Karnataka High Court
K S Prakash vs The State By The Police Inspector on 25 February, 2025
Author: V Srishananda
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.A.NO.289/2012
C/W CRL.A.No.266/2012
IN CRL.A.NO.289/2012
BETWEEN
K S PRAKASH
FIRST DIVISION ASSISTANT
OFFICE OF THE DEPUTY DIRECTOR
DEPARTMENT OF PRE UNIVERSITY EDUCATION,
CHITRADURGA,
PRESENTLY WORKING AS FDA
GOVERNMENT PU COLLEGE
N.G.HALLY, HOLALKERE TALUK
...APPELLANT
(BY SRI C G SUNDAR, ADVOCATE)
AND
THE STATE BY THE POLICE INSPECTOR
LOKAYUKTHA POLICE STATION,
CHITRADURGA,
REP. BY SPECIAL PUBLIC PROSECUTOR
FOR LOKAYUKTHA CASES
HIGH COURT BUILDING,
BANGALORE.
...RESPONDENT
(BY SRI B.S.PRASAD, ADVOCATE)
THIS CRL.A FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
2
CONVICTION AND SENTENCE DT.28.02.2012 PASSED BY
THE PRL. DIST., AND S.J. CHITRADURGA IN SPL.C (P.C.A.)
NO.2/2009-CONVICTING THE APPELLANT/ACCUSED NO.1
FOR THE OFFENCE P/U/S 7 AND 13(1)(d) R/W SEC. 13(2)
OF THE PREVENTION OF CORRUPTION ACT, 1988.
IN CRL.A.No.266/2012
BETWEEN
G H KATTIMANI
S/O HANUMANTHAPPA
AGED ABOUT 60 YEARS
OCC: D.D.P.U.E. BELGAUM
R/AT NO.2009/250, RANGANATHA LAYOUT,
VIDYANAGAR, DAVANAGERE
...APPELLANT
(BY SRI H.S.CHANDRAMOULI, SR. COUNSEL
FOR SRI K A CHANDRASHEKARA, ADVOCATE)
AND
1 . THE STATE BY LOKAYUKTA POLICE
CHITRADURGA
...RESPONDENT
(BY SRI B S PRASAD, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 374(2)CR.P.C
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE DATED 28.2.2012 PASSED BY THE PRL.
DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN
SPL.C.(P.C.A.)NO.2/2009 - CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 7 AND SECTION 13(1)(d)
R/W SECTION 13(2) OF THE PREVENTION OF
CORRUPTION ACT, 1988.
3
THESE APPEALS HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE V SRISHANANDA)
These two appeals are filed by accused Nos. 1 and 2
respectively challenging the order of conviction passed in
Spl.C.(PCA) No.02/2009 on the file of Principal District and
Sessions Judge, Chitradurga challenging the validity of the
judgment of conviction dated 28.02.2012 for the offence
punishable under Section 7, 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988.
2. Facts which are utmost necessary for disposal
of the appeals are as under:
2.1. K.Nagaraja, who was a lecturer in Government
Composite Junior College, Kashipura, Holalkere Taluk
lodged a complaint with Lokayukta Police, Chitradurga
contending that on 29.11.2007, he had severe toothache.
As such, he telephoned the Principal of college and
informed that he is unable to attend the college on that
day as he had to take immediate treatment for his
toothache. He also prayed for grant of a day's casual
leave on 29.11.2007.
2.2. It is further alleged in the complaint that Principal
of the college agreed to the request made and directed
him that he can come next day and hand over the leave
letter. On 30.11.2007, complainant usually visited the
college and noticed that against his name, it was marked
as 'absent' for the date 29.11.2007 in the attendance
register. Therefore, he made an enquiry that accused
No.2 was at that time working as Deputy Director of Pre-
University Education (DDPU), Chitradurga and accused
No.1 was working as First Division Assistant in the office of
accused No.2. Accused No.2 told him that he has visited
the college and noted the absence of complainant and
marked 'absent'.
2.3. Accused No.2 also issued show cause notice to
the complainant seeking explanation for his absence on
29.11.2007. A reply was sent by the complainant on
10.12.2007. Despite the same, on 05.01.2008 accused
No.2 instructed the Principal of the College for withholding
a day's salary for his absence on 29.11.2007.
2.4. Thereafter, complainant went to the office of
accused No.2 on 21.01.2008 and met accused No.1 and
enquired him as to why his explanation is not considered
and why instructions have been issued on 05.01.2008 for
withholding the salary. Accused No.1, at that juncture,
demanded the bribe amount of Rs.1000/- for himself and
Rs.5,000/- for accused No.2 to set right the instructions
already issued and the money for himself and for accused
No.2 is to be kept in two separate envelopes. Complainant
was not willing to part away the bribe money and
therefore, he decided to take action against the accused
persons and filed the complaint.
2.5. Pursuant to the complaint, Lokayukta Police
Chitradurga registered the case and for the intended trap,
secured two independent Government servants to act as
panchas in the intended trap. The contents of the
complaint were explained to them and chemical reaction of
phenolphthalein powder with the sodium carbonate
solution was demonstrated to them. Later, the intended
bribe money was received from the custody of the
complainant and thereafter, phenolphthalein powder was
smeared on those currency notes. Serial number of the
currency notes was noted on separate paper. Complainant
and one of the panch witness (shadow witness) was told to
visit accused No.1 and on demand should hand over the
tainted currency and then give predesignated signal to the
remaining members of the raid team. Shadow witness was
directed to observe the proceedings that would take place
at the time of demand and handing over the tainted
currency by the complainant to accused No.1. All these
proceedings were reduced into writing in the form of
entrustment mahazar.
2.6. Thereafter, raid team left the office of the
Lokayukta and as per the instructions, complainant and
shadow witness went inside the office and met accused
No.1. Accused No.1 then took them to the another room
and he demanded the bribe amount. Therefore,
complainant handed over two separate envelopes as
demanded by accused persons i.e., one envelope
containing Rs.1,000/- and another envelope containing
Rs.5000/-. Both the envelopes were taken by accused
No.1.
2.7. Thereafter, complainant came out and gave a
predesignated signal. Immediately, rest of the raid team
came inside and enquired accused No.1 as to tainted
currency. Colour test of the hands of accused No.1 was
conducted. Colourless sodium carbonate solution turned
into pink colour which was collected, sealed and seized by
the Lokayukta Police. When they demanded the handing
over of the tainted currency to accused No.1, he took out
three notes of Rs.500/- denomination and he told that
balance of Rs.4,500/-, he has given it to accused No.2.
Therefore, raid team proceeded to the chamber of accused
No.2. On demand, accused No.2 said to have been told
that tainted currency is on his table. Colour test of
accused No.2 was also conducted which also turned
positive. Same was sealed and seized. From the custody
of accused No.2, nine currency notes of Rs.500/-
denomination was recovered from his shirt pocket. Shirt
pocket was also tested for chemical reaction which turned
into pink colour and same was collected, sealed and
seized.
2.8. Explanation of accused Nos.1 and 2 were also
received by the head of the raid party. Accused Nos.1 and
2 were arrested. Entire proceedings were photographed
and trap mahazar was recorded. Documents pertaining to
the pending application of grant of leave was also seized
by the Lokayukta Police.
2.9. Thereafter, accused Nos.1 and 2 were produced
before the jurisdictional Special Judge then remanded to
judicial custody. On completion of the investigation,
Lokayukta Inspector, Chitradurga filed charge sheet.
3. On receipt of the charge sheet, learned Special
Judge took cognizance of the offence alleged against the
accused persons and secured the presence of the accused
persons.
4. After compliance of Section 207 of Cr.P.C.,
charges were framed. Accused pleaded not guilty and
therefore, trial was held.
5. In order to bring home the guilt of the accused
persons, prosecution in all examined eleven witnesses
comprising of complainant, shadow witness, co-panchas,
other circumstantial witness, official superior of accused
persons, Investigation Officer.
6. Prosecution placed on record 39 documentary
evidence which were exhibited and marked as Exs.P.1 to
39 comprising of complaint, entrustment mahazar, FIR,
photographs, letter of explanation given by accused Nos.1
and 2, file containing 14 documents, explanation notice,
reply to the notice, attendance register, trap mahazar,
rough sketch, FSL report etc.
7. As many as eighteen material objects were
placed on record by the prosecution which were marked as
MO.1 to 18 comprising of sample of phenolphthalein
powder, pink colour solution seized at the time of
entrustment mahazar and trap mahazar, pant and shirt
worn by accused No.1 and shirt of accused No.2 and
tainted currency.
8. On conclusion of recording of the evidence,
accused statement as is contemplated under Section 313
of Cr.P.C. was recorded, wherein accused persons have
denied the incriminatory materials found against him.
9. Thereafter, learned Special Judge heard the
arguments of the parties and by impugned judgment
convicted the appellants and sentenced them as under:
"For the offence punishable under Section 7 of the
Prevention of Corruption Act, 1988 both the accused
No.1 and 2 are punished with rigorous imprisonment
for a period of one year and each shall pay fine of
Rs.5,000/- and in default they shall undergo further
imprisonment for a period of three months.
For the offence under Section 13(1)(d) punishable
according to Section 13(2) of the Prevention of
Corruption Act, 1988 both the accused No.1 and 2 are
punished with rigorous imprisonment for a period of
three years and each shall pay fine of Rs.10,000/-
and in default they shall undergo further
imprisonment for period of six months.
Both the substantive sentences shall run
concurrently."
10. Being aggrieved by the same, appellants are
before this Court, in these two appeals.
11. Sri.C.G.Sundar, learned counsel for the
appellant in Crl.A.No.289/2012 and Sri.H.S.Chandramouli,
learned Senior Counsel appearing for
Sri.K.A.Chandrashekara, learned counsel for the appellant
in Crl.A.No.266/2012 respectively, contended that the
impugned order is not based on the material evidence on
record but on the basis of surmises and conjectures and
needs to be set aside.
12. Sri.C.G.Sundar, learned counsel representing
accused No.1 contended that he was working as First
Division Assistant in the office of Deputy Director,
Department of Pre-University Education, Chitradurga and
allegations leveled against him by the complainant is
totally incorrect inasmuch as accused No.1 was no way
connected with the order said to have been passed on
05.01.2008 intimating the Principal of the Government
Composite Junior College, wherein the complainant was
working as a lecturer to the effect that one day salary is to
be with held as leave without pay for the day 29.11.2007
on the ground that complainant was absent and his leave
was not sanctioned.
13. He would further contend that complainant in
his cross-examination admitted that on 07.12.2007, there
was explanation of four employees from the office of the
accused No.2. He also brought to the notice of the Court
that P.W.1 has admitted that on 10.12.2007, he had
visited the office of Deputy Directory, Department of Pre-
University Education and met accused No.2 and personally
explained to him.
14. He further pointed out that P.W.1 has
improved the contents of the complaint in his examination-
in-chief. He argued that when there is no demand made
by accused No.1, question of complainant handing over the
bribe amount on the date of trap to accused No.1 would
not arise and thus, it is a motivated trap wherein, accused
No.1 has been falsely implicated.
15. He also argued that accused No.1 had no role
to demand the money inasmuch as accused No.2 had
already passed an order on 05.01.2008 and therefore, the
very fact of accused No.1 demanding the bribe amount
and complainant intimating the police and trapping
accused No.1 would not arise at all.
16. In support of his arguments, he placed reliance
on the judgment delivered by this Court in the case of
Umesh v. State of Karnataka reported in 2023(2)
KAR. Law Journal 397.
17. Sri.H.S.Chandramouli, learned Senior Counsel
representing accused No.2 contended that there was no
demand made by accused No.2 to the complainant about
the illegal gratification even according to the case of the
prosecution.
18. He would further contend that if accused No.1
has demanded sum of Rs.5,000/- in the name of accused
No.2, accused No.2 cannot be held responsible for the
same.
19. He further pointed out that on the date of trap,
there was no pending work with accused No.2 inasmuch as
after issuing the notice on 07.12.2007 and reply being
received on 10.12.2007, accused No.2 had already issued
an order on 05.01.2008 and second notice on 16.01.2008
where under a day's salary of the complainant was ordered
to be with held for his unauthorized absence on
29.11.2007. As such, further there was no scope for
demanding illegal gratification by accused No.2 and
therefore, no ingredients are attracted either for the
offence punishable under Section 7 of the Prevention of
Corruption Act,1988 or for the offence under Section
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988.
20. He further pointed out that when there is no
demand at all by accused No.2, for the act of accused
No.1, accused No.2 cannot be penalized.
21. Learned Senior counsel further argued that
P.W.1 admitted in his evidence that against the order
passed by accused No.2, an appeal would lie to the Joint
Director, Department of Pre-University Education.
Therefore, the only remedy that was left for the
complainant was to file an appeal before the Deputy
Director, Department of Pre-University Education. As
such, no official favour could have been made by accused
No.2 by misusing his office. Hence, no question to
demand for illegal gratification would arise in the case on
hand.
22. He further pointed out that monthly salary of
the complainant is in a sum of Rs.20,000/- and per day
salary would work out to Rs.666/- and for saving per day
salary of Rs.666/-, nobody would agree to pay exorbitant
amount of Rs.6,000/- as the bribe which itself shows the
hollowness in the case of the prosecution.
23. He would further contend that prosecution
witness - Zareen Taj in her cross-examination admitted
that accused No.2 had issued notice to her also in
accordance with law for her unauthorized absence. So
also, he invited the attention of this Court to the cross-
examination of P.W.5-Nagabhushana, wherein he has also
admitted that accused No.2 had ordered deduction of one
day salary of three persons namely Principal of the college
who is examined as P.W.5, complainant who is examined
as P.W.1 and Keshavamurthy as well.
24. He further contended that as a routine act as
per law, since accused No.2 had already passed an order
on 05.01.2008, accused No.1 keeping accused No.2 in
dark, if has demanded any money, accused No.2 cannot be
held responsible for the same and thus, sought for allowing
the appeals.
25. In support of his contentions, he placed
reliance on the judgment of the Hon'ble Apex Court in the
case of P.Satyanarayana Murthy v. District Inspector
of Police and Another in Crl.A.No.31/2009.
26. In respect of improper sanction order,
Sri.H.S.Chandramouli, learned Senior Counsel placed
reliance on the judgment of this Court in the case of
Karnataka Lokayukta v. M.Nanjunda passed in
Crl.A.No.421/1996 and in the case of
State by Lokayukta v. C.Mrutyunjayaswamy in WP
No.5248/2020.
27. Learned Senior Counsel would place reliance
on the discrepancies on record and conspiracy that existed
between the complainant and Lokayukta Police to trap
accused No.2 based on the judgment of the Hon'ble Apex
Court in the case of Neeraj Dutta v. State(Government
of NCT of Delhi) reported in 2023 4 SCC 731 and invited
the attention to paragraph No.88.4 wherein it is 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 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.
28. Sri.H.S.Chandramouli, lastly contended that
since there is no role directly or indirectly played by
accused No.2 in the incident, conviction of accused No.2 by
the learned Special Judge in the impugned judgment is
thus suffering from legal infirmity and perversity and calls
for interference by this Court, in this appeal, by
reappreciating the material evidence on record and sought
for allowing the appeals.
29. Per contra, Sri.B.S.Prasad, learned counsel
appearing for the Karnataka Lokayukta while supporting
the impugned judgment contended that material evidence
placed on record by the prosecution is sufficient enough to
maintain the conviction of the appellants for the aforesaid
offences.
30. He would further contend that fact of demand
and acceptance is established by the prosecution by
placing cogent evidence on record. He also pointed out
that demand need not be always be established by direct
evidence and in the case on hand, accused No.2 demanded
the money through accused No.1, who is a First Division
Assistant working under accused No.2. He further
contended that very issue of order on 05.01.2008 by
accused No.2 was sought to be reviewed by the
complainant and therefore, he met accused No.1 who in
turn told that if sum of Rs.1,000/- is paid to him as bribe
and Rs.5,000/- towards the share of accused No.2, then
the order passed on 05.01.2008 would be reviewed.
Complainant being not willing to part away the illegal
gratification; approached the Lokayukta Police and trap
has been conducted and appellants have been successfully
trapped.
31. He also contended that material on record
clearly establishes that hand wash of both the appellants
having turned into pink colour, the question of handling
the tainted currency by the appellants has been
established by the prosecution by placing cogent evidence
on record.
32. He would also contend that handling the
tainted currency in a sum of Rs.4,500/- (Rs.1,500/- has
been recovered from the custody of accused No.1, was
kept only in the envelope without handled by accused
No.2), hardly there was any scope for colour test to turn
positive. Colour test having turned positive, there is a
proof of handling of tainted currency by accused No.2.
Therefore, the contentions urged on behalf of the
appellants cannot be countenanced in law.
33. He would also contend that accused No.1 being
the sub-ordinate official of accused No.2 could not have
demanded the money for and on behalf of accused No.2
that too in a sum of Rs.5,000/- unless there was a tacit
understanding between accused Nos.1 and 2 and thus,
sought for dismissal of the appeals.
34. Having heard the parties in detail, this Court
perused the material on record meticulously.
35. On such perusal of the material 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 appellants for the offences
punishable under Section 7, 13(1)(d) read with
Section 13(2) of the Prevention of Corruption
Act, 1988?
2. Whether the appellants make out a case of legal
infirmity or perversity in the impugned
judgment?
3. Whether sentence needs modification?
4. What order?
REG.POINT Nos.1 AND 2:
36. Incidentally, facts as per the prosecution case
is that complainant was absent for his duty on 29.11.2007
as he had toothache. Complainant requested for a day's
casual leave by telephoning to the Principal of the college
and got oral consent for the leave. However, next day,
when he attended the college and wanted to sign the
attendance register, he noted that against his name for the
date 29.11.2007, it has been entered as 'absent' instead of
casual leave. Ultimately, he enquired the concerned and a
show cause notice was issued from accused No.2. On
10.12.2007, he replied to the show cause notice narrating
the fact that he had oral permission from the Principal.
Not only the complainant received such notice, there were
few more employees who received similar notice from
accused No.2.
37. Material on record would go to show that
explanation offered by the complainant was not accepted
by accused No.2 and order came to be passed on
05.01.2008 intimating the Principal that for the
unauthorized absence of the complainant on 29.11.2007,
one day salary should be withheld. After such
communication, complainant again met accused No.2. He
in turn, directed complainant to meet accused No.1.
Accordingly, complainant met accused No.1 and enquired
about the order dated 05.01.2008.
38. It is at that juncture, accused No.1 demanded
sum of Rs.6,000/- (Rs.1,000/- for himself and Rs.5,000/-
to accused No.2 to be kept in two separate envelopes) to
withdraw the order dated 05.01.2008 by showing official
favour. Complainant being not interested in parting away
with the illegal gratification, approached the Lokayukta
Police. He lodged a written complaint narrating the above
facts.
39. Based on the said complaint, Lokayukta Police,
Chitradurga registered the case and thereafter, secured
panch witnesses and entrustment mahazar was prepared.
Thereafter, raid party proceeded to the office of accused
Nos.1 and 2. Shadow witness and complainant went inside
the office and met accused No.1 who took them to another
room. Shadow witness no doubt stood outside the cabin
but he was unable to hear the conversation between the
complainant and accused No.1 and witnessed the actual
handing of the tainted currency kept in two separate
envelopes. Thereafter, predesignated signal was issued to
remaining members of the raid team and then remaining
members of the raid party arrived there and accused No.1
was enquired about the tainted currency. Accused No.1
handed over two 500 currency notes from his pant pocket
and separate 500 notes from his shirt pocket. In all
Rs.1,500/-.
40. When the head of the raid team enquired
about the balance money, accused No.1 told to the head of
the raid party that balance money is handed over to
accused No.2. Colour wash of accused No.1 was done and
turned positive and raid party was proceeded to the colour
test of accused No.2 and enquired about the remaining
money.
41. According to the contents of Ex.P.29, when
accused No.2 was enquired about the tainted currency
notes, he took out the same from the left-hand side shirt
pocket and handed over the same. It contained nine notes
of 500 denominations each in all Rs.4,500/-. Colour test
of accused No.2 had turned positive which was conducted
before seizing the currency notes. However, in the cross-
examination, it has been elicited by confronting the
photograph that envelope is seen on the table.
Photograph also corroborates the trap mahazar.
42. Thus, material evidence placed on record
would establish that there was a demand made by accused
No.1 formed on behalf of accused No.2 as well, for
reconsidering the order dated 05.01.2008.
43. In order to attract the offence under Section 7,
13(1)(d) of the Prevention of Corruption Act punishable
under Section 13(2) of the Prevention of Corruption Act,
prosecution must necessarily establish the following
ingredients:
1. There must be demand and acceptance of
illegal gratification.
2. Some work must be pending for which he has
demanded illegal gratification.
3. Colour test must have stood positive
44. Authoritative pronouncement of the Hon'ble
Apex Court in the case of Neeraj Dutta supra, Nos.88 to
90 is held as under:
"88. What emerges from the aforesaid discussion is
summarised as under:
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 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.
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 presumption while the latter is
discretionary in nature.
89. In view of the aforesaid discussion and conclusions,
we find that there is no conflict in the three-Judge Bench
decisions of this Court in B. Jayaraj [B. Jayaraj v. State
of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] and
P. Satyanarayana Murthy [P. Satyanarayana Murthy v.
State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri)
11] with the three-Judge Bench decision in M. Narsinga
Rao [M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691
: 2001 SCC (Cri) 258] , with regard to the nature and
quality of proof necessary to sustain a conviction for the
offences under Sections 7 or 13(1)(d)(i) and (ii) of the
Act, when the direct evidence of the complainant or
"primary evidence" of the complainant is unavailable
owing to his death or any other reason. The position of
law when a complainant or prosecution witness turns
"hostile" is also discussed and the observations made
above would accordingly apply in light of Section 154 of
the Evidence Act. In view of the aforesaid discussion, we
hold that there is no conflict between the judgments in
the aforesaid three cases.
90. Accordingly, the question referred for consideration
of this Constitution Bench is answered as under:
In the absence of evidence of the complainant
(direct/primary, oral/documentary evidence) it is
permissible to draw an inferential deduction of
culpability/guilt of a public servant under Section 7 and
Section 13(1)(d) read with Section 13(2) of the Act
based on other evidence adduced by the prosecution."
45. On careful application of the principles of law
to the facts of this present case enunciated in Neeraj
Dutta supra, it is crystal clear that accused No.2 had also
passed an order on 05.01.2008. Being not satisfied with
that order, a review is sought for by the complainant and
in that regard, he has contacted accused No.2 who in turn
told the complainant to meet accused No.1.
46. Therefore, contentions urged on behalf of the
appellants that accused Nos.1 and 2 had no role to play
with regard to the pending work of the complainant and
therefore, there cannot be any demand of payment of
illegal gratification cannot be countenanced in law.
47. Admittedly, none of the prosecution witnesses
including the complainant nurtured any previous enmity or
animosity so as to falsely implicate the accused persons in
the incident.
48. Mere fact that accused No.2 has also issued
notice to other erring employees would not ipso facto
establish that accused No.2 discharged his duty in a
routine manner. Further, if there is no handing of the
tainted currency by both the accused, colour test would
not have turned positive.
49. On close reading of contents of the trap
mahazar marked at Ex.P.29, would make out that accused
No.1 though demanded sum Rs.1,000/- but he has kept
sum of Rs.1,500/- out of sum of Rs.6,000/-.
50. Serial numbers of seized currency notes tallied
with the serial numbers entered in the entrustment
mahazar. Two notes of 500 denomination and one
hundred note of 500 denomination was recovered from
accused No.1 from his pant and shirt pocket respectively.
Balance sum of Rs.4,500/- was recovered by the head of
the raid team from the custody of accused No.2 consisting
of nine currency notes of 500 denominations whereby,
entire currency notes of Rs.6000/- which was with serial
numbers mentioned in the entrustment mahazar was
recovered under trap proceedings.
51. Explanations offered by accused Nos.1 and 2
are placed on record which are marked at Exs.P.24 and 25.
Contents of Exs.P.24 and 25 are carefully considered by
this Court. In the explanation offered by accused No.1, he
has stated that he is working as First Division Assistant
and narrated about visiting the college of the complainant
on 29.11.2007 and noting the absence of complainant and
passing of order on 05.01.2008 by accused No.2.
52. He also stated that apart from the
complainant, three more persons namely Nagabhushan,
Zareen Taj, Keshavamurthy were also issued similar
orders. It is his case that complainant himself requested
accused No.1 that the matter should not be precipitated
and he would voluntarily offer to give two envelopes
containing currency and told him that one should be kept
by him and another should be handed over to accused
No.2.
53. In the explanation offered by accused No.2, it
has been stated that there were many complaints received
by the complainant that he used to leave early than the
usual office hours and in that regard, there was a surprise
inspection conducted and noted that neither the Principal
nor any other staff members were present. When he
sought for explanation, they gave a evasive explanation.
54. It is also his case that complainant voluntarily
contacted accused No.1 and complainant in turn handed
over two envelopes to accused No.1; of which one
envelope was handed over by accused No.1 to him.
Without knowing the contents of said envelope, he kept
the same and he came to know about the currency notes
in the envelope only after the raid has taken place by
Lokayukta Police as could be seen from the explanations
offered and suggestions made to the prosecution
witnesses, there is a total deviation from the contents of
explanation and the trend of cross-examination to the
prosecution witnesses.
55. Taking note of these aspects of the matter and
also taking note of the fact that if the appellants have not
at all handled the tainted currency, colour test could not
have turned positive, this Court is of the considered
opinion that learned Special Judge has rightly appreciated
the material evidence on record while recording the order
of conviction of the appellants and sentenced him as
referred to supra.
56. No doubt, learned Special Judge in the
impugned judgment took note of the principles of law
enunciated in the various decisions which were cited before
him.
57. Taking note of the principles of law enunciated
in Neeraj Dutta supra, since prosecution evidence is
sufficient enough to establish all ingredients to attract the
offence under Section 13(1)(d), conviction of the
appellants for the offence under Section 7 of the
Prevention of Corruption Act, needs to be set aside.
Accordingly, point Nos.1 and 2 are answered partly in the
affirmative.
REG.POINT No.3:
58. In view of the foregoing discussions on point
Nos.1 and 2 as above, sentence of three years rigorous
imprisonment ordered by the learned Trial Judge for the
offence punishable under Section 13(1)(d) of the
Prevention of Corruption Act, needs to be maintained by
setting aside the sentence passed for the offence
punishable under Section 7 of the Prevention of Corruption
Act. Accordingly, point No.3 is answered partly in the
affirmative.
REG.POINT No.4:
59. In view of the foregoing discussions on point
Nos.1 to 3 as above, following:
ORDER
i. Criminal appeals are allowed in part.
ii. Accused Nos.1 and 2/appellants are acquitted
for the offence punishable under Section 7 of
the Prevention of Corruption Act and therefore,
conviction for the offence punishable under
Section 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act is maintained and
consequently, sentence is modified by directing
the appellants to undergo three years rigorous
imprisonment for the offence punishable under
Section 13(1)(d) of the Prevention of
Corruption Act and sentence ordered for the
offence punishable under Section 7 of the Act
is hereby set aside.
iii. Time is granted for the appellants to surrender
before the Trial Court on or before 20.03.2025
for serving remaining part of the sentence.
iv. Office is directed to return the Trial Court
Records with copy of this order for issuing
modified conviction warrant.
Sd/-
(V. SRISHANANDA)
JUDGE
KAV
