Karnataka High Court
Chanbi W/O Bashumiya @ Abdul Khadar vs The State Through on 24 January, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200173 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200173 OF 2016
(374(Cr.PC)/415(BNSS))
BETWEEN:
CHANDBI W/O BASHUMIYA @ ABDUL KHADDAR,
AGE: 40 YEARS,
OCC: PRESIDENT OF GRAM PANCHAYAT,
R/O. NAIKAL, TQ. SHAHAPUR,
DIST. YADGIRI-585102.
...APPELLANT
(BY SRI GANESH NAIK, ADVOCATE)
AND:
THE STATE THROUGH
Digitally signed by
SHILPA R LOKAYUKTA P.S. YADGIRI,
TENIHALLI NOW REPRESENTED BY ADDL. S.P.P,
Location: HIGH HIGH COURT OF KARNATAKA,
COURT OF
KARNATAKA AT KALABURAGI BENCH, KALABURAGI.
...RESPONDENT
(BY SRI SUBHASH MALLAPUR, ADVOCATE)
THIS CRL.A. IS FILED U/S. 372(4)OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF THE SESSION JUDGE SPECIAL
COURT YADGIRI, PASSED IN SPL.CASE NO.71/2011 BY
JUDGMENT DATED 03/12/2016.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 200173 of 2016
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. This appeal under Section 374(2) of Cr.P.C. is filed by the
appellant/accused challenging the judgment and order of
conviction and sentence dated 03.12.2016 passed in Spl. Case
No.71/2011 by the Court of Sessions Judge, Special Court,
Yadgiri.
2. Heard the learned counsel for the parties.
3. The appellant herein was charge sheeted by Karnataka
Lokayukta Police, Yadigiri, for the offences punishable under
Sections 7, 13 (1)(d) read with Section 13 (2) of the Prevention
of Corruption Act, 1988 (hereinafter referred to as 'the P.C. Act'
for short). The allegation in the charge sheet is that appellant,
who was the President of Naikal Gram Panchayath had
demanded bribe amount of Rs.6,000/- from the defacto
complainant/CW1 for signing the cheque which was prepared in
the name of PW3, who had undertaken the civil work of
construction of road and drain in Ward No.4 of Naikal Village.
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The defacto complainant, who was working for PW3, was not
willing to pay the bribe amount and therefore, after recording
his conversation with the accused/appellant, he had
approached the police and submitted the first information on
the 28.04.2009 based on which, FIR was registered against the
appellant in Crime No.5/2009. Thereafter, a trap was
successfully laid on 30.04.2009 and the appellant was caught
red handed while receiving the bribe amount of Rs.6,000/-
from the defacto complainant/PW1 in her house. The bribe
amount was recovered from the appellant under Seizure
Panchanama Ex.P2 and thereafter, appellant was arrested and
remanded to judicial custody. Investigation in the case was
completed and charge sheet was filed. The Trial Court, after
taking cognizance of the charge sheeted offences, had issued
summons to the appellant, who had appeared before the Trial
Court and claimed to be tried.
4. The prosecution in order to substantiate its charges
against the appellant had examined seven witnesses as PW1 to
PW7 before the Trial Court and also got marked 45 documents
as Ex.P1 to P45. Twelve material objects were got marked as
MO1 to MO12. After the prosecution had closed its side of
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evidence, the statement of the accused under Section 313 of
Cr.PC was recorded. However, the accused/appellant did not
choose to lead any defence evidence nor was any document
marked in support of defence. The Trial Court, after hearing the
arguments addressed on both sides, by judgment and order
dated 03.12.2016 passed in Spl. Case No.71/2011 convicted
the appellant/accused for offences punishable Sections 7 and
13 (2) of the P.C. Act and sentenced her to undergo simple
imprisonment for a period of two years and to pay fine of
Rs.10,000/- and in default to undergo simple imprisonment for
a period of three months for the offence punishable under
Section 7 of the P.C. Act and further, for the offence punishable
under Section 13 (2) of the P.C. Act, the appellant/accused was
sentenced to undergo simple imprisonment for a period of four
years and to pay fine of Rs.20,000/- and in default, to undergo
imprisonment for a period of six months. Being aggrieved by
the aforesaid judgment and order of conviction and sentence,
the appellant/accused is before this Court.
5. Learner counsel for the appellant/accused having
reiterated the grounds urged in the appeal memorandum
submits that no work of the complainant/defacto complainant
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was pending before the appellant at any point of time. PW2 and
PW3 have not supported the case of the prosecution. The
demand and acceptance of bribe has not been proved in
accordance with law. The contradictions and inconsistencies
found in the deposition of the charge sheet witnesses has not
been properly appreciated by the Trial Court, which has
resulted in erroneously convicting the appellant for the alleged
offences. Appellant is a lady, aged about 70 years and the Trial
Court has failed to appreciate the said aspect of the matter
while imposing sentence on her. Accordingly, he prays to allow
the appeal.
6. Learned counsel for the respondent has argued in support
of the impugned judgment and order of conviction and
sentence and submits that prosecution has proved its case
beyond reasonable doubt. PW1, who is the defacto complainant
and PW5, who is the shadow witness, have completely
supported the case of the prosecution. The appellant has failed
to offer any satisfactory explanation for having received the
amount of Rs.6,000/- from PW1. The Trial Court having
appreciated the oral and documentary evidence available on
record and also taking into consideration the presumption
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available under Section 20 of the P.C. Act, has rightly convicted
the appellant. He submits that the order of sentence passed
against the appellant is also just and proper. Accordingly, he
prays to dismiss the appeal.
7. It is the case of the prosecution that PW3 was awarded
with the contract to carryout certain civil work of construction
of road and drain in Ward No.4 of Naikal Village. PW1/defacto
complainant, who was working along with PW3 had approached
the accused, who was the President of Naikal Village Panchayat
with a request to sign the cheque for a sum of Rs.1,42,979/-,
which was prepared towards payment of the bills raised by PW3
towards the work done by him. The appellant allegedly
demanded 5% of the bill amount for the purpose of affixing her
signature on the aforesaid cheque and on negotiation, the
demand was reduced to sum of Rs.6,000/-. Since PW1 did not
intend to pay the bribe amount to the appellant, he had
approached the Lokayuktha Police after recording his
conversation with the appellant and based on his first
information, FIR in Crime No.5/2009 was registered.
Thereafter, entrustment mahazar's at Exs.P24 and P26 dated
29.04.2009 and 30.04.2009 respectively was prepared and a
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trap was laid on 30.04.2009 and the appellant was caught red
handed while receiving the bribe amount of Rs.6,000/- from
PW1, who is the defacto complainant in the present case.
8. PW1 - Marulasiddappa, has stated that
PW3/Siddappagouda was granted the contract of the road work
and in turn PW3 had asked him to do the work. After
completing the work awarded, PW1 had approached CW19,
who was the then Secretary of the Grama Panchayat for
issuance of the cheque who in turn issued the cheque as per
Ex.P3 with his signature and thereafter, PW1 approached the
appellant, who was the President of the Grama Panchayath with
a request to affix her signature on Ex.P3. He has stated that
appellant demanded 5% of the cheque amount as bribe and
when he expressed inability, after negotiation, the amount was
reduced to Rs.6,000/-. PW1 has stated that thereafter, he had
approached the police who inturn asked him to record his
conversation with the appellant and accordingly, he recorded
his conversation in a tape recorder and once again approached
the Lokayukta Police and handed over the tape recorder along
with the cassette and thereafter, a complaint as per Ex.P1 was
filed based on which, FIR in Crime No.5/2009 was registered.
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He has also spoken about the preparation of the entrustment
mahazar in the office of the Deputy Superintendent on the next
date and he has spoken about handing over of six notes of
Rs.1,000/- denomination which was applied with a white
powder with instructions to hand over the said tainted notes to
accused/appellant on demand. On 29.04.2009, he was
introduced to CW2 to 4. He has stated that on 30.04.2009
when he went to the house of appellant, he was accompanied
by PW3 and appellant asked him whether he had brought the
bribe amount of Rs.6,000/- and after he handed over the
tainted money to the appellant, the cheque at Ex.P3 was
handed over to him. Immediately thereafter, by putting his
kerchief on his face, he gave signal to the police, who
thereafter arrived at the spot and apprehended the appellant
and seized the tainted money from her hand and prepared a
trap mahazar and also washed the hands of the appellant and
he has stated that the colour of the water changed after the
hands of a appellant was washed. PW2 is the relative of PW1
and PW3 is the contractor to whom the work was allotted. PW2,
who is said to have accompanied PW1 to the house of appellant
has not supported the case of the prosecution. However, PW3
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has partially supported the case of the prosecution and he has
admitted that the work of road was allotted to him and he in
turn had asked PW1 to do the work. However, this witness has
stated that he is not aware of the demand made by appellant
for payment of bribe.
9. PW4 - Dr. Sanjeevkumar, is the mahazar witness and
PW5 - Manjunath is the shadow witness. PW4 and PW5 have
completely supported the case of the prosecution. PW5 has
clearly stated that he had accompanied PW1 to the house of
the appellant on 30.04.2009 and he also has stated that he had
seen PW1 handing over the tainted money to the appellant
after she made a demand for payment of the same. PW4 has
identified the tainted notes which were the subject matter of
the entrustment mahazar's at Exs.P24 and P26 dated
29.04.2009 and 30.04.2009 respectively. Though PW1, PW4
and PW5 were extensively cross-examined on behalf of the
defence, nothing material has been elicited from their mouth so
as to disbelieve their statement. PW6 - Chinnappa, who is the
Deputy Superintendent of Lokayukta Police, has investigated
the case. He is the officer, who had trapped the appellant and
this witness has stated about recording the conversation
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between appellant and PW1 and also about preparation of the
entrustment mahazar and trap mahazar. PW7 J. H. Inamdar
speaks with regard to conducting further investigation in the
matter and recording the statement of CWs 14, and 18 to 20.
This witness has completed the investigation and filed the
charge sheet.
10. From a reading of the evidence of PW1 and PW3 and
perusal of Ex.P25 to P28, it is very clear that the work of road
repair which was allotted to PW3 was undertaken by PW1 and
therefore, he had approached appellant/accused with a request
to affix her signature on the cheque which was towards
payment of the work done. From the evidence of PW1 and PW4
to PW6, the prosecution has established that there was a
demand for payment of bribe by the appellant and it is only
after payment of the bribe amount, the cheque was signed by
the appellant and handed over to PW1. Though immediately
after the trap, the appellant had given an explanation in writing
that the amount of Rs.6,000/- received by her from PW1 was
towards repayment of the amount borrowed by him earlier
from her, such a defence was not taken at the time of trial.
Even in her statement made, while examining her under
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Section 313 of Cr.PC, she has not offered such an explanation.
The prosecution by proving the demand and acceptance of the
bribe amount by placing oral and documentary evidence before
the Trial Court has discharged its initial burden and thereafter,
the presumption that arises against the accused under Section
20 of the P.C. Act is required to be rebutted by the accused,
failing which the accused shall be liable to be convicted for the
alleged offences. In the case on hand, the appellant/accused
has failed to produce any rebuttal evidence so as to disprove
that there was a demand and acceptance of bribe amount by
her in the present case. Under the circumstances, I am of
opinion that the Trial Court was fully justified in convicting the
appellant for offences punishable under Sections 7 and 13(2) of
the P.C. Act and I do not find any illegality or irregularity in the
judgment and order of conviction passed by the Trial Court.
11. Learned counsel for the appellant has brought to the
notice of this Court that the appellant is a lady aged about 70
years. Though in the cause title of the impugned judgment and
order of conviction and sentence and in the appeal
memorandum, the age of the appellant is stated to be 40
years, the Adhaar Card of the appellant/accused produced
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before this Court would go to show that her date of birth is
02.06.1955. If that is so, she is aged about 70 years as on this
day. The incident is of the year 2009 and sixteen years have
lapsed from the date of incident. The Trial Court has sentenced
the appellant/accused to undergo simple imprisonment for a
period of two years for the offence punishable under Section 7
of the P.C. Act and sentenced to undergo simple imprisonment
for a period of four years for the offence punishable under
Section 13(2) of the P.C. Act. Considering the age of the
appellant, who is a married lady having family and also since,
sixteen years have now lapsed from the date of registration of
FIR, I am of the opinion that if the sentence imposed on her by
the Trial Court is modified, the same would serve the ends of
justice. Accordingly, the following:-
ORDER
(i) The Criminal Appeal is partly allowed.
(ii) The impugned judgment and order of conviction
dated 03.12.2016 passed in Spl. Case No.71/2011
by the Court of Sessions Judge and Special Court,
Yadgiri, convicting the appellant/accused for
offences punishable under Sections 7 and 13 (2) of
the P.C. Act is hereby confirmed. However, the
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order of sentence passed against the
appellate/accused by the Trial Court dated
03.12.2016 is modified.
(iii) The appellant/accused is sentenced to undergo
simple imprisonment for a period of six months and
to pay fine of Rs.25,000/- and in default to undergo
simple imprisonment for a period of one month for
the offence punishable under Section 7 of the P.C.
Act, and for the offence punishable under Section
13(2) of the P.C. Act, the appellant/accused is
sentenced to undergo simple imprisonment for a
period of one year and to pay fine of Rs.50,000/-
and in default to undergo simple imprisonment for
a period of two months.
(iv) The sentences and in default sentences shall run
concurrently.
(v) The appellant is entitled for the benefit of set-off as
provided under Section 428 of Cr.P.C.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
DN List No.: 1 Sl No.: 47 CT:PK
