Karnataka High Court
Sri. Manjanna M.K vs The State Of Karnataka on 2 May, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2 nd
DAY OF MAY, 2025
R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.1562/2021
BETWEEN:
SRI. MANJANNA M.K.,
S/O KUMATEGOWDA,
AGED ABOUT 39 YEARS,
HEAD CONSTABLE 7878,
BAGALAGUNTE POLICE STATION,
BENGALURU TOWN POLICE,
R/AT NO.4, OMSAHKTI TEMPLE ROAD,
SANJEEVINI NAGARA,
HEGGANAHALLIL CROSS,
BENGALURU - 560 091. ... APPELLANT
(BY SRI. RAVI B. NAIK, SENIOR COUNSEL ALONG WITH
SMT. VIJETHA R. NAIK, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REP. BY POLICE INSPECTOR,
LOKAYUKTA POLICE, BENGALURU,
REP. BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
(AMENDED VIDE ORDER DATED 29.01.2025)
... RESPONDENT
(BY SRI. B.B.PATIL, SPECIAL PUBLIC PROSECUTOR)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
CONVICTION AND SENTENCE DATED 29.09.2021, PASSED BY
THE XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE (P.C.A) BENGALURU IN SPL.C.C.NO.383/2018,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 8 AND 13(1)(d) R/W 13(2) OF
PREVENTION OF CORRUPTION ACT, 1988 AND TO ACQUIT THE
APPELLANT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.04.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondent.
2. This appeal is filed challenging the judgment of
conviction and sentence dated 29.09.2021 passed in Special
C.C.No.383/2018 for the offences punishable under Sections 8,
13(1)(d) read with 13(2) of the Prevention of corruption Act ('PC
Act' for short), wherein the accused was imposed rigorous
imprisonment for a period of three years with fine of Rs.50,000/-
for the offence punishable under Section 8 of PC Act and four
years with fine of Rs.50,000/- 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 ACB is that the
accused is working as a Head Constable in Bagalagunte Police
Station. The Bagalagunte police have registered the case in
Crime No.238/2017 against the informant/P.W.2 and P.W.6
Arun. The accused and other two police officers on 15.06.2017
arrested P.W.2 and he was produced before the Court and he
was enlarged on bail vide order dated 17.06.2017. It is alleged
that the accused demanded the bribe of Rs.20,000/- from
P.W.2/informant to close the aforesaid case registered in Crime
No.238/2017. P.W.2 has recorded the said conversation
between himself and the accused to substantiate the demand of
bribe. P.W.2 had agreed to pay a sum of Rs.10,000/- to the
accused and also expressed his inability to make the payment of
Rs.20,000/- as demanded by the accused and complaint was
lodged and in pursuance of the said complaint, P.W.7 reduced
the statement into writing and registered the FIR in terms of
Ex.P.12 and trap was laid and tainted bribe amount of
Rs.10,000/- was recovered from the possession of the accused
and after trap panchanama, the matter was investigated and
charge-sheet was filed.
4. The accused was secured before the Trial Court and
he did not plead guilty and the prosecution examined P.W.1 to
P.W.10 and got marked the documents at Exs.P.1 to 45. The
material objects M.O.1 to M.O.11 were marked. The accused
was subjected to 313 statement and he did not choose to lead
any defence evidence. The Trial Court having considered the
evidence of the prosecution witnesses, comes to the conclusion
that demand and acceptance was proved and in Ex.P.28
chemical examination report, the presence of the
phenolphthalein is detected in both the right hand and left hand
finger washes of the AGO - Manjunath and also detected in
article Nos.3, 7 and 8 and comes to the conclusion that the
expert opinion in Ex.P.28 clearly substantiate the prosecution
case that the accused has received the tainted money with his
both hands. The Trial Court also taken note of the evidence of
P.W.10 Police Inspector, who deposed that during investigation
he has collected Ex.P.38 sketch of the place of the incident from
AEE and also he has collected P.W.11 CDR call details of the
P.W.2/informant and after obtaining prosecution sanction as per
Ex.P.1, filed the charge-sheet. The Trial Court taking into note
of the evidence of the complainant and shadow witnesses as well
as trap mahazar witnesses and convicted and sentenced the
accused.
5. Being aggrieved by the judgment of conviction and
sentence, the present appeal is filed before this Court.
6. The learned counsel for the appellant would
vehemently contend that the appellant was working as a Head
Constable. The learned counsel submits that a case was
registered against P.W.2 and P.W.6 and P.W.2 was arrested and
produced before the Court and later on released on bail. The
case of the prosecution is that the accused demanded an amount
of Rs.20,000/-, but it was settled for Rs.10,000/- and phone
conversation was recorded. The learned counsel contend that no
work was pending with the accused. P.W.1 is the sanctioning
authority and P.W.2 is the complainant and other witnesses were
also examined. The learned counsel contend that the phone
conversation has not been proved and no certificate is obtained
from the person who transcribed the conversation and there is
no compliance of Section 65B(4) of the Indian Evidence Act.
P.W.3 panch witness was turned hostile and P.W.4 is also the
panch witness and the evidence of these witnesses cannot be
relied upon. P.W.7 is the Dy.S.P. and P.W.8 is the Sub Inspector.
The learned counsel contend that the amount was kept in seal
and the accused was asked to remove the said money and
thereafter he was subjected to formalities of collecting of
phenolphthalein sodium carbonate water. The learned counsel
contend that the recovery is only an improvement and sodium
water will not tilt the case. The very case of the prosecution is
not proved beyond reasonable doubt and the benefit of doubt
goes in favour of the accused. The learned counsel contend that
when there was no official work pending with the accused, mere
recovery of money not amounts to an offence and the
ingredients of Sections 7 and 13 of the PC Act cannot be invoked
and there is no any demand and acceptance and the prosecution
has not proved the case.
7. The learned counsel for the appellant in support of
his arguments relied upon the judgment of the Apex Court in the
case of JAGTAR SINGH v. STATE OF PUNJAB reported in
2023 SCC Online SC 320. The learned counsel referring this
judgment would contend that 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. The learned counsel also brought to the notice of this
Court paragraph No.9, wherein it is held that proof of demand
and acceptance of illegal gratification by a public servant as a
fact in issue by 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. The prosecution has to first
prove the demand of illegal gratification and the subsequent
acceptance as a matter of fact in order to bring home the guilt of
the accused. This fact in issue can be proved either by direct
evidence which can be in the nature of oral evidence or
documentary evidence.
8. The learned counsel also relied upon the judgment of
the Apex Court in the case of K.SHANTHAMMA v. STATE OF
TELENAGANA reported in (2022) 4 SCC 574 and brought to
the notice of this Court the principles laid down in the judgment
in paragraph Nos.10 and 11, wherein discussion was made with
regard to the offence under Section 7 of the PC Act relating to
public servants taking bribe requires proof of demand of illegal
gratification and the acceptance thereof. The proof of demand of
bribe by a public servant and its acceptance by him is sine qua
non for establishing the offence under Section 7 of the PC Act. It
is also held that the very demand and acceptance appears to be
highly doubtful. P.W.1 is the only witness to the alleged demand
and acceptance by the appellant and P.W.1 did not state that the
appellant reiterated her demand at the time of trap. His version
is that on his own, he told her that he had brought the amount.
What is material is the cross-examination on this aspect. P.W.1
accepted that his version regarding the demand made by the
appellant on various dates was an improvement.
9. Per contra, the learned counsel for the respondent
would contend that Section 8 of the PC Act is very clear with
regard to the obtainment acceptance and agrees and attempt to
obtain the bribe amount. The fact that the complainant and
P.W.6 are accused in Crime No.238/2017 is not in dispute. It is
the case of the prosecution that the accused being the Head
Constable demanded money and conversation was recorded on
05.07.2017. The prosecution relies upon the evidence of P.W.2
and P.W. 6 i.e., the complainant and trap witness and the panch
witnesses spoken about collecting of money. The learned
counsel submits that in 313 statement, there is no explanation
by the accused and the evidence of P.Ws.2, 4, 6 and 8 is
consistent. P.W.11 is the expert of FSL and herevidence also
corroborates the case of the prosecution.
10. 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 (GOVERNMENT OF NCT OF
DELHI) reported in (2023) 4 SCC 731 and brought to the
notice of this Court paragraph No.68, wherein distinguishing a
presumption under Section 4(1) of the 1947 Act with a
presumption under Section 114 of the Evidence Act, it was
observed in Dhanvantrai Balwantrai Desai v. State of
Maharashtra reported in AIR 1964 SC 575 that a presumption
under Section 114 of the Evidence Act is discretionary in nature
inasmuch as it is open to the Court to draw or not to draw a
presumption as to the existence of one fact from the proof of
another fact. The burden resting on the accused is such a case
would not be as light as it is where a presumption is raised
under Section 114 of the Evidence Act and cannot be held to be
discharged merely by reason of the fact that the explanation
offered by the accused is reasonable and probable.
11. The learned counsel also brought to the notice of this
Court paragraph No.88.3 with regard to proof of demand and
acceptance of illegal gratification can also be proved by
circumstantial evidence in the absence of direct oral and
documentary evidence. In paragraph No.88.5 discussion was
made with regard to 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.
12. The learned counsel referring this judgment would
contend that foundational facts are proved and also contend that
presumption could be drawn.
13. The learned counsel also relied upon the judgment of
the Apex Court in the case of SITA SOREN v. UNION OF
INDIA reported in (2024) 5 SCC 629 and brought to the notice
of this Court paragraph No.125, wherein discussion was made
that the unamended text of Section 7 of the PC Act also indicates
that the act of "accepting", "obtaining", "agreeing to accept" or
"agreeing to obtain" illegal gratification is a sufficient condition.
The act for which the bribe is given does not need to be actually
performed. This was further clarified by Explanation (d) to the
provision. In explaining the phrase 'a motive or reward for
doing', it was made clear that the person receiving the
gratification does not need to intend to or be in a position to do
or not do the act or omission for which the motive/reward is
received.
14. The learned counsel also relied upon the judgment of
the Apex Court in the case of STATE OF KARNATAKA v.
CHANDRASHA reported in 2024 SC ONLINE SC 3469 and
brought to the notice of this Court paragraph No.20, wherein
discussion was made that no plausible reason was adduced on
the side of the respondent, as to why, it was retained in the
office of the Sub Treasury without being issued to the party
concerned. It is a common knowledge that when the bill was
submitted to the office of Sub Treasury for sanction, only after
issuance of the cheque to the concerned, the work will be
treated as completed. In the instant case, no cheque was
issued, and it was kept pending as on the date of trap.
15. The learned counsel also brought to the notice of this
Court paragraph No.21, wherein it is held that it is settled law
that the two basis facts viz., 'demand' and 'acceptance' of
gratification have been proved, the presumption under Section
20 can be invoked to the effect that the gratification was
demanded and accepted as a motive or reward as contemplated
under Section 7 of the Act. The learned counsel also brought to
the notice of this Court paragraph No.24, wherein discussion was
made that the appellate Court would not be justified in setting
aside the acquittal merely because the other view is also
possible. No two views are possible in the matter and thus the
approach adopted by the High Court is perverse and liable to be
interfered with.
16. The learned counsel also relied upon the judgment of
the Apex Court in the case of MUKUT BIHARI AND ANOTHER
v. STATE OF RAJASTHAN reported in (2012) 11 SCC 642 and
brought to the notice of this Court paragraph No.17, wherein
discussion was made that no provision analogous to the
paragraphs contained in the Railway Vigilance Manual, applicable
in the Health Department of the State of Rajasthan at the
relevant time had been brought to the notice of the Courts
below, nor had been produced before us. Therefore, it can be
held that it is always desirable to have a shadow witness in the
trap party but mere absence of such a witness would not vitiate
the whole trap proceedings.
17. The learned counsel also relied upon the judgment of
the Apex Court in the case of STATE OF A.P. v. C.UMA
MAHESHWARA RAO AND ANOTHER reported in (2004) 4
SCC 399 and brought to the notice of this Court paragraph
Nos.18 and 19, wherein discussion is made with regard to
illustration (a) to Section 114 of the Evidence Act says that the
Court may presume that "a man who is in the possession of
stolen goods soon after the theft is either the thief or has
received the goods knowing them to be stolen, unless he can
account for his possession. In paragraph No.19, it was observed
that in the judgment in the case of Raghubir Singh v. State of
Haryana it is held that the very fact that the accused was in
possession of the marked currency notes against an allegation
that he demanded and received the amount is "res ipsa
loquitur".
18. The learned counsel also relied upon the judgment of
the Apex Court in the case of M. NARSINGA RAO v. STATE OF
A.P. reported in (2001) 1 SCC 691, wherein discussion was
made with regard to Section 114 of the Evidence Act. A legal or
mandatory presumption can be drawn from a factual or
discretionary presumption. It would however be unsafe to draw
another discretionary presumption and detailed discussion was
made with regard to presumption. The learned counsel also
brought to the notice of this Court paragraph No.22, wherein the
judgment in the case of Raghubir Singh v. State of Haryana
was discussed.
19. The learned counsel also relied upon the judgment of
the Apex Court in the case of HAZARI LAL v. STATE (DELHI
ADMINISTRATION) reported in (1980) 2 SCC 390 and
brought to the notice of this Court that presumption under
Section 114 of the Evidence Act and Section 4(1) of the
Prevention of Corruption Act also raised against the accused.
The accused having failed to rebut the presumption, his
conviction under Section 5(2) read with section 5(1)(d) of PC Act
and Section 161 of IPC upheld. The learned counsel also
brought to the notice of this Court paragraph No.10, wherein
discussion was made with regard to presumption is of course
rebuttable but in the present case there is no material to rebut
the presumption.
20. The learned counsel also relied upon the judgment of
the Apex Court in the case of PRAHLAD v. STATE OF
RAJASTHAN reported in (2019) 14 SCC 438, wherein
discussion was made with regard to scope of Section 313 of
Cr.P.C. Examination of accused and silence of accused, what it
indicates and held that it leads to adverse inference against the
accused and the learned counsel brought to the notice of this
Court paragraph No.11 of the judgment.
21. The learned counsel also relied upon the judgment of
the Apex Court in the case of STATE REPRESENTED BY
INSPECTOR OF POLICE v. SARAVANAN AND ANOTHER
reported in (2008) 17 SCC 587 and brought to the notice of
this Court paragraph No.18 that there were some discrepancies
and improvements in the statement of the witnesses, their
evidence should not be relied upon and relied upon the judgment
in the case of State of U.P. v. M.K. Anthony reported in
(1985) 1 SCC 505 and extracted paragraph No.10 of the said
judgment, wherein it is held that while appreciating the evidence
of a witness, the approach must be whether the evidence of the
witness read as a whole appears to have a ring of truth. Once
that impression is formed, it is undoubtedly necessary for the
Court to scrutinize the evidence more particularly keeping in
view the deficiencies, drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them to find out whether it
is against the general tenor of the evidence given by the witness
and whether the earlier evaluation of the evidence is shaken as
to render it unworthy of belief. Minor discrepancies on trivial
matters not touching the core of the case, hypertechnical
approach by taking sentences torn out of context here or there
from the evidence, attaching importance to some technical error
committed by the Investigating Officer not going to the root of
the matter would not ordinarily permit rejection of the evidence
as a whole.
22. In reply to this argument, the learned counsel for the
appellant would contend that with regard to the complainant
phone is concerned, the person who transcribed the conversation
is not examined and no there is no credible evidence. The
learned counsel contend that Section 114 of the Evidence Act
cannot be pressed into service having considered the material on
record and the material on record is very clear that the
prosecution has not proved its case.
23. 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 both the
learned counsel, and 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 offences
punishable under Sections 8 and 13(1)(d) read
with 13(2) of the PC Act and whether it
requires interference of this Court by
exercising the appellate jurisdiction?
(ii) What order?
24. Having heard the learned counsel for the appellant
and the learned counsel for the respondent and also considering
the principles laid down in the judgments referred supra, this
Court has to re-analyze the material available on record whether
the Trial Court committed an error as contended in his argument
and fails to consider the material on record.
25. The prosecution mainly relies upon oral and
documentary evidence, the P.W.1 is a sanctioning authority who
gave the sanction as he is competent to take decision of
disciplinary action and also remove the accused and he gave the
sanction in terms of Ex.P1.
26. The P.W.2 is the complainant and in his evidence he
says that when he was standing along with his friend Ravi
Kumar, the accused and 2 Police came and took them to
Gangammanagudi Police Station and he was having
acquaintance with accused prior to that and he was also
produced before the Court and thereafter, he had called the
accused and demanded the key of his two wheeler and he called
him near the M.I ground and he went along with his friend Arun
Kumar since he demanded to bring him. It is also his evidence
that he demanded Rs.20,000/- to compromise the matter with
the complainant. It is also his evidence that on 30.06.2017,
accused called him and asked him to come near the
Hesaraghatta main road, Canara bank and he questioned how
much capacity he is having and hence, he replied that he can
give only an amount of Rs.10,000/- and hence he demanded
more and left the place and before leaving the place also he
demanded whatever he brought to give him and hence, he gave
the amount of Rs.1,000/- and when he demanded more, he was
not having more money, but he says that he recorded the said
conversation in digital voice recorder and the same was given to
the ACB Police and he gave the complaint, C.D, also the release
order and the same is marked as Ex.P2 and his signature as
Ex.P2(a) and typed copy Ex.P2(c) and arrest notice as Ex.P2(d)
and order of release at Ex.P2(e). In further chief examination he
says that he produced 20 notes of Rs.500/- each to the tune of
Rs.10,000/- and conducted entrustment mahazar and kept the
amount in his pocket and instructed that only on demand give
that money to the accused and note number was also noted.
27. It is also his evidence that the instruction was given
to record the conversation and instructed him to introduce the
person along with him as his brother or his friend and instructed
to watch the conversation and photos were also taken while
drawing the entrustment mahazar and he identifies the signature
in Ex.P3(b). It is his evidence that thereafter they went to
Bagalagunte Police Station and parked the vehicle at the
distance of 1 Kms and when he called the accused, he says that
he is not in the station and on that day, they came back and
returned the money and accused asked him to come on next day
and accordingly the Police instructed them to come on the next
day and again the mahazar was drawn in terms of Ex.P4 and he
identifies the signature as Ex.P4(b) and accordingly, they went
to the office of Investigating Officer and again the amount was
kept in his pant pocket and again gave the voice recorder and
mahazar was drawn in terms of Ex.P5 and he identifies the
signature and then he called the accused and he says that he will
call him and again came back since he was in Tamilnadu and
returned the money and mahazar was drawn in terms of Ex.P6.
It is also his evidence that he was called to ACB office on
15.07.2017 and the very same panch witnesses were present
and kept the money in his pant pocket and at that time, his
friend Arun Kumar was also with him and instructed him to make
the payment only on demand. It is his evidence that they left the
ACB office at 2 'O' clock and as per instructions, he went along
with his friend Arun Kumar and panch witness and both himself
and Arun Kumar first met the accused. The panch witness was
staying near the gate and accused took both of them near the
Rajakaluve and he demanded money and he told that he brought
the money and he gave the money and receiving the money, he
kept the money in his pocket and immediately he gave the signal
and the Police immediately came and held the accused and
immediately accused took out the money from his pocket and
kept the same near the window and accused hands were
subjected to wash and it turns to pink colour and the same was
seized and also the Investigating Officer got removed the
amount which was kept in the window and the notes which have
recovered tallies with the same notes and the same were seized
and also alternative pant was provided to the accused. It is also
his evidence that digital voice which he was returned, the same
was transferred to the C.D and accused sample voice was also
collected and the same also transferred to the C.D and case
records were also seized and mahazar was drawn in terms of
Ex.P10. This witness was subjected to cross-examination, in the
cross-examination he admits that 03.07.2017, he accompanied
with Arun Kumar while lodging the complaint. It is suggested
that along with Arun Kumar one Ravi Kumar was also present
and the same was denied, he says he went along with Ravi
Kumar to ACB office and Arun Kumar never came to ACB office
and Ravi Kumar was there along with him on the date of
compliant and also on the next day. He admits that voice
recorder was in his custody and the same was seized during the
investigation by the investigating officer. It is suggested that he
is falsely deposing that he told that he is capable to give
Rs.10,000/- and the said suggestion was denied. It is suggested
that accused not met him on 30.06.2017 and the same was
denied. He admits that his friend Surya transferred the
conversation since he was not having computer knowledge and
the same was transferred at Kammagondanahalli. The distance
between his house and Kammagondanahalli is 2 kms and the
same was transferred in the shop of Surya and on the next day
he went to ACB office at 10:30 and accused was not there on
that day and they waited till 9:00 pm and admits that accused
No.2-Arun Kumar took the anticipatory bail in his case. It is
suggested that he told the I.O that the amount is in the window
and the same was denied. It is suggested that amount was got
remove through the accused and the same was denied, but he
admits that after removal of the amount from the window,
prepared the solution and he admits that both hands were
subjected to wash. It is suggested that when the Investigating
Officer asked the accused, he said that he did not see the money
and not collected and the same was denied. He says that his
friend Arun Kumar was there along with him and mahazar
Ex.P10 got prepared through the staff of Investigating Officer.
28. The P.W.3 in his evidence says that his superiors told
him and his colleague to go to ACB office to be as pancha and
accordingly he went to ACB office at 3:30 on 03.07.2017 and
they informed that they are going to conduct a trap against one
Manjanna and in the office of ACB, Mirja Ali, Staff and
complainant was there and complainant was talking to the
Investigating Officer and he says that complainant gave Rs.500/-
denominations to ACB staff and the said amount was kept in the
custody of his colleague Anand and also kept a micro phone in
his pocket and they waited till 9 'O' clock, but the accused did
not turn and they came back and returned money in the ACB
office and on the very next day also they went to ACB office and
amount was given to his hand and on the next day, he kept the
amount in the pocket of Anand and again took them to
Bagalagunte Police Station and came to know that accused also
will not be there on that day, this witness was treated as hostile
and cross-examination was made and he identifies the signature
and panchanama Ex.P3(a) his signature and so also Ex.P4(a),
Ex.P5(a) confronted and he admits the same. He admits that the
complainant gave the amount of Rs.500/- each in total and an
amount of Rs.10,000/- and also he admits that the said note
numbers are noted and his signature was also taken and he
identifies the signature in Ex.P7 that is Ex.P7(a) and also given
the notes to Anand and told him to compare the note number
and except that money, no other notes were got it confirmed. He
also admits that he gave the statement and the same is marked
as Ex.P8 and he admits that instructions was given after
receiving the money to give signal and also instructed to record
the conversation. He also admits that he should watch what
would happen between the complainant and the accused. He
also admits after hand wash, it turns to pink colour and sodium
was seized and again they came back since accused did not
come to the Police Station on that day also.
29. The P.W.4 in his evidence, he says that he was sent
to office of Lokayukta and found the complainant and copy of the
complaint was also given to him and he read the same and came
to know that a demand was made to close the case and
complainant was also gave the voice recorder and the data of
the voice recorder was transferred to laptop and complainant
gave the amount of Rs.500/- and the same was noted in Ex.P7
and he identifies the signature as Ex.P7(b) and he also speaks
about conducting of entrustment mahazar and making the
signature to Ex.P3 which is identified as Ex.P3(c) and he also
re-iterates that they went and came back since accused was not
there in the office and also drawn the mahazar in terms of Ex.P4
and Ex.P5 and identifies the signature in both the documents
and also next time they went and came to know that the
accused was not there and came back to ACB office and mahazar
was drawn in terms of Ex.P6 and in his evidence he says that on
15.07.2017 the Nagaraj was unable to come to ACB office and
he was called to ACB office and he went and met Mirja Ali and
Arun Kumar was also there along with the complainant and the
same was verified and formalities were done since the accused
No.2 was taken anticipatory bail in connection with the earlier
case. It is also his evidence that on that day at around 2:45 to
2:50 again they went to the Bagalagunte Police Station and he
himself and Purushotam went and stand near the entrance of the
Police Station and after some time, one person came out along
with the complainant and taken him to near the compound of
vacant site and thereafter went inside the Police Station and he
gave the signal and immediately Police came and held the
accused and in the meantime when the accused kept the money
near the window, the same was shown to them by the
complainant and immediately Police came and subjected for
mahazar and amount was got it removed through him and
verified the amount and the same amount was tallied to
entrustment mahazar and when the accused was asked to give
reply if any, he did not give any reply and his voice also
transferred to the C.D and he identifies M.O.1 and signature in
Ex.P9(a) and Ex.P10 identifies the signature as Ex.P10(a). This
witness was subjected to cross-examination and he came to
know that complainant was accused in another case and he was
arrested and Arun Kumar was also the accused and he also read
the contents of mahazar Ex.P10 and he admits that complainant
only discloses that amount was kept near the window. It is
suggested that when they went to the office of P.S.I he was not
there and accused only there and the same was denied. It is
suggested that amount was got it removed through accused and
witness says that he does not remember the same and also he
does not remember whether he removed the amount or accused
removed the same, however he says that his hand was
subjected to wash. It is suggested that he is not aware of the
conversation between the complainant and also the accused and
transferring the voice to the C.D and he says that he does not
remember the same.
30. The P.W.5 is the nodal officer and in his evidence he
says that mobile phone details were asked and he gave the
report and also he issued the certificate in terms of Ex.P11 and
he identifies the signature. This witness was not subjected to
cross-examination.
31. The other witness is P.W.6 and he says that the
complainant has given the complaint to ACB and complainant
produced an amount of Rs.10,000/- and phenolphthalein powder
was smeared and instructed the complainant to pay the amount
to the accused when he demands. The complainant was taken
near the office of the accused and he also accompanied him and
accused was also got introduced to him and accused demanded
the money and complainant gave the money and he had
received the same and kept the amount in his pant pocket and
complainant gave the signal and Police came and apprehended
the accused and immediately the accused thrown the amount
near the window and when the accused hand was subjected to
wash, it turns to pink colour. In the cross-examination he admits
that the complainant was arrested on 09.06.2017. It is
suggested that instruction was given that whatever it may be the
accused must touch the bribe money and the said suggestion
was denied. It is suggested that he himself and Raju were sent
to the Police Station but he says that Raju only went and he
does not know about the conversation between the complainant
and accused. It is suggested that he was sitting inside the Police
Station and the same was denied and he says that he was sitting
outside the Police Station, but he says that the complainant was
talking to the accused and thereafter the complainant gave the
signal and immediately the Police came. It is suggested that he
did not go inside the Station and the same was denied. He
admits that complainant only told the Investigating Officer that
amount is near the window, but he admits that amount was got
it removed through accused and thereafter the hands of the
accused was subjected to wash.
32. The other witness is P.W.7 and he says that accused
came and gave the complaint in terms of Ex.P12 and in the
cross-examination, he admits that it is mentioned Ravi Kumar
friend of the complainant and there was no any difficulty to
reduce the oral complaint of complainant in writing. However, he
admits that complaint was got typed in the office that is Ex.P2
and whatever the complainant told, the same was got it typed
and also admits that accused was arrested in connection with
other case.
33. The other witness is P.W.8 and he says that he came
to know about the registration of Cr.No.26/2017 through
complainant and request letter was mentioned was marked as
Ex.P13 and Anand and Nagaraj were sent in terms of Ex.P13 and
he says that complainant produced 20 notes of Rs.500/- each
and the same was noted in Ex.P7 and amount was given to the
complainant and inceptions was given and also he speaks about
drawing of mahazar in terms of Ex.P3 to Ex.P6. In his evidence
he says that the complainant went inside the Police Station and
came back and Arun Kumar was standing in front of the Police
Station and both complainant and his friend Arun Kumar were
talking to the accused and complainant gave the amount to the
accused and all of them went inside the Police Station and
complainant gave the signal and immediately they went and
found the money near the window and instructed the accused to
assist him in drawing of trap mahazar and subjected the hand
wash of the accused and complainant also told that amount was
kept near the window and got it removed the amount through
Anand which was kept near the window and the very same notes
which were mentioned in the Ex.P7 were found and tallies with
each other and recorded the statement of Anand, Arun Kumar
and complainant and also seized MOs' are identified through him
and also he identifies the signature in Ex.P10(c) and also got
marked the documents through him and Ex.P16 to Ex.P33 and
this witness was subjected to cross-examination and he speaks
about the arrest of accused and complainant and produced
before the Court and released with conditions on 17.06.2017. It
is suggested that no such entrustment mahazar procedure was
done in terms of Ex.P3 and the same was denied and he admits
that Arun Kumar obtained an anticipatory bail and suggested
that the accused did not demand any money and false case is
registered against him and the same was denied. He admits that
after got it removed the money from window, accused hands
were subjected to wash. However, a suggestion was made that
accused only removed the money and the said suggestion was
denied. He admits that accused was working as Police Constable
in Bagalagunte Police Station and also admits that he was not
having any power to registration of case and conducting of any
investigation and closing of the case. He admits that no work
with regard to complainant was pending with the accused. He
admits that while drawing Ex.P10 Arun Kumar was present, but
his signature was not taken. He admits that on the date of trap,
the pant pocket was not subjected to wash and suggestion was
made that Ex.P18 to Ex.P26 photographs were taken for his
convenience and the same was denied.
34. The P.W.9 is the alternate nodal officer and he
speaks about issuance of certificate Ex.P34 and identifies the
signature Ex.P34(a) and also he provided all the details of
mobile from 18.06.2017 to 15.07.2017.
35. The other witness is P.W.10 and he is a Circle
Inspector and he says that he obtained the records from C.W.19
and accused and complainant details were given and also
request was made to prepare the sketch and Ex.P11 was
obtained and also obtained the sketch marked at Ex.P37 and
Ex.P38 and obtained the sanction letter in terms of Ex.P1 and
also obtained the C.D and sample of C.D M.O-9 to M.O-11 and
he was subjected to cross-examination and in the cross-
examination he admits that registration of case against the
complainant and his friend Arun Kumar in Cr.No.238/2017 and
arrest and producing of accused before the Court. It is suggested
that when he obtained the document Ex.P38 except the
complainant, panch witnesses were not there and the same was
denied. It is suggested that M.O-9 to M.O-11 are created for the
purpose of this case and the same was denied.
36. The P.W.11 is the senior scientific officer and in his
evidence he says that he examined the articles for voice
examination and case is received and registered in the
laboratory and conducted the voice examination and he received
the three sealed articles and case file and he conducted the
examination, the description of the articles were also mentioned
that is article-1, article -9 and article -10. He conducted oral
examination and voice future extraction via semi-automatic
method in a respective speeches yet to be suspect of Manjunath
and found recorded in the C.D and marked as article No.1 and
sample speeches are found recorded in C.D and marked as
article No.9 are similar and belongs to same male speaker and
article-1, article -9 and article -10 are not carried out and after
analysis he had prepared the detailed report and annexed
sample seal of the laboratory and also identifies the report as
Ex.P39 and his signature and also sample seal is marked as
Ex.P40 and voice examination Ex.P42 to Ex.P44 and this witness
was subjected to cross-examination and he admits that
Investigating Officer did not send the device in which original
conversation was recorded for examination, but it was copied
and sent in C.D and after receipt of requisition from the
Investigating Officer, he has given the opinion after almost 2
years and he has not given any reasons in opinion for delay and
also Investigating Officer has sent 3 sheets containing
transcription of the conversation relating to article -1, 9 and 10.
It is suggested that if the voice recorded contains background
disturbances, it is not possible to give accurate opinion and the
same was denied and he admits that there are similarities in the
accent and fluency of speech, but witness volunteers there is
difference in the pitch and he has examined the C.D and sent for
examination and the Director, FSL has not done any
examination.
37. Having perused the both oral and documentary
evidence placed on record, the sanction was given in terms of
Ex.P1 to proceed against the accused and P.W.1 evidence is very
clear regarding applying his mind and giving the sanction and
when the suggestion was made that an attempt was made to
implicate the accused and the said suggestion was denied by the
P.W.1 and application of mind by P.W.1 for giving sanction is not
disturbed in the cross-examination, however, he only admits
that Arun Kumar was witness to the trap panchanama.
38. The main witness is P.W.2 complainant and he
categorically says that when he was standing along with
Ravikumar, he was taken to the Police Station and he was
arrested and produced before the Court. The fact that the case
was registered against complainant is not in dispute, however, it
is a specific case of complainant that when he went and met
accused along with his friend Arun Kumar, the accused
demanded the money and on the first day visit also he gave the
money of Rs.1,000/- to him, but he demanded more and it was
settled down for Rs.10,000/- and in the cross-examination he
categorically says that when the accused demanded the money,
he gave the money and accused got the money and kept the
same in his pant pocket and also accused was apprehended and
also the accused immediately kept the money near the window
and both the hands of the accused was subjected to wash and
the same turns to pink colour. It is his clear evidence that
amount got removed through panch witness and hence the
evidence of P.W.2 is very clear that amount was received by the
accused and subjected for hand wash and it turns to pink colour
and FSL report was also confirms that hand wash of the accused
was turned to pink colour and main contention of the counsel
appearing for the accused that the amount got it removed
through the accused only and hence, it turns to pink colour.
39. It is important to note that the evidence of Nagaraj
who is panch witness was incomplete and he speaks only about
drawing of Ex.P3 to Ex.P5 and given instructions to him to give
the complaint and watch what would happen between them. The
other panch witness is Anand who is examined as P.W. 4 and he
also speaks about drawing of entrustment mahazar and also
noting down the note numbers in Ex.P7 and also drawing up of
mahazar Ex.P4 to Ex.P6 when the accused was not in the office
and also he speaks about he accompanied with complainant and
he was standing near the door and complainant came along with
the one person and both of them went near the vacant site
compound and both of them also conversated each and
complainant gave the signal and conducting of trap mahazar and
he categorically says that he only got removed the money and
he same tallied with the bribe money which he noted and also
categorically says that accused has not given any explanation
after his trap, but in the cross-examination he categorically says
that he read the contents of Ex.P10 and Arun Kumar was also
sent to the Police Station and it is emerged that complainant
only told the investigating officer that amount was kept near the
window. When the suggestion was made that amount was got
removed through accused and he categorically says that he does
not remember the same and he cannot say that whether he
removed or accused removed the same, but the fact that he
categorically deposes before the Court that the accused hands
were subjected to wash.
40. It is important to note that the main contention of
the counsel appearing for the appellant that certificate was
issued by P.W.5 and the same is not valid but when the P.W.5
was examined who is a nodal officer and got marked the
certificate under Section 65B and the same was marked without
any objections and now cannot contend that Ex.P11 is not issued
by the competent officer and once the same was marked and not
objected, now cannot question the same is also taken note of by
the Trial Court.
41. The other witness is P.W.6, though he says that the
complainant gave the money and he says that when the
complainant gave the money to the accused on demand and
complainant gave the signal and accused was apprehended and
in the cross-examination he admits that he cannot tell what
conversation was taken place between the complainant and the
accused, but he says that the complainant alone went inside the
Police Station, but in the cross-examination he says that he was
sitting outside, but categorically says that complainant was
talking to the accused and also speaks about signal was given
and immediately after giving the signal, Investigating Officer
came and when suggestion was made that he did not go inside
the Police Station, but he denies the same. He also admits that
the amount was kept near the window and though he admits
that amount was got it removed through the accused and in his
evidence, there is a discrepancy, but witness P.W.4 categorically
deposed before the Court that he only got removed the amount
near the window and hence, it is very clear that there was a trap
and amount was recovered at the instance of the accused. The
counsel appearing for the accused would vehemently contend
that there is no any consistent evidence, but the fact that
accused only called the complainant and demanded money
calling him to particular place and it is evident from the records
and when the call details also secured and marked through the
witness and nothing is disputed in the cross-examination.
42. It is important to note that Ex.P34 is the certificate
issued by the P.W.9 the nodal officer under Section 65B of
Evidence Act and Ex.P35 counter application appearing in the
name of the accused relating to his mobile and Ex.P36 is the call
details register relating to above said mobile phone for the
period from 18.06.2017 to 15.07.2017. It is also observed by
the Trial Court that accused neither cross-examined P.W.9 nor
disputed Ex.P34 to Ex.P36. It is also important to note that
Ex.P11 CDR dated 30.06.2017, there is a specific entry that
P.W.2 has received a phone call from the mobile of the accused
and there is a corresponding entry in Ex.P36 CDR. It is also
important to note that evidence of P.W.2 and contents of Ex.P2 -
First Information Statement in this regard proves that accused
only called the P.W.2 through phone. Having considered the
contents of Ex.P11 and Ex.P36, it is proved that on 19.06.2017,
28.06.2017 and 30.06.2017, the accused only made the phone
call to P.W.2 and the entries in the CDR also shows that P.W.2
also made several phone calls to the accused and hence, it is
clear that both the accused and also the complainant were in
constant touch over the phone and these documentary evidence
corroborates with the testimony of P.W.2 that accused only
made telephone call to him and demanded illegal gratification.
43. It is also important to note that the evidence of
P.W.2 shows that Sony voice recorder was provided in
connection with conversation dated 30.06.2017 and the same
was not during the trap, but during the cross-examination of
P.W.8 the accused has failed to make out that during the trap,
P.W.8 he has provided voice recorder to P.W.2 to record the
conversation. It is also important to note that Court has to take
note of both oral and documentary evidence placed on record. It
is the specific evidence of the P.W.2 that accused only called him
and demanded money and overall records available though
contend that 65B certificate is cannot be relied upon and I have
already pointed out that the same was marked without any
objections and also the CDR is very clear that there was a phone
call between the complainant and the accused and also it is
important to note that when the accused was subjected to 313
statement except denying the incriminating evidence as
construed, he did not choose to submit any explanation
immediately after the trap when the P.W.8 was asked him to
give reply. He ought to have explained satisfactorily each of the
circumstances put to him, but the contents of the written
statement filed by the accused during his examination under
Section 313 is similar to the defense taken during the cross-
examination of the prosecution witnesses.
44. It is important to note that when the prosecution
was able to prove the demand and acceptance of money by the
accused, it is a bounden duty to explain why he handled the
cash. It is also important to note that his defense is that the
amount was got it removed through him when he was working
as a Police Constable what made him to remove the money, no
explanation is given, but though there is a discrepancies in the
evidence for recovery of money at the instance of the accused,
but specific evidence of P.W.2 is that amount was got removed
through panch witnesses and P.W.4 categorically deposed before
the Court that he only got removed the money and not the
accused. The FSL report is also very clear that hand wash of the
accused in respect of both the hands turns to pink colour in
terms of Ex.P39 FSL and apart from that documentary evidence
is very clear Ex.P36 CDR report and also photographs Ex.P18 to
Ex.P24 also relied upon for having done the same at the time of
drawing the mahazar photos were taken. It is also important to
note that Ex.P11 is the Airtel call details records which discloses
the complainant and accused both of them were in constant
touch and also it is the specific evidence of the P.W.2 that when
he went and met the accused he demanded the money to help
him to compromise the case when the case was registered
against him and at that time Arun Kumar was along with him
and no doubt the said Arun Kumar was not examined before the
Trial Court, but the evidence of P.W.4 is very clear and so also
evidence of Ex.P6 is also very clear with regard to the demand
and acceptance. The evidence of P.W.2 is corroborated through
witness P.W.4 and P.W. 6 and though P.W.3 was examined, his
evidence is not complete regarding trap is concerned and
evidence of prosecution witnesses regarding FSL report as well
as chemical examination report Ex.P28 and also Ex.P31 and 32
certificate under Section 65B of evidence Act which has not been
disputed during the course of cross-examination of witnesses
and both got marked through the witnesses and the same was
not disputed during the course of cross-examination and the
same was taken note of by the Trial Court and particularly at
paragraph No.58 comes to the conclusion that the evidence
placed by the prosecution is consistent with guilt of the accused
and inconsistent with his innocence and also held that minor
discrepancies are contradictions in the evidence which do not
affects the merits of the case and the same should be ignored
unless the same goes to the very root of the case. The Trial
Court also taken note of evidence of P.W.2, P.W.4, P.W. 6 and
P.W.8 and also the evidence of prosecution witnesses that the
notes which have been noted in Ex.P7 are the very same notes
which are recovered at the instance of the accused and also it is
the very case of complainant that immediately when he gave the
signal and he kept the amount in the window frame in the
chamber of the Bagalagunte Police Station and also it is emerged
during the course of the evidence that complainant only pointed
out that amount was kept near the window frame and evidence
of prosecution witness is cogent, corroborative except the minor
discrepancies and incriminating evidences led by the prosecution
was not disproved by the accused and also he did not choose to
lead any contra evidence against the evidence of prosecution
witnesses.
45. The judgment relied upon by the counsel appearing
for the respondent that even in the absence of shadow witness
evidence the Court can look into the same and the same is held
in MUKUT BIHARI 's case in the evidence complainant is
consistent even in the absence of shadow witness evidence, the
Court can rely upon the same in paragraph No.17 it is held that
it is always desirable to have a shadow witness in the trap party
but mere absence of such a witness would not vitiate the whole
trap proceedings.
46. The learned counsel for the appellant would contend
that the judgment of JAGTAR SINGH 's case which is referred
above is very clear that proof of demand and acceptance of
illegal gratification by a public servant as a fact in issue by the
prosecution is a sine qua non in order to establish the guilt of the
accused and in the case on hand there is a material with regard
to the demand and acceptance and the same is also spoken by
P.W.2, P.W.4 and P.W.6 and when such being the case, the very
contention that no demand and acceptance and also no proof
cannot be accepted and the judgment of JAGTAR SINGH 's case
will not comes to the aid of appellant. No doubt in the other
case relied upon by the counsel appearing for the appellant in
K.SHANTHAMMA's case also it is held that the proof of demand
of bribe by a public servant and its acceptance by him is sine
qua non for establishing the offence under Section 7 of the PC
Act and no dispute with regard to the principles laid down in the
judgment and while invoking Section 7 and 13 there must be a
demand and acceptance in the judgment of STATE
REPRESENTED BY INSPECTOR OF POLICE v. SARAVANAN
AND ANOTHER it is held that minor contradictions and
inconsistencies are immaterial which without affecting the core
of the prosecution case, ought not to come to the Court to reject
evidence in its entirety. The Court also cannot expect
mathematical niceties in a criminal case and Court has to take
note of the same inspires the confidence and in the judgment
relied upon by the counsel for the respondent also regarding 313
statement held that in a case of Prahlad referred above and
silence of accused which indicates and leads to adverse inference
against the accused except filing of written statement nothing is
placed on record and also held the silence on the part of the
accused in such a matter wherein he is expected to come out
with an explanation leads to an adverse inference against the
accused.
47. Having re-assessed the both oral and documentary
evidence placed on record as well as the principles laid down in
the judgments referred supra both by the prosecution as well as
the accused, I do not find any error committed by the Trial Court
in coming to such a conclusion in the case on hand that there is
a demand and acceptance and also FSL report goes against the
accused and minor discrepancies regarding recovery of money
is concerned will not go to the very root of the prosecution case
and benefit of doubt cannot be extended in favour of the
accused only on minor discrepancies as contended by the
appellant's counsel and overall consideration of the evidence
available in toto, the foundational material are found that there
is a demand and acceptance and when there is a demand and
acceptance and also the very case of the prosecution is also that
only in order to help the complainant demand was made and
telephonic calls are made that too at the instance of the accused
only made several calls to the complainant and also complainant
also called him and call details also goes against the accused and
when such material available before the Court, I do not find any
error to comes to other conclusion that the Trial Court has
committed an error and M.O-10 C.D containing voice samples of
the accused was also marked and the evidence of the
prosecution witness is also clear that the sample voice of the
accused and also the voice which was found both are same and
the same is also spoken by the witness P.W.11 that he has
conducted the examination and respective speeches are said to
be suspected Manjunath recorded in C.D marked as Article No.1
and sample speeches found recorded in C.D marked as article
No.9 are similar and belongs to the same male speaker and
when such corroborative material is also found and report is also
given in terms of the Ex.P39 and the same is not rebutted in the
cross-examination of P.W.11 with regard to the sample
conversation was recorded and now contend that only C.D was
subjected to conversation and original conversation which was
recorded was not secured and device was also not secured
cannot be accepted and the same was marked without any
objections. The suggestion that the report was given after 2
years cannot be relied upon is not accepted and only delay is
concerned, cross-examination was made but with regard to its
genuineness and C.D conversation not disputed and the specific
case also that article Nos.9 and 10 sample conversation was also
recorded and copied on 15.07.2017 and when such report is
available before the Court in terms of Ex.P39, all material goes
against the accused and when such being the case, this Court
cannot form any other conclusion as formed by the Trial Court
and the same is cogent, corroborative piece of evidence which
goes against the accused and hence, I answer the point as
'negative'.
48. In view of the discussions made above, I pass the
following:
ORDER
The Criminal Appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
MD/RHS
