Karnataka High Court
Abdul Rahim vs The State Of Karnataka on 17 June, 2025
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CRL.A No. 200273 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 200273 OF 2023
(374(Cr.PC)/415(BNSS))
BETWEEN
ABDUL RAHIM
S/O LATE BADE SHAB
AGE 56 YEARS OCC: SURVEYOR TAHASIL
OFFICE BASAVAKALYAN DISTRICT
BIDAR 585401 R/OF GADWANTH TALUK
HUMNABAD DISTRICT BIDAR 585 353 ...APPELLANT
(BY SRI AVINASH A. UPLAONKAR, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH LOKAYUKTA POLICE STATION
BIDAR NOW REP. BY SPECIAL PUBLIC PROSECUTOR
LOKAYUKTA HIGH COURT OF KARNATAKA
KALABURAGI BENCH KALABURAGI - 585107 ... RESPONDENT
Digitally signed by
SREEDHARAN BANGALORE
SUSHMA LAKSHMI (BY SRI SUBHASH MALLAPUR, SPL.PP)
Location: High Court of
Karnataka
THIS CRL.A. FILED U/S.374 (2) OF CR.P.C BY THE ADVOCATE
FOR APPELLANT /ACCUSED PRAYING THAT THIS HONOURABLE
COURT MAY BE PLEASED TO SET ASIDE THE ORDER OF CONVICTION
DATED 28.08.2023 PASSED BY THE COURT OF SPECIAL JUDGE AND
PRINCIPAL SESSIONS JUDGE, BIDAR, AT BIDAR IN SPECIAL CASE
(PC) NO.11/2012 CONVICTING THE APPELLANT / ACCUSED FOR THE
OFFENCES PUNISHABLE U/S 7, 13 (1)(d) R/W SEC. 13(2) PC ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
11.03.2025 AT KALABURAGI BENCH AND COMING ON FOR
PRONOUNCEMENT OF ORDER, BEFORE THE PRINCIPAL BENCH AT
BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CAV JUDGEMENT
(PER: HON'BLE MR. JUSTICE S RACHAIAH)
1. This appeal is filed being aggrieved by the judgment of
conviction dated 28.08.2023 and order on sentence dated
30.08.2023 in Special case (P.C) No.11/2012 on the file
of Special Judge and Principal Sessions Judge, Bidar,
wherein, the Trial Court recorded the conviction for the
offences punishable under Section 7, 13(1)(d) read with
13(2) of Prevention of Corruption Act, 1988 (for short
'P.C. Act').
2. The ranks of the parties henceforth will be referred to as
per their rankings in the Trial Court, for convenience.
Factual matrix of the case :
3. The case of the prosecution is that, P.W.4 is the first
informant owned land in Sy.No.25 of Ujalam Village,
Basavakalayan Taluk. For unification of Records of Rights,
he had moved an application about one year before the
Tahasildar Office, Basavakalayan Taluk for the purpose of
getting his land for survey.
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4. Notices were issued to P.W.4 and also to the owners of
adjoining land and it was proposed to conduct survey on
10.09.2009. The survey was not conducted as on that
day. Again, P.W.4 approached the accused and requested
to conduct survey to his land at the earliest. However,
the accused demanded a sum of Rs.1,500/- as illegal
gratification for the purpose of conducting the survey. It
is further stated that, P.W.4 stated to have paid the
amount of Rs.1,500/- as illegal gratification in the
presence of P.W.1. The said amount was seized and the
accused was arrested. After conducting the investigation,
submitted the charge sheet.
5. To prove the case of the prosecution, the prosecutor
examined 09 witnesses as P.W.1 to P.W.9 and got
marked 27 documents as Ex.P1 to P27 and also identified
13 material objects as M.O.1 to M.O.13. On the other
hand, the accused got marked 02 documents as Ex.D1
and D2. The Trial Court after appreciating the oral and
documentary evidence on record, recorded the conviction
of the appellant for the offences stated supra. Being
aggrieved by the same, the appellant has approached this
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Court seeking to set aside the judgment of conviction and
order on sentence passed by the Trial Court.
6. Heard Sri. Avinash A. Uploankar, learned counsel for the
appellant and Sri. Subhash Mallapur, learned Special
Public Prosecutor for the respondent - Lokayukta.
7. It is the submission of the learned counsel for the
appellant that the judgment of conviction and order on
sentence passed by the Trial Court is contrary to the
evidence on record. Therefore, the same is liable to be
set aside.
8. It is further submitted that the demand of illegal
gratification by the accused is sine-qua-non to convict the
accused for the offence punishable under Section 7 of the
P.C. Act,1988. In the absence of specific demand of
illegal gratification, it cannot be construed that the
ingredients of the above said provision would be
attracted.
9. It is further submitted that the Trial Court has failed to
appreciate the evidence properly. Consequently, the
impugned judgment is passed. Even though P.W.4, who
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is the complainant has turned hostile, recording the
conviction by appreciating the evidence of other
witnesses, appears to be erroneous and not proper.
10. It is further submitted that, P.W.1 who is the shadow
witness, stated that she accompanied P.W.4, to hand
over the sum of Rs.1,500/-. However, she stated in her
evidence that she was standing 2 to 3 feet away from the
place of the alleged conversation taken place between
P.W.4 and the accused. Therefore, her evidence in
respect of the demand of illegal gratification ought not to
have been considered.
11. It is further submitted that the prosecution has not
proved the case in respect of the pendency of work. Such
being the fact, it is not appropriate to record the
conviction on the basis of other circumstances. Therefore,
the findings of the Trial Court in recording the conviction
has to be set aside for the reason that the demand of
illegal gratification by the accused has not been proved.
Making such submissions, the learned counsel for the
appellant prays to allow the appeal.
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12. Per Contra, the learned Special Public Prosecutor for the
respondent - Lokayukta vehemently justified the
judgment of conviction and he further submitted that,
even though the complainant turned hostile, the Court
can form the basis on considering the attending facts and
circumstances of the case.
13. It is further submitted that the amount of Rs.1,500/- was
seized in the presence of independent panch witnesses.
The FSL report with regard to the solution of which the
hands were washed would indicate that the accused had
received the tainted amount. Receiving the amount as
illegal gratification for the purpose of discharging his
official duty for the purpose of conducting survey of the
land of P.W.4 has been established by the prosecution.
Therefore, the Trial Court has rightly recorded the
conviction. Hence, interference with the said findings may
not be necessary. Making such submissions, the learned
Special Public Prosecutor for the respondent prays to
reject the appeal.
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14. Having heard the learned counsel for the respective
parties and also perused the findings of the Trial Court in
recording the conviction, it is appropriate to appreciate
the evidence of relevant witnesses for the purpose of
ascertaining as to whether or not any infirmity in the
findings of the Trial Court.
15. Before adverting to the merit of the case, it is relevant to
refer the dictum of the Hon'ble Supreme Court in the
Case of N. VIJAYKUMAR Vs. STATE OF TAMILNADU1,
paragraph No.27 reads as under:
"27. The relevant paras 7, 8 and 9 of the judgment
in B. Jayaraj read as under: (SCC pp. 58-59)
"7. Insofar as the offence under Section 7 is
concerned, it is a settled position in law that
demand of illegal gratification is sine qua
non to constitute the said offence and mere
recovery of currency notes cannot constitute
the offence under Section 7 unless it is
proved beyond all reasonable doubt that the
accused voluntarily accepted the money
knowing it to be a bribe. The above position
has been succinctly laid down in several
judgments of this Court. By way of
illustration, reference may be made to the
1
(2021) 3 SCC 687
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decision in C.M. Sharma v. State of A.P. and
C.M. Girish Babu v. CBI.
8. In the present case, the complainant did
not support the prosecution case insofar 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 (Ext. 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 Ext. 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
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proof of demand will not bring home the
offence under Section 7. The above also will
be conclusive insofar as the offence under
Sections 13(1)(d)(i) and (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.
9. Insofar as the presumption permissible to
be drawn under Section 20 of the Act is
concerned, such presumption can only be in
respect of the offence under Section 7 and
not the offences under Sections 13(1)(d)(i)
and (ii) of the Act. In any event, it is only on
proof of acceptance of illegal gratification
that presumption can be drawn under
Section 20 of the Act that such gratification
was received for doing or forbearing to do
any official act. Proof of acceptance of illegal
gratification can follow only if there is proof
of demand. As the same is lacking in the
present case the primary facts on the basis
of which the legal presumption under
Section 20 can be drawn are wholly absent."
The abovesaid view taken by this Court
fully supports the case of the appellant. In view
of the contradictions noticed by us above in the
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depositions of key witnesses examined on
behalf of the prosecution, we are of the view
that the demand for and acceptance of bribe
amount and cellphone by the appellant, is not
proved beyond reasonable doubt. Having
regard to such evidence on record the acquittal
recorded by the trial court is a "possible view"
as such the judgment [State of T.N. v. N.
Vijayakumar, 2020 SCC OnLine Mad 7098] of
the High Court is fit to be set aside. Before
recording conviction under the provisions of the
Prevention of Corruption Act, the courts have to
take utmost care in scanning the evidence.
Once conviction is recorded under the
provisions of the Prevention of Corruption Act,
it casts a social stigma on the person in the
society apart from serious consequences on the
service rendered. At the same time it is also
to be noted that whether the view taken by the
trial court is a possible view or not, there
cannot be any definite proposition and each
case has to be judged on its own merits, having
regard to evidence on record."
16. On careful reading of the dictum of the Hon'ble Supreme
Court, it is stated that to prove a case of the prosecution
in respect of demand of illegal gratification "Demand" is
sine-qua-non to constitute the said offence. In the
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absence of such demand, it cannot be held that the
demand of illegal gratification is proved.
17. In the present case, P.W.1 is stated to be the shadow
witness, did not support the case in respect of demand of
illegal gratification by the accused.
18. P.W.4 being the complainant stated in his evidence that,
he has not given any amount to the accused in respect of
conducting the survey of his land as illegal gratification.
19. On reading of the evidence of these two witnesses, it can
be inferred that the prosecution has failed to establish the
demand of illegal gratification. In the absence of evidence
in respect of the said demand, it is not appropriate to
record the conviction. However, the Trial Court recorded
the conviction based on the evidence of other witnesses,
which appears to be erroneous and not proper. Hence, it
is liable to be set aside.
20. In the light of the observations made above, I proceed to
pass the following:
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ORDER
i) The Criminal appeal is allowed.
ii) The judgment of conviction dated 28.08.2023
and order on sentence dated 30.08.2023
passed in Special Case (P.C) No.11/2012 by
the Special Judge and Principal Sessions
Judge, Bidar, is set aside.
iii) The accused is acquitted for the offences
punishable under Section 7, 13(1)(d) read
with 13(2) of Prevention of Corruption Act,
iv) Bail bonds executed if any, stands cancelled.
SD/-
(S RACHAIAH)
JUDGE
NM
