Karnataka High Court
Devendrappa S/O Bharamappa ... vs State Of Karnataka on 30 January, 2025
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2025:KHC-D:1892
CRL.A No. 100154 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO. 100154 OF 2017 (C)
BETWEEN:
DEVENDRAPPA S/O. BHARAMAPPA
KARININGANNANAVARA,
AGED ABOUT 57 YEARS,
OCC: WAS WORKING AS C.D.P.O,
CDPO OFFICE, SHIGGAON,
TQ: SHIGGAON, DIST: HAVERI,
NOW R/AT: SADANA BUILDING,
UDAY NAGAR, KELAGERI ROAD, DHARWAD.
...APPELLANT
(BY SRI. ARAVIND D.KULKARNI, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH KARNATAKA LOKAYUKTA POLICE,
POLICE INSPECTOR,
KARNATAKA LOKAYUKTA,
POLICE WING, HAVERI,
Digitally signed by B
K REP. BY STATE PUBLIC PROSECUTOR,
MAHENDRAKUMAR
Location: HIGH
HIGH COURT OF KARNATAKA, DHARWAD.
COURT OF
KARNATAKA ...RESPONDENT
DHARWAD BENCH
Date: 2025.02.05 (BY SRI. SANTOSH B.MALAGOUDAR, SPP)
12:54:28 +0530
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C., SEEKING TO, SET ASIDE THE JUDGMENT DATED
25.04.2017 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE
AND SPECIAL JUDGE AT HAVERI IN SPECIAL (LOK) CASE NO. 06
OF 2012 THEREBY CONVICTING AND SENTENCING THE
APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTION 7
AND 13(2) OF THE PREVENTION OF CORRUPTION ACT,
CONSEQUENTLY ACQUIT THE APPELLANT HEREIN FROM THE
ABOVE SAID OFFENCES.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-2-
NC: 2025:KHC-D:1892
CRL.A No. 100154 of 2017
CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
ORAL JUDGMENT
1. This appeal under Section 374(2) of the Code of
Criminal Procedure, 1973 (Cr.P.C.) is filed by the accused
challenging the judgment of conviction and order of sentence,
whereby the accused has been convicted for offences punishable
under Sections 7 and 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (PC Act) and sentenced to
undergo simple imprisonment for a period of one year.
2. The prosecution alleges that the accused was serving
as the Child Development Project Officer (CDPO) in Shiggaon at
the relevant time. The complainant and his wife, residents of
Mulakeri Village, Shiggaon Taluk, had applied for the vacant post
of Anganwadi Worker in their village's Anganwadi school. The
complainant approached the accused regarding his wife's
appointment, during which the accused allegedly demanded illegal
gratification of ₹30,000 to show official favor. After negotiations, the
bribe amount was settled at ₹25,000, out of which ₹5,000 was paid
in advance, and the balance was agreed to be paid later.
Eventually, the amount was further settled at ₹17,000, but before
paying it, the complainant approached the Lokayukta Police.
3. The Lokayukta Police registered a case, provided the
complainant with a voice recorder to record the alleged demand for
the bribe, and subsequently conducted a trap on 24.06.2011. The
accused was allegedly caught red-handed accepting ₹17,000 in the
NC: 2025:KHC-D:1892
presence of the complainant and a shadow witness. Following this,
the Investigating Officer conducted a panchanama and other trap
proceedings.
4. The prosecution, to substantiate its case, examined
fourteen witnesses (PW1 to PW14), exhibited documents (Ex.P1 to
Ex.P77), and marked material objects (MO1 to MO16). The trial
court, after framing points for consideration and appreciating the
evidence on record, convicted the accused and sentenced him
accordingly.
○ The learned counsel for the appellant (accused) argued
that: The complainant (PW1) turned hostile, and in the
absence of any corroborative material, the trial court erred
in convicting the accused without evidence of demand and
acceptance of gratification.
○ PW2 (Under Secretary, Department of Health and Family
Welfare, Government of Karnataka) was not the
competent authority to grant sanction under Section 19 of
the PC Act, thereby vitiating the entire trial.
○ The trial court erroneously relied on shadow witness
(PW2) to convict the accused, despite settled legal
principles that a shadow witness's evidence alone cannot
substitute the complainant's testimony.
○ The prosecution failed to produce any transcription of the
recorded conversation between the accused and the
complainant, making the allegations unsubstantiated.
NC: 2025:KHC-D:1892
5. In support of these contentions, reliance was placed on
the following precedents:
○ State of Karnataka Through CBI v. M.K. Vijayalakshmi
○ Mansukhlal Vithaldas Chauhan v. State of Gujarat
○ Nanjappa v. State of Karnataka
○ Hanumanthappa v. State of Karnataka
○ State of Karnataka v. Nageshkumar B. Mandivala
○ M.R. Purushotham v. State of Karnataka
○ R. Manthara Murthy v. State of Karnataka.
6. The learned counsel for the respondent (Lokayukta)
contended that:
a. Though the complainant (PW1) turned hostile, PW2
(shadow witness) supported the prosecution's case, and his
testimony was corroborated by PW14 (Investigating Officer).
b. Even if it is accepted that PW12 was not the
competent authority to grant sanction, no prejudice was caused
to the accused, and therefore, the trial is not vitiated for non-
compliance with Section 19 of the PC Act.
c. The prosecution relied on the Supreme Court's
decision in Central Bureau of Investigation v. Jagat Ram to
argue that procedural irregularities in sanction do not
automatically nullify a trial unless prejudice is shown.
7. Upon hearing both parties and perusing the trial court
records, the key issue that arises for determination is:
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8. Whether the prosecution has established the guilt of
the accused beyond all reasonable doubt, and whether the
impugned judgment of conviction and sentence is legally
sustainable?
9. A fundamental requirement under Sections 7 and
13(1)(d) of the PC Act is proof of demand and acceptance of illegal
gratification. In the present case:
○ PW1 (complainant) turned hostile and categorically denied
the demand made by the accused.
○ The prosecution failed to produce any transcription of the
recorded conversation to substantiate the alleged demand.
○ The case primarily hinges on the evidence of PW1
(complainant) and PW2 (shadow witness). However, since
PW1 turned hostile, his testimony does not support the
prosecution's case.
10. While PW2 (shadow witness) supported the
prosecution's case by stating that the accused gestured with his
hands to demand the bribe, and that PW1 handed over ₹17,000,
which the accused counted and kept in his pocket, the following
legal principles must be considered:
i) The role of a shadow witness is corroborative and
cannot replace primary evidence of demand.
NC: 2025:KHC-D:1892
ii) A co-ordinate bench of this Court in Hanumanthappa v.
State of Karnataka held that if the shadow witness's testimony is
not supported by the complainant's evidence, conviction cannot
be based solely on the shadow witness's statement.
iii) Similarly, in State of Karnataka v. Nageshkumar B.
Mandivala, the Court held that though a shadow witness may
support the case, his testimony alone is insufficient unless
corroborated by the complainant.
11. The Apex Court in the case of M R Purushotham
(supra), has ruled as follows:
"6. PW1 Ramesh, the complainant did not support the
prosecution case. He disowned making the complaint in
Exh.P1 and stated in his examination-in- chief that the
accused had not demanded anything from him and he did
not know what is written in Exh.P1 and the police have not
recorded his statement in respect to this case. He was,
therefore, declared hostile. However, PW3 Kumaraswamy,
panch witness has testified that after being summoned by
PW4 Inspector Santosh Kumar on 18.2.2000, the contents of
Exh.P1 were explained to him in the presence of the
complainant and he accompanied the complainant to the
house of the accused, wherein, the complainant gave the
sum of Rs.500/- to the accused as illegal gratification. It is on
the aforesaid basis that the liability of appellant/accused for
commission of the offences alleged was held to be proved,
notwithstanding the fact that in his evidence the complainant
PW1 Ramesh had not supported the prosecution case.
7. In such type of cases the prosecution has to prove
that there was a demand and there was acceptance of illegal
gratification by the accused. As already seen the
complainant PW1 Ramesh did not support the prosecution
case insofar as demand by the accused is concerned. No
other evidence was adduced by the prosecution to prove the
demand made by the accused with the complainant. In this
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context the recent decision of a three Judge bench of this
Court in B. Jayaraj vs. State of Andhra Pradesh reported in
2014(4) Scale 81 is relevant and it is held as follows:
"8. In the present case, the complainant did not support
the prosecution case in so far 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 (Exbt.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 Exhibit 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 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 in so far as the offence under Section
13(1)(d)(i)(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."
8. The above decision is squarely applicable to the facts of
the present case. When PW1 Ramesh himself had disowned
what he has stated in his initial complaint in Exh.P1 before PW4
Inspector Santosh Kumar and there is no other evidence to
prove that the accused had made any demand, the evidence of
PW3 Kumaraswamy and the contents of Exh.P1 complaint
cannot be relied upon to conclude that the said material
furnishes proof of demand allegedly made by the accused. The
High Court was not correct in holding the demand alleged to be
made by the accused as proved. Mere possession and recovery
of the currency notes from the accused without proof of demand
will not bring home the offence under Section 13(1)(d) of the Act
and the conviction and sentence imposed on the appellant are
liable to be set aside."
NC: 2025:KHC-D:1892
12. In the present case, the complainant has turned
hostile, specifically stating that he did not file the complaint and that
the accused did not demand any gratification from him.
13. At the time of the trap proceedings, the accused, who
was serving as the Child Development Project Officer (CDPO), was
merely a member of the selection committee responsible for
appointing an Anganwadi Worker to the Anganwadi Centre. The
accused did not have the sole authority to select or appoint a
candidate to the said post. PW7, PW8, and PW12, who are officers
of the concerned department, have categorically stated that the
power to select and appoint an Anganwadi Worker vests with a
five-member committee and not with the accused alone.
14. PW12, Under Secretary, Department of Health and
Family Welfare, Government of Karnataka, Bengaluru, issued the
sanction order under Section 19 of the Prevention of Corruption
Act, 1988 (PC Act), as per Ex.P63. However, during cross-
examination, PW12 admitted that the sanction order was based on
a note prepared by the subordinate staff. She further stated that
after reviewing the material on record, she formed an opinion that
the trap was conducted and subsequently forwarded the file to the
Deputy Secretary, who then sent it to the Principal Secretary for
approval. Only after receiving approval from the Principal
Secretary, she issued the sanction order under Section 19 of the
PC Act.
15. Based on PW12's testimony, there is ambiguity
regarding the identity of the sanctioning authority. Even as per
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PW12's own admission, the Principal Secretary is the competent
authority to grant sanction for prosecution. PW12 was merely
authorized to authenticate the decision of the competent authority
and lacked the independent authority to grant sanction under
Section 19 of the PC Act. Therefore, the evidence of PW12 clearly
establishes that the sanction order was issued by an unauthorized
officer, rendering it invalid in law.
16. In light of the foregoing reasons, the prosecution has
failed to establish the guilt of the accused beyond all reasonable
doubt. Consequently, the judgment of conviction and order of
sentence passed by the trial court is legally unsustainable and
liable to be set aside. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is allowed.
ii. The impugned judgment of conviction and order of sentence
passed by the trial Court is set-aside.
iii. The appellant/accused is acquitted of the offences charged.
iv. Bail bond, if any, stands cancelled.
Sd/-
(HEMANT CHANDANGOUDAR)
JUDGE
JTR
Ct:vh
