Karnataka High Court
K K Subbaiah vs State Of Karnataka on 24 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:12325
CRL.A No. 769 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.769 OF 2011
BETWEEN:
1. K.K.SUBBAIAH,
S/O KUNDARAMASTRI,
AGED ABOUT 50 YEARS,
PRESIDENT,
HARADOOR GRAMA PANCHYATH,
SOMWARPET TALUK,
KODAGU DISTRICT.
...APPELLANT
(BY SRI. NITIN RAMESH, AMICUS CURIAE)
AND:
1. STATE OF KARNATAKA,
BY LOKAYUKTHA POLICE,
Digitally signed
by DEVIKA M REP. BY SPL. PUBLIC PROSECUTOR,
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. B.S.PRASAD, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
28.06.2011 PASSED BY THE SESSIONS JUDGE, KODAGU AT
MADIKERI IN SPL.C.(CORRPN) NO.3/2004 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 7, 13(1)(d) AND 13(2) OF THE PREVENTION OF
CORRUPTION ACT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-2-
NC: 2025:KHC:12325
CRL.A No. 769 of 2011
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant appointed as
amicus curiae and the learned counsel for the respondent.
2. This appeal is filed against the judgment of
conviction passed in Special Case No.3/2004 convicting the
appellant/accused No.2 for the offences punishable under
Sections 7 and 13(1)(d) read with 13(2) of the Prevention of
Corruption Act ('PC Act' for short) sentencing the appellant for a
period of one year with fine of Rs.2,000/- for the offence
punishable under Section 7 of the PC Act and also imprisonment
for two years with fine of Rs.3,000/- for the offence punishable
under Sections 13(1)(d) read with 13(2) of the PC Act.
3. The factual matrix of the case of the prosecution
before the Trial Court against accused Nos.1 and 2 is that both
of them are working as Secretary and President, respectively in
Haradoor Grama Panchayat, Somwarpet Taluk, Kodagu District.
While discharging their duties, on 08.11.2001, with a common
intention they demanded illegal gratification of Rs.500/- from
P.W.1/Sri G.Vijaya to give licence to start liquor shop at
Hosatota within the limits of Haradoor Village Panchayat and
NC: 2025:KHC:12325
asked P.W.1 to pay the said amount on 09.11.2001. In
pursuance of the said demand, raid was conducted on
13.11.2001 at 12.20 p.m. and the accused had received illegal
gratification of Rs.500/- in their office. Hence, both of them
have committed the offence under Section 7 of the PC Act. The
charges against both of them is that with a common intention
both of them have abused their position as such public servant
in discharging their duties and accused No.2 accepted the illegal
gratification and both of them committed the offence under
Sections 13(1)(d) read with 13(2) of the PC Act.
4. The Lokayuktha police conducted the trap based on
the complaint and investigated the matter and filed the charge-
sheet. The accused persons were secured before the Trial Court
and both of them pleaded not guilty and hence the prosecution
examined P.W.1 to P.W.14 and got marked the documents at
Exs.P.1 to 23. The prosecution also relied upon M.O.1 to M.O.9.
On the other hand, defence have not led any defence, however
got marked the document of Ex.D.1. The Trial Court having
considered the material on record and since the complainant
turned hostile against accused No.1 and having assessed the
evidence of P.W.1 and P.W.2 and other witnesses including the
Investigating Officer, acquitted accused No.1 and convicted
NC: 2025:KHC:12325
accused No.2 that he had accepted the money and there was a
demand and sentenced him to undergo imprisonment for a
period of one year with fine of Rs.2,000/- for the offence
punishable under Section 7 of the PC Act and sentenced to
undergo imprisonment for a period of two years with fine of
Rs.3,000/- for the offence punishable under Sections 13(1)(d)
and 13(2) of the PC Act.
5. Being aggrieved by the said judgment of conviction
and sentence, the present appeal is filed by accused
No.2/appellant herein before this Court.
6. The learned counsel for the appellant would
vehemently contend that the very evidence of the complainant
cannot be looked into once he has turned hostile in respect of
accused No.1 and he had even gone to the extent of denying the
complaint given by him in respect of both accused Nos.1 and 2.
The Trial Court ought to have given the benefit of doubt in
favour of accused No.2 also. The learned counsel contend that
the complaint was given on the demand dated 08.11.2001 that
both the accused persons demanded illegal gratification and that
is the allegation made by the complainant. It is the case of the
prosecution that the complainant went to the Lokayuktha police
NC: 2025:KHC:12325
on 09.11.2001 and entrustment mahazar was made and trap
was not conducted on that day and hence again on 12.11.2001
also entrustment mahazar was made in terms of Ex.P.3 and
could not conduct the trap as the accused persons were not
there in the office and the trap was conducted on 13.11.2001.
The learned counsel for the appellant would contend that there
was no any entrustment mahazar on the date of trap. The
learned counsel contend that there was a motive to lodge the
complaint. Admittedly, the complaint was prepared by one Sri
Laxmana and the said Laxmana was having ill-will against the
appellant, since no confidence motion was moved against him
and the same is emerged in the evidence.
7. The learned counsel contend that even in the
evidence of P.W.3 shadow witness, he do not speak anything
about demand and only he speaks about the complainant and
accused No.2 talked to each other and amount was given. The
prosecution relies upon the evidence of P.W.3, who is the Bill
Collector and in his evidence he says that the complainant came
and both the complainant and the accused went outside and
when them came inside, the Lokayuktha police came and
subjected the accused for hand wash. The learned counsel
contend that the evidence of P.W.2, who turned hostile, is not
NC: 2025:KHC:12325
credible. P.W.2 in his evidence not speaks anything about
demand. The evidence of P.W.3 is contrary to the evidence of
P.W.2. When the sanctioning authority was examined before
the Court, he categorically says that the Minister is the
competent authority to give sanction, but admits that he gave
the sanction and the same is invalid sanction and the same is
not issued by the Minister. The learned counsel referring these
materials on record would contend that the very finding of the
Trial Court is erroneous. The learned counsel contend that the
evidence of P.W.14 also not inspires the confidence of the Court
to convict the appellant invoking the offence under Sections 7
and 13(1)(d) read with 13(2) of the PC Act.
8. The learned counsel in support of his arguments
relied upon the judgment of the Apex Court in the case of
MANSUKHLAL VITHALDAS CHAUHAN v. STATE OF
GUJARAT reported in (1997) 7 SCC 622 with regard to
sanction is concerned and brought to the notice of this Court
paragraph No.17, wherein discussion was made that the grant of
sanction is not an idle formality or an acrimonious exercise but a
solemn and sacrosanct act which affords protection to
government servants against frivolous prosecutions. The
learned counsel also brought to the notice of this Court
NC: 2025:KHC:12325
paragraph No.18, wherein discussion is made that the order of
sanction must ex facie disclose that the sanctioning authority
had considered the evidence and other material placed before it.
This fact can also be established by extrinsic evidence by placing
the relevant files before the Court to show that all relevant facts
were considered by the sanctioning authority. The learned
counsel also brought to the notice of this Court paragraph
No.19, wherein discussion is made that since the validity of
"sanction" depends on the applicability of mind by the
sanctioning authority to the facts of the case as also the
material and evidence collected during investigation, it
necessarily follows that the sanctioning authority has to apply its
own independent mind for the generation of genuine satisfaction
whether prosecution has to be sanctioned or not. The learned
counsel referring this judgment would contend that there was no
proper sanction and apart from that, no application of mind.
9. The learned counsel also relied upon the judgment of
the Apex Court in the case of CENTRAL BUREAU OF
INVESTIGATION v. ASHOK KUMAR AGGARWAL reported in
(2014) 14 SCC 295 and brought to the notice of this Court
paragraph No.17, wherein it is held that we do not find force in
the submissions advanced by the learned ASG that the
NC: 2025:KHC:12325
competent authority can delegate its power to some other
officer or authority, or the Hon'ble Minister could grant sanction
even on the basis of the report of the SP.
10. The learned counsel also relied upon the judgment of
this Court in the case of M.SIDDALINGAYYA v. STATE
THROUGH KARNATAKA LOKAYUKTA POLICE, BANGALORE
reported in 2013 SCC Online Kar 10542 and brought to the
notice of this Court paragraph No.10, wherein discussion is
made that on the face of it, the order does not indicate that the
authority was competent to issue such an order. The very
author of the sanction order having been examined as P.W.24
has categorically admitted that he was not competent to do so.
The learned counsel referring this judgment would contend that
P.W.9 has admitted that the competent authority is the Minister.
11. The learned counsel also relied upon the judgment of
this Court in the case of J.S. SATHYANARAYANA
(DECEASED) BY LRS. AND ANOTHER v. STATE BY
INSPECTOR OF POLICE, KARNATAKA, LOKAYUKTA,
MADIKERI reported in 2000 SCC Online Kar 340, wherein
discussion was made in paragraph No.10 that though authority
is given to issue the notification under rules of business to
NC: 2025:KHC:12325
delegate the powers and that is only for authorization to issue
the orders and not to sanction the same.
12. The learned counsel also relied upon the judgment of
this Court in the case of MALLIKARJUNA AND OTHERS v.
THE STATE OF KARNATAKA reported in 2017 (1) AKR 720
and brought to the notice of this Court paragraph No.10,
wherein discussion was made with regard to non-examining the
scribe to Ex.P.39 is also an important suspicion that would
render the case of the prosecution to be fatal. The learned
counsel referring this judgment would contend that the material
emerges during the course of evidence that the person who
drafted the complaint was having enmity against the accused,
since he had moved the no confidence motion against the scribe
of the complaint and hence motive is also proved for having
registered the case against this appellant and hence prays this
Court to acquit the appellant.
13. Per contra, the learned counsel for the respondent
would contend that in the case on hand there was an earlier
demand and the same was spoken by P.W.1 that accused Nos.1
and 2 had demanded Rs.500/- to issue the licence. P.W.1
though not supported the case against accused No.1, the same
- 10 -
NC: 2025:KHC:12325
is not fatal. But he categorically deposes against this appellant.
The learned counsel contend that FSL report is clear that the
appellant/accused had accepted the money and the same was
seized at the instance of the accused and all formalities of trap
mahazar were conducted and seized the liquid which turned to
pink colour. The learned counsel contend that even in the
absence of direct evidence, the Court can take note of chain of
circumstances and the same has not been rebutted by the
accused during the course of cross-examination of the
prosecution witnesses. The learned counsel contend that on the
date of trap, even though not made any entrustment mahazar,
the same cannot be a ground to acquit the accused. The very
same notes given to the complainant in the earlier entrustment
mahazar were used for trapping the accused and again
conducting the entrustment mahazar on the date of trap is not
necessary and the same is not fatal to the case of the
prosecution. The learned counsel contend that there was no
enmity and nothing is elicited from the mouth of witnesses to
trap the accused. The learned counsel contend that the
evidence of the Investigating Officer is consistent with regard to
the trap is concerned and also giving of complaint. Based on
the complaint, trap was conducted and there are ample material
- 11 -
NC: 2025:KHC:12325
to come to the conclusion that there was a demand and
acceptance.
14. The learned counsel 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, wherein detailed
discussion was made with regard to four circumstances
regarding demand, particularly earlier demand and even though
there was no demand, voluntarily accepting the amount and it is
held that it attracts Sections 7 and 13(1)(d) read with 13(2) of
the PC Act. The learned counsel referring this judgment would
contend that the Trial Court has not committed any error in
convicting the accused and hence it does not require
interference of this Court.
15. Having heard the learned counsel for the appellant
i.e., amicus curiae and the learned counsel for the respondent
and also on perusal of the material available on record and
considering the principles laid down in the judgments referred
supra by both the learned counsel, the points that arise for the
consideration of this Court are:
- 12 -
NC: 2025:KHC:12325
(i) Whether the Trial Court committed an error in
convicting the appellant, who has been
arrayed as accused No.2 for the offences
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?
Point No.(i):
16. Having heard the learned counsel for the respective
parties and on perusal of the material on record, the evidence of
P.W.1 is partly hostile and only he gave evidence against the
appellant and turned hostile in respect of accused No.1. The
Trial Court having assessed the evidence on record, acquitted
accused No.1 and convicted this appellant having relied upon
the evidence of P.W.1. P.W.1 even gone to the extent of saying
that he do not know the name of the Secretary of Panchayat
i.e., accused No.1, but he identifies him before the Court as
Secretary and says that accused No.2 demanded bribe from him
and he was not having any intention to give bribe and hence
gave the complaint. He categorically says that he got the
complaint written by one Laxmana, his neighbour and presented
the same to the Lokayuktha police. He identified Ex.P.1
complaint and also identifies his signature. He says that he
- 13 -
NC: 2025:KHC:12325
gave Rs.500/- to the Lokayuktha police and conducted the
entrustment mahazar in terms of Ex.P.2 and it was not
successful and hence went to the Lokayuktha office since both
the accused were not present and he returned the amount to
the Police Station. It is his evidence that on the next day once
again entrustment mahazar was made in terms of Ex.P.3 and
again they went to the office of the accused and on that day
also both the accused were absent and hence they returned to
the Lokayuktha office. Even on that day also another writing
was prepared as per Ex.P.4 and he identifies his signature and
the raiding party was present when he signed Ex.P.4.
17. It is also his evidence that on 13.11.2001, he went
to the Lokayuktha office at 12.30 p.m. and from there the
raiding party went to the Panchayat office. On that day the
President of the Panchayat was present in the Panchayat office
and he asked whether he had brought the money and he told
him that he brought the money and gave the money.
Immediately, he gave signal and the Lokayuktha Police came
and conducted the trap mahazar. He says that the accused
received money and kept the same in his shirt pocket and the
accused was subjected for hand wash and the same turned to
pink colour. He says that he has not lodged any complaint
- 14 -
NC: 2025:KHC:12325
against accused No.1, but the police have recorded the
statement. When he turned hostile, a suggestion was made
that both the accused demanded bribe of Rs.500/- from him to
consider his application and the same was denied. However, he
admits that accused No.2 directed the clerk Ravi Kumar to write
the licence and to give it to him and further admits that left
hand wash of the accused which did not turn to pink colour was
also collected in a bottle and sealed. He admits that when the
Inspector questioned the accused he told that he has repaid the
loan amount to him, which he denied and his shirt was also
seized. The shirt pocket of the accused was dipped in the
solution and the solution turned to pink colour.
18. P.W.1 in his further cross-examination admits that
the complaint Ex.P.1 was written to his dictation and after that it
was read over to him and he signed the same. He admits that
Laxmana is an educated person and complaint was written in his
house and he gave paper to write the complaint. He says that
Laxmana did not accompany him to the Lokayuktha office, but
he had lodged the complaint written by Laxmana. In the cross-
examination he has gone to the extent of denying the contents
of Ex.P.1 saying that he do not know the contents of Ex.P.1 and
also he do not know why the name of accused No.1 was written
- 15 -
NC: 2025:KHC:12325
in the complaint. He says that the complaint was not read over
to him and he did not see accused No.1 Appayya on 08.11.2001.
He did not know the contents of Exs.P.2 to 5 and nobody has
read over to him the contents of Exs.P.2 to 5. The evidence of
P.W.1 is nothing but denying the contents of Exs.P.2 to 5 and
though he made an attempt to save accused No.1, he gone to
the extent of denying the contents of Ex.P.1. In one breath he
says that the contents of Ex.P.1 was read over to him and
thereafter only he has signed the same and in another breath
says that the same was not read over to him. When such
evidence was given by P.W.1, the Trial Court ought to have
taken note of the said evidence. Even when the learned counsel
for accused No.2 cross-examined him he says that he do not
know whether there was no confidence motion in 2001 against
accused No.2 Subbaiah. But he categorically says that accused
No.2 became a member of Panchayat from Congress party. He
says that he do not work for BJP, but votes for BJP. He admits
that he cannot say definitely where the bottles containing the
hand wash were seized and he cannot say where the contents of
the two covers were seized.
19. The other witness relied upon by the prosecution is
P.W.2 shadow witness. P.W.2 in his chief examination says that
- 16 -
NC: 2025:KHC:12325
he went to the Lokayuktha office on 09.11.2001 at 11.00 a.m.
on the instructions of his Senior officer and he speaks about
conducting of entrustment mahazar in terms of Exs.P.2, 3 and
4. He says that the accused persons were not there in the office
on both the occasions and trap was conducted on 13.11.2001
and mahazar was prepared and his signature was taken. He
says that the President of Panchayat was present when both of
them went to the office and President talked with Vijay and Vijay
told him that he has brought the amount and Vijay handed over
the money to the President. The President instructed the Bill
Collector to issue licence to Vijay and Vijay came out of the
office and gave signal as instructed. His evidence is that the
amount was collected in the presence of the Bill Collector and he
has not spoken anything about the demand but only both of
them talked to each other and the complainant only informed
that he brought money and the same was collected. He speaks
about the drawing of trap mahazar. In the cross-examination,
he says that he was standing behind Vijay in the Panchayat
office. He says that the accused and the complainant talked in
Kannada language, but he has not spoken anything what has
been transpired between both of them with regard to demand
and he has not spoken about the conversation between the
- 17 -
NC: 2025:KHC:12325
complainant and the accused and he only says that both of them
talked to each other. But according to him, P.W.3 was also
present who is the Bill Collector.
20. P.W.3 in his evidence says that Vijay and President
went outside the Panchayat office and talked with each other
and returned to the office. Having considered his evidence,
nothing happened in his presence. He says that when both of
them returned to the office, at that time, Lokayuktha police
came and held the hands of the President. The evidence of
P.W.3 is not in consonance with the evidence of P.W.2. In the
cross-examination, when a suggestion was made to P.W.3 that
accused received bribe amount of Rs.500/- from Vijay and kept
in his shirt pocket, the same was denied. He admits that 4 or 5
months prior to the incident, there was no confidence motion in
the Panchayat for removing accused No.2 from the
Presidentship.
21. The other witness is P.W.9, who is the sanctioning
authority who deposed before the Court that he was working as
Under Secretary to the Government. In his evidence he says
that the Minister of Rural Development and Panchayth Raj is the
competent authority for removing the President of a Grama
- 18 -
NC: 2025:KHC:12325
Pachayat. He says that after receiving a letter along with the
investigation report of this case, after going through the report,
as there was a prima facie case against accused No.2, they have
issued the sanction order as per Ex.P.18, but not says anything
about after the order passed by the Minister sanction was given.
In the cross-examination, he admits that there is a procedure
for appointment and removal of the President of the Panchayat.
The Grama Panchayat President does not come under the
category of Government servant. A suggestion was made that
he has no power to remove or appoint the President of the
Grama Panchayat and he denies the same as if he is the
sanctioning authority.
22. The other witness is P.W.14 Investigating Officer,
who conducted the trap and investigated the matter. He speaks
about giving of complaint in terms of Ex.P.1 and drawing of
entrustment mahazar in terms of Exs.P.2 to 4 and seizure of the
bribe money and recording of the statement of witnesses. In
the cross-examination, he says that the complainant had
brought the typed complaint and prior to filing the typed
complaint, he had not informed him about filing of the
complaint. He says that he did not enquire the complainant
whether the bribe is to be given to accused No.1 or accused
- 19 -
NC: 2025:KHC:12325
No.2. He says that he had sent the FIR to the Court. He says
that at the time of drawing entrustment mahazar, he has told
the complainant to give the bribe amount to either of the
accused. On his instructions only the complainant had brought
the money and he admits that in Ex.P.1 complaint, the
complainant has mentioned that he has furnished bribe money
of Rs.500/- along with the complaint. He admits that the
complainant is the resident of Gargandoor Village of Somwarpet
Taluk and the same is at a distance of 20-25 kms. from
Madikeri. He admits that he conducted the entrustment
mahazar on 12.11.2001 before going to the spot. He admits
that the same has not been mentioned in the entrustment
mahazar. He also admits that in the third entrustment mahazar,
there is no mention that the complainant is wearing the same
dresses and the powder smeared on the currency notes is intact.
He admits that he did not conduct the personal search of the
complainant. After returning to the Lokayuktha office, they
conducted the third entrustment mahazar. He admits that the
colour and identity of the said dress has not been mentioned in
the said mahazar. The complainant and the panchas were sent
back with the instruction to come on the next day on
13.11.2001. On 13.11.2001, the complainant and the panchas
- 20 -
NC: 2025:KHC:12325
came to the office and on the said day, he conducted the
personal search of the complainant and panchas. He admits
that the said fact has not been mentioned in the mahazar. He
further admits that on 13.11.2001, the entrustment mahazar
was not prepared in the Lokayuktha office.
23. Having considered the evidence available on record,
no doubt, the complainant gave the complaint in terms of Ex.P.1
as against accused Nos.1 and 2. I have already pointed out that
P.W.1/complainant has turned hostile in his evidence against
accused No.1 and also he made an attempt to save accused
No.1. He had even gone to the extent of denying the contents
of Ex.P.1 saying that he does not know the contents of Ex.P.1.
It is important to note that an attempt was made by P.W.1
saying that he has not given any complaint against accused
No.1, but identifies accused No.1 before the Court. He
categorically admits that he got the complaint written by one
Laxmana, his neighbour. It is emerged in his evidence that no
confidence motion was moved by this accused against Laxmana,
who was earlier member of the Panchayat. Hence, the learned
counsel contend that the complaint was written by Laxmana,
who has not been examined before the Court since there was a
motive and the fact that no confidence motion was moved by
- 21 -
NC: 2025:KHC:12325
the accused against Laxmana was spoken by P.W.3. It is
important to note that the evidence of P.W.1 is not consistent
with the evidence of P.W.2. I have already pointed out that
even though shadow witness has been examined before the
Court, he has not spoken anything about the demand. He says
that accused No.2 and the complainant talked to each other and
what was the conversation between them, there is no material
before the Court. Though in the complaint an allegation is made
against accused Nos.1 and 2, but subsequently P.W.1 turned
hostile against accused No.1. He deposes against accused No.2
and his evidence is not credible, since he himself says that he
does not know the contents of Ex.P.1 and he had even gone to
the extent of saying that the complaint was not read over to him
though once he says that complaint was read over to him and
thereafter only he signed the same. On the date of earlier
demand, an allegation was made against accused Nos.1 and 2,
but he says that he did not see accused No.1 on 08.11.2001 and
even he had not talked about accused No.1 pertaining to his
matter. Even he had gone to the extent of denying the contents
of Exs.P.2 to 5 and the same was not read over to him by
anybody.
- 22 -
NC: 2025:KHC:12325
24. I have already pointed out that the shadow witness
evidence is not consistent with the evidence of P.W.1 and P.W.3,
the other witness, according to the shadow witness, he was
present at the time of receiving money, but P.W.3 says that
both of them went outside and thereafter returned to the office
and Lokayuktha Police came and held the formalities of trap
mahazar. When such material is available on record, the
evidence of the prosecution not inspires the confidence of the
Court. It is important to note that the entrustment mahazar
was made on two dates in terms of Exs.P.2 to 4 and trap was
not conducted since accused Nos.1 and 2 were not there in the
office. The trap was conducted on 13.11.2001 and on that day,
no entrustment mahazar was conducted. The same was
admitted by P.W.14 Investigating Officer. The fact that both
raiding parties went to the office in the previous day and the
amount was entrusted to the Investigating Officer is not in
dispute. For having entrusted the amount to the complainant on
the date of trap, no material on record and there was no
separate entrustment on the date of trap and handing over the
bait money to the complainant and having delivered the same.
No doubt, FSL report discloses that the same is positive and the
FSL report only cannot be relied upon and even the evidence
- 23 -
NC: 2025:KHC:12325
placed before the Court says that there was an acceptance of
money and recovery of bribe money from the accused and that
cannot be only ground to convict the accused.
25. The learned counsel for the respondent brought to
the notice of this Court the judgment of the Apex Court in the
case of Neeraj Dutta (supra), wherein the Apex Court
discussed in detail regarding demand and acceptance is a sine
qua non to invoke Sections 7 and 13(1)(d) and 13(2) of the Act.
Even subsequent to Neeraj Dutta case also, the Apex Court in
the case of SOUNDARAJAN v. STATE REP. BY THE
INSPECTOR OF POLICE passed in Criminal Appeal
No.1592/2022 distinguished the earlier judgment of Neeraj
Dutta (supra). Hence, the very contention of the learned
counsel for the respondent that chain of circumstances has not
been rebutted cannot be accepted and the evidence of P.W.1 not
inspires the confidence of Court. He denies the contents of
Ex.P.1 complaint and Exs.P.2 to 5 entrustment mahazar and
also drawing of trap mahazar and though the same bribe money
was used for seizure and the same number of notes are used for
conducting of trap, the very contention of the learned counsel
for the respondent that as on the date of the trap, there was no
need of separate entrustment mahazar once again cannot be
- 24 -
NC: 2025:KHC:12325
accepted unless bait money is entrusted to the complainant to
hand over the same to the accused, the question of convicting
the accused as contended by the learned counsel for the
respondent cannot be accepted. It is emerged during the course
of evidence that there was no confidence motion and the same
was spoken by P.W.3 and the scribe of the document of
complaint indulged in such an act and when such material is
available on record with regard to the motive, it creates a doubt
in the case of prosecution. The Trial Court not discussed
anything about post entrustment mahazar on the date of trap
and when such being the case, the accused is entitled for the
benefit of acquittal in the absence of credible evidence and the
same has not been considered by the Trial Court while
considering the material on record. Hence, I answer the point in
the affirmative.
Point No.(ii):
26. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment of conviction and
sentence dated 28.06.2011 passed in Special
Case No.3/2004, is hereby set aside.
- 25 -
NC: 2025:KHC:12325
(iii) The appellant is acquitted for the offences
punishable under Sections 7 and 13(1)(d) read
with 13(2) of the PC Act
(iv) If any fine amount is deposited by the
appellant, the same is ordered to be refunded
in favour of the appellant, on proper
identification.
The Registry is directed to pay the fees of Rs.5,000/- to
the amicus curiae.
Sd/-
(H.P.SANDESH)
JUDGE
MD
