Karnataka High Court
Shri Abhishek S/O Rajesh Tripathi vs Cbi Acb Branch Bangalore on 14 February, 2025
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NC: 2025:KHC-D:3075
CRL.A No. 100153 of 2023
C/W CRL.A No. 100156 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL APPEAL NO. 100153 OF 2023 (C)
C/W
CRIMINAL APPEAL NO. 100156 OF 2023 (C)
IN CRIMINAL APPEAL NO. 100153 OF 2023 (C)
BETWEEN:
SHRI ABHISHEK
S/O RAJESH TRIPATHI
AGE. 38 YEARS,
OCC. INCOME TAX OFFICER (TDS),
WARD.1,
INCOME TAX OFFICE,
OPPOSITE DISTRICT HOSPITAL,
Digitally
signed by DR. AMBEDKAR ROAD, BELAGAVI.
NARAYANA
UMA R/O. NO. 4859/B.4/A,
Location: SHIVAGANGA NILAYA,
HIGH COURT
OF 6TH CROSS, 3RD MAIN,
KARNATAKA
SADASHIV NAGAR, BELAGAVI
PERMANENT ADDRESS:
NEAR Y.D. COLLEGE,
MOHALLA RAJGARH, LAKHIMPUR, KHERI, UTTAR
PRADESH - 262 701.
...APPELLANT
(BY SRI. SHANKAR HEGDE ,ADVOCATE)
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CRL.A No. 100153 of 2023
C/W CRL.A No. 100156 of 2023
AND:
CBI ACB BRANCH BANGALORE
REPRESENTED BY SPL PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD,
HIGH COURT OF DHARWAD, DHARWAD.
...RESPONDENT
(BY SRI. NEELENDRA D GUNDE, SPL.PP)
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 30.03.2023 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, DHARWAD IN SPL. CBI
CC NO. 04/2016 CONVICTED FOR THE OFFENCES P/U/SEC.
120-B OF IPC AND SECTION 7, 12 AND 13(1) (d) R/W SEC.
13(2) OF PREVENTION OF CORRUPTION ACT, 1988.
IN CRIMINAL APPEAL NO. 100156 OF 2023 (C)
BETWEEN:
SHRI AALOK
S/O MATA PRASAD TIWARI
AGE. 33 YEARS,
OCC. INCOME TAX OFFICER,
WARD.1, INCOME TAX OFFICE, ATHANI ROAD,
BIJAPUR.
R/O TYPE IV QUARTERS,
BEHIND INCOME TAX OFFICE, ATHANI ROAD,
BIJAPUR.
PERMANENT ADDRESS:
NEAR DRONACHARYA ACADEMY 60 FEET ROAD,
JANAKIPURAM EXTENSION, LUCKNOW,
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CRL.A No. 100153 of 2023
C/W CRL.A No. 100156 of 2023
NO. 384E, SHASTRI NAGAR,
NEAR JAIL ROAD, RAIPURRAJ,
THANA KOTWALI DEHAT
BEHARAICH - 271 801.
UTTAR PRADESH.
...APPELLANT
(BY SRI. SHANKAR HEGDE ,ADVOCATE)
AND:
CBI ACB BRANCH BANGALORE
REPRESENTED BY SPL PUBLIC PROSECUTOR, HIGH
COURT BUILDING, DHARWAD, HIGH COURT OF
DHARWAD, DHARWAD.
...RESPONDENT
(BY SRI. NEELENDRA D GUNDE, SPL. PP)
THIS CRIMINAL APPEAL IS FILED U/SEC. 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 30.03.2023 PASSED BY THE III ADDL. DISTRICT AND
SESISONS JUDGE AND SPECIAL JUDGE, DHARWAD IN SPL. CBI
CC NO. 04/2016 CONVICTED FOR THE OFFENCES P/U/SEC.
120-B OF IPC AND SECTION 7,12 AND 13(1)(d) R/W SEC.
13(2) OF PREVENTION OF CORRUPTION ACT, 1988 AND TO
ACQUIT THE APPELLANT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 22.11.2024 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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CRL.A No. 100153 of 2023
C/W CRL.A No. 100156 of 2023
CORAM: THE HON'BLE MR. JUSTICE S.RACHAIAH
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)
1. The appellants herein have preferred these appeals being
aggrieved by the judgment of conviction and order on
sentence dated 30.03.2023 in Spl.CBI C.C No.4/2016 on
the file of III Additional District and Sessions Judge and
Special Judge, Dharwad passed against accused Nos.1
and 2 for the offences punishable under Section 120-B of
the Indian Penal Code (for short "IPC") and Sections 7,
12 and 13(1)(d) r/w 13(2) of Prevention of Corruption
Act, 1988 (for short "P.C Act"), they are taken up
together for consideration.
2. The rank of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case are as under:
3. It is the case of the prosecution that the accused Nos.1
and 2 were working as Income Tax Officers at Belagavi
and Vijayapura respectively. It is further stated that the
complainant had not filed Income Tax Returns for the
financial year 2008 to 2015. Considering the non-filing of
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the said Income Tax Returns, the accused No.1 had
issued notices to the complainant and sought for his
explanation for having not filed the Income Tax Returns.
4. It is stated that pursuant to the said notices, the
complainant and PW.2 had approached accused No.1 and
offered their explanation for not having filed the Income
Tax Returns relating to TDS. However, the said offer was
not accepted and it was directed the complainant and
PW.2 to submit the documents. Further, it is stated that
accused No.1 stated to have demanded a sum of
Rs.4,00,000/- as illegal gratification to do some official
favour. The complainant disagreed to pay such a huge
amount and then, it was reduced to Rs.2,50,000/- after
negotiation.
5. It is further stated that the complainant being unhappy
about the said development and decided to approach CBI
in that regard. Accordingly, he went along with his friend
and approached the CBI Office at Bengaluru and informed
them regarding the demand of illegal gratification by
accused No.1. As per the direction issued by the
respondent - CBI, he acted accordingly. It is further
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stated that accused No.2 had informed the complainant
that he would send accused No.3 to his office and
directed him to pay the amount of Rs.2,50,000/- to
accused No.3. Accordingly, accused No.3 stated to have
approached PW.1 in his clinic and introduced himself that
he was sent by accused No.2. PW.2 after having
confirmed that accused No.3 was sent by him, he was
handing over the amount to accused No.3, at that time,
accused No.3 was apprehended by the respondent - CBI
and after conducting the investigation, submitted the
charge sheet.
6. In order to prove the case of the prosecution, the
prosecution examined 30 witnesses as PW.1 to PW.30
and got marked 95 documents as Exs.P1 to P95 and also
identified 14 material objects as M.Os.1 to 14. On the
other hand, the accused got examined four witnesses as
DW.1 to DW.4 and also got marked 8 documents as
Exs.D1 to D8. The Trial Court after appreciating both oral
and documentary evidence on record, recorded the
conviction of accused Nos.1 and 2 for the offences stated
supra.
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7. Heard Sri Shankar P.Hegde, learned counsel for the
appellants and Sri Neelendra D Gunde, learned Special
Prosecutor for respondent in both the appeals.
8. It is the submission of learned counsel for the appellants
that the judgment of conviction and order on sentence
passed against accused Nos.1 and 2 are perverse or
erroneous. Therefore, the same is liable to be set aside.
9. It is further submitted that the prosecution has failed to
prove the demand and acceptance of illegal gratification
by the accused. Mere acting on the statement of the
accused No.3, the respondent - CBI cannot implicate the
appellants in the above said case. The Trial Court
without appreciating the facts properly and rendered the
conviction, which is unsustainable under the law.
10. It is further submitted that the prosecution has not
established the nexus between accused Nos.1 and 2 with
accused No.3. Further, the prosecution has not
established that both the accused have sent accused No.3
to collect the alleged illegal gratification from PW.1. This
aspect is crucial to the case of the prosecution. Not
establishing the relationship of accused Nos.1 and 2 with
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accused No.3 itself is the ground to discard the fact of
demanding illegal gratification. The said aspect ought to
have been considered by the Trial Court while considering
the evidence.
11. It is further submitted that though the complainant stated
in his evidence that accused Nos.1 and 2 have made
several phone calls and demanded illegal gratification
from him, the primary evidence like M.O.6 has not been
proved in accordance with the law. The evidence of PW.1
would indicate that the respondent - CBI has not
collected the memory card in his presence and he further,
deposes that whether the memory card was there or not,
was not aware to him. Moreover, the hash value of the
mobile phone has not been secured which is important to
ascertain the authenticity of the said mobile. In spite of
this lacuna, the Trial Court proceeded to render the
conviction, which is erroneous and unsustainable.
12. It is further submitted that the Trial Court ought not to
have considered the remaining electronic evidence and its
contents. However, the Trial Court considered the said
evidence and acted upon such electronic evidence, which
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is contrary to the law relating to the admissibility of
electronic evidence. Even assuming that the alleged
conversations had taken place between the parties,
nowhere in the said conversations, the demand of illegal
gratification would taken place.
13. It is further submitted that though the prosecution tried
to establish that as the work of PW.1 was pending with
accused No.1, as such, he demanded illegal gratification,
the evidence of PWs.1, 2 and 8 clearly indicates that
accused Nos.1 and 2 were not present at the spot where
the alleged incident had taken place.
14. It is further submitted that to render conviction for the
offence under Section 7 of the P.C Act, demand and
acceptance of illegal gratification by the Public Servant
must be established by the prosecution. However, the
Trial Court committed a grave error in arriving at a
conclusion that accused Nos.1 and 2 are held guilty of the
offences stated supra in the absence of proper proof.
Therefore, the conviction is rendered unjustifiable. Hence,
it is liable to be set aside. Making such submissions, the
learned counsel for appellants prays to allow the appeals.
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15. In support of his submissions, the learned counsel for
appellants relied on the following judgments:
1. Dr. SM Mannan v/s CBI1
2. Neeraj Dutta v/s State by Govt. of NCT Delhi2
3. Neeraj Dutta v/s State (Govt. of NCT of Delhi)3
4. K Shantamma v/s State of Telangana4
5. Jagtar Singh v/s State of Punjab5
6. P. Satyanarayana Murthy v/s District Inspector of
Police, State of Andhra Pradesh & another.6
7. N. Vijayakumar v/s State of Tamil Nadu7
8. V Venkata Subbarao v/s State represented by
Inspector of Police, A.P8
9. Suraj Mal v/s State (Delhi Administration)9
10. Panalal Damodar Rathi v/s State of Maharashtra10
11. Meena (SMT) w/o Balwant Hemke v/s State of
Maharashtra11
12. Ram Prakash Arora v/s State of Punjab12
13. Jaswant Singh v/s State of Punjab13
WP.NO.24119/2022 dated 22.04.2024
2023 SCC Online SC 280
(2023) 4 SCC 731
(2022) 2 SCC 574
2023 SCC Online 320
(2015) 10 SCC 152
(2021) 3 SCC 687
(2006) 13 SCC 305
(1979) 4 SCC 725
(1979) 4 SCC 526
(2005) 5 SCC 21
(1972) 3 SCC 652
(1973) 3 SCC 657
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14. State of Karnataka v/s K.T.Hanumanthaiah14
15. Sri. P Manjunath v/s The State by Karnataka and ors15
16. Khema alias Khem Chandra v/s State of Uttar
Pradesh16
17. Kali Ram v/s State of Himachal Pradesh17
18. State of Kerala v/s P.Mohammed Noushad18
19. Pradeep Kumar v/s State of Chattisgarh19
20. PC Mishra v/s CBI20
21. C.M. Girish Babu v/s CBI Cochin, High Court of
Kerala21
22. Khushalchand Yashwant Gaikwad v/s State of
Maharashtra22
23. Sujit Biswas v/s State of Assam23
24. Kalyan Kumar Gogoi v. Ashutosh Agnihotri and
another24
25. Smt. Anita Sonkar v/s Shakuntala Misra25
26. Ramappa Amminabhavi v/s State of Karnataka26
LAWS (KAR) 2006 3 129
WP No. 10027/2022 dated 16/11/2022
2022 SCC Online SC 991
(1973) 2 SCC 808
(2016) 14 SCC 318
(2023) 5 SCC 350
2021 SCC Online Del 82
(2009) 3 SCC 779
2018 SCC Online Bom 1073
(2013) 12 SCC 406
(2011) 2 SCC 532
2014 (123) RD 855
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27. State of Karnataka v/s Bharath Chandra27
28. Punjabrao v/s State of Maharashtra28
29. M Abbas v/s State of Kerala29
30. Krishan Chander v/s State of Delhi30
31. Jai Prakash Tiwari v/s State of MP.31
32. Parminder kaur v/s State of Punjab32
33. Umesh Patil v/s State of Karnataka33
34. Arjun Panditrao Khotkar v/s Kailash Kushamrao
Gorantyal34
35. Anvar PV v/s PK Basheer and others35
36. Nilesh Dinkar Paradkar v/s State of Maharashtra36
37. Ramesh Thete v/s State of Madhya Pradesh37
38. Ram Singh v/s Col Ram Singh38
39. Sanjaysinh Ramrao Chavan v/s Dattatray Gulabrao
Phalke and Ors39
40. Ritesh Sinha v/s State of Uttar Pradesh and another40
CRL.A. No. 2612/2010 dated 20/02/2021
CRL.A.No.223/1999 decided on 11/12/2001
(2002) 10 SCC 371
(2001) 10 SCC 103
(2016) 3 SCC 108
2022 SCC Online SC 966
(2020) 8 SCC 811
CRL.A.No.2760/2012 dated 21.07.2022
(2020) 7 SCC 1
(2014) 10 SCC 473
(2011) 4 SCC 143
ILR (2010) M.P 1633
1985 SCC Supl. 41
(2015) 3 SCC 123
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41. Ashalatha Soni v/s Durgesh Soni41
42. Ajay Gupta v/s CBI42
16. Per contra, Sri.Neelendra D Gunde, learned Special
Prosecutor appearing on behalf of CBI has vehemently
justified the judgment of conviction rendered by the Trial
Court and he further submitted that the prosecution has
proved the case of demand and acceptance of illegal
gratification by the accused. The evidence of PWs.1, 2
and 8 are relevant to justify the same. The Trial Court
after having considered the evidence of these witnesses,
arrived at a conclusion that the demand and acceptance
has been proved.
17. It is further submitted that though some official witnesses
attached to the Income Tax Department have turned
hostile in respect of the identity of voice samples relating
to the said transaction, that may not be significant as
there are other forms of evidence which supports that the
(2019) 8 SCC 1
2023 SCC Online CHH 3959
2022 SCC Online Del 3549
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accused Nos.1 and 2 have demanded the amount from
the complainant as illegal gratification.
18. It is further submitted that the expert who is examined as
PW.28 has conducted a test to determine the veracity of
the voice samples relating to the conversations that had
taken place between the complainant and the accused.
The said PW.28 has submitted a report as per Ex.P90. As
per the said report, it is proved that the accused had
demanded illegal gratification from the complainant.
19. It is further submitted that the pendency of work relating
to the complainant has also been established by the
prosecution. The said pendency of work itself would
indicate that the accused No.1 demanded illegal
gratification from PW.1 to do some official favour.
20. It is further submitted that the telephonic conversations
that had taken place between the parties would indicate
that the accused Nos.1 and 2 jointly and severally
demanded the illegal gratification from PW.1 to do some
official favour.
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21. It is further submitted that the Trial Court has considered
the said aspect and recorded the conviction, which is
appropriate and justifiable. Therefore, interference would
not be arisen. Having said thus, the learned Special
Prosecutor for the respondent - CBI prays to dismiss the
appeals.
22. The learned Special Prosecutor for the respondent-CBI in
support of his submission, has relied on the judgment of
the Hon'ble Supreme Court in the case of NEERAJ DUTTA
v. STATE BY GOVERNMENT OF NCT, DELHI43.
23. Having heard the learned counsel for the respective
parties and also perused the findings of the Trial Court,
the points which would arise for my consideration are:
1) Whether the findings of the Trial Court in
respect of the demand and acceptance of
illegal gratification by the accused is
justified?
2) Whether the Trial Court is justified in
appreciating the electronic evidence?
3) Whether the findings of the Trial Court in
recording the conviction is justified?
(2023) 4 SCC 731
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4) Whether the appellants have made out a
case to interfere with the findings of the
Trial Court?
24. Before adverting to the facts of the case, it is relevant to
refer the legal proposition of the law along with the
provisions of the P.C Act. The charge sheet has been laid
against the appellants for the offences punishable under
Sections 7, 12, 13(1)(d) r/w 13(2) of P.C Act.
25. In this context, it is relevant to refer to Section 7 of the
P.C Act reads as under:
"[7. Offence relating to public servant
being bribed.-- Any public servant who,--
(a) obtains or accepts or attempts to obtain
from any person, an undue advantage, with
the intention to perform or cause performance
of public duty improperly or dishonestly or to
forbear or cause forbearance to perform such
duty either by himself or by another public
servant; or
(b) obtains or accepts or attempts to obtain
from any person, an undue advantage, with
the intention to perform or cause performance
of public duty improperly or dishonestly or to
forbear or cause forbearance to perform such
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duty either by himself or another public
servant; or
(c) performs or induces another public servant
to perform improperly or dishonestly a public
duty or to forbear performance of such duty in
anticipation of or in consequence of accepting
an undue advantage from any person,
shall be punishable, with imprisonment for a term
which shall not be less than three years but which
may extend to seven years and shall also be liable
to fine.
Explanation 1.--For the purpose of this
section, the obtaining, accepting, or the
attempting to obtain an undue advantage shall
itself constitute an offence even if the
performance of a public duty by public servant, is
not or has not been improper.
Illustration.--A public servant, 'S' asks a
person, 'P' to give him an amount of five thousand
rupees to process his routine ration card
application on time. 'S' is guilty of an offence
under this section.
Explanation 2.--For the purpose of this
section,--
(i) the expressions "obtains" or "accepts" or
"attempts to obtain" shall cover cases where a
person being a public servant, obtains or
"accepts" or attempts to obtain, any undue
advantage for himself or for another person, by
abusing his position as a public servant or by
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using his personal influence over another public
servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person
being a public servant obtains or accepts, or
attempts to obtain the undue advantage directly
or through a third party.]
On careful reading of the above said provision, it
makes it clear that the demand for illegal gratification and
acceptance thereof is sine qua non to constitute an
offence under Section 7 of the P.C Act.
26. In this context, it is relevant to refer to the judgment of
the Hon'ble Supreme Court in the case of
N.VIJAYAKUMAR V. STATE OF TAMIL NADU stated supra,
the Hon'ble Supreme Court held in paragraph No.27 as
under:
"27. The relevant paras 7, 8 and 9 of the
judgment in B. Jayaraj read as under: (SCC pp.
58-59)
"7. Insofar as the offence under Section 7 is
concerned, it is a settled position in law that
demand of illegal gratification is sine qua
non to constitute the said offence and mere
recovery of currency notes cannot constitute
the offence under Section 7 unless it is
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proved beyond all reasonable doubt that the
accused voluntarily accepted the money
knowing it to be a bribe. The above position
has been succinctly laid down in several
judgments of this Court. By way of
illustration, reference may be made to the
decision in C.M. Sharma v. State of A.P. and
C.M. Girish Babu v. CBI.
8. In the present case, the complainant did
not support the prosecution case insofar as
demand by the accused is concerned. The
prosecution has not examined any other
witness, present at the time when the
money was allegedly handed over to the
accused by the complainant, to prove that
the same was pursuant to any demand
made by the accused. When the complainant
himself had disowned what he had stated in
the initial complaint (Ext. P-11) before LW 9,
and there is no other evidence to prove that
the accused had made any demand, the
evidence of PW 1 and the contents of Ext. P-
11 cannot be relied upon to come to the
conclusion that the above material furnishes
proof of the demand allegedly made by the
accused. We are, therefore, inclined to hold
that the learned trial court as well as the
High Court was not correct in holding the
demand alleged to be made by the accused
as proved. The only other material available
is the recovery of the tainted currency notes
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from the possession of the accused. In fact
such possession is admitted by the accused
himself. Mere possession and recovery of
the currency notes from the accused without
proof of demand will not bring home the
offence under Section 7. The above also will
be conclusive insofar as the offence under
Sections 13(1)(d)(i) and (ii) is concerned as
in the absence of any proof of demand for
illegal gratification, the use of corrupt or
illegal means or abuse of position as a public
servant to obtain any valuable thing or
pecuniary advantage cannot be held to be
established.
9. Insofar as the presumption permissible to
be drawn under Section 20 of the Act is
concerned, such presumption can only be in
respect of the offence under Section 7 and
not the offences under Sections 13(1)(d)(i)
and (ii) of the Act. In any event, it is only on
proof of acceptance of illegal gratification
that presumption can be drawn under
Section 20 of the Act that such gratification
was received for doing or forbearing to do
any official act. Proof of acceptance of illegal
gratification can follow only if there is proof
of demand. As the same is lacking in the
present case the primary facts on the basis
of which the legal presumption under
Section 20 can be drawn are wholly absent."
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The abovesaid view taken by this Court fully
supports the case of the appellant. In view of
the contradictions noticed by us above in the
depositions of key witnesses examined on
behalf of the prosecution, we are of the view
that the demand for and acceptance of bribe
amount and cellphone by the appellant, is
not proved beyond reasonable doubt. Having
regard to such evidence on record the
acquittal recorded by the trial court is a
"possible view" as such the judgment [State
of T.N. v. N. Vijayakumar, 2020 SCC OnLine
Mad 7098] of the High Court is fit to be set
aside. Before recording conviction under the
provisions of the Prevention of Corruption
Act, the courts have to take utmost care in
scanning the evidence. Once conviction is
recorded under the provisions of the
Prevention of Corruption Act, it casts a social
stigma on the person in the society apart
from serious consequences on the service
rendered. At the same time it is also to be
noted that whether the view taken by the
trial court is a possible view or not, there
cannot be any definite proposition and each
case has to be judged on its own merits,
having regard to evidence on record."
27. On careful reading of the above said judgment, it makes
it clear that to constitute an offence under Section 7 of
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the P.C Act, there must be a demand for illegal
gratification and the same has to be accepted by the
Public Servant. Once the acceptance is proved
presumption under Section 20 of the P.C Act would arise.
28. Having considered the principles laid down by the Hon'ble
Supreme Court in the above judgment, now it is relevant
to consider the evidence of material witnesses. In this
regard, the prosecution has relied on the evidence of
PWs.1, 2 and 8 who are considered as material witnesses
to the incident. According to PW.1, he did not submit the
Income Tax Returns for the year 2008 till 2015. He
further admitted that pursuant to the notices of the
Income Tax Department, he had approached accused
No.1 and requested him to do the needful.
29. Further, PW.1 stated in his evidence that the accused
No.1 stated to have demanded illegal gratification of
Rs.4,00,000/-, however, it was reduced to Rs.2,50,000/-
after negotiation to do some official favour to him. PW.1
further deposes that accused No.2 contacted him over
the phone and directed him to pay the amount of
Rs.2,50,000/- to the person whom he would send.
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However, in the meantime, PW.1 had contacted the
respondent - CBI and informed them about the illegal
gratification which was being demanded by the accused.
30. He further deposed in his evidence that as per the
direction of the respondent - CBI, he acted and
accordingly, accused No.3 was arrested. The overall
evidence of PW.1 would indicate that he has supported
the case of the prosecution that he had received an
instruction from accused No.2 that he should pay the
amount of Rs.2,50,000/- to accused No.3. However, as
the prosecution has failed to establish that there was a
demand made by accused No.1 to do some official favour
to PW.1, the evidence of PW.1 is not relevant and the
Trial Court ought to have appreciated the evidence of
PW.1 properly before it could have arrived at a conclusion
that the accused are found guilty of the offences stated
supra.
31. As regards the evidence of P.W.2 is concerned, he stated
to have accompanied P.W.1 and approached the accused
No.1 at Belagavi to get clarification in respect of notices
issued by him. According to him, he was present when a
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demand of illegal gratification was made by accused
No.1. However, in the cross-examination, he had
admitted that he was entrusted with the work of
submitting the Income Tax Returns on behalf of P.W.1.
As could be seen from his evidence that soon after the
incident, he remained unnoticed and did not inform the
said fact to the concerned authority. It is further noticed
that he was not present as on the date of the alleged
incident which had taken place in the clinic of P.W.1.
Therefore, his evidence in respect of demand and
acceptance of illegal gratification would not play any
pivotal role in this case and his evidence would not
inspire any confidence. Therefore, in my considered
opinion, the evidence of this witness is not believable.
32. The evidence of P.W.8 who is the shadow witness to the
incident would indicate that there was no demand of
illegal gratification by accused No.3. However, P.W.1 was
handing over the amount of Rs.2,50,000/- to accused
No.3, at that time, the accused No.3 was apprehended by
the respondent-CBI. On conjoint reading of the evidence
of P.W.1, 2 and 8, it can be inferred that the prosecution
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has failed to establish the demand and acceptance of
illegal gratification by accused Nos. 1 and 2. The Trial
Court ought to have appreciated the evidence in such a
manner before arriving at a conclusion that the accused
are found guilty of offence punishable under Section 7 of
the P.C. Act.
33. As regards the electronic evidences are concerned, the
prosecution tried to convince the Court that the
conversations between P.W.1 and with other accused
were recorded in M.O.6 which was produced by P.W.1
and the same was seized under the trap mahazar, which
is marked as Ex.P12. Though P.W.8 supported the case
of the prosecution in respect of the said mahazar, the
evidence of PWs.1 and 8 would clearly indicate that both
these witnesses have not seen the removal of the
memory card from the said M.O.6. Further, it would
indicate that they have not heard the conversations said
to have been transferred to the Compact Discs (for short
'CD'). In the absence of collecting the certificate as
required under Section 65-B of the Indian Evidence Act to
prove the electronic evidence in respect of the memory
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card, it is unsafe to rely on the evidence of the said
electronic device. Though the prosecution has tried to
impress the Court that the conversations that had taken
place between the parties were transferred to CDs, which
are identified as M.O.s 1, 7 and 9, as the primary
evidence itself proved to be unacceptable, the remaining
portions ought not to have been considered by the Trial
Court. However, the Trial Court grossly committed an
error in considering the said evidence. Therefore, the
findings of the Trial Court in respect of the electronic
evidence, in my considered view, is opposed to the
settled principle of law.
34. In this regard, it is relevant to refer to the judgment of
the Hon'ble Supreme Court in the case of SANJAYSINH
RAMRAO CHAVAN v. DATTATRAY GULABRAO PHALKE AND ORS
stated supra, paragraph No.16 of the said judgment,
which reads as under:
"16. It is to be noted that in the first complaint
filed by the second respondent, the de facto
complainant, there is no allegation for any
demand for bribe by the appellant. The allegation
of demand is specifically against Accused 2 only.
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That allegation against the appellant is raised only
subsequently. Be that as it may, the only basis
for supporting the allegation is the conversation
that is said to be recorded by the voice recorder.
The Directorate of Forensic Science Laboratories,
State of Maharashtra vide Annexure B Report has
stated that the conversation is not in audible
condition and, hence, the same is not considered
for spectrographic analysis. The learned counsel
for the respondents submit that the conversation
has been translated and the same has been
verified by the panch witnesses. Admittedly, the
panch witnesses have not heard the conversation,
since they were not present in the room. As the
voice recorder is itself not subjected to analysis,
there is no point in placing reliance on the
translated version. Without source, there is no
authenticity for the translation. Source and
authenticity are the two key factors for an
electronic evidence, as held by this Court in Anvar
P.V. v. P.K. Basheer [(2014) 10 SCC 473 : (2015)
1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015)
1 SCC (L&S) 108] ."
35. On reading of the above said judgment, it makes it clear
that when the conversation is not proved through
independent witnesses, relying on such conversation and
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rendering the conviction would be unjustifiable. Once it
is found that there is no material to connect the accused
with the crime, rendering the conviction on the basis of
invalid evidence certainly would lead to anomaly.
Therefore, I am of the considered opinion that the
prosecution has failed to prove the case against the
accused even on the electronic evidence. It is needless
to say that the persons who acquainted with the voice of
accused Nos.1 and 2 have been examined in this case
and they have turned hostile and not supported the case
of the prosecution.
36. The evidence of P.W.12 assumes greater significance as
accused No.3 was working with him as an office boy.
According to him, neither accused No.1 nor accused No.2
has spoken with him regarding sending of accused No.3
to P.W.1 to collect the illegal gratification. In fact, he
deposes in his evidence that he had sent accused No.3 to
collect the money to deposit the same into the bank to
make online payment of arrears of income tax of P.W.1.
Even on any stretch of the imagination, it could be
inferred that the prosecution has utterly failed to
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establish that the prosecution has proved the case
beyond a reasonable doubt regarding the guilt of the
accused in respect of the offences stated supra.
37. As regards the submission of learned Special Prosecutor
appearing on behalf of respondent - CBI, he mainly relied
on the judgment of the Hon'ble Supreme Court in the
case of NEERAJ DUTTA stated supra, wherein the Hon'ble
Supreme Court held that if the complainant turned hostile
or has died or was 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 said dictum of the Hon'ble
Supreme Court, in my considered view, is not applicable
to the case. Therefore, the reliance placed by the learned
Special Prosecutor for respondent - CBI cannot be
sustained.
38. In the light of the observations made above, I proceed to
answer the points which arise for my consideration as
under:-
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Point No.(i) .. In the 'Negative'
Point No.(ii) .. In the 'Negative'
Point No.(iii) .. In the 'Negative'
Point No.(iv) .. In the 'Affirmative'
39. Accordingly, I proceed to pass the following:-
ORDER
i) The Criminal Appeals are allowed.
ii) The judgment of conviction and order on
sentence dated 30.03.2023 passed in
Spl.CBI. C.C No.04/2016 by the III Additional
District and Sessions Judge and Special
Judge, Dharwad is set aside.
iii) The appellants / accused Nos.1 and 2 are
acquitted for the offences punishable under
Section 120-B of IPC and Sections 7, 12,
13(1)(d) r/w 13(2) of the Prevention of
Corruption Act, 1988.
iv) Bail bonds executed, if any, stand cancelled.
Sd/-
(S.RACHAIAH)
JUDGE
