Allowed

Shivakumar v. State of Karnataka

Karnataka HC7 Jun 2022CRL.A/848/2011

Case brief

AI extract

What is this about?

The High Court set aside the conviction and sentenced an appellant accused of bribery under the Prevention of Corruption Act. Finding doubts about the authenticity of shadow witnesses and lack of proof that the accused withheld a file for extortion, the court held the evidence of demand and acceptance was insufficient to sustain the conviction.

What did the court decide?

The judgment andsentence dated 01.08.2011 are set aside, and the appellant is acquitted of the offences under Sections 7, 13(1)(d), and 13(2) of the Prevention of Corruption Act.

Shivakumar Vs State of Karnataka — Corruption | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF JUNE, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE S. RACHAIAH

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CRIMINAL APPEAL No.848/2011

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BETWEEN:

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SHIVAKUMAR, S/O LAKSHMAIAH, AGED ABOUT 28 YEARS, SECOND DIVISION ASSISTANT, JUNIOR ASSISTANT LABOUR, DEPARTMENT, SECRETRIAT -2, M.S. BUILDING, BANGALORE, R/AT 2^ND CROSS, MATADAHALLI, BANGALORE.

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... APPELLANT

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(BY SRI M. SHARASS CHANDRA, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY LOKAYUKTA POLICE, (REP BY SPL. PUBLIC PROSECUTOR)

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... RESPONDENT

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(BY SRI VENKATESH S. ARBATTI, SPL.PP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED:01.08.2011 PASSED BY THE SPL.JUDGE, PREVENTION OF CORRUPTION ACT. BANGALORE URBAN DIST., BANGALORE CITY IN SPL. C.C.NO.55/05 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 OF PREVENTION OF CORRUPTION ACT AND SEC. 13(1)(D) PUNISHABLE UNDER SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988 AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.J. FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 OF PREVENTIONN OF CORRUPTION ACT AND TO PAY A FINE OF RS.500/- (RUPEES FIVE HUNDRED) IN DEFAULT TO UNDERGO S.I. FOR 15 DAYS AND THE APPELLANT/ACCUSED IS FURTHER SENTENCED TO UNDERGO R.I. FOR A TERM OF ONE YEAR FOR THE OFFENCE DEFINED UNDER SECTION 13(1)(D) WHICH IS PUNISHABLE UNDER SECTION 13(2) OF PREVENTION OF CORRUPTION ACT AND TO PAY FINE OF RS.600/- (RUPEES SIX HUNDRED) IN DEFAULT TO UNDERGO S.I. FOR 20 DAYS. THE SUBSTANTIVE SENTENCES OF IMPRISONMENT SHALL RUN CONCURRENTLY.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 08.04.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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JUDGMENT

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The appellant / accused has preferred this appeal against the conviction passed by learned Special Judge, Prevention of Corruption Act, Bengaluru Urban District, Bengaluru City in Spl.C.C.No.55/2005 dated 01.08.2011.

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Brief facts of the case are as follows:-

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The accused was working as SDA at Labour Department, situated at M.S.Building, Bengaluru. The complainant was working as Conductor in KSRTC in the year 1994 and he was also a representative of AITUC. Since he was representing the Union, the Corporation allegedly dismissed him from service. He challenged the said dismissal order before the Labour Court at Bengaluru. In the year 2000, the order of dismissal was set-aside by the Labour Court and directed the Corporation to reinstate him with backwages and directed the State Government to notify the award. On

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02.07.2004, the complainant approached the accused Shivakumar and C.Raju, both have demanded a bribe in a sum of Rs.200/- each for notifying the court order. Since the complainant was not willing to pay the said amount, he has chosen to lodge the complaint before the Lokayukta. Accordingly, he has lodged the complaint before the Lokayukta on 05.07.2004. On registration of the FIR for the offence punishable under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. The Investigating Officer after completion of the investigation, submitted the chargesheet against the accused Shivakumar. In the chargesheet, it is alleged that the accused being a public servant, while working as a SDA in Labour Department, has demanded and accepted illegal gratification of Rs.200/- from the complainant in connection with the notification of the award passed by the Labour Court.

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The Special Court read over the charges framed against the accused for the offences punishable under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act in the language known to the accused and explained the consequences of the charges. The accused pleaded not guilty and claimed to be tried.

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In order to prove the case of the prosecution, the prosecution examined eight witnesses i.e., PW.1 to PW.8 and got marked Ex.P1 to Ex.P26 and also identified the material objects M.O.1 to M.O.16.

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The trial Court after considering the oral and documentary evidence, has opined that the accused has committed the said offences and convicted him for the above said offences.

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Being aggrieved by the said conviction, the appellant / accused has preferred this appeal, seeking to set-aside the impugned judgment.

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Heard learned counsel for the respective parties of the case.

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Sri.M.Sharasschandra, learned counsel for the appellant, has contended that the accused was working as SDA in Labour Department. He was honest, sincere and dedicated towards his official duties. On 05.07.2005, when he was in the office, the complainant has entered the chamber of the appellant and forcibly put the currency notes to his pant pocket and requested to keep the same. By that time, the repondent – Police conducted a raid and seized the said currency notes, with an intention to cause harm to his reputation.

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Learned counsel for the appellant further submits that the evidence of PW.2 and PW.3 clearly discloses that the work of the complainant and the file alleged to have kept in the custody of the appellant was not there and the work of the Compalainant was not there with the Appellant. Further, PW.2 and PW.3 have

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deposed that, prior to conducting of the raid, the said file was proceeded before the Labour Commissioner for necessary compliance. Hence, the question of keeping the file by demanding bribe would not arise at all. He further submits that, the appellant was falsely implicated even though no work was pending and no demand was made by the appellant. Hence, he sought to allow the appeal.

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Per contra, Sri.Venkatesh S.Arabatti, learned Spl.Public Prosecutor for Lokayukta, while justifying the order of conviction, has vehemently contended that, though PW.1 has got order from the Labour Court, the accused / appellant deliberately in order to have illegal gratification from the complainant, has with held the file and not put up the same for further adjudication. Being fed up with the illegal demand by the appellant, the complainant has lodged the complaint with the Lokayukta Police.

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Learned Spl.PP further submits that PW.1 is the complainant who has supported the case of the prosecution and narrated the incident. The same has been supported by PW.2 and PW.3 who are the shadow witnesses to the incident and all other official witnesses have consistent in their evidence with regard to seizure of the currency notes from the accused, washing of hands in order to show that he has received the bribe money from the complainant. Hence, he submits that prosecution has proved the case of demand and acceptance which is sine-quo-non to establish the corruption. Such being the fact, he justified the judgment of the trial Court and prayed for dismissal of the appeal.

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Having heard the rival contention of the learned counsel for the respective parties and after having gone through the evidence on record, the points which arise for my consideration are:-

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(i) Whether the trial Court is justified in convicting the accused for the offences punishable under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act?

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(ii) Whether the appellant has made out ground to interfere with the impugned judgment?

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This Court being the first Appellate Court, in

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order to re-appreciate the evidence on record, is required to analyse the evidence of all the witnesses to arrive at a conclusion.

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(a) PW.1 – M.Ramu – complainant states that, he was working as a Conductor in KSRTC, Bengaluru. He was removed by the

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Corporation since he was a member in AITUC. He challenged the said dismissal

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order before the Labour Court, Bengaluru in Ref.Nos.15/1999 and 5/2000. The Labour Court directed the Corporation to reinstate him with backwages. He approached the

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Labour Department for notification in the Gazette. There was a delay in publishing the notification. He approached the accused and C.Raju. Both have demanded bribe of Rs.200/- each. Though he requested accused and his friend that he did not have money, they have not heeded to his words. Having fed up with the act of accused and his friend, he has lodged the complaint before the Lokayukta Police on 05.07.2004. The complaint is marked as Ex.P1. He is also a witness to Ex.P2 wherein the serial number of currency notes were noted. He is also a witness to Ex.P3 – panchanama. This panchanama pertains to entrustment of money by the Lokayukta Police to the complainant. He has supported the case of the prosecution.

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(b) PW.2 – U.Manjunath – is a shadow witness. He was working as SDA in Sericulture Department, located at M.S.Building, Bengaluru. He has supported the case. However, denied the handing over of taperecorder to the complainant and the conversation said to have been heard by him. Though the prosecution treated him as partly hostile and cross-examined him on the point, nothing has been elicited in the crossexamination.

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(c) PW.3 – M.V.Rangaraju – is also a shadow witness. He was working as SDA in Transport Commissioner’s Office, located in M.S.Building, Bengaluru. He has also partly supported the case of the prosecution.

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(d) PW.4 – A.N.Rajanna – was working as Dy.S.P., at Lokayukta Office, Bengaluru. He stated that he has received complaint from the complainant, which is already marked as Ex.P1, after registering the FIR, the investigation was handed over to I.O. for necessary compliance. He has supported the case of the prosecution.

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(e) PW.5 – G.V.Kongawad – was working as Director, DPAR , situated at M.S.Building, Bengaluru. He stated that he has issued “sanction” against accused No.1 on the request made by the I.O. Supported the case of the prosecution.

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(f) PW.6 – M.Raju – was working as SDA in Labour Department. He stated that, on 05.07.2004, at about 4.00 p.m., when he

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was working in his office, a stranger came to his office and enquired as to whether the file had been to Commissioner Office or not. He answered that it had gone to Commissioner Office and showed the tappal book. As per the record, on 28.06.2004, the said file had been to the office of the Labour Commissioner for necessary action. He has supported the case of the prosecution.

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(g) PW.7 – M.R.Mahesh Kumar – was working as Section Officer in Labour Department Secretariat, M.S.Building, Bengaluru. He stated that he had attested some documents given by I.O. in connection with the case pertaining to accused. He has supported the case of the prosecution.

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(h) PW.8 – N.M.Dharmappa – was working as a Police Inspector, Karnataka Lokayukta, City Division, Bengaluru. He stated that, on 05.07.2004, he has received case file from Dy.S.P., and conducted investigation about the case and submitted chargesheet. He has supported the case of the prosecution.

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It is the case of the prosecution that the complainant had approached the accused and his friend C.Raju to notify the award passed by the Labour Court. The Order passed by the Labour Court discloses that, the direction was issued to reinstate the complainant with backwages. The complainant further alleged that, to notify the award, the accused and his friend have demanded Rs.200/- each. Having been frustrated by the act of the accused and his friend, he decided to lodge the complaint with the Lokayukta Police. Accordingly, on 05.07.2004, he lodged the complaint as per Ex.P1. PW.2 and PW.3 said to have been working in the M.S.Building wherein the Labour Department is

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situated and these witnesses have been treated as shadow witnesses and mahazar witnesses with regard to the alleged incident. These witnesses have supported the case.

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PW.2 in his examination-in-chief has stated that, on request being made by the Investigating Officer to be a shadow witness to the incident, he acted as shadow witnesse with prior permission from his highter officials. He stated that, he has followed the instruction of the I.O. As per the instruction given, he had accompanied PW.1 to the office of Labour Department which is situated at V Floor of M.S.Building, Bengaluru, there, C.Raju, SDA, was working and the accused was not there. Both he and PW.1 were waiting outside till the arrival of accused to his chamber. On arrival, PW.1 had approached the accused. The accused demanded the money. Then P.W.1 handed over Rs.200/- to the accused. The accused had kept Rs.200/- in his pant

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pocket. On signal being made by PW.1, the Lokayukta Police conducted raid and seized the said currency notes from the accused and also conducted trap mahazar. He further states that, he along with PW.3 have signed the trap mahazar and also witnesses to the incident. Though he denied that he has not seen the taperecorder and he has not heard the conversation said to have taken place between PW.1 and the accused, but he has supported the case and described the incident effectively. Though in the cross-examination, the defence counsel subjected him for lengthy crossexamination, nothing has been elicited to discredit the veracity of this witness.

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Similarly, PW.3 accompanied I.O. and he was standing along with I.O. and waiting for signal to be given by PW.1. He has almost reiterated the evidence of PW.2 and supported the case of the prosecution with regard to seizure of currency notes from accused,

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washing of hands in order to conduct examination. The said examination shows that, after washing the hands of the accused, the solution turned into pink colour which clearly discloses that the currency notes were smearing of phenolphthalein powder. These two witnesses have consistently deposed about the trap and the mahazars. The trial Court on considering the evidence of these witnesses and also the evidence of PW.1, opined that the essentiality of the provision of sections 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act has been fulfilled and accordingly, convicted the accused.

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it is the case of the Appellant that, the Trial Court before concluding that there was a demand and acceptance of bribe by the accused, should have verified and analysed the facts and circumstances of the case. Since, the trial court failed to appriciate the facts and circumstances, the impugned order had been passed. In

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this back ground let me analyze the evidence and circumstances once again. Admittedly, PW.1 has deposed that, to notify the award of the Labour Court, there was demand and acceptance of Rs.200/- by the accused. However, PW.2 and PW.3 and also PW.5 have been consistent in their evidence that, on 05.07.2004, when the alleged trap said to have taken place in the office of the Labour Commissioner, Bengaluru, the file pertaining to the award passed by the Labour Court belonging to the complainant had been to Labour Commissioner much earlier. There was no occasion for the accused to demand Rs.200/- from the complainant to get his work done. Admittedly, as per the evidence of PW.2 and PW.3, the complainant has forcibly put Rs.200/- in the pant pocket of the accused which clearly discloses that there was no demand and acceptance as stated by PW.1.

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Before arriving at a conclusion, it is necessary to place reliance on the judgment of this Court in the case of STATE, By Lokayukta Police, Mandya v. K.M.Gangadhar reported in 2008(2) KCCR 985. Held - Prevention of Corruption Act, 1988 – sections 7 and 13(1)(d) – Evidence on record brings out the fact of the currency notes being recovered from the pocket of the accused and his hands being tested positive, yet, they themselves are not sufficient to hold that the accused demanded illegal gratification from the complainant and received the same.

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In another judgment of this Court reported in ILR 2010 Kar 1983 between STATE OF KARNATAKA, Through Police Inspector, Bureau of Investigation vs. ANAND GURURAO DESHPANDE – HELD - Prevention of Corruption Act, 1988 – sections 7 and 13(1)(d) read with section 13(2) – offences under – charges against the accused – trial – judgment of acquittal – appealed

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against – presumption under section 20 of the Act – burden on the accused to rebut the presumption – consideration of – held, there has to be an evidence establishing the demand and acceptance of the gratification. It is only on such evidence invoking of section 20 of PC Act for drawing presumption against the accused arises – the factum of acceptance of amount, if it is not proved by the prosecution then drawing presumption under section 20 of PC Act may not arise.

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On careful reading of the dictum of this Court, it is made it clear that, mere seizure of currency notes and washing of hands is not sufficient to prove the illegal gratification. In the present case, as per the evidence of PW.2 and PW.3, it appears that their presence as shadow witnesses to the incident appears to be doubtful in the mind of this Court. It is the case of the prosecution is that, a tape recorder was handed over to the complainant for recording of the conversation and

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the said tape recorder had been seized in the presence of P.W.2 and P.W.3. but, the seizure of the tape recorder in the presence of P.W.2 and P.W.3 has been denied by these two witnesses. Hence, it creates the doubt in the mind of the court about presence of P.W.2 and P.W.3, this contradiction would obviously be benifitted to the accused. Further, it is an admitted fact that, the prosecution has failed to prove that the appellant had withheld the file with him for illegal gratification. Such being the fact, the trial court has committed an error in concluding that, the accused has been found guilty.

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in view of observation made above, i feel it necessary to allow this appeal. Accordingly, I pass the following;

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O R D E R

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i) The appeal filed by the Appellant is allowed.

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ii) The judgment and sentence passed dated 01/08/2011 in Spl.C.C. No.55/2005 on the file of the Special Judge, bengaluru urban District, Bengaluru City is hereby Set – aside.

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iii) The accused is acquitted for the offence under section 7, 13(1) (D) and 13(2) of the Prevention of Corruption act.

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iv) The Registry is directed to transmit the record to the concerned court for neceaasry complaince.

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Sd/-

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BSS

Shivakumar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Shivakumar v. State of Karnataka

Case brief

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