 measuring 16 cents at Vaderhabli village,
Kundapura Taluk. He intended to sell the land to meet his
financial necessities. Intended purchasers demanded for the
survey sketch of the land. Therefore, he filed an application on
01.02.2007 to the office of the Assistant Director of land
Records, Kundapura Taluk and remitted necessary statutory
fees in a sum of Rs.103/- and Rs.300/- towards the
measurement. Licensed surveyor - Shri Udaya K.H.
NC: 2025:KHC:5823
(hereinafter referred to as accused No.1) had informed him
that on 07.02.2007, he would measure the land and prepare
the sketch.
4. On 07.02.2007, accused No.1 carried out the
survey and prepared the sketch. After survey, Shri Rajendra
Shettigar informed accused No.1 as to when the sketch would
be delivered to him. Accused No.1 at that juncture demanded
a sum of Rs.2,000/- as illegal gratification as the sketch need
to be counter signed by the survey supervisor. When the same
was denied by the complainant, accused No.1 said to have
demanded Rs.500/- as illegal gratification for having surveyed
the land on 07.02.2007 and complainant paid the same, which
was accepted by accused No.1. Accused No.1 told that he can
collect the sketch on 09.02.2007 after payment of the balance
amount.
5. The complainant was disinterested in parting away
the illegal gratification. Therefore, he approached the
Lokayuktha police station and informed the demand made by
accused No.1. Lokayuktha Inspector said to have given a small
tape-recorder to record the conversation between accused No.1
and the complainant. Accordingly, complainant approached
NC: 2025:KHC:5823
accused No.1 and in the guise of bargaining the bribe amount,
had a conversation with accused No.1. After sufficient bargain,
accused No.1 agreed to receive Rs.800/-. The same was
recorded in the tape recorder.
6. On 21.02.2007 again complainant enquired accused
No.1 over telephone and at that juncture accused No.1 told
that Rs.800/- be handed over to him and he would hand over
the sketch on 22.02.2007 after obtaining the counter signature
of survey supervisor (hereinafter referred to as accused No.2).
After all these things, the complainant lodged the regular
complaint with Lokayuktha Police at about 8.00 a.m.
7. Lokayuktha Inspector based on the complaint
lodged by Shri Rajendra Shettigar, decided to trap both the
accused persons and formed a raid party in comprising of
himself and he secured two independent witnesses to act as
pancha. After the independent witnesses arrived in the office
of the Lokayuktha Police, the complaint contents were read
over to the independent witnesses and thereafter chemical
reaction of phenolphthalein powder with sodium carbonate
solution was demonstrated to them. Rs.800/- obtained from
the complainant was taken by the Inspector and the serial
NC: 2025:KHC:5823
numbers of those currency notes were recorded separately and
thereafter phenolphthalein powder was smeared on intended
bribe money. Thereafter, the complainant was instructed by
the Inspector that on demand he should hand over the tainted
currency to the hands of accused No.1 and shadow witness was
instructed to observe the happenings when the demand takes
place in the office of the survey supervisor at Byndoor and also
observe the conversation that would take place at the time of
handing over the tainted currency to the hands of accused
No.1. All these particulars were recorded in the form of a
Mahazar (Entrustment Mahazar).
8. Thereafter, all of them left to the office of accused
No.1 at Byndoor. In the office of accused Nos.1 and 2, on
demand, complainant handed over tainted currency of Rs.800/-
which was witnessed by a shadow witness. Thereafter,
complainant gave a missed call to the head of the raid party
over his telephone and raid party appeared on the scene. They
enquired accused No.1 about the tainted currency. At that
juncture, accused No.1 took out two currency notes of
denomination of Rs.500/- and Rs.100/- from his shirt pocket.
The hands of accused No.1 was made to wash in the colorless
NC: 2025:KHC:5823
sodium carbonate solution, which were kept in two separate
bowls. Colorless solutions in separate bowls turned into pink
colour and it was seized by the Lokayuktha Police and they
enquired about the balance amount of
Rs.200/-, which was handed over by the complainant to
accused No.1. Accused No.1 told that it has been handed over
to the survey supervisor (accused No.2). The raid party then
visited accused No.2 and enquired about the tainted currency
for which he denied having accepted the remaining tainted
currency. His hands were washed in two separate bowls. Both
the bowls, colorless sodium carbonate solution turned into pink
color and it was seized separately. Shadow pancha and
remaining members of the raid party were told to search in the
cabin of accused No.2 for the remaining Rs.200/-. At that
juncture, the members of the raid party found two currency
notes in the folded form under the steel almirah kept in the
cabin of accused No.2, which was taken out and tallied with
serial numbers entered in the entrustment mahazar and it was
tallied. Explanation offered by accused No.2 was also taken
and thereafter both accused No.1 and 2 were arrested by the
head of the raid party.
NC: 2025:KHC:5823
9. Thereafter, the file containing the pending
application of the complainant was seized and Tahsildar was
also secured to the place of incident and then, the shirt pocket
of accused No.1 was also washed in colorless solution, which
also turned into pink and that was separately sealed and seized
by the head of the raid party. All these proceedings were
reduced into writing in the form of a mahazar (Trap Mahazar)
and thereafter accused Nos.1 and 2 were arrested and
produced before the Special Judge after completing the
necessary formalities and then they were remanded to judicial
custody.
10. Head of the raid party completed the investigation
by sending the sealed samples to the forensic science
laboratory and obtaining the report, filed the charge sheet.
11. Presence of the accused persons were secured by
the learned Special Judge after compliance of Section 207 of
the Cr.P.C. Learned Special Judge framed the charges against
the accused persons. Both the accused persons pleaded not
guilty therefore trial was held.
12. In order to bring home the guilt of the appellants,
prosecution in all examined 11 witnesses as PW-1 to PW-11,
NC: 2025:KHC:5823
among them, PW-1 is the complainant and PW-6 is the shadow
witness. Tahsildar, Investigating agency are the remaining
witnesses.
13. Prosecution placed on record 16 documentary
evidence which is exhibited and marked as Ex.P1 to Ex.P16
comprising of complaint, entrustment mahazar, sketch of the
place of the incident, covering letter, F.I.R., documents
pertaining to the pending work of the complainant with the
office of the A.D.L.R., photographs, voluntary statement of
accused Nos.1 and 2, acknowledgment, FSL report.
Prosecution also placed on record 21 material objects of which
the tainted currency recovered from the shirt pocket of accused
No.1 as M.O.5 and M.O.6 - two currency notes and two folded
currency notes, which was seized from the cabin of accused
No.2 as M.O.8 and M.O.9.
14. On conclusion of recording of evidence, the learned
Special Judge recorded the accused statement as is
contemplated under Section 313 of Cr.P.C. Both the accused
persons have denied the incriminating materials and did not
chose to place any written submissions on record as is
contemplated under Section 313(4) of Cr.P.C. Accused did not
- 10 -
NC: 2025:KHC:5823
place any defence evidence on their behalf. Thereafter, learned
Trial Judge heard the parties in detail and on cumulative
consideration of oral and documentary evidence placed on
record, convicted the appellants and sentenced as referred to
supra.
15. Being aggrieved by the same, the appellants are
before this Court.
16. Shri P.B. Umesh, learned counsel representing the
appellants contended that to establish the necessary ingredient
to attract the offences as against the appellants, hardly there is
any material evidence placed on record, which would be
sufficient enough to convict the appellants for the aforesaid
offences and sought for allowing the appeal.
17. He pointed out that insofar as accused No.2 is
concerned, the prosecution evidence lacks insofar as the
demand of illegal gratification said to have been made by
accused No.2 to the complainant either in the form of contents
of the complaint or the oral evidence of the complainant and
the shadow witness.
18. Shri P.B. Umesh further pointed out that accused
No.2 was nowhere in the picture when the survey of the land
- 11 -
NC: 2025:KHC:5823
belonging to the complainant took place on 07.02.2007 and
after surveying the land when the survey sketch was demanded
by the complainant, on 09.02.2007 as per the case of the
complaint, complainant had paid a sum of Rs.500/- towards the
surveying of the land by accused No.1 and there was no
complaint made by the complainant on 09.02.2007, when
actually there was a demand of Rs.2,000/- as per the case of
the prosecution itself which shows the hollowness in the case of
the prosecution and sought for allowing the appeal.
19. He further contended that there was no
conversation between 09.02.2007 and 21.02.2007 even
according to the prosecution and it is only on 21.02.2007, when
the complainant approached the Lokayuktha Police, they gave
the tape-recorder and material on record would go to show that
the conversation on the 'A' side is audible but conversation on
the 'B' side of the cassette is not audible. Therefore, the
prosecution case suffers from want of evidence to establish
demand and acceptance, which has been rightly considered by
the learned Judge while convicting accused No.1 for the offence
under Section 8 of the Prevention of Corruption Act whereas in
the absence of any evidence insofar as accused No.2 is
- 12 -
NC: 2025:KHC:5823
concerned in respect of the demand of bribe and acceptance
thereof, conviction of accused No.2 for the offence punishable
under Sections 7, 8, 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act is per se illegal and sought for
allowing the appeal in toto insofar as accused No.2 is
concerned.
20. Per contra, Shri B.B. Patil, learned counsel
representing the Lokayuktha, supported the impugned
judgment by contending that even though there is no demand
made by accused No.2 directly, shadow witness - PW6 in his
cross examination on behalf of accused No.2 has specifically
answered that indirectly accused No.2 demanded the money
from accused No.1 which factor cannot be lost sight of and
color test having stood positive insofar as accused No.2 is
concerned, and currency notes in the folded form were
recovered underneath the steel almirah kept in the cabin of
accused No.2, handling of tainted currency and the currency
notes being seized form his cabin, all necessary ingredients
required to maintain the conviction of both the accused has
been established by the prosecution by placing cogent and
convincing the evidence on record which requires no
- 13 -
NC: 2025:KHC:5823
interference by this Court in this appeal even after
re-appreciation on the material evidence on record and sought
for dismissal of the appeal.
21. He further contends that the fact of shadow witness
and complainant deposing that after entire amount of Rs.800/-
has been taken by the accused No.1 and thereafter visiting the
cabin of accused No.2 and only Rs.600/- has been recovered by
the head of the raid party from the shirt pocket of the accused
and on enquiry, accused No.1 having told that the balance
amount of Rs.200/- is handed over to accused No.2 and non
explanation of accused No.2 either while recording the accused
statement or when he gave the explanation soon after the trap
with regard to the accused No.1 handing over Rs.200/- to him,
and he pushing the said amount being not established by
placing necessary evidence on record, the conviction of both
the appellants needs to be maintained and thus sought for
dismissal of the appeal.
22. Having heard the arguments of both sides, this
Court perused the materials on record meticulously.
23. On such perusal of the materials on record, the
following points would arise for consideration:
- 14 -
NC: 2025:KHC:5823
"1) Whether the material
evidence placed on record by the
prosecution would be sufficient enough to
maintain the conviction of appellant No.1 for
the offence under Section 8 of PC Act and
conviction of appellant No.2 for the offence
under Sections 7, 8 and 13(1)(d) read with
Section 13(2) of PC Act?
2) Whether the appellants make out a
case of legal infirmities or perversity in
recording a finding of conviction of the
appellants for the aforesaid offences?
3) Whether the sentence needs
modification?
4) What order?"
24. Regarding point Nos.1 and 2: In the case on
hand, application having been filed by Rajendra Shettigar for
surveying his land bearing No.70/P1 measuring 16 cents in
Vader Hobli Village, Kundapura Taluk, is not in dispute. He had
paid the necessary fee as per the statute for issue of sketch as
well as the charges for measuring the land in a sum of Rs.103/-
and Rs.300/- respectively. Pursuant to the said application and
payment of requisite fee, accused No.1 did visit the land of the
- 15 -
NC: 2025:KHC:5823
complainant on 07.02.2007 and measured the land. Till this
date, there is no dispute with regard to the factual aspect on
either side.
25. However, after the land was measured, it is the
specific case of the complainant that, he enquired accused No.1
as to when he would get the survey sketch. It is at that
juncture, accused No.1 said to have demanded a sum of
Rs.2,000/- as the illegal gratification. When the complainant
refused to pay the said amount, accused No.1 collected
Rs.500/- as his share for having measured the land and told
him to collect the sketch after paying the remaining amount on
09.02.2007. The complainant was not willing to pay the
balance bribe amount. Therefore, he had approached the
Lokayukta Police at Udupi.
26. After he met the Lokayukta Police, no formal
complaint was taken by the Lokayukta Police; instead a small
tape recorder was handed over to the complainant to record
the conversation, wherein a demand by accused No.1 for bribe
amount is recorded. Accordingly, the complainant along with
the tape recorder met accused No.1 and negotiated the bribe
- 16 -
NC: 2025:KHC:5823
amount. At that juncture, accused No.1 said to have agreed to
receive another sum of Rs.800/- for handing over the survey
sketch.
27. Based on the said conversation, a formal complaint
came to be lodged on 22.02.2007. Thereafter, the raid party
was formed and successfully accused Nos.1 and 2 were trapped
on 22.02.2007 in the office at Byndoor. The material evidence
on record in the form of oral testimony of PWs.1 and 6
consistently establish the fact of accused No.1 obtaining tainted
currency in a sum of Rs.800/- comprising of one note of
Rs.500/- denominations and three notes of Rs.100
denominations from the hands of the complainant. After so
receiving the tainted currency in a sum of Rs.800/-, accused
No.1 did visit the cabin of accused No.2 and returned. It is
then, the pre-designated signal to the remaining raid party
members was given by PW1 by giving a missed call from his
mobile.
28. Raid party, thereafter, appearing on the scene
immediately and apprehending accused No.1 and enquiring him
about the tainted currency stood established not only by oral
- 17 -
NC: 2025:KHC:5823
testimony, but also from the seizure of the part of tainted
currency to the extent of note of Rs.600/- which was recovered
from the shirt pocket of accused No.1 comprising of one note of
Rs.500/- and one note of Rs.100/-. Colour test conducted
insofar as accused No.1 stood positive and on enquiry, accused
No.1 told that balance sum of Rs.200/- was handed over to
accused No.2. Thereafter, raid party visited accused No.2 and
enquired him about the tainted currency, for which, accused
No.2 flatly refused having received the tainted currency.
However, colour test conducted in his place stood positive,
which establishes that he did handle the tainted currency. The
remaining members of the raid party was told to search for the
balance sum of Rs.200/-. After thorough search, the remaining
members of the raid party were able to find two currency notes
of Rs.100/- denomination in the folded condition under the
steel almirah that was kept near accused No.2. Those folded
notes were also seized by the head of the raiding party after
tallying the serial numbers of those two currency notes as that
of the serial numbers entered in the entrustment mahazar.
29. These aspects of the matter would clearly establish
that there is positive and cogent evidence on record with
- 18 -
NC: 2025:KHC:5823
regard to the handling of tainted currency and work of PW1
pending in the office of accused Nos.1 and 2.
30. No doubt, accused No.2 gave an explanation that
he had completed his part of the work by signing the survey
sketch being the survey supervisor and he did not demand any
money. In this regard, the oral evidence of PW6 assumes
importance. A specific question was put to PW6 - shadow
witness by the counsel for accused No.2 as to the alleged
demand by accused No.2. PW6 did answer that accused No.2
did not demand directly the illegal gratification, but it was an
indirect demand.
31. Therefore, when the material evidence is re-
appreciated in the light of the appeal grounds and on behalf of
both the appellants, in fact it is accused No.1 who should have
been convicted for the offence under Section 13(1)(d) read
with Section 13(2) of PC Act, as it is he who demanded the
illegal gratification from PW1 at an undisputed point of time
i.e., on 07.02.2007. But accused No.1 being only a Surveyor,
the learned Trial Judge thought that he is not a public servant,
therefore, convicted accused No.1 only for the offence under
- 19 -
NC: 2025:KHC:5823
Section 8 of PC Act and proceeded to convict accused No.2 for
the offence under Sections 7, 8, 13(1)(d) read with 13(2) of PC
Act and sentenced supra.
32. Be it what it may, in the absence of any appeal by
Lokayukta, when the material evidence on record is re-
appreciated, since accused No.1 did take Rs.800/- on the day
of trap and there is no positive cross-examination except
suggesting that accused No.1 did not take any money on
07.02.2007 in sum of Rs.500/-, the conviction of accused No.1
for the offence under Section 8 of PC Act needs no interference.
33. Having said thus, in the absence of any cogent
evidence wherein accused No.2 had made a direct demand and
accepted the bribe amount directly from the complainant, this
Court is of the considered opinion that the conviction of
accused No.2 for the offence under Sections 8 and 13(1)(d)
read with Section 13(2) of PC Act needs a re-look.
34. The principles of law with regard to the what
exactly will be the offence that would be covered under Section
7 of PC Act and what are the ingredients that are required for
- 20 -
NC: 2025:KHC:5823
recording an order of conviction under Section 13(1)(d) read
with Section 13(2) of PC Act is no longer res integra.
35. The Hon'ble Apex Court in the case of Neeraj
Dutta Vs State (Government of NCT of Delhi)1, has held as
under:
"88.4 (d) In order to prove the fact in
issue, namely, the demand and acceptance of
illegal 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
(2023) 4 SCC 731
- 21 -
NC: 2025:KHC:5823
from the public servant. This is an offence
under Section 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 Section 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 Section 13(1)(d) and (i) and
(ii) of the Act."
36. The principles of law enunciated in Neeraj Dutta
(supra) which is a constitutional Bench judgment, wherein,
referred questions stood answered in the affirmative was being
the subject matter of another judgment of a larger Bench of the
Hon'ble Apex Court in the case of Sita Soren Vs Union of
- 22 -
NC: 2025:KHC:5823
India2, wherein, the larger Bench has approved the answer to
the referred questions by the constitution Bench in Neeraj
Dutta (supra).
37. Therefore, on close reading of the principles of law
enunciated in the judgment of Neeraj Dutta (supra), this
Court is of the considered opinion that even in the absence of
any demand made by accused No.2 directly to the complainant,
since the bribe is given i.e., the complainant handed over a
sum of Rs.800/- to the hands of accused No.1 and portion of
which was handed over to accused No.2 (Rs.200/- recovered
from the cabin of accused No.2) by the remaining members of
raid party who did not nurture any previous enmity or
animosity as against accused No.2, the offence under Section 7
of PC Act, where acceptance of bribe amount having gets
established in the case on hand.
38. Therefore, conviction of accused No.2 for the
offence under Section 7 of PC Act needs to be maintained.
However, there is no evidence on record which would also
cover under Section 8 and 13(1)(d) read with Section 13(2) of
PC Act in so far as accused No.2 is concerned. Counsel for
(2024) 5 SCC 629
- 23 -
NC: 2025:KHC:5823
Lokayukta is unable to point out any other material on record
which would be sufficient enough to maintain remaining offence
as against accused No.2.
39. Further, the explanation offered by accused No.2
immediately after the incident is of no avail from escaping the
rigors of law under Section 7 of PC Act, inasmuch as said
explanation is to be termed as self serving testimony.
40. From the above discussion, this Court is of the
considered opinion that point Nos.1 and 2 are to be answered
partly in the affirmative.
41. Regarding point No.3: In view of the findings on
point Nos.1 and 2 and accused No.2 being acquitted for the
offence punishable under Sections 8 and 13(1)(d) read with
Section 13(2) of PC Act, one year imprisonment and fine of
Rs.2,000/- with a default sentence of one month needs a re-
look. Since the incident has occurred before the Act came to be
amended, minimum punishment of simple imprisonment of six
months is to be ordered taking note of the age of accused No.2
as on today being 72 years.
- 24 -
NC: 2025:KHC:5823
42. In so far as accused No.1 is concerned, he has been
ordered to undergo imprisonment for a period of one year for
the offence under Section 8 of PC Act. The sentence in so far
as accused No.1 also needs a re-look, inasmuch as, since the
incident has occurred in the year 2007, when the Act stood un-
amended, sentence of imprisonment of accused No.1 also
needs to be reduced to six months instead of one year, while
maintaining the fine amount of accused Nos.1 and 2 as ordered
by the learned Trial Judge. Therefore, point No.3 is answered
partly in the affirmative.
43. Regarding point No.4 : In view of the finding of
this Court on point Nos.1 to 3 as aforesaid, the following order
is passed:
ORDER
(i) Criminal Appeal is allowed in part.
(ii) Conviction of accused No.1 for the offence
under Section 8 of PC Act is maintained and
conviction of accused No.2 is maintained for the
offence under Section 7 of PC Act and accused
No.2 is acquitted for the offence under Sections 8,
13(1)(d) read with Section 13(2) of PC Act.
- 25 -
NC: 2025:KHC:5823
(iii) Consequently, the sentence of imprisonment
ordered by the learned Special Judge in the
impugned judgment granting one year simple
imprisonment for the offence under Section 8 of
PC Act, in so far as accused No.1 is concerned and
one year simple imprisonment of accused No.2 for
the offence under Section 7 of PC Act is concerned
is reduced to sentence of imprisonment for a
period of six months and fine amount of
Rs.6,000/- and Rs.2,000/- ordered by the learned
Special judge is maintained.
(iv) Accused Nos.1 and 2 who are the appellants
are directed to surrender before the Trial Court on
10.03.2025 positively for serving the remaining
part of the sentence.
Office is directed to return the Trial Court records
with the copy of this order, forthwith for issuing
modified conviction warrant.
Sd/-
(V SRISHANANDA)
JUDGE
JY/BGN
CT: BHK
