Allowed

Sri.Chandrashekhar S/O Girimallappa Benakatti, (Since Deceased by Lr.s) v. State of Karnataka

Karnataka HC1 Feb 2023CRL.A/2570/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the criminal appeal against conviction and sentence under the Prevention of Corruption Act. The court acquitted the appellant, holding that the prosecution failed to disprove the accused's explanation regarding financial transactions and failed to satisfy the high standard of proof required under the PC Act.

What did the court decide?

Judgment of conviction and sentence set aside; accused acquitted of all charges; fine (if any) refunded to legal heirs.

Sri.Chandrashekhar S/O Girimallappa Benakatti, (Since Deceased… — Corruption | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 01^st DAY OF FEBRUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO.2570/2011

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BETWEEN:

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CHANDRASHEKHAR S/O GIRIMALLAPPA BENAKATTI AGE: 61 YEARS, OCC: RTD CHIEF OFFICER, TOWN MUNICIPALITY, HANGAL, NOW R/O BYADAGI, TQ: BYADGI, DIST: HAVERI. SINCE DECEASED REPRESENTED BY HIS LRS

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1A. SMT. PARVETTAVVA W/O CHANDRASHEKHAR BENAKATTI AGE: 57 YEARS, OCC: HOUSEHOLD, R/O: 3^RD CROSS, SHIVAJI NAGAR, TQ AND DIST: HAVERI.

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1B. SHRIKANT S/O CHANDRASHEKHAR BENAKATTI AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: 3^RD CROSS, SHIVAJI NAGAR, TQ AND DIST: HAVERI.

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…APPELLANTS (BY SRI HARSHAVARDHAN M. PATIL, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY LOKAYUKTHA POLICE, HAVERI, REP. BY STATE PUBLIC PROSECUTOR, CIRCUIT BENCH, DHARWAD. …RESPONDENT (BY SRI ANIL KALE, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE SPECIAL JUDGE AT HAVERI UNDER SPL.(LOK)C. NO.1/04 DATED 20.01.2011 AND ACQUIT THE APPELLANT FOR THE CHANGES LEVELED AGAINST HIM.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.01.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by accused under Section 374(2) of Cr.P.C., 1973 (for short, hereinafter referred to as ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence passed by the learned Special Judge, Haveri in Special Lokayukta Case No.1/2004 dated 20.01.2011 whereby the Special judge has convicted the appellant-accused for the offence punishable under Section 7 and Section 13(1)(d) R/w Section 13(2) of the Prevention of Corruption Act by imposing sentence of imprisonment with fine.

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2. For the sake of convenience, the parties

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herein are referred with the original ranks occupied by them before the Trial Court.

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The brief factual matrix leading to the case are as under:

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The accused was working as a Chief Officer in Town Municipal Council, Hangal and on 07.03.2003, it is alleged that he has demanded a sum of Rs.5,000/from complainant for issuance of certified copy of revenue records in relation to properties bearing Sy. No.307B/1 A1, 4855 and 4855/1 of Hangal and in pursuance of his demand, he received Rs.2,000/- in advance as illegal gratification and on 11.03.2003 at 4:55 p.m. he demanded and accepted the balance amount of Rs.3,000/- from the complainant as illegal gratification for issuance of records and he was trapped at that time. The complainant in this regard has lodged a complaint and on the basis of the

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complaint an entrusted panchanama was also

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conducted and a trap was laid down. The trap was successful and amount was recovered from the custody of the accused. Then the investigating officer recorded the statement of accused and also drawn a trap mahazar. He has also recorded the statements of the witnesses. He has sent the hand wash for chemical analyses and then after obtaining the sanction and FSL report, he submitted the charge sheet against the accused for the offences under Sections 7 and 13(1)(d) R/w 13(2) of the Prevention of Corruption Act (for short, hereinafter referred to as ‘P.C. Act’).

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The accused was arrested and was enlarged on bail. The learned Special Judge has taken cognizance of the offence and he has also furnished

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the copies of the prosecution papers to the counsel appearing for accused. Then the charge was framed

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and same was read over and explained to the accused and accused pleaded not guilty and he claims to be tried.

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To prove the guilt of the accused the prosecution has examined in all 10 witnesses as PW.1 to 10 and also placed reliance on 18 documents marked at Ex.P.1 to 18 and 11 material objects marked at Mos.1 to 11.

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After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him. However, he denied the entire case of the prosecution and submitted his written statement and also produced certain documents in support of his contention. However, he did not choose to lead any oral evidence in support of his defence.

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After hearing the arguments and

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appreciating the oral and documentary evidence led by the prosecution, the learned Special Judge has convicted the accused for the offences punishable under Sections 7 and 13(1)(d) and Section 13(2) of P.C. Act and he has imposed imprisonment for a period of one year with a fine of Rs.2,000/- for the offence under Section 7 of P.C. Act and a imprisonment for a period of two years with a fine of Rs.3,000/- for the offence punishable under Sections 13(1)(d) R/w Section 13(2) of P.C. Act with default sentence.

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Being aggrieved by this judgment, the appellant-accused has filed this appeal.

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Heard the arguments advanced by the learned counsel for the appellant and the learned Special Public Prosecutor appearing for the respondent-State. Perused the records.

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It is also necessary to note here that,

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during pendency of the appeal, the appellant has expired and his legal heirs have prosecuted the matter on the ground that they are deprived of the death benefits, in view of the conviction order. The application came to be allowed vide order dated 12.07.2022.

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The learned counsel for the appellant would

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contend that admittedly the complainant-accused was the Chief Officer in the Town Municipal Council, Hangal and the allegations were regarding the demand of Rs.5,000/- in respect of issuance of property extract.

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He would contend that, no application was filed for furnishing the property extract and no statutory fees were paid and under such circumstances, question of demand of illegal gratification does not arise at all. He would also contend that the complainant was the elected member of Town Municipal Council, Hangal

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and the accused has made certain allegation against him to the Deputy Commissioner and hence he was nurturing vengeance. He would also contend that, there were certain financial transactions between the parties as admitted by the complainant and this financial transaction was given a colour of illegal gratification, which is not permissible. He would also contend that the name of the complainant was mutated as per the directions of the High Court after holding an enquiry and there was no work pending and when there was no application for issuing the copies of the property extracts, the question of demand does not arise at all. He would also contend that the evidence is not acceptable and hence he would assert that the Trial Court has erred in convicting the accused, which has resulted in miscarriage of justice and sought for allowing the

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appeal to enable legal heirs to get a retirement benefits of the deceased accused.

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Per contra, the learned Special Public

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Prosecutor argued that all the witnesses have supported the case of the prosecution and the accused has taken defence regarding the financial transaction and same is witnessed, some of the witnesses who were not examined and initial burden is discharged by the prosecution and presumption under Section 20 is required to be drawn. He would contend that the defence raised by the accused is not a proper explanation and hence the said cannot be termed as rebuttal of the presumption available to prosecution under Section 20 of the P.C. Act. Hence, he would seek for rejection of the appeal.

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Having heard the arguments and after perusing the records of the Trial Court, now the following points would arise for my consideration:

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a) Whether the prosecution proves beyond all reasonable doubt that the accused has demanded and accepted illegal gratification on 07.03.2003 and on 11.03.2003 from the complainant amounting to Rs.5,000/- in order to have a peculiar advantage for discharging the official favour to the complainant and thereby committed offences under Sections 7 and 13 (1)(d) R/w 32(1) of IPC?

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b) Whether the judgment of conviction and order of sentence passed by the Trial Court is erroneous, arbitrary and suffers from infirmity so as to call for any interference by this Court?

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To prove the guilt of the accused, prosecution has examined in all 10 witnesses PW.1 – Md. Majuruddin S/o Jalaluddin Inamdar is the complainant, while PW.2 is the shadow witness, PW.3

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Imam Hussain Abdul Khani Sab Shekhasanadi is a

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second pancha, PW.4 - Ramakrishna Shivappa Bankapur, PW.5 – Ms. Champa D/o Veerabhadrappa Sogavi are the officials working in the Town Municipal Council, Hangal on the alleged date of trap. However, PW.4 himself has stood as a surety for the accused. PW.6 is the sub-registrar and he has deposed regarding supply of documents and PW.7 is the Tahasildar who has furnished the service particulars of the accused. PW.8 is the sanctioning authority and PW.9 is the investigating officer, while PW.10 is the Constable, who was the part of the raiding party. Ex.P.1 is the complainant, while Ex.P.2 entrusted panchnama and Ex.P3 is the trap Mahazar. Ex.P.4 is the statement of accused, while Ex.P.5 is the hand sketch map. Ex.P.7 - attendance registrar. Exs.P.11 and 12 are the service particulars of the accused. Ex.P.13 is the sanction order and Ex.P.14 is the FIR. Ex.P.17 is the FSL report, while Ex.P.18 is the sample

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seal on the paper. MOs.7 and 8 are the left hand and right hand wash of the accused, While MO.9 is the tainted amount, while MO.10 is the Black pant worn by accused, which is said to have tested positive to Phenolphthalein test.

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It the specific case of the prosecution that the accused has demanded Rs.5,000/- for furnishing certified copies of revenue records in relation to properties bearing Sy No.307B/1 A1, 4855 and 4855/1 of Hangal. It is the specific contention of the prosecution that the accused has demanded illegal gratification for issuing certified copies. There is no serious dispute of the fact that the accused was working as Town Municipal Commissioner. It is also an admitted fact that the present complainant was the elected member of the Town Municipal Council, Hangal. It is further admitted fact that he belongs to Congress party and the President of the Town

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Municipal Council, Hangal was of the Congress party. The evidence further revealed that there were two rival groups in Congress party itself. As per the case of the prosecution, the accused has demanded and accepted the illegal gratification on 11.03.2003 and the trap was successful. Interestingly, as per the case of the prosecution the accused received the amount and kept it in his pant pocket. The evidences disclose that his left hand has shown positive by turning into pink. But interestingly the right hand wash has not turned into pink colour. But however the FSL report is marked at Ex.P.17 and it discloses that even right hand has shown positive to Phenolphthalein test. It is not the case of the prosecution that the accused has touched the amount by his right hand. As per the case of the prosecution the accused touched the amount from his left hand and kept it in his pant

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pocket when the trap was held and the same was recovered.

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The complainant is examined as PW.1 and

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his evidence clearly discloses that for mutating the name, the standing committee resolution is required.

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But he claims that in case of Court order, the same is not necessary. However, it is to be noted here that according to the prosecution, the demand and acceptance was in respect of issuance of the certified copy of the property extracts. It is not the case of the prosecution that the complainant has applied for furnishing the certified copies of property extracts. No such case is put forward by the prosecution and evidence of complainant discloses that he has not produced any documents for having applied for furnishing of the certified copy. Further he admits that a requisite fee is required to be paid for furnishing certified copies and he has not paid the

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amount. When the complainant being an elected member of the Town Municipal Council, Hangal, it is hard to accept that without applying for certified copies and without paying the requisite fees he is entitle for certified copies. It is a public institution and for obtaining a certified copies, required application is to be moved but admittedly no such application is forthcoming. Under such circumstances the case of the prosecution regarding demand for issuing the certified copy becomes a doubtful aspect.

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Apart from that, in the cross examination, complainant i.e., PW.1 has specifically admitted that there is financial transaction between himself and the accused. This part of cross examination is available on page No.7 of cross examination of PW.1. He has also admitted that the Congress party was ruling party in the Town Municipal Council, Hangal and President was from the Congress party and there were two

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groups in the Congress. He admits that the appellantaccused was in good terms with the President. The records also reveal that accused has made certain allegations against the present complainant before the Deputy Commissioner. He specifically admits that, between him and accused personal financial transactions were there, but he did not disclose what were those financial transactions. Immediately after the trap, the accused has given his statement wherein he has specifically stated that there were financial transactions and in term of financial transactions, the complainant has paid certain amount to him which he was required to pay to the accused. This statement is in consonance with the defence of accused and admissions given by the complainant. The complainant did not disclose what was the nature of financial transaction with the accused and he would have been the best witness in this regard to explain

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but he did not say anything. However, he admits that these financial transactions. Even Ex.P.3 trap Panchnama discloses that the right hand wash of the accused did not change the colour but the FSL report at Ex.P.17 speaks a different story, wherein it is stated that it is in very light pink colour solution but a trap mahazar and evidence of all the witnesses clearly establish that there was no change in the colour of the solution pertaining to the right hand wash of the accused but this Ex.P.17 gives a different version. No attempt has been made by the investigating officer to explain this aspect.

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The records produced by the accused, further discloses that there were certain litigation and objections for mutating the name of the complainant to the disputed property. No doubt, subsequently there was a direction for mutation and records further discloses that his name was mutated. It is not the

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case of the prosecution that demand was made in respect of the mutation but according to prosecution the demand was in respect of issuing the certified copy. But when application itself was not filed for issuing certified copy and the requisite fees was not paid, question of demand in this regard does not arise at all. No doubt the amount was recovered from the custody of the accused. The accused has given a plausible explanation regarding financial transaction, immediately after the trap. In the cross examination the complainant admits the financial transaction between himself and accused. Hence, the defence set up by the accused appears to be more probable and in that event the benefit under Section 20 of the P.C. Act regarding presumption cannot be made available to the prosecution. Further the evidence of the prosecution is inconsistent regarding the right-hand wash. All these facts and circumstances clearly

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establish that the prosecution is not able to discharge its burden.

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The evidence of PW.1 and 2 in this regard is inconsistent. Even the evidence discloses work is already concluded and there was no application filed for supply of the certified copy. Further evidence does disclose that accused being the Chief Officer of the Town Municipal Council, Hangal was in good terms with the president and the accused though belongs to the same party, was in a different group. All these facts and circumstances clearly establish that, there was animosity between complainant and the accused. Further the complainant being a member of the Town Municipal Council, Hangal must be knowing the basic rules for securing the certified copy of the property extracts and it is hard to accept that a Chief Officer has demanded gratification for issuing certified copy to the extent of Rs.5,000/- from an elected member,

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when there was a financial transaction between the parties. Looking to these facts and circumstances, the entire case of the prosecution becomes doubtful and prosecution has failed to discharge its burden as accused has rebutted the presumption available in favour of prosecution. The learned Special Judge has failed to appreciate any of aspects and in mechanical way proceeded to convict the accused, only on the ground that amount was found in the custody of the accused, but he has failed to appreciate the immediate explanation given by the accused and further admissions given by the complainant regarding his financial transactions with the accused. Under these circumstances high standard of proof is required from the prosecution to establish the guilt of the accused beyond all reasonable doubt. But same is missing in this case. Hence, considering the oral and documentary evidence, it is evident that the

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prosecution has miserably failed to prove the fact that the accused has demanded and accepted illegal gratification for discharging his duties as a public servant by expecting certain favour. Hence, the judgment of conviction and order of sentence suffers from infirmity, illegality and it is arbitrary which has resulted in miscarriage of justice. Under these circumstances, the said judgment of conviction and order of sentence passed by the Special Judge calls for any interference and the appeal needs to be allowed. Accordingly, point No.1 under consideration is answered in the negative and Point No.2 is answered in the affirmative and hence I proceed to pass the following:

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ORDER

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i) The appeal is allowed.

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ii) The judgment of conviction and order of sentence passed by the learned

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Special Judge, Haveri in Special Lokayukta Case No.1/2004 dated 20.01.2011 is set aside.

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iii) The accused is acquitted for the offences punishable under Sections 7 and 13(1)(d) R/w Section 13(2) of P.C. Act. The fine amount, if any deposited by the accused shall be refunded to the legal heirs of the appellant-accused.

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Sd/JUDGE

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SSP

Sri.Chandrashekhar S/O Girimallappa Benakatti, (Since Deceased by Lr.s) v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri.Chandrashekhar S/O Girimallappa Benakatti, (Since Deceased by Lr.s) v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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