Allowed

Shivappa Sajjanar S/O Basappa Sajjanar v. State of Karnataka

Karnataka HC18 Feb 2021CRL.A/2691/2012

Case brief

AI extract

What is this about?

Appeal against conviction of a Gram Panchayat Secretary for demanding and accepting a bribe for issuing a cheque. The court found material contradictions between the complainant and the shadow witness on demand, acceptance and recovery, and that the money was handed over voluntarily without demand. Demand being sine qua non, the prosecution failed; conviction set aside and the accused acquitted.

What did the court decide?

Appeal allowed; judgment of conviction and sentence dated 14.06.2012 in Spl.SVC CC No.4/2009 set aside; accused acquitted of offences under Sections 7, 13(1)(d) and 13(2) of the P.C. Act; bail bonds c

Shivappa Sajjanar S/O Basappa Sajjanar Vs State of Karnataka — Corruption | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL APPEAL NO.2691/2012

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BETWEEN:

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SHIVAPPA SAJJANAR S/O BASAPPA SAJJANAR AGE: 54 YEARS, OCC: SECRETARY GRAMPANCHAYAT, ADAVISOMAPUR TQ: GADAG

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.. APPELLANT

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(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY LOKAYUKTA POLICE,GADAG, REPRESENTED BY THE SPECIAL PROSECUTOR, HIGH COURT BUILDING, DHARWAD

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.. RESPONDENT

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(BY SRI.ANIL KALE, SPL.PP)

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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT AND ORDER OF CONVICTION AND SENTENCE PASSED BY THE DIST. & SESSIONS JUDGE, GADAG, DATED 14.06.2012 IN SPL.SVC.C.C.NO.04/2009 THEREBY CONVICTING THE APPELLANTS U/S 7 & 13(1)(D) R/W SEC. 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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THIS APPEAL COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This criminal appeal is filed by the appellant/accused being aggrieved by the judgment of conviction and sentence passed by the learned District and Sessions Judge, Gadag (hereinafter referred to as the ‘trial Court’) in Special SVC CC No.4/2009 dated 14.06.2012 for having found the accused guilty for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘PC Act’).

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Heard the arguments of the learned counsel for the appellant and the learned Special Public Prosecutor for the respondent-Lokayukta.

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The rank of the parties before the trial court is retained

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for convenience.

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The case of the prosecution in brief is that the Lokayukta police, Gadag, filed the charge sheet against the accused for the aforesaid offence. It is alleged by the complainant one Sri.Giriyappa Mahadevappa Soratur that the accused being a public

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servant working as the Secretary, Gram Panchayat, Adavisomapur, had demanded illegal gratification of Rs.1,000/from the complainant with regard to issuing cheque for Rs.7,000/- which was granted by the Government in favour of the wife of the complainant Smt. Saraswathevva and on 24.04.2008 at 13.15 hours, the Lokayukta Police caught red handed the accused while accepting the bribe amount of Rs.1,000/- from the complainant in the office of Grama Panchayat, Adavisomapur and thereafter registered a case and he was taken to custody and later filed charge sheet. The accused was released on bail. Charges were framed against the accused. He has pleaded not guilty and claimed to be tried.

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In order to prove the case, the prosecution in all examined 9 witnesses and got marked 26 documents and 7 material objects. After concluding the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded. Incriminating evidence adduced against him by the prosecution witnesses were read over and explained to him. The case of the accused is one of total denial. However, he has given a written statement under Section 313(5) of Cr.P.C. stating that the

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complainant was required to pay Rs.1,030/- towards tax of the house property standing in the name of the complainant and the same was given by the complainant. The accused has not at all demanded any bribe amount or accepted the bribe amount from the complainant. However, he has not entered any defence evidence. After hearing the arguments, the trial Court found the accused guilty and convicted and sentenced as follows:

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“The accused is sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.5,000/- for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 in default of payment of fine, he shall undergo S.I. for a period of one month. Further, the accused is sentenced to undergo simple imprisonment for a period of four years for the offence punishable under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and to pay fine of Rs.10,000/- in default of payment of payment of fine, he shall undergo simple imprisonment for a period of six months”.

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Assailing the same, the accused has preferred this

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appeal.

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Learned counsel for the appellant contended that the

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judgment of conviction and sentence passed by the trial Court is not sustainable in law. The finding of the trial Court is erroneous and against the evidence on record. In fact, there is no demand from the side of the accused. The complainant himself gone to the office of the accused and paid the amount without demand and further contended that the complainant is a habitual complainant. He has filed so many cases against other persons. He was working as a sweeper in the Lokayukta Office. Therefore, in collusion with the Investigating Officer, they planned for a false trap against the accused to implicate him in the case which is not sustainable.

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Learned counsel further contended that even as per the evidence of PW-7/coplainant his evidence goes to show that he went to the office and paid the amount which was accepted by the accused and after counting, he is said to have kept the cash in his pocket whereas PW-2-the shadow witnesses says, the amount was demanded by the accused and he has counted the cash and kept it on the table. All other witnesses including Investigating Officer and panchas have stated that the amount was recovered from the table of the accused and not from the pocket. There is material

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contradictions in the evidence of PWs.1 and 7 and there is no demand as per the evidence of PW-7 complainant whereas PW-2shadow witness, who has not accompanied along with PW-7 but he has stated that there was a demand and that the complainant has stated he has brought less amount and not the actual amount. However, he has stated that there is no demand and the complainant himself paid the amount. Further, learned counsel contended that as per the evidence of PW-7, after acceptance of the money by the accused, the shadow witness along with other police officials came inside the office of the accused, which shows that the shadow witness was not present along with PW-7. Therefore, the evidence of PW-2 cannot be accepted that he had accompanied PW-7 as a shadow witness. Therefore, the learned counsel contended that if the accused had demanded bribe, there was every chance of receiving the bribe amount on 22.04.2008 when the complainant went to the house of the accused and he has stated that he has brought the money, the accused never demanded or received money on that day. If at all he had demanded bribe, there was no hurdle for him to receive the same in the house but he has not demanded and he has asked the complainant to go and meet

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PW-3-Tukaram and receive the cheque, which is ready. After the trap he has stated that the cheque is required to be verified by the Chairman of the panchayat and he has denied regarding acceptance. Therefore, he has contended that absolutely there is no evidence to prove the guilt of the accused and prayed for acquittal by allowing the appeal.

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Per contra, Sri. Anil Kale, Special Public prosecutor, has supported the judgment of the trial Court and contended that the evidence of PW-2 is clear that the accused demanded the bribe amount and thereafter PW-7 gave bribe of `1,000/- same was accepted by the accused and the police officials immediately trapped the accused and on handwash, it turned into pink. Panchanama was prepared. Panch witnesses for about seizure of cash from the accused also gave evidence apart from the investigating officer. The evidence of PWs.2, 4 and 7 corroborates each other and thereby the prosecution is successful in proving the guilt of the accused and there is no ground to interfere with the finding of conviction and sentence passed by the trial Court. Hence, prayed for dismissing the appeal.

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Upon hearing the arguments of the learned counsel on both sides and on perusal of the records including the trial Court records, the point that arises for my consideration is:

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Whether the judgment of the trial Court convicting and sentencing the accused for the offence under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, calls for interference?

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This Court being the first appellate court is required to re-appreciate the evidence on record and before appreciating the evidence it is necessary to have a cursory look on the evidence led by the prosecution.

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The case of the prosecution is that the accused being a public servant working as a Secretary of the Gram Panchayat, Adavisomapur, is not in dispute and the complainant wife PW-7 is said to be having a house and the State Government has sanctioned 30,000/- for the purpose of construction of the house under Indira Aavas Scheme is also not in dispute. First installment of 5,000/- is said to be already released by the Government is also not in dispute and the second installment amount of Rs.7,000/- is

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yet to be released by the Village Panchayat for the purpose of construction of house. It is alleged that when she requested to release the same, at that time, the accused demanded 1,000/- as bribe. The complainant was not interested in paying the bribe. Therefore, he lodged a complaint as per Ex.P-18. The complaint came to be filed on 21.04.2008. Then from the said day, the police and the complainant are trying to trap the accused. A trap was laid on the said day but on the said day, the accused went to some marriage. Therefore, the first trap was unsuccessful and again on 22.04.2008, the complainant along with the police officials went to the office of the accused, at that time, PW-7 found the accused was on leave and he was at Lakkundi in his house. Then PW-7 and police officials went to the house of the accused where accused not accepted any money or demanded any bribe in the house and he asked the complainant to go and meet PW-3 Tukaram and to receive the cheque. But again on 24.04.2008, PW-2 and PW-7 went to the office of the accused where the accused said to have accepted bribe of 1,000/- at that time, he was trapped by the Lokayukta Police and later his hands were washed with sodium

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carbonate solution which had turned into pink colour which proved receiving of cash by the accused.

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PW-1 deposed that, they went to the office of the accused along with the police but the accused was not in the office. The trap was unsuccessful. Therefore, the evidence of PW-1 is not relevant.

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PW-2-Chetankumar is the SDA in Labor Department, who acted as shadow panch witnesses. According to his evidence, the Lokayukta police requested him and he went to the Lokayukha Office on 21.04.2008 where the complainant was also present and PW-4 is another panch witnesses. PW-7 is the complainant who was demonstrated about the pre-trap and later they went to the office of the accused at 12.15 pm and PW1 – complainant went inside the office and asked the accused for issuance of the cheque. The accused in turn asked the complainant whether he has brought money. The complainant replied that he has brought the money, but not the amount which he has demanded and he has brought only `1,000/- and it was borrowed from his relatives and the accused accepted it. He identified the accused in the court. He has

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stated the accused counted the money and kept on the table then after giving signal, the police came and trapped the accused and he identified the panchanama-Ex.P3, currency notes – M.O.1, Sodium Carbonate solution – M.O.2, Phenaphtalein solution – MO3, hand wash of CW5 – MO5, right hand wash of CW5 – MO6, left hand wash of accused – MO7 and trap panchanama as per Ex.P4 and supported the case.

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PW3 – Tukaram is working as Tax Collector in the Gram Panchayat of Adavisomapur. He is totally turned hostile and denied the visit of the complainant in his office on 25.04.2008. After cross-examination he has turned hostile and nothing is brought on record from this witness. Therefore, his evidence is not of much importance to the case.

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PW4 – Ramakrishna is the SDA working in the Deistrict Health Office. He is also the panch witness to Ex.P3 – Panchayama and who accompanied the Lokayukta police to the Grama Panchayath office. He has supported the prosecution case and says he went to the office of the accused on 25.04.2008. However, in the re-examination it is stated he went to the Lokayukta police and

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trap was conducted on 25.04.2008, but not on 24.04.2008 as mentioned in the panchanama.

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PW5 - Hanamappa Balaganur is the Retired Manager of the Taluka Panchayath. He said to have issued recommendation letter for the complainant for receiving the money and issued Ex.P15 and he has turned hostile and not supported the case.

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PW6 is the Additional Commissioner, BBMP, who has given sanction for prosecuting the accused and issued Ex.P17 – Sanction Letter and there is no dispute in this regard.

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PW7 – Giriyappa Soratur is the complainant and he supported the case of the prosecution as stated by him in the complaint as per Ex.P18. According to his evidence, the accused demanded `1,000/- for handing over the cheque and therefore, he went to the Lokayukta police and lodged the complaint. Thereafter tried for trapping the accused on 21.04.2008 and 22.04.2008, but on 24.04.2008 he went to the office of the accused and he asked the accused that the amount was ready with him and requested him to take the amount and accused asked him to come at 3.30 pm afternoon because the President of Panchayat will come only in the

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afternoon and as he has to go to some other place, the complainant asked the accused to take money and handed over the money to the accused. Then the accused counted the money and kept in his pocket and his evidence is impeached in the cross-examination. The evidence of this witness and the evidence of PW2 will be discussed subsequently in the later part of the judgment.

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PW8 – Ashok Kumar is Assistant Executive Engineer, who prepared the sketch of the spot as per Ex.P19, as per the instruction given by the Lokayukta Police. His evidence is not of much relevance.

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PW9 – A. B. Harapanahalli is the Police Inspector, Lokayukta Police and the Investigating Officer, according to whose evidence he has registered the case by receiving the complaint as per Ex.P18 and secured the panchas, prepared the pre-trap panchanama and tried to trap the accused on two days on 21.04.2008 and 22.04.2008 and later successful on 24.04.2008. He has sent PWs. 2 and 7 to the office of the accused with the tainted money. The accused accepted it and he has trapped the accused and later the hand wash of the accused was proved with

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accepting the money and after preparing the trap panchanama as per Ex.P4, seized the tainted money as per M.O.1 and arrested the accused and after completion of investigation he has filed the charge sheet.

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On perusal of the evidence of the witnesses, PW7 is the complainant and PW2 is the material witness to the prosecution case as regards the trap held. The accused was the secretary to the Gram Panchayath of Adavisomapur is not in dispute. The complainant said to have went to the office of the accused for the purpose of receiving the cheque towards construction of the house of his wife under ‘Indira Aawas Scheme’ is also not in dispute. The main crux of the matter is whether the accused demanded `1,000/as bribe for issuing the cheque and accepted it and whether it was proved by the prosecution in accordance with law.

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In this regard, PW7 - complainant has stated that, on 24.04.2008 after parking the vehicle, himself and PW2 – Chetan Kumar, went inside the Gram Panchayat Office. He asked the accused that the amount which he asked was ready with him and requested him to take the amount. The accused asked him to come

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at 3.30 pm in the afternoon because the President of the Panchayat will come only in the afternoon. Then PW7 requested the accused that he has to go to some other place and hence he asked him to take money and he handed over money to the accused and accused accepted the money and kept in his pocket. On perusal of the evidence and on comparison of the evidence with the panchanama - Ex.P3, where the Investigating Officer - PW9 has instigated the complainant and the panchas that he has to pay the bribe amount only on the demand made by the accused. But on perusal of the evidence of this witness, he nowhere stated that the accused demanded the bribe amount and he handed over the money to him. He has stated he himself requested the accused to receive the money and accused never asked the money, but the accused told to come after 3.30 pm because the President of Panchayat will come only in the afternoon. In this regard, learned counsel also brought to the notice of the Court that, as per the evidence of PW7, on 21.04.2008, they made a trap and went to the office of the accused. At that time, the accused was not in the office as he had been to have lunch. Therefore, the trap was unsuccessful. On the next day i.e., on 22.04.2008, the complainant went to the house of

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the accused at Lakkundi and met the accused and asked the accused to take `1,000/-, which is ready with him, but the accused told him that he was on leave and he will ask his Assistant to call on to make the cheque ready and asked him to go and meet his Assistant on 24.04.2008.

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With regard to demand, it is pertinent to note that, if the accused really demanded the bribe, there is nothing prevented him from receiving the bribe amount on 22.04.2008 when the complainant went to his house and informed the accused that he has brought 1,000/- and it is ready. Though the complainant wanted to give, but the accused not demanded and accepted money at that time. If at all the accused demanded money, there is no hurdle for him to receive money from the complainant and ask him to come and collect the cheque by 24.04.2008. Even in the cross-examination, again PW7 has categorically stated that he has not stated before the police that the accused demanded 1,000/and he has given and accused asked him to come at 3.30 pm and he told the accused since he is having some other work, requested the accused to accept the money. But on perusal of the entire

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evidence of PW7, initially he has stated that the accused demanded and accepted cash of 1,000/-. To corroborate the evidence of PW7, the PW2, who is the shadow panch witness has stated that he has accompanied PW7 to the office of the accused, where the complainant went inside the house of the accused and asked whether he is able to issue cheque on that day. For that the accused asked the complainant whether he has brought the money and the complainant replied that he has brought money, but not the amount which the accused demanded, but he told he brought only 1,000/- that too borrowing from the relatives and asked the accused to accept the same and then the accused accepted the amount.

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The evidence of PW2 is totally contrary to the evidence of PW7. The evidence of PW7 is altogether different from the evidence of PW2 regarding conversation held between the accused and the complainant, where PW2 says, the accused asked whether he has brought the money or not and the complainant told whether the cheque is ready or not and the complainant told he brought only `1,000/- but not able to bring the amount demanded by the

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accused and he borrowed the same from the relatives and asked the accused to accept the same. But his part of evidence is not stated by PW7. Their conversation is altogether different. According to PW7, the accused asked the complainant to come after 3.30 pm as the President is coming in the afternoon and the complainant told the accused that he cannot come as he has to go to some other place and therefore, asked the accused to accept the money. There is total contradiction in the evidence regarding demand and acceptance. PW7 never said the accused demanded money, whereas PW2 says accused demanded money and accepted it. It is also relevant to note that PW7 says, after accepting the money and after giving a signal, PW2 the shadow witness and the police officials went inside the office. It shows PW2 is not accompanying PW7 during conversation held between accused and the complainant and while the alleged demand made by the accused. Therefore, the evidence of PW2 that the accused demanded money and he was present along with PW7 is not acceptable. He never said he accompanied PW7 and he went inside the office of the accused at the time of incident.

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That apart, there is another material contradiction

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between the evidence of PW2 and PW7. As per the evidence of PW7, who is the complainant, he says the accused accepted cash of `1,000/- and thereafter counted it and kept in his pocket. Whereas PW2 - the shadow witness says the accused accepted the money, counted the money and kept on his table and thereafter, signal was given to the police by the complainant.

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As per the prosecution case, PW9 – Investigating Officer says that the amount was seized on the table of the accused, whereas PW7 says it was seized from the pocket and not stated whether it is the pant pocket or shirt pocket. It is not the case of the prosecution that the tainted cash was seized from the pocket of the accused. There is material contradiction between the evidence of PW2 and PW7 in respect of accepting the money and whether it is kept on the table or seized from the table or from the pocket of the accused. Apart from that, PW4 – panch witness says, the trap was conducted and cash was seized from the accused on 25.04.2008 and even in the cross-examination, he has ascertained the same and in the re-examination conducted by the Public

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Prosecutor, after showing the panchanama seized on 24.04.2008, again he has voluntarily stated he went for trap on 25.04.2008. Therefore, the evidence of panch witnesses is not useful to the prosecution case.

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It is further evidence available on record that, in the cross-examination of PW7, it is brought by the counsel for the accused in the cross-examination that the complainant was the sweeper working in the Lokayukta office and he has also complained in so many cases. Even otherwise, as per the evidence of PW7, there were 20 persons entered in the office of the accused along with him, but the I.O. not examined any other independent witness other than these two witnesses.

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In respect of accepting money without demand, it is contended that the accused cannot be found guilty in the absence of any demand and acceptance. In catena of decisions, the Hon’ble Supreme Court has held demand is sine quo non in proving the guilt of the accused in corruption cases. In this regard, the Hon’ble Supreme Court in the latest judgment in Criminal Appeal Nos.100-101/2021 arising out of SLP (Crl.) Nos.4749-

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4730/2020 in the case of N. Vijaykumar Vs. State of Tamil

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Nadu, has held in paragraph 12 as under:

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“12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C. M. Girish Babu V. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is referred that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial Court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under:

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“7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery

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of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779: (2009) 2 SCC (Cri) 1].

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8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P¬11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P¬11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial

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court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. 9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking

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in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.”

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The above said view taken by this Court, fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment of the High Court is fit to be set aside. Before recording conviction under the provisions of Prevention of Corruption Act, courts have to take utmost care in scanning the evidence. Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

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In view of the principle laid down by the Hon’ble Apex

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Court, if any amount is seized from the accused, even if it is accepted, as it is contended that the accused accepted `1,000/-, but there is no demand and it appears that the complainant

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voluntarily given 1,000/- and it is also brought to the notice of the court in the statement of the accused under 313 Cr.P.C. that the complainant was due for payment of 1,030/- towards the tax of his wife’s house and the same was demanded by him. Even in the evidence of PW7, it could be seen that he has stated that the accused demanded 1,000/- to remit to the Government in the examination-in-chief itself. This evidence as part of the evidence has not been controverted by the public prosecutor in his evidence that the accused asked him to pay 1,000/- for the purpose remitting to the State. Such being the case, the evidence of PW7 that the accused asked for 1,000/- to remit to the State, corroborates with the statement of the accused made under Section 313 (5) Cr.P.C. and making payment without demand and acceptance of the same, it cannot be said the accused was guilt of accepting the bribe by demand. Therefore, payment of 1,000/cannot be considered as demand and acceptance by accused as bribe for issuing the cheque to the complainant by the accused and it has also brought on record that the cheque shall be signed by the President of the village Panchayat. Such being the case, if really the accused demanded bribe, there is nothing prevented him for

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accepting the bribe on 22.04.2008 itself when the complainant went to his house and said he is ready with the money, but the accused not at all received it and asked him to come to the office for receiving the cheque and he never said he will issue the cheque after receiving the amount. That apart, the complainant being the habitual complainant and working in the Lokayukta office, the possibility of trying to falsely implicate the accused cannot be ruled out.

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Therefore, the benefit of doubt shall have to be given to the accused and the prosecution failed to prove that the accused demanded and accepted 1,000/- as bribe in order to issue cheque to the complainant for 7,000/- towards Indira Awas Yojana. The trial Court also not properly appreciated the evidence on record and material contradictions regarding keeping the money in the pocket or on the on the table has not been considered by the trial Court. Thereby, the accused is entitled for acquittal for the offence alleged.

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Therefore, I hold the judgment of the trial Court is not in accordance with the law and not as per the evidence available on record. Therefore, the trial Court is not justified in convicting the

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accused and sentencing him to undergo imprisonment under the provisions of P.C. Act. The appellant is successful in disproving the case of the prosecution. Therefore, the judgment of conviction and sentence passed by the trial Court is required to be set aside. Accordingly, I pass the following:

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ORDER

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The appeal is allowed. The Judgment of conviction and sentence dated 14.06.2012 passed by the District and Sessions Judge, Gadag in Spl.SVC CC No.4/2009 is hereby set aside.

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The accused is acquitted of the offence under Sections 7 and 13(1)(d) and 13(2) of the P.C.Act. His bail bonds stands cancelled. The fine amount, if any, is deposited, the same is ordered to be refunded to the accused.

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Sd/JUDGE

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kmv/gab

Shivappa Sajjanar S/O Basappa Sajjanar v. State of Karnataka

Case brief

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Shivappa Sajjanar S/O Basappa Sajjanar v. State of Karnataka

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Shri. Suresh S/O. Tippanna Gudli Vs the State of Karnataka

Sri.Thippeswamy S/O Lingadalyappa, Vs M/S.Shriram Transport Finance Company Limited

Santosh S/O. Kuberappa Menashikal Vs the State of Karnataka

Subhash Venkatraman Shet Vs Sunita Suresh Vernekar