Karnataka High Court
Muddasheety vs State By Lokayuktha Police on 21 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 1382 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.1382 OF 2012
BETWEEN:
MUDDASHEETY,
SINCE DECEASED,
REPRESENTED BY HIS LR.
1. SMT. SUSHEELA,
W/O LATE MUDDASHETTY,
AGED ABOUT 68 YEARS,
R/O C/O MUDDASHETTY,
MANJU PEER MAKHAN,
WARD NO.2, JYOTHI NAGARA,
NEAR PRESIDENCY SCHOOL,
SIRA-572 137.
(AMENDED VIDE COURT ORDER DATED 29.11.2024)
Digitally signed
...APPELLANT
by DEVIKA M
Location: HIGH (BY SRI. A.N.RADHAKRISHNA, ADVOCATE)
COURT OF
KARNATAKA AND:
1. STATE BY LOKAYUKTHA POLICE,
TUMAKURU.
...RESPONDENT
(BY SRI. B.S.PRASAD, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 30.11.2012 PASSED BY
THE II ADDL. DISTRICT AND SESSIONS JUDGE, TUMAKURU IN
SPL.CASE NO.63/2009 CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d)
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CRL.A No. 1382 of 2012
R/W SECTION 13(2) OF PREVENTION OF CORRUPTION ACT,
1988.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondent.
2. This appeal is filed against the order of conviction
and sentence passed in Special Case No.63/2009, on the file
of the II Additional District and Sessions Judge, Tumkur,
sentencing the accused to undergo rigorous imprisonment for
one year and to pay fine of Rs.5,000/- and in default to
undergo further imprisonment for three months for the
offence punishable under Section 7 of the Prevention of
Corruption Act ('PC Act' for short). The accused was also
sentenced to undergo rigorous imprisonment for three years
with fine of Rs.5,000/- and in default to undergo further
imprisonment for three months for the offence punishable
under Section 3(1)(d) punishable under Section 13(2) of the
PC Act.
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3. The factual matrix of the case of the prosecution is
that P.W.6 had constructed a cowshed in his land and for the
purpose of getting electric connection, he required NOC and
in this regard, application was given on 10.04.2008 to the
Nada Kacheri and the accused who was working as Village
Accountant demanded bride of Rs.2,000/- and the same was
informed to his son i.e., P.W.3 and complaint was given.
Based on the complaint, the case was registered and pre-trap
mahazar was drawn in terms of Ex.P.3 and also conducted
the trap in terms of Ex.P.4 and the bait money was seized at
the instance of the accused. In this regard, mahazar was
conducted in terms of Ex.P.5 and 13 photographs with
negatives were marked as Ex.P.6. The statement of P.W.6,
since he had turned hostile, was marked in terms of Ex.P.7.
FSL report was marked as per Ex.P.11 and sanction order
Ex.P.12 are marked to substantiate the case of the
prosecution. The prosecution also relied upon M.O.1 to
M.O.8, i.e., hand wash solution of Manjunath, sample sodium
carbonate solution, right and left hand wash of the accused,
shirt pocket wash of the accused, cash of Rs.2,000/-, shirt of
the accused and seized documents. The Trial Court having
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considered the evidence of the prosecution witnesses P.W.1
to P.W.8, relied upon the evidence of P.Ws.3, 4, 6 and the
evidence of the Investigating Officer and convicted the
accused for the above offences.
4. Being aggrieved by the said order, the present
appeal is filed before this Court.
5. The learned counsel for the appellant would
vehemently contend that first of all there is no any demand.
The learned counsel contend that the Court below ought not
to have acted on the testimony of P.Ws.1, 3, 4, 5, 6 and 8
and contend that P.W.3, who is the son of the owner of the
cowshed i.e., P.W.6, both of them have not supported the
case of the prosecution with regard to the demand and
acceptance is concerned. The learned counsel contend that
P.W.3 has not supported the case of the prosecution deposing
before the Court that the accused has not demanded any
money, but only he says that he gave signal and the police
came and subjected for hand wash of left and right hand of
the accused and seized the solution and also shirt pocket was
subjected to wash and the same was also seized, since it
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turned to pink colour. He speaks with regard to the seizure is
concerned, but with regard to demand is concerned, he has
not supported the case of the prosecution. This witness was
not treated as hostile by the prosecution. In the cross-
examination, he categorically admits that he went alone to
the office of the accused and he does not know anything
about the contents of the complaint and also he does not
know who wrote the complaint and the police have not
recorded the statement and all these answers elicited were
not properly appreciated by the Trial Court. He admits that
when the amount was demanded at the time of seeking NOC,
he did not make any statement before the police to the effect
that his father had told him and also he does not know about
the contents of Exs.P.3 and 5. The learned counsel contend
that even the evidence of P.W.4 shadow witness also does not
inspire the confidence of the Court. In the cross-examination,
he admits that no demand was made, but says that a signal
was given. He also not speaks about the demand and in the
absence of demand, the question of convicting the accused
for the offence punishable under Section 7 of the PC Act does
not arise. P.W.4 says that print was taken at Tumkur, but
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says that Ex.P.5 was drawn in the office of the Revenue
Inspector. The learned counsel contend that P.W.8
categorically admits that there was a disruption of electricity
and hence mahazar was drawn in the office of Grama
Panchayat and not in Revenue Inspector office. All these
discrepancies were found and merely because the bait money
was recovered at the instance of the accused, the same
cannot be a ground to convict the accused. The evidence of
prosecution witnesses not inspires the confidence of the Court
to invoke Sections 7 and 13 of the PC Act.
6. The learned counsel for the appellant in support of
his arguments relied upon the judgment of the Apex Court in
the case of SURAJ MAL v. STATE (DELHI
ADMINISTRATION) reported in (1979) 4 SCC 725 and
contend that mere recovery of bribe money divorced from the
circumstances under which it was paid is not sufficient to
convict when the substantive evidence in the case was not
reliable and case not proved beyond reasonable doubt.
7. Per contra, the learned counsel for the respondent
would contend that though P.W.3 not supported the case of
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the prosecution with regard to the demand and he was not
treated as hostile, the evidence of P.W.4 shadow witness, is
clear with regard to trap is concerned. P.W.4 is also a witness
to the trap mahazar as well as entrustment mahazar and he
categorically deposed that he was called to the Lokayuktha
office and the complainant handed over the bait money and
mahazar was drawn in terms of Ex.P.3. He says that he
accompanied the complainant to the office of the accused and
when the complainant demanded the accused to give NOC,
the accused enquired whether he had brought the money and
at that time, the complainant gave money, which was kept in
his pocket to the accused and the accused received the same
and kept it in his pocket and immediately the Lokayuktha
police, on signal came and conducted the trap and seized the
bait money and mahazar was drawn. The learned counsel
submits that nothing is elicited in the cross-examination of
P.W.4 to disbelieve the case of the prosecution. The learned
counsel contend that even P.W.6 turned hostile and he also
says that the accused demanded Rs.2,000/- to give NOC.
8. The other witness is P.W.7 and in his presence the
records are seized and mahazar was drawn in terms of
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Ex.P.5. The learned counsel contend that the evidence of the
Police Inspector who conducted the trap and investigated the
matter, is clear, but nothing is elicited in the cross-
examination of P.W.8 with regard to the trap as well as
seizure and though enmity was suggested, the same was
denied and hence the Trial Court rightly considered the
material on record.
9. The learned counsel for the respondent in support
of his arguments relied upon the judgment of the Apex Court
in the case of NEERAJ DUTTA v. STATE (GOVT. OF NCT OF
DELHI) reported in AIR Online 2022 SC 1160 and brought
to the notice of this Court paragraph No.68, wherein it is held
that presumption in law under Section 20 of the PC Act is
distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter
is discretionary in nature. The learned counsel also brought
to the notice of this Court paragraph No.69, wherein it is held
that 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 and P. Satyanarayana
Murthy with the three judge Bench decision in M. Narasinga
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Rao, with regard to the nature and quality of proof necessary
to sustain a conviction for offences under Section 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.
10. The learned counsel referring this judgment would
contend that in case if the complainant passed away or if the
complainant turned hostile, the Court has to take note of the
entire material available on record and in view of the
judgment of the Apex Court in the case of Neeraj Dutta
(supra), the contention of the learned counsel for the
appellant cannot be accepted.
11. The learned counsel also relied upon the decision
of this Court passed in Crl.A.No.289/2012 c/w
Crl.A.No.266/2012 dated 25.02.2025 and brought to the
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notice of this Court that this Court relying upon the judgment
in the case of Neeraj Dutta (supra), allowed the appeal in
part setting aside the judgment with regard to the demand is
concerned, but confirmed the judgment for the offence
punishable under Section 13(1)(d) of the PC Act and modified
the sentence. The learned counsel relying upon this
judgment would contend that the Court has to take note of
the entire evidence available on record and confirm the
judgment.
12. Having heard the learned counsel for the appellant
and the learned counsel for the respondent and considering
the principles laid down in the judgments referred supra by
the learned counsel for the appellant and the learned counsel
for the respondent, the points that arise for the consideration
of this Court are:
(i) Whether the Trial Court committed an error
in convicting the accused for the offence
punishable under Sections 7 and 13(1)(d)
read with 13(2) of the PC Act and whether it
requires interference of this Court?
(ii) What order?
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Point No.(i):
13. Having heard the learned counsel for the appellant
and the learned counsel for the respondent, the case of the
prosecution in nutshell is that P.W.6, who is the father of
P.W.3 had constructed a cowshed and in order to take the
electricity connection he made an application with the
accused office to issue NOC and when he went and met the
accused, he demanded illegal gratification of Rs.2,000/- from
the complainant. Hence, he informed the same to his son
P.W.3 and complaint was lodged in terms of Ex.P.2 and
entrustment mahazar was done in the office of the
Lokayuktha. Thereafter, P.W.3 and P.W.4 went to the office
of the accused and the accused demanded money and the
complainant gave money in the presence of P.W.4 and trap
was laid and mahazar was drawn and to that effect, exhibit 'P'
series are marked before the Court. The seized articles were
sent to the FSL and FSL report was received in terms of
Ex.P.11. Before filing the charge-sheet, sanction is obtained
and with regard to sanction, P.W.1 is examined.
14. Now, this Court has to consider the evidence
available on record whether the Trial Court has properly
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appreciated the evidence on record. Having considered the
evidence on record, P.W.1 is the sanctioning authority and he
gave sanction stating that he had perused the records and
given the sanction and he admits that he did not put the seal
on Ex.P.12. He also admits that there is a correction in
respect of date i.e., 26.03.2009 as corrected in page No.12
and he did not counter sign the same.
15. The other witness is P.W.2 and he only drawn the
mahazar in terms of Ex.P.1 sketch and he admits that he
prepared the sketch in his office based on the notes and draft
sketch.
16. P.W.3 is the material witness since he is the son of
the owner of the cowshed. He says that his father told him
that the accused demanded an amount of Rs.2,000/- and
hence he had lodged a complaint in terms of Ex.P.2 and also
he gave Rs.2,000/-, 4 notes of denomination of Rs.500/- and
he says that phenolphthalein powder was smeared on those
notes. Thereafter, notes were given to him and entrustment
mahazar was drawn in terms of Ex.P.3 and he had signed the
same in the Lokayuktha Office. He says that they went to the
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office of the accused and he demanded NOC from the accused
and the accused gave NOC, but he says that the accused did
not demand money from him. He says that he gave signal
and subjected for trap mahazar and money was seized from
the accused. This witness was not treated as hostile as
contended by the learned counsel for the complainant, since
this witness not speaks about the demand and demand was
made to the father of the complainant and with regard to the
demand is concerned also, hearsay evidence. In his evidence
he categorically says that the accused did not make any
demand and when he asked the NOC, the accused gave NOC.
It is important to note that though he has not turned hostile,
but the learned counsel for the accused cross-examined this
witness.
17. In the cross-examination of P.W.3, he says that he
went alone to the office of the accused and he does not know
the contents of the complaint and did not know who has
written the complaint. He says that he has not given any
statement before the police and also he did not inform the
police about the demand made by the accused to his father
and he cannot tell the contents of Ex.P.3. Having taken note
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of the evidence of P.W.3, regarding demand is concerned,
nothing is on record. But with regard to seizure is concerned,
he speaks about the same. In the cross-examination,
answers are elicited that he went alone to the office of the
accused. But P.W.4 says that he went along with P.W.3 and
in chief evidence he says that when the complainant asked
about NOC, the accused enquired whether he had brought the
money and hence the complainant gave the money, which
was kept in his pocket to the accused and the accused
received the same and kept in his pocket. He also speaks
about remaining procedure conducted by the Lokayuktha
police. But in the cross-examination, he admits that he
himself and P.W.3 went to the office of Nada Kacheri and
some other persons were standing and he was unable to see
them. When a suggestion was made that the accused did not
make any demand, he says that he gave signal, but not says
anything about the demand made by the accused. With
regard to remaining procedure is concerned, he denied the
suggestion. He says that printout was taken in respect of
Ex.P.5 at Tumkur, but the same was drawn in the office of
R.I. In further cross-examination, he says that photographs
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were taken and he cannot tell that in which camera the same
was taken.
18. P.W.6 is the material witness i.e., father of P.W.3
and owner of the cowshed. He says demand was made to the
tune of Rs.2,000/- and he informed the same to his son and
he came to know that the police arrested the accused. But in
the cross-examination, he admits that he did not make any
statement with the police regarding demanding of Rs.2,000/-.
He says that he gave an application to the office of the
accused.
19. P.W.7 speaks with regard to the seizure of the
register and taking of xerox copy and drawing of mahazar in
terms of Ex.P.5.
20. P.W.8 material witness speaks about receiving of
complaint and FIR was forwarded to the Court and secured
the panch witnesses and informed about the case details and
procedure was made. In his chief evidence, he says that in
the office of the accused there was no electricity and hence
Ex.P.4 was prepared in the office of Grama Panchayat and the
accused produced the documents. In the cross-examination, a
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suggestion was made that no such procedure was conducted
and the same was denied. With regard to enmity, a
suggestion was made and the same was denied.
21. Having considered the evidence available on
record, particularly when Sections 7 and 13 of the PC Act are
invoked against the accused, the demand and acceptance is a
sina quo non to invoke the offence under Sections 7 and 13 of
the PC Act. No doubt, in the judgment relied upon by the
learned counsel for the appellant in the case of Suraj Mal
(supra), it is held in 1979 itself that mere recovery of bribe
money divorced from the circumstances under which it was
paid is not sufficient to convict when the substantive evidence
in the case was not reliable and case not proved beyond
reasonable doubt.
22. As against this judgment, the learned counsel for
the respondent relied upon the judgment of the Apex Court in
the case of NEERAJ DUTTA (supra) and brought to the
notice of this Court paragraph No.68, wherein discussion was
made with regard to proof of demand and acceptance of
illegal gratification by a public servant as a fact in issue by
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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. It is also observed that 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. It is also observed that 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. The Apex
Court also discussed that in both cases of without demand
and an offer and was accepted and 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 order to
invoke Section 13(1)(d) (i) and (ii) of the Act. Having
considered both of them, the Apex Court held that the offer
by the bribe giver and demand by the public servant
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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 Section 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. 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. 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. A detailed discussion was
made in paragraph No.68(g) and (h) and in paragraph No.69
sum up the case after discussion with regard to invoking of
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Sections 7 and 13(1)(d) (i) and (ii) of the Act i.e., primary
evidence of the complainant if it is unavailable and position of
law when a complainant or prosecution witness turns hostile
is also discussed.
23. Keeping in view the judgment of the Apex Court as
well as followed by this Court in other connected appeal, this
Court has to examine the material on record. Having
considered the evidence on record, first of all, to whom a
demand was made by the accused at the first instance i.e.
P.W.6, though he has been examined before the Court, he
turned hostile and he was cross-examined and he did not
support the case of the prosecution. The prosecution also
relies upon the evidence of P.W.3 and P.W.3 is only a hearsay
evidence. He deposed before the Court that the accused did
not demand any money and when he asked the NOC, the
same was given. Having considered the cross-examination
and the answers elicited from the mouth of P.W.3, not suffice
with regard to the demand is concerned.
24. The other witness is P.W.4, who is a shadow
witness. P.W.3 says that he went alone to the office of the
accused, but P.W.4 says that he went along with the
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complainant. In his chief evidence, he says that when P.W.3
asked about the NOC, the accused demanded money and
hence the complainant gave money, which was kept in his
pocket. In the cross-examination, when a question was put
to him that the accused did not make any demand, he says
that he only gave the signal. The answer elicited from the
mouth of P.W.4 is contrary to his own chief evidence. In his
chief evidence, he says that the accused demanded money,
but in the cross-examination he says that he gave signal.
When such being the case, the very demand is doubtful and it
is settled law that fact in issue with regard to demand, there
must be foundational evidence before the Court as observed
by the Apex Court in Neeraj Dutta's case.
25. The learned counsel for the respondent brought to
the notice of this Court the discussion made in paragraph
No.68 in the case of Neeraj Dutta (supra). In paragraph
No.68(d)(i), discussion is made with regard to the offer is
concerned. Here is not a case of offer and acceptance, but
the case of demand according to P.W.6, but he turned hostile.
P.W.3 also turned hostile, who is the son of P.W.6. P.W.6
also not given any complaint, but he only gave information to
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his son and his son gave the complaint. In paragraph
No.68(d)(iii), the Apex Court made it clear that, in other
words, mere acceptance or receipt of an illegal gratification
without anything more would not make it an offence under
Section 7 or Section 13(1)(d), (i) or (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. In paragraph No.68(e), it is
held that the presumption of fact with regard to 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.
26. Having taken note of the said fact into
consideration, no foundational facts have been proved by the
prosecution. The very complainant as well as his father, who
says about the demand, not supported the case of the
prosecution and even the evidence of the shadow witness also
not credible. Once he says that in his presence demand was
made and again says that only signal was given. The
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evidence of P.W.4 not inspires the confidence of the Court
with regard to the demand is concerned. With regard to
acceptance is concerned, no doubt, P.W.3 says that he gave
the signal, but once he says that the accused has not
demanded any money from him and when he asked NOC, he
gave NOC. What made him to give signal is doubtful and also
the answers elicited from the mouth of P.W.3 with regard to
the seizure of money at the instance of the accused. No
doubt, FSL report supports the case of the prosecution and
mere recovery of bait money from the accused is not enough
to convict the accused.
27. The learned counsel for the respondent brought to
the notice of this Court the judgment in the case of Neeraj
Dutta (supra) and in that judgment it is discussed that even
if the complainant is no more, other evidence could be taken
note of. In the case on hand, even considering the other
evidence also, I have already pointed out that the evidence of
P.W.4 is not credible with regard to the very demand. No
doubt, the amount was recovered at the instance of the
accused and mere recovery of bribe money at the instance of
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the accused is not enough to convict the accused, unless
demand is proved and the complainant and the complainant's
father, who makes the allegation of demand have not
supported the case of the prosecution. With regard to
acceptance is concerned, an application was pending in the
office of the accused. P.W.8 Investigating Officer says that
mahazar was drawn in the Grama Panchayat office, since
there was interruption of electricity and nothing is elicited in
the cross-examination of P.W.8 with regard to drawing of trap
mahazar is concerned. The evidence of main witnesses
P.Ws.3, 4 and 6 is not credible. Only on the basis of the
evidence of P.W.8, there cannot be any conviction and hence
the Trial Court committed an error in passing the impugned
order of conviction relying upon the evidence of P.Ws.3, 4 and
7 arriving for a conclusion of proving of the fact in issue by
the prosecution.
28. The Trial Court in paragraph No.34 comes to the
conclusion that the prosecution case get the support from the
evidence of shadow witness i.e., P.W.4 G.R.Manjunath. He is
very definite in his evidence that when he and the
complainant went inside the office of the accused, he
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enquired about the money and after the complainant gave the
money, he took it and kept it in his shirt pocket. But the Trial
Court fails to take note of the specific answer given by P.W.4
that he gave signal and not made any demand. This answer
elicited from the mouth of P.W.4 was not discussed by the
Trial Court while coming to the conclusion that the evidence
of P.W.4 is credible. The Trial Court mainly relies upon the
seizure of bait money that chemical report gives positive
result with regard to the hand wash and fails to take note of
mere recovery of bait money is not sufficient to convict the
accused and also fails to take note of the contra evidence of
P.W.3. P.W.3 says that he went alone to the office of the
accused, but P.W.4 says that he went along with the
complainant. P.W.4 shadow witness not speaks anything
about demand and acceptance, but in chief evidence he only
says that the accused demanded the money. In the cross-
examination, he says that he only gave signal and there was
no any demand. When such weak piece of evidence was
relied upon by the Lokayuktha police, the Trial Court
committed an error in convicting the accused and hence the
very reasoning given by the Trial Court that the prosecution
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has proved the case, requires interference when the evidence
on record not sufficient to convict the accused. Hence, I
answer the point in the affirmative.
Point No.(ii):
29. In view of the discussions made above, I pass the
following:
ORDER
(i) The criminal appeal is allowed.
(ii) The impugned judgment of the Trial Court
convicting the accused for the offences
punishable under Sections 7 and 13(1)(d)
read with 13(2) of the PC Act is set aside.
(iii) The fine amount, if any, deposited by the
appellant, is ordered to be refunded in
favour of the appellant, on proper
identification, since the original accused is
no more and wife has come on record.
Sd/-
(H.P.SANDESH)
JUDGE
MD
