Dismissed

State of Karnataka v. Smt G R Harishilpa

Karnataka HC11 Aug 2023CRL.A/844/2021

Case brief

AI extract

What is this about?

This court dismissed an appeal by the Lokayukta Police against the acquittal of a BDA official in a corruption case. The court held that mere recovery of cash during a raid is insufficient without a seized Cash Declaration Register to prove disproportionate assets or illegal gratification.

What did the court decide?

The appeal filed by the appellant stands dismissed. The judgment and order dated 04.01.2020 passed by the Trial Court are confirmed.

State of Karnataka Vs Smt G R Harishilpa — Corruption | Karnataka HC (2023)

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NC: 2023:KHC:28627 CRL.A No. 844 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 844 OF 2021

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BETWEEN: STATE OF KARNATAKA, REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, KARNATAKA LOKAYUKTHA, CITY DIVISION, BENGALURU.

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Digitally signed by N UMA Location: HIGH COURT OF KARNATAKA

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(BY SRI. ASHWIN S. HALADY, SPL.PP) AND: SMT. G.R. HARISHILPA, W/O. VIVEKANANDA, AGED ABOUT 38 YEARS, ADDITIONAL OFFICER, BDA HEAD OFFICE, BANGALORE. R/AT NO.159/2, 4TH CROSS, DORESANY PALYA, IAMB POST, BANNERGHATTA ROAD, BANGALORE.

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…APPELLANT

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…RESPONDENT

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(BY SRI. SHARATH S. GOWDA, ADVOCATE)

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THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO PROSECUTE THE APPEAL AGAINST THE JUDGMENT/DISCHARGE/ACQUITTAL ORDER DATED 04.01.2020 PASSED BY THE XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU CITY, (CCH-24) IN SPL.C.C.NO.268/2017.

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NC: 2023:KHC:28627 CRL.A No. 844 of 2021

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

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JUDGMENT

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The appellant being the Lokayukta Police filed

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this appeal being aggrieved by the judgment of acquittal dated 04.01.2020 in Spl. C.C. No.268/2017 on the file of XXIII Additional City Civil and Sessions Judge and Special Judge, Bengaluru Urban District, Bengaluru (CCH-24).

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2. Brief facts of the case are as under :

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It is the case of the complainant that, several

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complaints have been received from the public alleging that works cannot be done without paying the bribe amount in the Bangalore Development Authority (for Short 'BDA'). It is further stated that there are almost all officials working at the Head Office of BDA are indulged in receiving illegal gratification for discharging their official duty through agents. On receiving the complaints from the public, a case came to be registered in Crime No.26/2014 and after the issuance of a Search Warrant, they

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NC: 2023:KHC:28627 CRL.A No. 844 of 2021

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conducted a search on 20.06.2014 at several offices and car parking area and the premises of the BDA by the Investigating Officer and his team. During the search, they found Rs.1,69,000/- from the handbag of Accused No.1 from her office and the said accused did not answer satisfactorily.

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It is further stated that an amount of

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Rs.50,000/- was recovered at the instance of the accused No.2 in his office table rack, Rs.50,000/- was recovered

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from the possession of Accused No.3 while he was sitting in his car at the parking area of BDA with accused Nos.4 and 7 along with some documents, an amount of Rs.3,00,000/- and several files connecting the office of the BDA was recovered from the possession of accused No.5 from his car at the parking area of BDA and also Rs.54,000/- was recovered from the side box of the motorcycle belonging to accused No.8. An Amount of Rs.1,33,000/- was also recovered at the instance of accused No.6. All the accused persons were arrested.

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Later they have been enlarged on bail. A complaint came to be registered under Sections 7, 13(1)(d), 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act') against accused No.2, as regards Accused Nos.3, 4 and 7 are concerned, for the offence under Sections 7, 12, 13(1)(d), read with Section 13(2) of P.C. Act, as regards accused No.5 is concerned, for the offence under Section 9 of the Act, as regards accused No.8 is concerned, for the offence under Sections 13(1)(d), 13(1)(e) read with Section 13(2) of the P.C. Act.

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After the investigation, the jurisdictional police submitted the charge sheet.

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To prove the case of the prosecution, the prosecution examined all 13 witnesses and got marked 45 documents and also identified M.O.1. On the other hand, the accused got marked 3 documents at Exs.D1 to D3. After considering the oral and documentary evidence on record, the Trial Court acquitted the appellant. Hence, this appeal.

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Heard Sri. Ashwin S. Halady, learned Special

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P.P. for the appellant and Sri. Sharath S. Gowda, learned

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counsel for the respondent and perused the material on record.

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It is the submission of learned counsel for the appellant that, the judgment of acquittal passed by the Trial Court is against the evidence and facts on record. Hence, the judgment of acquittal is required to be set aside.

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It is further submitted that even though the

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evidence of all the witnesses is consistent and the respondents have not answered satisfactorily for illegal possession of currency notes as stated in the charge sheet, since they have not offered proper explanation, to satisfy the authorities, the same may be construed as illegal gratification. The said aspect has not been considered by the Trial Court. Hence, the impugned

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NC: 2023:KHC:28627 CRL.A No. 844 of 2021

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judgment passed by the Trial Court required to be set aside.

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Since the provision under Section 13(1)(e) read with Section 13(2) of the P.C. Act deals with possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income, the public servant is held responsible or liable to be prosecuted. The said aspect has been ignored by the Trial Court and consequently, the impugned judgment is passed. The same is required to be set aside. Having submitted thus, the learned Special P.P. prays to allow the appeal.

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Per contra, Sri. Sharath S. Gowda appearing for the respondent justified the order of acquittal passed by the Trial Court and submitted that the prosecution has failed to prove that the BDA Authority maintains the Cash

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NC: 2023:KHC:28627 CRL.A No. 844 of 2021

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Declaration Register. Unless the said Register is seized and marked by the prosecution, it cannot be construed that the alleged seized amount pertains to illegal gratification. The Trial Court after having considered all the circumstances and evidence of all the witnesses, rightly concluded that the respondent is not found guilty of the offences as stated in the charge sheet and the acquittal is justified. Having submitted thus, the learned counsel for the respondent prays to dismiss the appeal.

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Having heard the learned counsel for the

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respective parties and also perused the findings of the Trial Court in acquitting the respondent, the points which arise for my consideration are :

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"(i) Whether the Trial Court is justified in acquitting the respondent for the offence punishable under Sections 13(1)(d), 13(1)(e) read with Section 13(2) of P.C. Act?

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(ii) Whether the appellant has made out grounds to interfere with the Order of acquittal passed by the Trial Court?"

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This Court being the Appellate Court in order to

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re-assess the entire evidence of the witnesses and also the documents, it is appropriate to have a re-look upon the evidence of all the witnesses and also the documents.

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PW1 is the complainant and supports the case of the prosecution. PW2 is a witness to the Mahazar, which is marked as Ex.P5. PW6 is the key witness to the incident. PW11 is the Officer who conducted the Search. PWs 8, 10, 12 and 13 are the Investigating Officers who supported the case of the prosecution. The prosecution mainly relied on the evidence of PW2, PW11 and Ex.P5 Seizure Mahazar.

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It is the case of the prosecution that, the

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Investigating Officer after obtaining the search warrant, proceeded to the BDA Office upon receiving the various complaints against the officials of the BDA that, the work

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of the public cannot be done without paying the illegal gratification to the officials. The land of PW6 was acquired

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NC: 2023:KHC:28627 CRL.A No. 844 of 2021

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by BDA and compensation had to be disbursed to him. It is stated that on 20.06.2014, the cheques were disbursed to PW6. As a token of illegal gratification, PW6 stated to have paid Rs.75,000/- to the respondent. In addition to the payment of Rs.75,000/-, on the date of the raid having been conducted, the Investigating Officer found Rs.1,69,000/- from the respondent and seized currency notes from the possession of PW2 and drawn Mahazar as per Ex.P5- Seizure Mahazar.

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It appears from the records that, the work was

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pending before the respondent and on the same day, the Cheque was issued to PW6 by the respondent. Be that as it may, in order to prove that, the respondent had possession of illegal gratification during office hours, the prosecution has to produce the cash declaration register. On careful reading of the evidence of all the witnesses, none of the witnesses have deposed regarding the cash declaration register. Even though the prosecution can establish that PW6 had paid a bribe or illegal gratification

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NC: 2023:KHC:28627 CRL.A No. 844 of 2021

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of Rs.75,000/- to the respondent, it is not the case of a trap. When the Investigating Officer did not conduct the trap, the prosecution has to establish that, the respondent had illegal gratification in her possession. To prove the possession of illegal gratification, the prosecution had to produce the Cash Declaration Register. In the absence of the Cash Declaration Register, it cannot be construed that, the prosecution has established the disproportionate assets of the respondent. It is needless to say that, mere recovery of the amount at the instance of the respondent

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is not sufficient to prove that, the said amount is obtained as illegal gratification. The prosecution has failed to prove that the Authority maintains the Cash Declaration Register of the employees, wherein they should declare the amount soon after they enter the office and the said declaration should be tallied after their working hours. Hence, the findings recorded by the Trial Court in acquitting the respondent appear to be proper and correct. Interference with the well-reasoned order passed by the Trial Court is not called for.

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NC: 2023:KHC:28627 CRL.A No. 844 of 2021

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In the light of the observations made above,

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the points which arose for my consideration are answered

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as:

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Point No.(i) in the “Affirmative”

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Point No.(ii) in the “Negative”

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Hence, I proceed to pass the following:

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ORDER

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(i) The appeal filed by the appellant stands dismissed.

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(ii) The judgment and Order dated 04.01.2020 passed by the XXIII Addl. City Civil and Sessions Judge and Special Judge, Bengaluru Urban District, Bengaluru City (CCH-24) in Spl. CC No.268/2017 is hereby confirmed.

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Sd/JUDGE

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SNC,BSS List No.: 1 Sl No.: 46

State of Karnataka v. Smt G R Harishilpa

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Smt G R Harishilpa

Case brief

What is this about?

What did the court decide?

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