Karnataka High Court
K Bhojaraja Achar vs The State By P I on 14 February, 2025
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 1074 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 1074 OF 2011 (C)
BETWEEN:
K. BHOJARAJA ACHAR
58 YEARS
S/O LATE. LOKAYYA ACHAR
CHIEF OFFICER, TOWN PANCHAYAT
SALIGRAMA, UDUPI TALUK, UDUPI.
Digitally signed ...APPELLANT
by NANDINI B G
(BY SRI. H. JAYANTH POOJARY, ADVOCATE)
Location: high
court of
karnataka
AND:
THE STATE BY P.I.
LOKAYUKTHA, UDUPI
UDUPI DISTRICT.
...RESPONDENT
(BY SRI. B. LETHIF, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
29.09.2011 PASSED BY THE SESSIONS/SPL. JUDGE, UDUPI IN
SPL.C.NO.50/08- CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 7, 13(1)(D) READ
WITH SECTION 13(2) OF PREVENTION OF CORRUPTION ACT,
1988; AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO IMPRISONMENT FOR A PERIOD OF 6 MONTHS FOR
THE OFFENCE PUNISHABLE UNDER SECTION 7 OF THE
PREVENTION OF CORRUPTION ACT, 1988 AND HE SHALL PAY A
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CRL.A No. 1074 of 2011
FINE OF RS.400/-; AND THE APPELLANT/ACCUSED IS FURTHER
SENTENCED TO UNDERGO IMPRISONMENT FOR A PERIOD OF
ONE YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION
13(1)(D) READ WITH SECTION 13(2) OF THE PREVENTION OF
CORRUPTION ACT, 1988 AND HE SHALL PAY A FINE OF
RS.400/-; THUS, THE ACCUSED TOTALLY TO PAY A FINE OF
RS.800/-; IN DEFAULT TO PAY THE FINE, HE SHALL FURTHER
UNDERGO IMPRISONMENT FOR A PERIOD OF 2 WEEKS.
SENTENCE WITH REGARD TO IMPRISONMENT SHALL RUN
CONCURRENTLY.
THIS CRIMINAL APPEAL, COMING ON FOR FURTHER
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri H Jayanth Poojary, and Sri B Lethif, learned
counsel for the parties.
2. Accused who has been convicted for the offence
under Sections 7, 13(1)(d) read with Section 13(2) of
Prevention of Corruption Act, 1988 (for short 'the PC Act') and
ordered to undergo sentence of imprisonment of six months for
the offence under Section 7 of PC Act and one year for the
offence under Section 13(1)(d) read with Section 13(2) of PC
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Act, apart from payment of fine amount of Rs.400/- for each of
the offences, is the appellant.
3. Facts in brief which are utmost necessary for
disposal of the appeal are as under:
A complaint came to be lodged with Lokayukta Police,
Udupi, contending that the complainant was doing the
business in the name and style of 'Mythri Service Centre' since
9 years in shop bearing No.1-2(3), which is situated in
Saligrama Pattana Panchayath Building on the monthly rent of
Rs.270/-. On 22.07.2006, there was an auction held for the
subsequent year and monthly rent was re-fixed in a sum of
Rs.2,475/- as against Rs.270/- that was paid earlier. Since the
complainant was interested in the shop, he also participated in
the auction and he was a successful bidder. Likewise, for the
shop bearing No1-2(1), there was an auction in March 2006
and one Venkataramana Nyari, was the successful bidder and
monthly rent was fixed in a sum of Rs.1,750/-. Since the
monthly rent was enhanced almost 10 times than what was
being paid, Venkataramana Nyari surrendered the shop to
Pattana Panchayat, Saligrama and re-auction of the said shop
was held on 18.02.2006. In the re-auction, wife of the said
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Venkatramana Nyari, by name, Smt.Shanta Nyari participated
and she was a successful bidder and monthly rent was fixed at
Rs.450/-. When complainant came to know about the same, he
also approached Sri Bhojaraja Achar (accused) and requested
that similar benefit be given to him also. At that juncture,
Bhojaraja Achar said to have told the complainant that he had
to withdraw the case filed against the Pattana Panchayat
pending before the Court and also demanded Rs.10,000/- as
illegal gratification for showing such similar favour to him.
Since the complainant was unable to meet the said demand of
the accused, he negotiated with accused and the illegal
gratification amount was modified to a sum of Rs.8,000/-.
Complainant being not willing to part away with even
Rs.8,000/- as illegal gratification, he approached the Lokayukta
police and gave the complaint against the accused.
4. On receipt of the complaint, the Lokayukta
Inspector secured two independent Government Servants as
intended panchas to participate in the raid. After securing
them, he explained the contents of the complaint to them.
Further, Lokayukta Inspector demonstrated the chemical
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reaction of phenolphthalein powder white in colour with
colourless sodium carbonate solution.
5. Lokayukta Inspector took the intended currency of
Rs.2,000/- from the hands of the complainant and directed one
of the panchas to note down the serial numbers of those
currency notes and thereafter, smeared the phenolphthalein
powder on the intended bribe amount.
6. The colour wash was conducted thereafter and
samples and the chemical reacted solutions were separately
seized and sealed. The complainant was directed to handover
the bribe amount only on demand by the accused and one of
the panchas was directed to act as shadow witness by
accompanying the complainant and observe the proceedings
that would take place while demand by the accused and
payment by the complainant takes place.
7. All these proceedings were reduced into writing in
the form of entrustment mahazar.
8. Thereafter, on 01.02.2007, entire raid party
proceeded to the office of the accused.
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9. Thereafter, complainant and shadow witness (PW1)
proceeded to the chamber of the accused. None else were
present other than the accused at that point of time. The
complainant enquired about the pending work and accused
demanded the bribe amount and the complainant handed over
the same to the accused, which comprised of bribe amount of
Rs.2,000/- comprising of three currency notes of Rs.500/-
denominations and five currency notes of Rs.100/-
denominations. PW1 also accompanied the complainant, but he
stood little away from the complainant.
10. Subsequently, the complainant gave the pre-
designated signal to the rest of the members of raid party.
Immediately, all of them came to the chamber of the accused.
The head of the raid party enquired the accused about the
tainted currency. Colour test was conducted in two separate
bowls, where sodium carbonate solution was kept. Fingers of
both the hands were separately washed. The colourless solution
turned into pink, same was seized after sealing them in
separate bottles.
11. On further enquiry, the tainted currency was
recovered from the chamber of the accused, which was kept on
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his table. Pending work of the complainant was also enquired
and necessary documents were seized. Thereafter, the accused
was arrested and the proceedings have been reduced into
writing in the form of draft mahazar. Subsequently, the
accused came to be produced before the Special Magistrate and
after thorough investigation, the Lokayukta filed the charge
sheet against the accused for the aforesaid offences.
12. Learned Special Judge upon receiving the charge
sheet, took cognizance of the aforesaid offences and secured
the presence of the accused who was on bail and after
compliance of Section 207 of Cr.P.C., framed the charges for
the aforesaid offences.
13. Accused pleaded not guilty, therefore trial was
held. In order to bring home the guilt of the accused, the
prosecution in all examined 12 witnesses as PWs.1 to 12
comprising of the complainant, shadow witness, co-panchas,
head of the raid party, FSL Officer, planning Director,
sanctioning authority and sub-staffs of the Lokayukta.
14. Prosecution placed on record as many as 31
documents which were exhibited and marked as Exs.P1 to 31
comprising of entrustment mahazar, trap mahazar,
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photographs, voluntary statement of accused, attendant
register, application for not pressing the shop occupied by the
complainant, copy of the proceedings, court order, FSL report
and contradictions elicited in the evidence of PWs.2, 4 and 5
and spot sketch and as many as 9 material documents were
also marked as MOs.1 to 9 comprising of recovered tainted
currency.
15. On conclusion of recording of prosecution evidence,
learned Trial Judge recorded the accused statement as is
contemplated under Section 313 of Cr.P.C. Accused has denied
all the incriminating circumstances found against him in the
case of the prosecution and did not choose to lead any defence
evidence. He also failed to furnish written submissions, but for
question No.39, he has answered as under:
"39. ¤ÃªÀÅ ªÀÄvÉÛãÁzÀgÀÆ ºÉüÀĪÀÅzÀÄ EzÉAiÀiÁ?
GvÀÛgÀ:- £Á£ÀÄ ¤dªÁUÀ®Æ D ¢£À Pˤ찣À M¦àUÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ
CAUÀrAiÀÄ£ÀÄß K®A ªÀiÁrzÉÝãÉ. D J®A £À°è ¨sÁUÀªÀ»¹zÀ ©qïzÁgÀgÀ°è
PÉ ¦ ±ÉÃRgÀ CªÀgÀÄ CvÀå¢üPÀ ©qï ªÉƧ®UÀÄ gÀÆ.2475-00PÉÌ
¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ. D K®AUÉ C£ÀÄUÀÄtªÁV ±ÀvÀð ªÀÄvÀÄÛ ¤§AzsÀ£ÉUÀ¼À£ÀÄß
¥Àj¥Á°¸À¨ÉÃPÀÄ CAzÀgÉ 8 ¸Á«gÀ qÉ¥Áfmï ªÀÄvÀÄÛ bÁ¥Á PÁUÀzÀ ¥ÀvÀæzÀ°è
CªÀgÀÄ §gÉzÀÄPÉÆqÀ¨ÉÃPÁVvÀÄÛ. CzÀ£ÀÄß G®èAX¹ fOÁè £ÁåAiÀiÁ®AiÀÄPÉÌ
zÁªÉ ºÁQzÀgÀÄ. £À£ÀUÉ ªÀQîgÀ ªÀÄÆ®PÀ £ÉÆÃnøÀÄ PÉÆlÖgÀÄ. F
«ZÁgÀªÀ£ÀÄß PˤìOï CªÀgÀ UÀªÀÄ£ÀPÉÌ vÀAzÉ. D ¸ÀAzÀ¨sÀð PˤìOï CªÀgÀÄ PÉ ¦
±ÉÃRgÀ EªÀgÀÄ C«±Áé¸ÀªÁV £ÀqÉzÀÄPÉÆArzÁÝgÉ JAzÀÄ CªÀgÀ «gÀÄzÀÞ
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PÉÆÃnð£À°è ªÀåªÀºÀj¸À®Ä NJ¸ï £ÀA.141/2006 PÉÌ ¸ÀA§A¢ü¹zÀAvÉ £À£ÀUÉ
CxÉÆÃgÉÊeɱÀ£ï PÉÆlÖgÀÄ. CzÀÄ JA.J.£ÀA.7/2006 gÀ°è £ÀªÀÄä ¥ÀgÀªÁV
wêÀiÁð£ÀªÁVzÉ. F ªÀÄzsÀåzÀ°è £Á£ÀÄ PÀ£ÁðlPÀ ¥À©èPï ¦æªÉÄʸÀ¸ï DåPÀÖ
1974 £À°è ¦ügÁå¢zÁgÀjUÉ 45 ¢£ÀUÀ¼À vÉgÀªÀÅ £ÉÆÃnøÀÄ PÉÆnÖzÉÝ. vÉgÀªÀÅ
¢£ÁAPÀªÀÅ 02-02-2007 DVvÀÄÛ. CµÀÖgÀ°è ¢: 01-02-2007 PÉÌ £À£Àß
ªÉÄÃOÉ F PÉøÀ£ÀÄß ªÀiÁrzÁÝgÉ. £À£Àß ªÉÄÃOÉ ¸ÀļÀÄî DgÉÆÃ¥À ºÉÆj¹zÁÝgÉ."
16. Thereafter, the learned Trial Judge heard the
parties in-detail and on cumulative consideration of the oral
and documentary evidence placed on record, convicted the
appellant and sentenced him as referred to supra.
17. Being aggrieved by the same, the appellant is
before the Court.
18. Sri Jayanth Poojary, learned counsel for the
appellant re-iterating the grounds as urged in the appeal
memorandum, vehemently contended that a false case has
been foisted against the appellant herein as a revenge for
successfully protecting the interest of Saligrama Pattana
Panchayat.
19. He further contented that the very fact of the
complainant having suffered an adverse order in MA No.7 of
2006 would fortify the contentions and the defence taken on
behalf of the accused, which has been totally lost sight of by
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the learned Trial Judge, while appreciating the material
evidence on record and thus sought for allowing the appeal.
20. He would further contend that the appellant did not
handle the tainted currency at all and the colour test conducted
by the raid team was with an oblique motive inasmuch as
before the appellant could wash his hands, appellant had
pushed the bundle of notes, which was forcibly kept on the
table. Therefore, possibility of phenolphthalein powder coming
into contact with the hands of the appellant is an acceptable
and plausible defence, which has not been properly appreciated
by the learned Trial Judge. Therefore, recording an order of
conviction has resulted in miscarriage of justice and thus
sought for allowing of the appeal.
21. He would further contend that material on record
would indicate that there was no necessity for the appellant to
demand for the bribe inasmuch as Pattana Panchayat has
successfully fought the civil litigation filed by the complainant
and obtained a favourable order, which has been ignored by
the learned Trial Judge, though the same is specifically
answered while answering question No.39 at the time
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of recording the accused statement and thus sought for
allowing the appeal.
22. Per contra, Sri B Lethif, learned counsel for the
Lokayukta, while supporting the impugned judgment
vehemently contended that in the case on hand, demand and
acceptance, handling of the tainted currency by successfully
conducting the colour test, necessary documents have been
seized by the Lokayukta Police to establish that there was a
work pending of the complainant as on the date of trap, have
all been established by placing cogent and convincing evidence
on record, which has been rightly appreciated by the learned
Trial Judge while passing the impugned judgment and thus
sought for dismissal of the appeal.
23. He would further contend that the theory put
forward by the appellant that he has only pushed the currency
notes kept on the table, it would not have been with both the
hands and colour test has turned positive with respect of both
the hands, which pre-supposes the handling of the tainted
currency by the appellant.
24. He would further contend that PW1 being the
shadow witness, who is totally a stranger to the appellant, has
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supported the case of the prosecution in specifically answering
the question in the cross-examination that the complainant
took out the tainted currency from the shirt pocket on demand
made by the accused and handed over the same to the
appellant. Therefore, shadow witness having supported the
case of the prosecution and the testimony of the complainant
and shadow witness being practically similar, the self-serving
testimony of the appellant and the explanation offered by the
appellant which is marked vide Ex.P9 has been rightly
appreciated by the learned Trial Judge while by passing the
impugned judgement and sought for dismissal of the appeal.
25. He would also contend that the explanation offered
by the accused while answering question No.39 belies the
contents of Ex.P23 marked though PW6 who is none other than
the planning officer.
26. Therefore, viewed from any angle, there is no legal
infirmity in the judgment that has been passed by the learned
Trial Judge convicting the appellant for the aforesaid offences
and sentencing him as referred to supra and sought for
dismissal of the appeal.
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27. Having heard the arguments of both sides, this
Court perused the materials on record meticulously.
28. On such perusal of materials on record, following
points would arise for consideration:
1. Whether the material evidence placed
on record would be sufficient enough to maintain
the conviction of the appellant for the offences
under Section 7, 13(1)(d) read with section 13(2)
of the PC Act?
2. Whether the appellant makes out a
case of legal infirmity or perversity in the impugned
judgment?
3. Whether the sentence needs
modification?
4. What order?
29. Regarding point Nos.1 and 2: In the case on
hand, accused-appellant being the public servant is not in
dispute. Admittedly, he was the whole and sole in respect of
the affairs of Pattana Panchayati Saligrama. Admitted facts also
reveal that the complainant was a tenant in one of the shops of
Pattana Panchayat Building, Saligrama. His shop No is 1-2(3).
He had been occupying said premises on a monthly rent of
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Rs.270/- for a period of 9 years. However, when the fresh
auction was conducted on 22.07.2006, the rent was fixed in a
sum of Rs.2,475/- and complainant had to agree for the said
condition and continued in the shop premises.
30. It is found from records that in respect of shop
No.1-2(1), the re-auction was conducted and the monthly rent
was fixed in a sum of Rs.1,750/- for a period of 01.04.2006 to
31.03.2009 by the very same accused - appellant. Successful
bidder in respect of the said shop is Venkataramana Nyari.
However, since there was a heavy rent that was fixed,
Venkataramana Nyari said to have surrendered the shop with a
requisition. Appellant said to have put a proper note in that
regard and the rental agreement between Venkataramana
Nyari and Pattana Panchayat, Saligrama came to an
end. Materials would also reveal that after termination of the
rental agreement between Venkataramana Nyari and Pattana
Panchayat, Saligrama, the same shop was re-auctioned and
allotted in favour of wife of Venkataramana Nyari namely
Smt.Shanta Nyari, by fixing the monthly rent in a sum of
Rs.450/-. Having come to know about the surrendering and
getting it in the name of kith and kin of the original tenant,
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complainant also approached the appellant for the similar
favour.
31. It is at that juncture, appellant said to have
demanded Rs.10,000/- as illegal gratification and also imposed
a condition to withdraw the pending civil suit. The bribe amount
was negotiated and it was re-fixed in a sum of Rs.8,000/-. The
complainant being not willing to pay illegal gratification in a
sum of Rs.8,000/- to the appellant, approached the Lokayukta
Police with the complaint.
32. Insofar as actual trap is concerned, which occurred
on 01.02.2007, PW1 was directed to act as shadow witness
who accompanied the complainant, who is examined as PW2.
Both of them unequivocally deposed before the Court with
graphic details as to what transpired at the time of trap.
33. In fact, in the cross examination of PW1, there is a
specific question as to when the complainant handed over the
tainted currency was it in a folded manner, for which, PW1 has
specifically answered that he has seen PW2 taking out the
tainted currency from his shirt pocket and handed over the
same to the appellant. By putting such suggestion and getting
an answer in the cross examination, that there was actual
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payment of tainted currency by the complainant to the hands of
the accused, the handing over of the tainted currency into the
hands of the accused stands established.
34. This answer would also fortify the case of the
prosecution with regard to the colour test turning out positive
where the hand wash of the appellant has taken place.
35. Explanation in this regard by the appellant is that
the tainted currency was kept on his table and when the same
was refused and pushed by the appellant, he came into contact
with the phenolphthalein powder. Appellant failed to establish
the said fact by placing any material on record, except Ex.P9.
In Ex.P9 in the explanation offered by the appellant on the day
of trap itself, wherein, he has stated that he had no necessity
to demand the illegal gratification and he would discharge his
work honestly. At that juncture, the complainant said to have
kept a bundle of white papers and he smeared something on
his hand, and he immediately cautioned his sub staffs by
ringing the bell. On hearing the bell, one Praveen, who is a
daily wager working in his office and one Raghavendra Holla,
who is one of the Contractors (PW4) came inside and they
picked up the tainted currency. If Raghavendra Holla and
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Praveen are the persons who handled the tainted currency,
there was no possibility of the hand wash of appellant being
turning into positive.
36. The explanation offered vide Ex.P9 and the answer
given by the appellant for question No.39 and the contents of
Ex.P23 are all on loggerheads.
37. Further Ex.P23 is the note that has been forwarded
by PW6, who is the Planning Officer of Pattana Panchayat,
Saligrama would go to show that the appellant had no power to
re-auction the shop belonging to Pattana Panchayat, Saligrama
and if any request is made, the same should be placed before
the counsel and after approval of counsel of Pattana Panchayat,
Saligrama, necessary orders have to be passed by the
concerned officials including the appellant. In the case of
Venkatarama Nyari, the appellant did not do so which shows
that he was in the habit of taking illegal gratification and
getting the favours in favour of the tenants of the building of
Pattana Panchayat, Saligrama and similar attempt was tried by
the appellant with regard to the requisition made by the
complainant and ultimately got trapped into it.
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38. Therefore, neither the explanation given by the
appellant on Ex.P9 nor the answer given by him to question
No.39 would be sufficient enough to hold that the appellant did
not misuse his official position for showing favour to the
complainant or similarly placed tenants.
39. The fact remains that there is no explanation to the
processing of the application given by the wife of
Venkataramana Nyari i.e., Smt Shantha Nyari. No material is
forthcoming on record placed by the appellant either examining
himself or any witness that he has followed necessary
procedure before getting the shop re-auctioned and allotting it
to the name of Smt Shanta Nyari for a rent of Rs.450/- per
month as against the original rent of Rs.1,750/-, for which, the
Venkataramana Nyari became the successful bidder.
40. Thus from the totality of the circumstances, it is
crystal clear that there was a successful trap wherein the
tainted currency has been seized from the custody of the
appellant. In the case on hand, the tainted currency was found
on the table. According to the appellant, if he did not handle
the tainted currency at all, there was no possibility of the colour
test turning positive in respect of both the hands of the
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appellant is concerned. Therefore, from the totality of the
circumstances, in the absence of any previous enmity or
animosity nurtured either by PWs.1, 4 and 5 and in fact as per
Ex.P9, it is after ringing the bell by the appellant, PWs.4 and 5
have entered the chambers.
41. Therefore, the oral testimony of PWs.1, 4 and 5
would fortify the complaint of appellant demanding the illegal
gratification for processing his application marked as Ex.P13.
42. Therefore, from the above discussions, it is crystal
clear that the prosecution is successful in establishing all the
ingredients to attract the offence under Section 13(1)(d) read
with Section 13(2) of PC Act.
43. Learned Trial judge while passing the impugned
judgment has taken into consideration several aspects of the
matter and by cumulative analysis, recorded a finding of the
guilt.
44. Even after re-appreciation of the materials on
record, this Court does not find any legal infirmity or perversity
especially in the light of the grounds urged in the appeal
memorandum.
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45. Therefore, invariable conclusion that this Court can
reach is to hold that the prosecution is successful in
establishing the guilt of the accused by placing cogent and
convincing evidence on record. In view of the foregoing
discussions, point Nos.1 and 2 are answered in the affirmative
and negative respectively.
46. Regarding point No.3: Sri Jayanth Poojari
contended that the appellant is now aged 72 years and bed-
ridden and therefore, sentence needs to be modified. On
perusal of the punishment prescribed for the offence under
Section 7 and 13(1)(d) before the Act came to be amended,
minimum of six months is the punishment for Section 7 of PC
Act and minimum of one year for the offence under Section
13(1)(d) of PC Act (before amendment). The same is the
punishment that has been imposed by the learned Trial Judge
in the impugned judgment.
47. When the statute prescribes the minimum
punishment without any discretionary power vested in the
Court to award a lesser punishment other than the minimum
punishment by supplying necessary reasons, Courts are bound
to award minimum punishment prescribed by the statute.
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48. Therefore, the contention urged on behalf of the
appellant taking note of the health condition of the appellant,
sentence of imprisonment needs to be modified, cannot be
countenance in law. Hence, point No.3 is answered in the
Negative.
49. Regarding point No.4 : In view of the findings of
this Court on point Nos.1 to 3, the following order is passed:
ORDER
The appeal grounds are merit-less and is
hereby dismissed.
Appellant is granted time till 31.03.2025
to surrender before the Trial Court.
Sd/-
(V SRISHANANDA)
JUDGE
*bgn/-
CT:VS
