Allowed

Nagesh S/O Late B S Raju v. the State by Police Inspector

Karnataka HC17 Jan 2022CRL.A/211/2011

Case brief

AI extract

What is this about?

High Court allowed criminal appeals against conviction under the Prevention of Corruption Act 1988 for demand and acceptance of bribe. The Court held evidence was insufficient to prove demand and acceptance, setting aside the impugned order of conviction and sentence.

What did the court decide?

Impugned order set aside; appellants acquitted; bail bonds discharged; fine refund.

Nagesh S/O Late B S Raju Vs the State by Police Inspector — Corruption | Karnataka HC (2022)

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CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF JANUARY 2022

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL APPEAL NO.202/2011 C/w CRIMINAL APPEAL NO.211/2011

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Crl.A.No.202/2011:

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BETWEEN:

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K.S.NARAYAN WORKING AS REVENUE INSPECTOR TALUK OFFICE, BILIGERE CIRCLE NANJANGUD TALUK, MYSORE DISTRICT R/AT 18^TH CROSS, KABINI COLONY ROAD NANJANAGUD TALUK MYSORE DISTRICT NOW TEMPORARILY COME DOWN TO BANGALORE

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SINCE DEAD BY HIS LEGAL REPRESENTATIVE SMT.PRABHAMANI W/O LATE K.S.NARAYAN R/AT 18^TH CROSS KABINI COLONY ROAD NANJANAGUD TALUK MYSORE DISTRICT ...APPELLANT

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(BY SRI P.N.HEGDE, ADVOCATE)

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AND:

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STATE BY LOKAYUKTHA POLICE REP. BY STANDING COUNSEL &

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CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

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SPECIAL PUBLIC PROSECUTOR FOR KLA CASES IN THE HON’BLE HIGH COURT OF KARNATAKA BANGALORE

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...RESPONDENT

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(BY SRI B.S.PRASAD, SPL.P.P./STANDING COUNSEL)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 11.02.2011 PASSED BY III ADDITIONAL DISTRICT & SESSIONS JUDGE, SPECIAL COURT, MYSORE IN SPECIAL CASE NO.20/2008 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(D) READ WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT 1988 AND ETC.

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Crl.A.No.211/2011:

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BETWEEN:

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NAGESH S/O LATE B.S.RAJU VILLAGE ACCOUNTANT NAGARLE CIRCLE (I/C ALAGANCHI CIRCLE) NANJANGUD TALUK MYSORE DISTRICT ...APPELLANT

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(BY SRI VENKATESH C SHARMA, ADVOCATE)

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AND:

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THE STATE BY POLICE INSPECTOR KARNATAKA LOKAYUKTHA MYSORE REP. BY SPECIAL PUBLIC PROSECUTOR FOR LOKAYUKTHA CASES HIGH COURT BUILDING BANGALORE ...RESPONDENT (BY SRI B.S.PRASAD, SPL.P.P./STANDING COUNSEL)

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CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 11.02.2011 PASSED BY III ADDITIONAL DISTRICT & SESSIONS JUDGE, SPECIAL COURT, MYSORE IN SPECIAL CASE NO.20/2008 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT 1988.

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THESE CRIMINAL APPEALS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the order of conviction and sentence passed against them for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’ for short), the accused have preferred the above appeals.

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Pending these appeals the appellant (accused No.1) in Criminal Appeal No.202/2011 died and his legal representatives are pursuing the said appeal. The appellant in Crl.A.No.211/2011 is accused No.2. For the purpose of the convenience, parties will be referred to henceforth according to their ranks before the trial Court.

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Lokayukta police charge sheeted accused

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Nos.1 and 2 in Crime No.2/2007 of their police station for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act on the basis of the complaint of PW.1 Sheik Mohiddin Arafath.

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During February 2007 accused No.1 was working as Revenue Inspector and accused No.2 was working as Village Accountant in Taluka office Nanjangud. CW.4 and CW.5 the father and uncle of PW.1 had purchased lands situated within the limits of Alaganji village of Nanjangud Taluk. The concerned Sub-Registrar had sent intimation to Taluka office of Nanjangud about the registration of sale deeds in their favour and for change of Khatha.

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PW.1 filed complaint as per Ex.P1 before the respondent police alleging that in connection with change of Khatha in favour of his father and uncle, he visited the office of accused No.1 on 03.02.2007 and sought for change of Khatha. He further alleged that accused No.2

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sought certain documents and on 14.02.2007 when he visited accused No.2 along with documents, accused No.1 demanded illegal gratification of Rs.30,000/for changing Khata and ultimately on negotiation agreed for Rs.10,000/-. He claimed that since he was unwilling to give illegal gratification, he filed complaint.

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On the basis of such complaint, PW.5 registered the FIR as per Ex.P21 against the accused. He said to have secured PWs.2 and 3 as witnesses for pretrap proceedings and conducted the pre-trap mahazar as per Ex.P2 on 21.02.2007 between 11 a.m. to 12 noon. During entrustment Mahazar Ex.P2, bait money consisting of five currency notes of denomination of Rs.1,000/- each and ten currency notes of denomination of Rs.500/- each as per MO-1(a) were allegedly produced by PW.1 before Investigating Officer and panchas. After demonstration of chemical reaction of phenolphthalein and sodium carbonate solution, currency notes were handed over to CW.1. Thereafter, PW.5 sent PW.3 as shadow witness

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along with PW.1 to the office of the accused with instructions that PW.1 shall handover the bait money to the accused, only if they demand and accept and then shall give the signal.

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It is further case of the prosecution that PWs.1 and 3 went to the office of the accused in Nanjangud, When PW.1 requested the accused to do his work, accused demanded money and took him to nearby Hotel to have Tea. When they came out of Hotel near temple Chariot accused No.1 allegedly directed PW.1 to handover MO-1(a) to accused No.2. Accordingly PW.1 allegedly handed over the bait money to accused No.2, he kept that in his right pant pocket, PW.1 gave signal and PW.5 went to the spot caught hold of accused Nos.1 and 2 and took them to the administrative office of temple.

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According to the prosecution in the office of the administrator of temple, the Investigating Officer conducted the procedure of washing the hands of the accused in sodium carbonate solution, recovered the bait

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money from the possession of accused No.2 seized the bait money, the documents, secured the statements of accused Nos.1 and 2 as per Exs.P15 and 16 and recorded the proceedings in trap mahazar as per Ex.P3. Thereafter he conducted further investigation. The Investigating Officer said to have seized the relevant documents, sent the incriminating article for scientific examination, received the FSL report as per Ex.P37 and filed charge sheet.

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The trial Court on hearing the accused framed the charges against them for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act alleging that the accused being public servants demanded illegal gratification of Rs.30,000/- from PW.1 for changing of Khatha of land in favour of CWs.3 and 4 and in pursuance of such demand on 21.02.2007 accused No.2 at the instance of accused No.1 received illegal gratification of Rs. 10,000/-. Since the accused denied the charges, the trial was conducted. In support of the prosecution case, PWs.1 to 6 were examined and Exs.P1 to P39, MOs.1 to

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MO.10 were marked. The trial Court examined the accused under Section 313 of Cr.P.C. The accused did not lead defence evidence.

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The trial Court on hearing both side by the impugned judgment and order, convicted accused Nos.1 and 2 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act and sentenced them to Rigorous imprisonment of one year and fine of Rs.10,000/- The trial Court further sentenced the accused to undergo simple imprisonment of three months, if they fail to pay the fine amount.

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Aggrieved by the said order of conviction and sentence, accused No.1 has preferred Criminal Appeal No.202/2011 and accused No.2 has preferred Criminal Appeal No.211/2011.

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12. The submission of Sri P.N.Hegde, learned Counsel for accused No.1 :

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(i) To convict the accused for the offences punishable under Sections 7 and 13(1)(d) of the Act, the

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prosecution has the burden of proving the demand and acceptance of illegal gratification, only thereafter presumption under Section 20 of the Act is available.

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(ii) The prosecution has failed to discharge the initial burden itself. Though according to the prosecution conversation of PW.1 and accused regarding the demand of illegal gratification was recorded on tape recorder and cassette, that was not played before the Court and marked in evidence. PW.2 the shadow witness totally turned hostile regarding demand and acceptance.

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(iii) The transcription of Tape Recorder conversation was not produced. The alleged trap took place in public place, therefore demand and acceptance of illegal gratification in a public place itself does not inspire the confidence of the Court. Since the acceptance of money allegedly took place in the public place, PW.2 and PW.5 also should have witnessed the same. But they do not speak to that effect. They say that it was the complainant who told them that accused No.2 has received the money.

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(iv) Under such circumstances the trial Court was

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not justified in convicting and sentencing the accused only on the solitary evidence of PW.1. PW.1’s evidence was self-contradictory about the demand made by the accused and he changed his version. The Investigating Officer did not examine the Executive officer of the temple in whose office the alleged trap mahazar was drawn.

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(v) Admittedly, from accused No.1 there was no recovery, therefore presumption under Section 20 of the Act regarding demand and acceptance does not arise against him.

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(vi) As per the Karnataka Land Revenue Rules, the Khatha cannot be changed unless 30 days notice is issued to the interested persons. Admittedly on the date of trap, 30 days had not elapsed, thereby no official work was pending with accused No.1.

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Submissions of Sri Venkatesh.C.Sharma, learned Counsel for accused No.2 :

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(i) The trial Court relied on the solitary evidence of PW.1 ignoring the contradictions in the evidence of

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witnesses. As per PW.5 the recovery of bait money was from accused No.1. As per trap mahazar recovery was from accused No.2. PW.5 in his evidence states that the hand wash of accused No.2 did not change the colour. Regarding pre-trap mahazar no photographs were taken and there are material contradictions regarding the place of pre-trap proceedings. The charges framed were not proper. Ex.P37 the FSL report states that the wash of the pant of accused No.2 tested negative for Sodium Carbonate solution and the denomination of the currency notes mentioned in Exs.P2, P3 and Ex.P17 materially differ.

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(ii) As per pre-trap mahazar the instructions was given to handover the money to accused No.1. PW.1 in his cross-examination unequivocally states that accused No.2 did not demand any money for change of Khata. PW.1 himself admitted that he had not informed accused No.2 about accused No.1 demanding illegal gratification till they reached the chariot. He also unequivocally admitted that accused No.2 did not raise objection for changing the

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khata or pressing for anything. Such material admissions in the evidence of PW.1 were overlooked by the trial Court.

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(iii) The evidence of PWs.3 and 2 show that the documents and the alleged explanations were created one. The FSL report does not support the prosecution case. The evidence of PW.5 also shows that the demand and acceptance were not proved. He says that accused No.1 demanded and accepted the money. As per the charge, both accused demanded illegal gratification, but the trial Court convicted saying that there was conspiracy between accused Nos.1 and 2.

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Learned Counsel for both accused/ appellants in support of their submissions relied on the following judgments:

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i). Panalal Damodar Rathi v State of Maharashtra¹ ii). P. Satyanarayana Murthy v. State of A.P.² iii). Krishan Chander v State of Delhi³ iv). State of Punjab v. Madan Mohan Lal Verma⁴

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1 (1979) 4 SCC 526

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2 (2015) 10 SCC 152

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3 AIR 2016 SC 298

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4 AIR 2013 SC 3368

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14. Submissions of Sri B.S.Prasad learned Special

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Public Prosecutor :

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(i) The appellants being public servants in-charge of change of Khatha is not disputed. Though PW.3 turned hostile, his entire evidence need not be disbelieved. His evidence regarding receipt of money is not denied. There is no material contradiction in the evidence of the witnesses regarding pre-trap mahazar.

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(ii) So far as 30 days of time to notify the change of khatha, pending work is not pre-condition for demand and acceptance. Anyway pendency of work for change of khatha was not disputed. Accused No.2 in the crossexamination of PW.1 has suggested that demand was by accused No.1. The evidence of PW.2 corroborates the evidence of PW.1 regarding mahazar. Since the witnesses have given the evidence three years after the incident, the minor discrepancies are bound to occur in their evidence.

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(iii) The prosecution has successfully discharged the initial burden of demand and acceptance. Therefore the

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presumption under Section 20 of the Act arises. The accused did not rebut the same. The accused not choosing their private office to receive the money does not falsify the prosecution case. The inconsistency regarding the denomination of currency notes in the FSL report being minor, that does not demolish the case of the prosecution.

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(iv) PW.1 had no enmity with the accused, hence there was no ground for false implication. It was for the accused to explain the possession of the bait money. They failed to do that. The trial Court on sound appreciation of evidence convicted and sentenced the accused. The order of the trial Court does not call for any interference.

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In support of his submission, he relies on the judgment of the Hon’ble Supreme Court in Vinod Kumar v. State of Punjab⁵ .

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Having regard to the rival contentions, the point that arise for consideration of this Court is “ Whether

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5 (2015) 3 SCC 220

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the impugned order of conviction and sentence is

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sustainable in law?” .

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The trial Court convicted and sentenced the accused for the offences punishable under Sections 7, 13(1)(d) read with Sections 13(2) of Prevention of Corruption Act 1988. For better clarification and analysis of the evidence it is useful to refer to the relevant provisions of Sections 7 and 13(1)(d) of the Act which read as

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follows:

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“7. Public servant taking gratification other than legal remuneration in respect of an official act.— Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.

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13. Criminal misconduct by a public servant.— (1) A public servant is said to commit the offence of criminal misconduct,— (d) if he,—

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(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or

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(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or”

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Reading of the above provision shows that to sustain the conviction under Sections 7, 13(1)(d) of the Act, the prosecution has to establish that the accused were public servants and they demanded and accepted any gratification other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show any favour in the exercise of his official functions.

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No doubt it is true that accused did not dispute

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that they were Revenue Inspector and Village Accountant in Alaganji village and work of the father and uncle of PW.1 regarding change of khatha of the land was pending with

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them. But according to them the Karnataka Land Revenue Rules require issuance of 30 days notice prior to submission of the records to the Higher officer recommending for change of khatha.

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It is their further contention that they had to receive report from Tahsildar of Chamarajanagar to the effect that the sale in favour of the father and uncle of PW.1 was not hit by Sections 79 and 80 of Karnataka Land Reforms Act. It is their contention that PW.1 was pressing them to recommend for change of khatha without report of Tahasildar regarding compliance of Sections 79 and 80 of Karnataka Land Reforms Act. To arm-twist them for his goal, he tricked them into trap and criminal case. They denied demand and acceptance of illegal gratification.

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In the complaint Ex.P1 the allegation of demanding Rs.30,000/- and settling the demand amount to Rs.10,000/- are only against accused No.1, But in the complaint he seeks action against both accused Nos.1 and 2. The trap mahazar Ex.P3 states that PW.1 revealed the

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trap party that accused No.2 accepted the illegal gratification on the instructions of accused No.1. He did not implicate accused No.2 for demand. For that he implicated only accused No.1. In the cross-examination he denied implication of only accused No.1.

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So far as accused No.1, there was no independent evidence of demand. PW.3 is shadow witness. As rightly pointed out by learned Counsel for the appellant both PW.2 and PW.3 turned hostile regarding demand and acceptance. Contrary to that, PW.3 deposed that in the office of accused Nos.1 and 2 he did not hear the conversation between the accused and PW.1 and says that accused No.1 told PW.1 that he will not come to hotel and PW.1 took them to the hotel forcibly. He further stated that PW.1 tried to give money to accused No.1, he did not accept that, but asked to hand over money to accused No.2. Therefore absolutely there was no evidence of demand by accused No.2.

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The prosecution claims that the conversation between accused No.1 and PW.1 regarding demand of bribe before trap and during trap was recorded in a cassette. The said cassette was not marked in evidence. The said conversation was not transcribed and produced before the Court.

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Hon’ble Supreme Court in Panalal Damodar Rathi’s case referred to supra held that in corruption cases the evidence of complainant shall be corroborated in all material particulars. In Madan Mohan Lal Verma’s case referred to supra, Hon’ble Supreme Court held that in trap cases the complainant is the interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. It was held that, therefore the Court has to look for independent corroboration to the complainant’s evidence before convicting the accused persons.

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In the light of the aforesaid judgments the trial Court ought to have sought corroboration to the evidence of PW.1 by the evidence of shadow witness PW.3. As already pointed out, PW.3 did not corroborate the evidence of PW.1 with regard to demand by accused Nos.1 or 2.

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PW.2 another mahazar witness was in the trap team. Though he was treated as hostile and crossexamined by the Special Public Prosecutor, nothing could be elicited in his cross-examination about any demand by accused No.1 or acceptance by accused No.2. According to learned Counsel for the accused, the whole trap was only to fix the accused into the case. They even challenged the pre-trap mahazar proceedings also. As pointed out by learned Counsel for the accused, when PW.1 says that pretrap mahazar was conducted in the Lokayukta Office, PWs.2 and 3 mahazar witnesses say that same was conducted in the car in Maharaja College grounds. Therefore the evidence of PW.1 was not corroborated by the evidence of other witnesses.

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It is not the case of the complainant himself that accused No.2 demanded the illegal gratification. He claims that at the instance of accused No.1, accused No.2 received the money. The trial Court also holds that demand by accused No.2 was not proved.

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The prosecution relies on the explanation of the accused in Ex.P.15. In Ex.P15, accused No.1 has denied the allegations of demand. Admittedly he had not received the money. Therefore said explanation in no way help the prosecution to prove the case of demand.

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So far as Ex.P16, first of all, such confession of co-accused cannot be used against accused No.1 to convict him for the crime. Secondly, accused No.2 in the crossexamination of the witnesses disputed that he voluntarily gave such explanation. To substantiate such contention, accused No.2 relied on the evidence of PW.2. In para 4 of his cross-examination, PW.2 states that the police took signatures of the accused on several documents in the

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room of temple and that was not videographed, he does not know how the money reached the hands of accused No.2.

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PW.2 further says that by the time, he went there, the police had arranged everything and signatures were taken in Lokayukta office. He further states that before he went to the room in Nanjangudu, the police told him that they have to go to the police station and prepare some documents. Therefore took all of them to the police station. He further states that he does not know what all police did in the said place.

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PW.3 is star witness of the prosecution i.e. the shadow witness. In his cross-examination, PW.3 says that he noticed that the complainant was placing money in the hands of the accused due to somebody’s pressure. He did not find that accused No.2 was receiving the money voluntarily. That means he did not accept that. PW.3 says that the police did not take signatures of accused No.2 at the place of trap. He further says that when the police

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asked the accused to give their explanation, accused were looking at the face of each other and the police who had engaged in typewriting asked the accused to give the explanation as dictated by them. According to the direction of the police, he wrote. This evidence of PWs.2 and 3 creates doubt about accused No.2 giving Ex.P16 voluntarily.

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It is no doubt true that in Vinod Kumar’s case referred to supra relied on by learned Special Public Prosecutor, it was held that even if the witness is characterized as hostile witness, his evidence is not completely effaced. But at the same time, it was further held that the conviction can be based on such evidence of the hostile witness provided the same is corroborated by other reliable evidence.

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In the judgment in Khujji v. State of M.P.⁶

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relied on by learned Special Public Prosecutor, it was held that even though if there was some material in evidence to

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6 AIR 1991 SC 1853

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doubt the testimony, if there is no cause to give false evidence, the contradictions occurred in the evidence are natural. The said judgment cannot be justifiably applied to the facts of the present case.

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In the light of the above facts and circumstances, the trial Court was not justified in holding that the charge of demand of illegal gratification was proved beyond reasonable doubt. So far as acceptance, the trial Court based on the explanations Exs.P15 and 16 holds that the explanation helps the prosecution to raise the presumption under Section 20 of the Act.

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The language of Section 20 of the Act shows that presumption can be raised, only if acceptance on the part of the accused is proved. The acceptance is not mere custody of the money. But it is voluntary receipt of money. In that context, the Larger Bench of the Hon’ble Supreme Court in P. Satyanarayana Murthy’s case referred to supra

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held that mere acceptance of any amount allegedly by way of illegal gratification or recovery of amount dehors proof

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of the demand ipso facto would not be sufficient to prove

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the charges under Sections 7 and 13 of the Act.

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In Krishan Chander’s case referred to supra relied upon by learned Counsel for the appellants, the Hon’ble Supreme Court held that where pancha witnesses did not hear the conversation between the accused and the complainant when the complainant approached the accused to give bribe money and there were contradictory statements made by the complainant regarding demand were not explained in the cross-examination of the Investigating Officer, accused are entitled for acquittal. In the judgment in Madan Mohan Lal Verma’s case referred to supra it was held that mere receipt of amount by the accused is not sufficient to prove the guilt in the absence of any evidence of acceptance of the amount as illegal gratification.

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To sum up, as per the prosecution itself, there was no receipt of money by accused No.1. Therefore explanation by him does not arise. As already held the

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demand by accused No.1 was not proved beyond reasonable doubt.

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So far as accused No.2, though money was allegedly recovered from him, the evidence of independent witnesses i.e. PWs.2 and 3 in that regard was shaky. The denominations of the currency notes mentioned in pre trap mahazar and post trap mahazar Exs.P2 and P3 and the FSL Report Ex.P37 were inconsistent. The Investigating Officer did not explain that. To clarify that the FSL authorities were not examined. Under the circumstances, the trial Court was not justified in raising presumption under Section 20 of the Act in convicting the appellants. The impugned judgment is unsustainable in law. Therefore the appeals are allowed.

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The impugned order of conviction and sentence passed against the appellants are hereby set aside.

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The appellants are acquitted of the charges for the offences punishable under Sections 7, 13(1)(d) read with

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Section 13(2) of the Act. The bail bonds of the accused and the sureties shall stand discharged.

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Fine amount deposited if any, by the appellants shall

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