Karnataka High Court

Madiwalappa Hanamantappa Lokur vs The State Of Karnataka on 29 January, 2025

Author: Hemant Chandangoudar

Bench: Hemant Chandangoudar

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                                                                                NC: 2025:KHC-D:1780
                                                                            CRL.A No. 2788 of 2012




                                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                                 DATED THIS THE 29TH DAY OF JANUARY, 2025
                                                                   BEFORE
                                            THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
                                                    CRIMINAL APPEAL NO. 2788 OF 2012 (C)
                                        BETWEEN:

                                        MADIWALAPPA HANAMANTAPPA LOKUR
                                        SINCE DECEASED BY HIS LRS.,

                                        1(A). LATA MADIWALAPPA LOKUR,
                                        AGE: 49 YEARS, OCC: HOUSEWIFE,
                                        R/O: HOUSE NO. 253,
                                        RADHAKRISHNA NAGAR,
                                        GOKUL NAGAR, HUBBALLI,
                                        DIST: DHARWAD-580 027.
                                                                                      ... APPELLANT
                                        (BY SRI. M.J. PEERJADE, ADVOCATE)

                                        AND:

                                        THE STATE OF KARNATAKA,
                                        DEPUTY SUPERINTENDENT OF POLICE,
                                        KARNATAKA LOKAYUKTA BELGAUM,
                                        REPRESENTED BY THE SPECIAL
                                        PUBLIC PROSECUTOR,
                Digitally signed by B   CIRCUIT BENCH, DHARWAD.
                K

BK
                MAHENDRAKUMAR
                Location: HIGH
                                                                                    ... RESPONDENT
                COURT OF
MAHENDRAKUMAR
                KARNATAKA
                DHARWAD BENCH
                                        (BY SRI. ANIL KALE, SPP)
                Date: 2025.02.01
                13:32:23 +0530


                                             THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
                                        SEEKING TO CALL FOR RECORDS IN SPL. CASE NO.48/2011 ON
                                        THE FILE OF THE SPL. JUDGE (IV-ADDL. SESSIONS JUDGE)
                                        BELGAUM, AND SET ASIDE THE JUDGMENT OF CONVICTION AND
                                        SENTENCES PASSED ON THE APPELLANT DATED 20.07.2012 AND
                                        SET THE APPELLANT AT LIBERTY, IN THE INTEREST OF JUSTICE
                                        AND EQUITY.

                                            THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY,
                                        JUDGMENT WAS DELIVERED THEREIN AS UNDER:

                                        CORAM:    THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
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                                               NC: 2025:KHC-D:1780
                                         CRL.A No. 2788 of 2012




                        ORAL JUDGMENT

The appellant, accused in Special Case No. 48/2011 on the file of the Special Judge (IV Additional Sessions Judge) at Belgaum, being aggrieved by the judgment of conviction and order of sentence dated 20.07.2012 convicting him for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and sentencing him to undergo imprisonment for a period of two years, respectfully submits as follows:

2. Brief Facts of the Case:

2.1 The case of the prosecution is that the stepmother of the complainant passed away on 26.11.2008, leaving the complainant and his father as the only legal heirs. Consequently, they submitted an application to the City Survey Office on 24.08.2009 for mutating their names in the revenue records for property bearing CTS No. 10825, which was previously registered in the name of the complainant's stepmother.

2.2 On 27.11.2009, the complainant paid the requisite fee of Rs.15/- towards processing the mutation. The accused, who was then serving as the Case Officer, allegedly did not process the complainant's request. On 02.01.2010, when the complainant approached the accused regarding the matter, the accused allegedly demanded a bribe of Rs. 700/- for processing the mutation, which was later negotiated and reduced to Rs. 500/-.

NC: 2025:KHC-D:1780

2.3 Unwilling to pay the bribe, the complainant approached the Office of the Lokayukta and lodged a complaint. Following standard procedure, the Investigating Officer secured two panch witnesses and conducted a pre-trap panchanama in the form of an entrustment panchanama. A trap was subsequently laid. During the trap, the accused allegedly demanded and accepted Rs. 500/- from the complainant. The accused was apprehended, and a phenolphthalein test was conducted, which reportedly turned positive on both his hands and the left pocket of his trousers.

3. The prosecution, in support of its case, examined nine witnesses (P.W.1 to P.W.9), marked documents as Exhibits P1 to P32, and produced material objects as M.O.1 to M.O.9. In his defense, the accused examined two witnesses (D.W.1 and D.W.2).

3.1 Upon appreciation of the evidence on record, the Trial Court concluded that the prosecution had established the guilt of the accused beyond a reasonable doubt and, accordingly, convicted him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Hence, this appeal.

4. The learned counsel for the appellant submits that the charge framed against the accused pertained to the demand of a bribe for processing the mutation of the complainant's and his father's names in the revenue records. However, the prosecution led evidence regarding the accused's alleged demand for a bribe in connection with issuing a certified copy of the mutation register, which was not the original charge.

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4.1 The counsel further submits that, as per Ex.P.13, the names of the complainant and his father were certified by the competent authority on 31.10.2009. The application for the issuance of a certified copy of the mutation register was submitted on 26.11.2009. Therefore, as of 02.01.2010, when the alleged demand was made, no work was pending in relation to the mutation itself.

5. The learned counsel for the respondent (Lokayukta) contends that the appellant-accused demanded gratification for issuing a certified copy of the mutation register and that the evidence on record, particularly the testimony of P.W.5 (the shadow witness), corroborates that the accused was caught red- handed while accepting the bribe amount. Accordingly, the Trial Court rightly convicted the appellant, and the judgment does not warrant interference.

6. After considering the rival contentions, the only point that arises for determination is:

"Whether the prosecution has established the guilt of the accused beyond all reasonable doubt, and whether the impugned judgment of conviction passed by the Trial Court is legally sustainable?"

7. The application for mutating the names of the complainant and his father was filed on 24.08.2009, and the application for a certified copy of the mutation register was filed on 26.11.2009. The complaint was lodged on 02.01.2010, alleging that

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the appellant had demanded a bribe of Rs. 500/- for processing the mutation. However, as per the record, the mutation was already effected on 31.10.2009.

8. P.W.2, the complainant, supported the prosecution's case, stating that the accused demanded and accepted Rs. 500/- and placed it in his left pant pocket. P.W.5, the shadow witness, corroborated this claim. Nothing significant was elicited in their cross-examination to discredit their testimonies.

9. The Investigating Officer and other official witnesses, including the panch witnesses, also supported the prosecution's case. The phenolphthalein test results confirmed the presence of tainted money on the accused's hands and in his left pant pocket.

10. However, the complaint was in relation to demand of bribe for mutating the name of complainant and his father in the CTS extract, and charge framed by the Trial Court was in relation to a bribe demand for mutation in alignment with the complaint, whereas the prosecution adduced evidence regarding a demand for a certified copy of the mutation register.

11. The Hon'ble Supreme Court in Soundarajan v. State rep. by Inspector of Police, Vigilance Anti-Corruption, Dindigul has held that under Section 464 of Cr.P.C., omission to frame a charge or an error in framing a charge is not fatal unless it results in a failure of justice. In the present case, the issue goes beyond a simple omission in the framing of the charge; it involves a fundamental flaw in how the charge was formulated. The charge

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framed against the accused specifically relates to the demand for a bribe in connection with the mutation of the complainant's name in the revenue records. However, the evidence presented during the trial deviates from this charge. The prosecution's evidence focuses on a bribe allegedly demanded for issuing a certified copy of the mutation register, a matter entirely separate from the charge regarding the mutation process itself.

12. This discrepancy in the charge and the evidence is crucial because it highlights a deviation between what the accused was accused of and what the prosecution actually sought to prove. The charge framed should align with the evidence presented, but here, the evidence concerns a different act -- one that was not included in the charge against the accused. This deviation between the charge and the evidence undermines the fairness of the proceedings, as it prevents the accused from properly defending themselves against the specific allegations for which they were put on trial.

13. The decision of the Hon'ble Supreme Court in State of Karnataka v. Chandrashekar is distinguishable , since in the present case, as of the date of the complaint ie. 2.1.2010, the work of mutating the names were already effected on 31.09.2009, and the said work was not pending as of the date of the alleged demand. Thus, no official act was pending with the accused, negating the very basis of the charge.

14. In light of the above discussion, the prosecution has failed to establish beyond a reasonable doubt that the accused

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demanded a bribe of Rs. 500/- for processing the mutation of the complainant's name. The inconsistency between the charge framed and the evidence led by the prosecution renders the conviction unsustainable in law.

15. Accordingly, I proceed to pass the following: