Dismissed

State of Karnataka v. Sri H Puttahanumaiah

Karnataka HC5 Dec 2023CRL.A/27/2018

Case brief

AI extract

What is this about?

This is a criminal appeal filed by the State challenging an acquittal for corruption under the Prevention of Corruption Act. The High Court dismissed the appeal, holding that the trial court's finding was not perverse given the inconsistent eyewitness testimony and the prosecution's failure to produce material electronic evidence, rendering the prosecution's case unsustainable.

What did the court decide?

The criminal appeal was dismissed; the judgment of acquittal of the trial court stands.

State of Karnataka Vs Sri H Puttahanumaiah — Corruption | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL APPEAL NO. 27 OF 2018

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BETWEEN:

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STATE OF KARNATAKA, RERPESENTED BY POLICE INSPECTOR, KARNATAKA LOKAYUKTA, BENGALURU.

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…APPELLANT

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

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AND:

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Digitally signed by SOWMYA D Location: High Court of Karnataka

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SRI. H. PUTTAHANUMAIAH @ PRAVEEN, SON OF SRI.M. HANUMANTHAIAH, AGED ABOUT 43 YEARS, REVENUE INSPECTOR, PANATTHUR CIRCLE, BBMP OFFICE, BELLANDUR BENGALURU. RESIDENT OF NO.9, 1^ST MAIN ROAD, RAMACHANDRAPURA, BENGALURU-560 021.

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SRI. OBALESH, SON OF LATE SRI. MUNIYAPPA, AGED ABOUT 40 YEARS, VILLAGE ASSISTANT, DODDAKANNALLI, PANATTHUR CIRCLE, BBMP OFFICE, BELLANDUR, BENGALURU.

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PERMANENT RESIDENT OF NO.8, JANATHA COLONY, DODDAKANNALLI, SARJAPURA ROAD,

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KARMALAM POST, BENGALURU-560 035.

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…RESPONDENTS

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(BY SRI. AMAR CORREA, ADVOCATE, R2 IS SERVED)

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THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 24.08.2017 IN SPL.C.C.NO.132/2012 PASSED BY THE LXXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL COURT UNDER PREVENTION OF CORRUPTION ACT, 1988, BENGALURU.

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THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the State through Lokayukta police, Bangalore challenging the judgment of acquittal passed by LXXXVII Additional City and Sessions Judge / Special court under P.C.Act, Bangalore in Spl.C.C.No.132/2012 dated 24.08.2017.

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For the sake of convenience, the parties herein are referred with 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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That the accused No.1 was working as a revenue inspector in Panatthur Circle, BBMP Office, Bellandur, Bengaluru, while accused No.2 was working a village assistant in Doddakanalli, Panatthur Circle, BBMP Office, Bellandur, Bengaluru. Both the accused are the public servants. It is further asserted that CW4Penchalareddy has submitted an application before accused No.1 for entering the land conversion in pahanies with respect to Sy.No.128/12 measuring 29 guntas situated in Bhoganahally Village. According to the prosecution, the accused has not disposed of the said application and CW4 has authorized complainant / CW1 - Naveen Kumar to attend the said work. When the complainant approached accused No.1, the accused No.1 has demanded Rs.20,000/- from complainant to do official favour. Then the complainant intimated the matter to Lokayukta police. Later on, a voice recorder was handed over to the complainant with a direction to him to approach the accused No.1 once again and

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record the conversation to ascertain the genuineness of the allegation. Again the complainant met the accused No.1 and accused No.1 again demanded bribe amount and the same was recorded in the voice recorder. Then the complainant on 18.07.2011 went to Lokayukta office and filed a complaint against accused No.1.

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On the basis of the complaint, a crime was registered in Crime No.26/2011 and First Information Report came to be issued. Thereafter, the Investigating Officer secured two mahazar witnesses and in their presence, a entrustment mahazar was drawn wherein the complainant has produced Rs.20,000/- and the serial number of Rs.20,000/- was recorded. They were smeared with phenolphthalein powder and then they were kept in the shirt pocket of the complainant with a direction that complainant should approach the accused No.1 and only in case of demand, he should pay the amount and pass a signal.

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Then the complainant along with shadow

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witness approached accused No.1 and accused No.1 again demanded the bribe amount. It is also asserted by the prosecution that a pen camera along with voice recorder was also given to the complainant for recording the entire event. When complainant approached accused No.1, accused No.1 directed him to pay the amount to accused No.2 and accused No.2 received the said amount. Then they were apprehended and the hand watch of accused No.2 was taken, which was tested positive to phenolphthalein test. The tainted amount was also recovered from the pant pocket of accused No.2 and a statement was also recorded. A detailed trap mahazar was also drawn and then both the accused were arrested and proceedings were continued. Subsequently, the Investigating Officer alleged to have transferred the data in pen camera and voice recorder to a Compact Disk in presence of the

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witnesses and he has also recorded the statement of the witnesses and after obtaining the sanction submitted the charge sheet against the accused.

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The accused were initially arrested, but subsequently were enlarged on bail. The prosecution papers were furnished to the accused as contemplated under Section 207 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short) by the learned Special Judge. The charge under Section 7, 8, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act’ for short) is framed against both the accused and same was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, the prosecution has examined in all 8 witnesses and also placed reliance on 43 documents and 12 Material

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Objects. During the cross-examination, Ex.D1 to Ex.D3 were also got marked.

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After conclusion of the evidence of the

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prosecution, the statement of accused under Section 313 of Cr.P.C is recorded to enable the accused to explain the incriminating evidence appearing against them in the case of the prosecution. The case of the accused is of total denial and they did not choose to lead any defence evidence in support of their claim.

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After having heard the arguments and after appreciating the oral and documentary evidence, the learned Special Judge vide impugned Judgment acquitted both the accused for the offences punishable under Section 7, 8, and 13(1)(d) read with Section 13(2) of the Act. Against this judgment of acquittal, the State is before this court by way of this appeal.

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Heard the arguments advanced by the learned Special Public Prosecutor appearing for

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Lokayukta and the learned defence counsel. Perused the records.

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The learned Special Public Prosecutor appearing for the Lokayukta would contend that PW1 is the complainant while PW2 is the second pancha and PW3 is the shadow witness and all these witnesses have supported the case of the prosecution and corroborated with each other. He would also contend that the tainted amount was recovered from the custody of accused No.2 and there is no proper explanation. He would contend that trap was successful and Ex.P5 is the statement of the accused, which does not explain any defence at all and the learned Special Judge only on the ground that pen camera and voice recorder transcriptions are not produced and Section 65B of the Indian Evidence Act, 1872, certification is not made, has acquitted the

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accused, which has resulted in miscarriage of justice. He would contend that the evidence of PW1 to PW3 is corroborated with the evidence of PW4 and PW8 and as such, he would seek for setting aside the impugned judgment of acquittal and sought for convicting the accused / respondents herein.

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On the contrary, learned counsel appearing for the respondents / accused would contend that the allegations were pertaining to pending work. Rs.20,000/- bribe was said to have been demanded but on records and admittedly, the work was completed on 25.06.2011 by accused No.1 and there was no work pending with accused No.1. He would also contend that the conversation recorded and especially the pen camera transcriptions were not produced, which clearly disclose that the demand and acceptance is not proved and withholding the material evidence amounts to drawing adverse inference against the prosecution. He

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would also invite the attention of this court to the evidence of PW1 to PW3 to show that their evidence is not corroborative with each other, but it is inconsistent and contradictory. He would also contend that from evidence of PW2 and PW3, it is evident that the entire procedure of pre-trap and post-trap mahazar was not done initially, but it was subsequently prepared in the Lokayukta office after the alleged trap, which completely demolish the theory of the prosecution. He would further invite the attention to the admissions given by PW4, PW5 and PW7 that no work was pending with accused as work was attended on 25.06.2011 itself. He would also invite the attention of the court that lot of improvements were made in the evidence of PW1 regarding demand of Rs.25,000/-, when he approached along with voice recorder subsequently on 18.07.2011 but that transcriptions are also not produced and it is also an improvement. He would also submit that there is inconsistent evidence regarding place of payment of

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the amount and hence, he would contend that the view taken by the learned Special Judge is also a possible view and when two views are possible, the view favourable to the accused shall prevail and need not be disturbed. Hence, he would seek for dismissal of the appeal.

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After hearing the arguments and after

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perusing the oral and documentary evidence, now the following point would arise for my consideration:

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(i) Whether the judgment of acquittal passed by the trial court is perverse, arbitrary and erroneous so as to call for any interference by this court?

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It is the specific case of the prosecution that

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the accused No.1 has demanded bribe amount of Rs.20,000/- from the complainant pertaining to entry of conversion of land in Sy.No.128/12. It is also asserted that on 18.07.2011, the trap was laid down and it was successful and amount was recovered from the custody

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of the accused No.2. The evidence of PW1 discloses that accused No.2 never demanded any bribe from the complainant and the allegations were regarding demand made by accused No.1 and the accused No.2 aiding accused No.1 by receiving the amount on behalf of accused No.1.

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PW1 i.e., the complainant in his evidence specifically deposed that he is working under CW4 and CW9 has filed an application on 24.05.2011, but in what capacity CW9 filed an application is not at all forthcoming as admittedly CW4 is the owner of the land bearing Sy.No.128/12. PW1 specifically asserted that on 16.07.2011, he contacted accused No.1 over the phone and accused No.1 demanded bribe of Rs.20,000/-. This assertion discloses that the complainant has not met accused No.1 in person. It is his assertion that he contacted accused No.1 over phone, but the complaint allegations are entirely contrary wherein in the

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complaint it is asserted that on 01.07.2011, CW9 viz., Venkatesh contacted accused No.1 over phone and later on he again personally met accused No.1 wherein the demand was made and that fact was reported by CW9 to complainant, but the evidence given by the complainant is completely contrary wherein he asserts that he contacted accused No.1 over phone. Even if the said submission is accepted, then nothing prevented the investigating agency from securing the call details of the phone number of the complainant, accused No.1 as well as CW9 to show that there was any conversation between them on 01.07.2011 and 16.07.2011 as asserted. The allegations of complaint clearly disclose that the complainant never met the accused and there was no demand from the complainant prior to 18.07.2011.

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Further PW1 in his cross-examination

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specifically asserted that he has not visited the office of

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accused No.1 and accused No.2 in connection with entry of RTC. His cross-examination further discloses that the contents of button camera and voice recorder were transmitted to a compact disk in Lokayukta office, but these material documents especially the transcription pertaining to button camera are not produced, which is very much fatal to the case of the prosecution.

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Further, PW1 in his examination-in-chief

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itself specifically deposed that he contacted accused No.1 outside the Taluk office, but as per the case of the prosecution, the demand and acceptance was made in the Taluk Office. Further his cross-examination reveals that when he met accused No.1 regarding conversion of the property, the accused No.1 demanded Rs.25,000/-. This is new version invented by the complainant which

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is not found in the trap mahazar. Apart from that in the further cross-examination, PW1 admitted that he did

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not have knowledge of the status of the application as on 16.07.2011 and both CW4 and CW9 have not informed him about this aspect. He further admitted that he has not verified the actual status of the application.

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Further, this witness claims that CW2 and CW3 viz., the pancha witnesses reached the Lokayukta office at 4.00 p.m. and they went to Taluk office by 4.30 p.m., but as per the case of the prosecution, CW2 and CW3 went to Lokayukta office between 2.00 p.m. or 2.30 p.m. Further, he assets that he has not met accused No.1 on 18.07.2011 before he went to Taluk office along with Lokayukta officials, but he had contacted him over the phone on that day. Even the call details of this conversation are also not secured by the Investigating Officer for the reasons best known to him.

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PW2 is a second pancha and he has deposed regarding drawing an entrustment mahazar in the

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Lokayukta office and his evidence discloses that they went to Lokayukta office at 2.30 p.m., but PW1 speaks a different story. His evidence further discloses that the contents of button camera are displayed with the help of a computer. Then all the visual proceedings of trap should have been recorded in button camera and why the said material evidence is not produced is not at all forthcoming. Further, this witness claims that when PW1 spoke to accused No.1 over cell phone, he heard that accused No.1 has demanded the bribe amount of RS.20,000/-. Even the Investigating Officer did not bother to ascertain the mobile number of accused No.1 and the complainant. The cross-examination of PW2 further discloses that he has seen accused No.1 only when the Lokayukta police bought him to Lokayukta office. Then question of trap mahazar being conducted in his presence becomes a false story. He further admits that in his presence, Lokayukta office have not enquired with accused No.1, but Ex.P5 speaks a

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different story. Importantly, PW2 admits that he put signature on trap mahazar as well as entrustment mahazar in the Lokayukta office after they returned to Lokayukta office after the trap. This admission completely destroys the theory of trap as asserted by the prosecution. According to the prosecution trap mahazar was drawn at Taluk office itself but PW2 speaks a different story and this statement was not disputed by the prosecution by treating the witness hostile in this regard.

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PW3 is a shadow witness and he is a material witness to say regarding demand and acceptance. He has deposed regarding pre trap mahazar procedure and proceeding to trap, but his evidence discloses that complainant alone approached the accused No.1 and he do not know the conversation between accused Nos.1 and 2 and complainant. His evidence discloses that when they went to K.R.Puram office, PW1 was inside for

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about 15 minutes and subsequently, the alleged trap was held. Further, as per this witness he counted the notes smeared with phenolphthalein powder and his hand wash was taken while drawing an entrustment mahazar, but PW2 claims that she counted the phenolphthalein smeared notes and her wash was taken. Both these stands are inconsistent and contrary to each other.

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Further, as per the case of the prosecution, the trap was held inside the office, but the evidence of PW3 clearly discloses that the trap was held outside the office in the compound premises. These stands are also inconsistent and contrary. To this extent, the witness was treated as hostile witness by the learned Special Public Prosecutor, but the witness denied the suggestion made by the prosecution that trap was held inside the office. Further, this witness specifically deposed in his cross-examination that after the trap

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CW18 i.e., the Investigating Officer intimated that further proceedings would be conducted in the Lokayukta police station and no documents were prepared in the K.R.Puram Office and except attendance register, no records are seized from K.R.Puram office. Further, he has also admitted that after PW1 coming out of K.R.Puram office, he did not disclose anything before him and this again is contrary to the case of the prosecution. Further, he asserts that only after apprehension of accused Nos.1 and 2, he saw them for the first time. When he being a shadow witness what he was doing when the conversation between accused No.1 and complainant was going on is not at all forthcoming.

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The prosecution relies on the evidence of PW1, PW2 and PW3 and it runs contrary to each other and the evidence of Investigating Officer viz., PW7 runs contrary to the evidence of PW1 to PW3.

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PW4 viz., Gopalaswamy is a special Tahsildar and his evidence discloses that the conversion order was passed by accused No.1 on 25.06.2011 itself and no work was pending. PW5 was the sanctioning officer while PW6 is the owner of the land and he is not an eye witness to the trap. Interestingly, PW6 viz., Penchala Reddy in his cross-examination admitted that in RTC there is reference in column No.10 that mutation order was made on 25.06.2011. He further asserts that he was aware that after 25.06.2011, when the mutation order was passed, revenue inspector has got no act to perform on his part. If PW6 was having knowledge of these aspects, then he did not explain as to why he directed the complainant to approach the accused No.1, when he had knowledge of completion of work. PW7 is the Investigating Officer and he has deposed regarding investigation done by him while, the evidence of PW8 discloses that the work was completed on 25.06.2011 itself.

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The learned Special Public Prosecutor would contend that the evidence of PW1 to PW3 is consistent, but the evidence discloses that the trap mahazar was not drawn at the spot, but it was drawn in the Lokayukta office, which is admitted by PW2 and PW3. No proper explanation is offered by the Investigating Officer in this regard. To this extent, both these witnesses were not even treated as hostile witnesses. The prosecution has placed reliance on a decision reported in ‘DHANESHWAR NARAIN SAXENA VS. DELHI ADMINISTRATION’, AIR 1962 SC 195 . There is no dispute regarding the proposition of law laid down in the said decision and the said decision clearly discloses that the demand need not be pertaining to his own duty and valuable thing or pecuniary advantage in respect of other issue also amounts to illegal gratification, but that

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was not the case made out in the instant case and as such, the principles enunciated in the above cited

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decision would not come tot eh aid of the prosecution in

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any way.

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He has further placed reliance on a decision in ‘DHANVANTRAI BALWANTRAI DESAI VS. STATE OF MAHARASHTRA’, AIR 1964 SC 575. There is no dispute regarding the proposition of law laid down in the said case and drawing of presumption is mandatory, when it is shown that the amount was received by the accused and it is not a legal remuneration, but in the instant case, the evidence on record does not establish that accused No.1 has demanded the amount and accused No.2 has received the said amount on behalf of accused No.1. The material evidence in this regard in the form of button camera and voice recorder was withheld by the prosecution and an adverse inference is required to be drawn as against them. As such, considering the facts and circumstances, the said principles cannot be made applicable to the case in

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hand. He has further placed reliance on a decision reported in ‘ V.D.JHINGAN VS. STATE OF UTTAR PRADESH’ AIR 1966 SC 1762 but the facts and circumstances being entirely different do not come to the aid of the prosecution in any way.

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He has further placed reliance on an unreported decision of this court in Crl.A.No.748/2011 dated 21.04.2022 (MR.H.C.SRIDHARA VS. STATE OF KARNATAKA) , but in the said case the evidence was consistent and the shadow witness and other witnesses have fully supported the case of the prosecution, but in the instant case, the evidence is inconsistent and material evidence is withheld by the prosecution. As such, the principles enunciated in the above cited decision would not assist the prosecution in any way.

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He has also relied on a constitutional bench decision of the Hon'ble Apex Court in ‘NEERAJ DUTTA VS. STATE OF DELHI’, (2023) 4 SCC 731 . The same

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citation is also relied upon by the learned counsel for the accused. There is absolutely no dispute regarding proposition of law and in the absence of direct evidence, the demand and acceptance can be proved by circumstantial evidence. But in the instant case direct evidence is available but it is not trustworthy so as to accept the case of the prosecution. Apart from that, the evidence given by the complainant is contrary to the complaint allegations as he never met accused No.1 personally prior to trap. All along, he alleged to have contacted accused No.1 over mobile phone, but the Investigating Officer has not bothered to collect the call details. Hence, the principles in the above cited decision will not assist the prosecution in any way.

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Lastly, the learned Special Public Prosecutor relies on a decision of the Hon'ble Apex Court in ‘CHANDRAPPA VS. STATE OF KARNATAKA’, (2007) 4

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SCC 415 . There is no dispute regarding the power of the

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appellate court to re-appreciate, review or reconsider the evidence and interfere with the Judgment of acquittal, but the said decision clarifies that when two views are possible from the evidence on record, one taken by the trial court in favour of the accused should not be disturbed by the appellate court. In the instant case, considering the lacuna in the evidence and withholding of material evidence by the prosecution, the view taken by the learned Special Judge cannot be said to be erroneous or arbitrary and the appreciation made by the learned Special Judge cannot be termed as a perverse finding so as to interfere with the judgment of acquittal. Hence, the principles enunciated in the above cited decision would rather help the accused / respondent, but not the prosecution.

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The learned counsel for the respondent has

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placed reliance on a decision in ‘ANVAR P.V. VS.

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P.K.BASHEER AND OTHERS’, (2014) 10 SCC 473 ,

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wherein the Hon'ble Apex Court has considered the relevancy of certification under Section 65A and 65B and 62 of the Indian Evidence Act, 1872 pertaining to electronic records, but when the documents itself were not produced and tendered in evidence, question of considering non issuance of certification does not arise at all and the principles could have been relevant had the prosecution placed the material records of transcriptions of voice recorder and button camera before the court.

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On appreciation of the oral and documentary evidence, it is evident that the learned Special Judge has appreciated the oral and documentary evidence in its proper perspective and he has analyzed the evidence in detail with reference to each document. The view taken by the learned Special Judge cannot be said to be perverse or arbitrary and considering the inconsistent and contradictory evidence of PW1 to PW3, the view

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taken by the learned Special is also a possible view. As

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such, in view of the above cited decision in

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CHANDRAPPA’s case, the finding of the trial court cannot be disturbed by the appellate court, though appellate court is at liberty to take a different view. Looking to these facts and circumstances, I am constrained to answer the point under consideration in the negative. Hence, the appeal being of devoid of any merits does not survive for consideration. Accordingly, I proceed to pass the following:

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ORDER

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(i) The appeal stands dismissed .

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Sd/JUDGE

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List No.: 1 Sl No.: 14

State of Karnataka v. Sri H Puttahanumaiah

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Sri H Puttahanumaiah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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