The High Court of Karnataka allowed a criminal appeal against conviction under the Prevention of Corruption Act, acquitting the accused for failing to prove demand and acceptance of bribe and pendency of official work.
The judgment of conviction and sentence is set aside; the appellant is acquitted of the offences.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2023
BEFORE
THE HON’BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 20/2017
BETWEEN : Ms.K.T.Shreeshylaja D/o Thimmarayappa Aged about 48 years Commercial Tax Inspector Professional Tax office 3rd circle, Sheshadripuram Bengaluru. R/at No.614, 13th Cross M.C.Layout, Vijayanagara Bengaluru – 560 040.
… Appellant
(By Sri Veeranna G Tigadi, Advocate ) AND :
State of Karnataka Rep by Inspector of Police Karnataka Lokayuktha Police Bengaluru City Division Bengaluru – 5600 01.
… Respondent
(By Sri Venkatesh S Arbatti, Spl.P.P)
2
This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the Judgment of conviction and order of sentence dated 14.12.2016 passed by the LXXVII Additional City Civil and sessions court and Spl. court under prevention of corruption Act, Bengaluru in Spl. C.C.No.180/2011 – convicting the appellant/accused for the offence punishable under Section 7, 13(1)(d)R/W 13(2) of prevention of corruption Act and etc.,
This Criminal Appeal having been heard and reserved for judgment, this day, SHIVASHANKAR AMARANNAVAR J , delivered the following;
JUDGMENT
This appeal is filed seeking to set aside the judgment of conviction and order of sentence dated 14.12.2016 passed in Spl.C.C. No. 180/2011 by the LXXVII Additional City Civil and Sessions Judge and Special Judge, Bengaluru, convicting the appellant – accused for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short hereinafter referred to as `P.C. Act’) and sentencing to undergo simple imprisonment for six months and to pay fine of
3
Rs.2,000/- for offence punishable under Section 7 of the P.C. Act with default sentence and further sentencing to undergo simple imprisonment for one year and to pay fine of Rs.4,000/- for offence punishable under Section 13(1)(d) read with Section 13(2) of the P.C. Act with default sentence. The trial Court has ordered that both the sentences of imprisonment shall run concurrently and also has given the benefit of set off under Section 428 of
Cr.P.C.
4
have registered the FIR in crime No. 13/2011. The Lokayuktha Police have secured the witnesses, conducted the pre trap proceedings and also drawn the pre-trap mahazar (Ex.P.4). On 15.02.2011 at about 04.45 pm in her office at Seshadripuram, Bengaluru, the appellant – accused was trapped by the Lokayuktha Police when she was found receiving the illegal gratification of Rs.2,000/from the complainant (P.W.4). The Lokayuktha Police have conducted the trap proceedings and also drawn the trap mahazar (Ex.P.6). The Investigating Officer after investigation has submitted the final report before the sanctioning authority and after obtaining the sanction the Lokayuktha Police have filed the charge sheet against the appellant – accused for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act. The Special Court has framed the charges against the appellant – accused for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act. The
5
appellant – accused pleaded not guilty and claimed to be tried.
6
– accused and learned Spl.P.P. for respondent.
that the special Court has not appreciated the evidence on record in proper perspective. The complainant – P.W.4 has paid the prescribed fee of Rs.2,500/- on 14.02.2011 and on the same day she has collected the Registration Certificate. There is an admission in that regard by P.W.4 that she received the Registration Certificate on 14.02.2011. P.W.4 in her complaint has stated that she
has not been given the Registration Certificate on 14.02.2011 even though her signature was obtained for having received the certificate. In her cross-examination P.W.4 has admitted that she received the Registration Certificate on 14.02.2011 but inspite of that admission
the prosecution has not treated P.W.4 as hostile. The said admission of P.W.4 falsifies her complaint that she has not been supplied with Registration Certificate on
7
14.02.2011. He further argued that when complainant (P.W.4) has received the Registration certificate on 14.02.2011 there was no work pending with the appellant – accused as on the date of trap, i.e., 15.02.2011. P.W.4 has stated that the appellant – accused has demanded bribe when P.W.2 made a phone call to the appellant – accused. P.W.2 has not stated the same in his evidence regarding demand of bribe by the appellant – accused when he made a phone call to her. P.W.2 has stated that he has already paid fees but, Ex.P.15 will reveal that fee has been paid on 14.02.2011 under receipt No. 1054442.
Even P.W.4 has stated that she has paid the prescribed fee on 14.02.2011. The statement of P.W.2 has been recorded after seven days of trap even though he was available in Bengaluru and same has been stated by the Investigating Officer (P.W.7). The alleged demand on 14.02.2011 has not been proved. The appellant – accused immediately after the trap has given statement
8
as per Ex.P.5 wherein she has stated that as there was no delay in issuing the Registration Certificate and P.W.4 after receiving the Registration Certificate has falsely implicated her. The said aspect is also forthcoming in the evidence of P.W.5 and also in the evidence of the Investigating Officer (P.W.7). The appellant – accused in her statement (Ex.P.5) has stated that she was busy with compliance to A.G. audit objections and there was some technical problem in the computer and therefore Registration Certificate was not issued earlier to 14.02.2011. The Investigating Officer (P.W.7) has also stated the same in his evidence. P.W.4 is a professional and she is not able to get the certificate immediately and therefore has falsely implicated the appellant – accused. The complainant (P.W.4) has not stated in the complaint about she meeting Sri. Madhukar Shetty on 14.02.2011 in the office of Lokayuktha. The said Sri. Madhukar Shetty has not been cited as a witness in the charge
9
sheet. The Investigating Officer (P.W.7) has stated that complainant had brought a typed complaint but P.W.4 has stated that her complaint was typed in the office of Lokayuktha. The Investigating Officer (P.W.7) has stated in his evidence that he has not made attempts to get the original of the Registration Certificate (Ex.P.10) from the complainant (P.W.4). It shows that the original certificate was with the complainant (P.W.4). If the original certificate was with the complainant as on the date of the trap, the Investigating Officer (P.W.7) ought to have seized the same under trap mahazar. Ex.P.6 is the trap mahazar and in its first and last page there is a mention that it has been drawn in the office/chamber of Investigating Officer (P.W.7). The evidence of P.W.5 reveal that trap mahazar has been drawn in the office of appellant – accused. The Investigating Officer (P.W.7) has stated that as there was disturbance in the office of appellant – accused, he went to his office and continued
10
the trap mahazar, but the same has not been stated by the shadow panch (P.W.5). P.W.6 is the Commercial tax Officer and she is the issuing authority of Registration Certificate. Ex.P.10 – Registration certificate contains the signature of P.W.6. In her evidence P.W.6 has stated that no work was pending with the appellant – accused on 15.02.2011 as certificate has been issued to P.W.4 on 14.02.2011. He further argued that the prosecution has failed to prove the foundational facts and therefore no presumption under Section 20 of the P.C. Act can be drawn. Learned counsel for the appellant – accused relied on the observations made by the Hon’ble Apex Court in the case of Neeraj Dutta Vs. State (Government of
N.C.T. of Delhi) reported in AIR 2023 SC 330 wherein it is held as under:
“ 68. What emerges from the aforesaid discussion is summarised as under :
11
( a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public
12
servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer
13
which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence
14
during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d)
(i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.”
15
that the conversation between appellant – accused and the complainant has been reduced into writing in trap mahazar. P.W.1 is the sanctioning authority who has accorded sanction to prosecute the appellant – accused and sanction order is at Ex.P.1. The appellant – accused has not challenged the said order Ex.P.1. P.W.2 – Manoj
went to the office of appellant – accused at the instructions of P.W.4 and at that time the appellant – accused demanded bribe from P.W.2. P.W.4 in her evidence has clearly stated regarding demand and acceptance of bribe by the appellant – accused. P.W.5 – shadow panch has stated in her evidence that the appellant – accused received the amount and kept it in the cupboard. But, P.W.4 has stated that the appellant – accused kept the amount on the ledger kept on the table. Said contradiction is not material contradiction. P.W.6 is a Commercial Tax Officer and she has authority to sign the
16
certificate. He further argued that the appellant – accused after obtaining the signature of P.W.4 regarding receipt of Ex.P.10 – certificate has not handed over the same and the same is also mentioned in the complaint – Ex.P.7. Therefore, work of P.W.4 was pending with the appellant – accused. The Spl.P.P. has supported the reasoning assigned by the special Court. He placed reliance on the decision of the Hon’ble Apex Court in the case of Hazari Lal Vs. State (Delhi Administration) reported in 1980 (2) SCC 390 .
Whether the special Court erred in convicting the appellant – accused for offence under Sections 7 and 13(1)(d) read with 13(2) of P.C. Act?
17
was working as a Commercial Tax Inspector in the office of Commercial Taxes, Sheshadripuram, Bengaluru and she is a public servant. Ex.P.1 is the sanction order issued by P.W.1 – Commissioner of Commercial Taxes, Bengaluru to prosecute the appellant – accused for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. Issuance of Ex.P.1 by P.W.1 to prosecute the appellant – accused for the aforesaid offences has not been challenged. The special Court has held that P.W.1 after receipt of investigation papers applied his mind and then issued the sanction order as per Ex.P.1.
18
Dharwad. P.W.2 was carrying on the work entrusted by P.W.4 in the year 2011. In the year 2011 the appellant –
accused was working as Inspector in the Professional Tax Office, Sheshadripuram III Circle, Bengaluru. P.W.4, on behalf of her customer, `Speedway Technologies Private Limited, Bengaluru’ had undertaken the task of registration of professional tax and she applied for the same in January 2011 and sent an application to the office of the appellant – accused through P.W.2.
her over phone and told her that the fee works out to be Rs.5,500/- and she was told that legal fee payable was Rs.2,500/- but the appellant – accused demanded Rs.5,500/-. It is the evidence of P.W.2 that in connection with registration certificate for Speedway Technologies he was sent to get clearance from the appellant – accused during January, 2011. The appellant – accused told him that the prescribed fee for the assignment was
19
Rs.2,500/-. After some time his colleague was sent for the same purpose and the appellant – accused sent the same message stating that he is supposed to pay fee of Rs.2,000/-. It is further evidence of P.W.2 that he submitted application during February, 2011 and also remitted the fees. But, the matter went on postponing and clearance was not effected. It is his further evidence that P.W.4 – Amrutha S. Pai asked him to ascertain why delay was caused and asked him to get the work done and he approached the appellant – accused and she said additional fee of Rs.2,000 to Rs.3,000/- was necessary and it was other than the Government fee. P.W.2 has not stated that appellant – accused is demanding fee of Rs.5,500/- and he intimated the same over phone to P.W.4.
20
accused and gave Rs.2,500/- towards legally payable fee. At Ex.P.15 in the proceedings on the application of M/s. Speedway Technologies Private Limited there is an endorsement that fee of Rs.2,500/- has been paid vide receipt No. 1054442/1. In the second page of Ex.P.15 there is an endorsement of P.W.6 to collect Rs.2,500/towards E.C. for the year 2010-11 and there is also an endorsement that Rs.2,500/- has been paid under receipt No. 1054442 on 14.02.2011. The very said aspect goes to show that requisite fee of Rs.2,500/- has been paid on 14.02.2011. Therefore, evidence of P.W.2 that fees has been remitted earlier to 14.02.2011 is false.
21
appellant – accused and he gave a voice recorder to her. Thereafter, she went to the appellant – accused along with the voice recorder and she paid Rs.2,500/- towards legally payable fee and told the appellant – accused that she would give her Rs.2,000/- on the next date and the appellant – accused agreed for the same. P.W.4 has not stated that the appellant – accused obtained her signature on Ex.P.10. It is the evidence of P.W.4 that she recorded the voice of the appellant – accused and placed the voice recorder at the hands of Sri. Madhukar Shetty and she was told by Sri. Madhukar Shetty to meet him on 15.02.2011 and she went to the office Lokayuktha Police in Bengaluru on 15.02.2011. It is the evidence of P.W.4 that she met P.W.7 in the office of Lokayuktha Police in Bengaluru and her complaint was reduced in to writing through the computer in the office of P.W.7 and she has identified the said complaint at Ex.P.7.
22
accused obtained her signature in the office copy of the Registration Certificate. A perusal of the entire averments of the complaint reveal that even after obtaining signature of P.W.4 on the office copy of Registration Certificate (Ex.P.10) it was not handed over to her as she has not paid the bribe of Rs.2,000/- as demanded by the appellant – accused and it will be given to her on the next day. P.W.4 in the cross examination has admitted as under:
“I have received the said Registration Certificate from the accused on 14.02.2011 by putting my signature on it.”
23
accused pertaining to P.W.4 – complainant.
trap gave her statement in writing which is at Ex.P.5. The contents of Ex.P.5 reads as under:
“I, Shailaja spoke to Amrita rep. of M/s. Speedware Technologies over the phone 6-7 times w.r. to registration of the above mentioned case. She wanted the certificate on the same day and offered me heavy amount of Rs.3,000/- but we were instructed to give A.G. Audit compliance every day basis. We were unable to attend to our routine daily office work
24
and it was affected in addition to that due to software problem over computer were not working for 304 days. We were told to give priority to AG Audit file or it was pending for the past 2-3 year. Finally, Amrita received the certificate yesterday 14.02.11 paid the fees and today she has intentionally and greedingly framed me after receiving the certificate.”
accused in Ex.P.5 has been admitted by P.W.4 in her cross-examination which reads thus:
“It is true that I have asked the accused as to why the registration certificate was not issued, as I have promised my customer to get the same immediately. It is true that the accused replied to me that since there is some problem in the computer server of their office and since they are busy in preparing the notes for the audit objections raised by the AG she cannot issue the registration certificate immediately. It is true that accused told me that
25
on 14.02.2011 that the registration certificate is ready and asked me to take the same.”
that he has not made any investigation with regard to the contents of Ex.P.5. - the statement of the appellant – accused. The said admission given by P.W.7 is as under:
“I have not conducted any investigation in respect of all those explanation given by the accused. I have also not enquired C.W.1 in respect of those explanation offered by the accused.”
that they submitted an application for registration of M/s. Speedway Technologies Private Limited on 18.01.2011. P.W.4 has also admitted that in respect of getting Registration Certificate she contacted the appellant – accused continuously over phone from 02.02.2011 to 12.02.2011. P.W.4 has stated that she had promised her customer to get the Registration Certificate immediately
26
and she only got the Registration Certificate on 14.02.2011. Learned counsel for appellant – accused would contend that P.W.4 was angry as she did not get the Registration Certificate immediately and with vengeance she filed a false complaint against the appellant – accused.
27
accused. P.W.7 has stated that C.W.1 and C.W.4 came out of the office and C.W.1 flashed signal by wiping her face with kerchief, P.W.7 did not find any original Registration Certificate with P.W.4 at that time when she came out of the office of appellant – accused. Therefore, said fact establishes that complainant (P.W.4) has received the original Registration Certificate on 14.02.2011 itself more so, she has admitted the same in her cross-examination.
28
office of the appellant – accused along with P.W.5 and the appellant – accused was not in her office. She asked the appellant – accused about the certificate and the appellant – accused asked her to give Rs.2,000/-. P.W.5
– shadow panch has stated that after they reached the commercial tax office the appellant – accused was not present in her chamber and about 10 minutes after their arrival, the appellant – accused came and complainant asked the appellant – accused to give the Registration Certificate and the appellant – accused replied that the certificate is ready and she will give the same and at that time she saw standing by the side of complainant that there was conversation between the complainant and appellant – accused by way of signal which she could not understand. She has stated that the said conversation and signal may be for payment of amount. P.W.4 has not stated regarding the conversation by giving signal by the
29
appellant – accused demanding bribe. Therefore, demand by the appellant – accused has not been stated by P.W.5
– shadow panch. P.W.4 has stated that she received the certificate and came out of the office of the appellant – accused but P.W.5 has not stated regarding P.W.4 receiving the certificate.
– accused is forthcoming. The contents of the voice
30
recorder given to P.W.4 on the date of trap have been reduced into writing in Ex.P.8. The contents of voice recorder were copied in to C.Ds. and the said C.Ds. are produced at M.O. Nos. 4, 5, 6, 12 and 13. The special Court has not relied upon the said M.O. Nos. 4, 5, 6, 12 and 13, Ex.P.3 and Ex.P.8 for want of certificate under Section 65-B of the Evidence Act. Therefore, the prosecution has failed to establish the alleged demand of bribe by the appellant – accused. On considering the cross-examination of P.W.4 regarding her admission of receiving the original Registration Certificate on 14.02.2011, it is clear that she wanted to get the Registration Certificate immediately after filing the application and by not getting the Registration Certificate immediately, it appears, that she intended to implicate the appellant – accused as she had grudge against her for not providing the Registration Certificate immediately as
31
she had promised her customer to get the Registration Certificate shortly on filing the application.
O R D E R
i. Appeal is allowed.
32
Sd/-
JUDGE
LRS.
2 issues framed by the court
Whether the prosecution proved the demand and acceptance of illegal gratification under Sections 7 and 13(1)(d) of the Prevention of Corruption Act.
Whether the foundational fact of pendency of work with the accused was established to draw presumption under Section 20 of the Prevention of Corruption Act.
Colour shows how this judgement treated each authority
Neeraj Dutta Vs. State (Government of N.C.T. of Delhi)Referred¶42
AIR 2023 SC 330 · Who else cites this
Hazari Lal Vs. State (Delhi Administration)Referred¶68
1980 (2) SCC 390 · Who else cites this
4 provisions across 3 enactments
Ms. K.T. Shreeshylaja
State of Karnataka
Shivashankar Amarannavar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
