Allowed

Sri. Bharamappa v. State of Karnataka

Karnataka HC8 Jul 2024CRL.A/100096/2017

Case brief

AI extract

What is this about?

The appellant, a Block Education official, appealed his conviction for demanding and accepting illegal gratification under the Prevention of Corruption Act. The High Court allowed the appeal, holding that the evidence failed to establish the 'sine qua non' of demand and pendency of official work, leading to his acquittal.

What did the court decide?

Appellant acquitted of offences under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. Bail bonds cancelled.

Sri. Bharamappa Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC-D:9449 CRL.A No. 100096 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH CRIMINAL APPEAL NO. 100096 OF 2017

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BETWEEN:

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SRI. BHARAMAPPA S/O. BOODEPPA KANDATE, AGE: 49 YEARS, OCC: BLOCK EDUCATION OFFICER, CENTRE CO-ORDINATOR, BEO OFFICE, RANEBENNUR.

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…APPELLANT

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(BY SRI. V. M. SHEELVANT, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY, INSPECTOR OF POLICE, KARNATAKA LOKAYUKTA, POLICE DIVISION, HAVERI.

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…RESPONDENT

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(BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE)

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Digitally signed by NARAYANA UMA Location: HIGH COURT OF KARNATAKA

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CR.P.C., SEEKING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND ORDER DATED 18.02.2017 PASSED BY THE COURT OF II ADDL. DISTRICT AND SESSIONS JUDGE, AT HAVERI (SITTING AT RANEBENNUR), IN SPECIAL VIGILANCE CASE NO.01 OF 2009 CONVICTING THE APPELLANT FOR THE OFFENCES PUNISHABLE UNDER SECTION 7, 13(1) (D) READ WITH SECTION 13(2) OF PREVENTION OF CORRUPTION ACT 1988 AND SET THE APPELLANT AT LIBERTY.

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

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CORAM: THE HON'BLE MR. JUSTICE S.RACHAIAH

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NC: 2024:KHC-D:9449 CRL.A No. 100096 of 2017

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)

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This appeal is filed by the appellant being unsuccessful before the Trial Court. The appellant has been convicted for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short ‘P.C Act’) in Spl. Vigilance case No.1/2009 dated 18.02.2017 passed by II Addl. District and Sessions Judge, Haveri (sitting at Ranebennur).

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The rank of the parties, henceforth, will be referred to as their rankings in the Trial Court, for convenience.

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Brief facts of the case are as under:

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The complainant was working at MCS Chalageri School as incharge Head Master. During his tenure as incharge Head Master, he discharged his duty to take care of mid-day meal. As per the circular issued by the concerned Authority, the persons who performed the duty in the vacation to take care of mid day meal, were entitled for earned leave. The complainant approached the accused who was working as a Block Resource Centre Co-ordinator of Ranebennur Taluk to include his name in the service register to avail benefit which is

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given by the Government. The accused demanded a sum of Rs.5,000/- to include his name in the service register. However, it is scaled down to Rs.3,000/-. Being aggrieved by the demand made by the accused, the complainant approached Lokayukta-police and lodged the complaint on 07.07.2008. The Lokayukta-police had instructed him to develop evidence relating to the said demand. Accordingly, a tape recorder was provided him to him to record the conversation.

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The complainant recorded the conversation and handed over the same to the Lokayukta-police and thereafter, the complaint came to be registered against the accused on 08.07.2008.

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After receiving the complaint, FIR in Cr.No.4/2008 came to be registered for the under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act, 1988. Thereafter, investigation was conducted and charge sheet was submitted.

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In order to prove the case of the prosecution, the prosecution examined in all 11 witnesses as PWs.1 to 11 and got marked 48 documents as Exs.P.1 to P.48 and also identified material objects as M.O.1 to M.O.13. On the contrary, the

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defense got examined two witnesses as D.Ws.1 and 2 and also got marked 20 documents as Ex.D1. to D20. The Trial Court after appreciating the oral and documentary evidence, recorded the Conviction of the accused for the aforesaid offences. Therefore, the accused approached this Court seeking to set aside the judgment of conviction and order of sentence passed by the Trial Court.

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Heard Sri. V.M. Sheelavant, learned counsel for the appellant and Sri. Santhosh B Malagoudar, learned counsel for the respondent.

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It is the submission of the learned counsel for the

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accused that the judgment of conviction and order on sentence passed by the Trial Court is erroneous and opposed to law and facts and evidence on record. Therefore, the same is liable to be set aside.

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It is further submitted that the complainant has stated in his complaint that he was working under the accused as ‘Cluster Resource Person’ at Chalageri Village in the summer holidays between 11.04.2007 to 30.05.2007, discharged his duty under ‘Akshara Dashoha Programme’. In this regard, the

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complainant had given an application to the Block Education Officer (for short, ‘BEO’), Rannebennur, requested him to enter the leave particulars in respect of the said period in his service register as per Government Rules. When the said application was given to BEO directly, there was no occasion for the accused to do some official favour to the complainant. However, the said aspect has not been considered by the Trial Court properly. In other words, when the work was not pending as on the date of alleged demand, it cannot be said that, the accused had demanded money from the complainant to do some official favour.

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It is further submitted that even though there is no whisper regarding demand of money from the complainant, a false complaint came to be registered against the accused only in order to implicate him in a false case.

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It is further submitted that the defense of the accused has not been considered by the Trial Court, wherein the accused had taken defense that the amount which was received by him was given to the complainant as loan, when it was being returned, he was caught red-handedly. The

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complainant with an ulterior motive to implicate him, filed a false case against the accused and the same has not been considered by the Trial Court.

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It is further submitted that on reading of the evidence of all the witnesses, there was no whisper regarding demand of illegal gratification to do some official favour. In the absence of demand and acceptance of money as a illegal gratification, conviction ought not to have been recorded. However, the Trial Court ignoring the principles of law relating to Prevention of Corruption Act, recorded the conviction which is erroneous and not proper. Therefore, the same is liable to be set aside. Making such submissions, the learned counsel for the accused prays to allow the appeal.

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Per contra, the learned Special Prosecutor for the respondent vehemently justified the judgment of conviction and order on sentence passed by the Trial Court and he further submits that the evidence of material witnesses namely P.W.1complainant, P.W.2- the shadow witness, P.W.4-Co-panch to the incident, is consistent in respect of demand and acceptance of illegal gratification.

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It is further submitted that the work pendency with

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the accused has also been proved. Therefore, the findings of the Trial Court are proper and relevant. Interference with the said findings may not be necessary. Making such submissions, learned Special Prosecutor prays to dismiss the appeal.

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After having heard the learned counsel for the respective parties and also perused the averments of the charge sheet, the points which would arise for my consideration are:

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1. Whether the findings of the Trial Court in recording the conviction are justified?

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2. Whether the appellant has made out a case to interfere with the said judgment of conviction and order of sentence passed by the Trial Court?

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This Court being the first appellate Court, it is empowered to reassess the evidence of all the witnesses for the purpose of clarifying as to whether the Trial Court arrived at a conclusion properly.

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Before adverting to the facts of the case, it is relevant to refer the provisions of Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 which reads thus:

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“[7. Offence relating to public servant being bribed .—Any public servant who,—

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(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

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(b) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or another public servant; or

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(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person,

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shall be punishable, with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

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Explanation 1.—For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

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Illustration.—A public servant, ‘S’ asks a person, ‘P’ to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.

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Explanation 2.—For the purpose of this section,—

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(i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

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(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.]

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13. Criminal misconduct by a public servant .—[(1)

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A public servant is said to commit the offence of criminal misconduct,-

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(d) if he,-

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(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(iii) while holding office as a public servant, obtains for any person any valuabale thing or pecuniary advantage without any public interest; or

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(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.”

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On careful reading of the aforesaid provisions, it makes it clear that to constitute an offence under aforesaid provisions, the following points are required to be fulfilled viz.,

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(1) pendency of work,

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(2) demand and

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(3) acceptance of illegal gratification to do or not to do some official work.

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After having considered the proposition of law relating to the P.C. Act, it is relevant to state the facts in brief for better understanding.

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The complainant was working as incharge Head Master within the jurisdiction of BEO. He stated to have served in the summer holidays relating to the work of mid-day meal. The Government of Karnataka provided certain benefits to the persons who worked during holidays in the form of earned leave. Such earned leave must be entered to the service register of the employee.

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The complainant approached BEO and made representation regarding the work he discharged during holidays and requested him to enter the earned leave to his record. As per the averments of the complaint, the accused stated to have demanded a sum of Rs.5,000/- to include his name in the service register to avail the benefit of earned leave. The complainant after due deliberations and also request made by him regarding his financial difficulties, the accused agreed to receive a sum of Rs.3,000/- from the complainant. When the amount was being given, the accused

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was caught red-handedly by the authority, consequently, the charge sheet has been filed.

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The evidence of P.W.1 would indicate that he approached the accused in the month of June, 2007 to include his earned leave in the service register as he had discharged his duty relating to mid-day meal in the summer vacation. However, in the cross-examination, he admitted that as on the date of alleged incident, he went to BEO office along with P.W.2 and approached the accused and asked him to get his work done. In fact, no such work was pending before the accused as is admitted by him. Further he admitted that, the work of including his name in the service register was pending before another clerk namely Mulla.

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P.W.1 further deposed that when the accused was proceeding to attend the meeting, he followed him till scooter stand and there he said to have paid the amount. However, there is no whisper regarding demand of the said illegal gratification which is sine qua non to invoke Section 7 of the P.C. Act.

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P.W.2 who is a shadow witness, deposed in his evidence that he accompanied P.W.1 and went to the office of the accused. However, he was standing a little distance away from P.W.1. He did not depose that the accused demanded the illegal gratification from P.W.1. In fact he deposed that P.W.1 gave the amount of Rs.3,000/- to the accused when he was going to attend the meeting in the scooter parking stand.

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P.W.3 has deposed in his evidence that he was working as a BEO and he had also having Field Resource Centre in his jurisdiction. Further he deposed that the accused was working as coordinating officer. He further deposed that the work of including earned leave of the complainant in his service register was not entrusted to the accused. However, in the cross-examination, he admitted that, the complainant was not working in the mid-day meal programme from 10.04.2007 to 30.05.2007. Further, he admitted that the complainant had given the application to him to include the earned leave to his service register. However, P.W.3 had handed over the said work to the clerk namely Mulla. When the work was not pending with the accused, demand of illegal gratification by the accused, appears to be unbelievable and not acceptable.

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P.W.4 who acted as a co-panch witness has

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deposed in his evidence that the amount of Rs.3,000/- was seized from the accused. However, mere seizure of amount from the accused is not sufficient to invoke the provisions of PC Act unless there is demand. Therefore, his evidence is of no significance.

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P.W.5 was working as a ‘D’ group employee and he was asked to identify the voice of accused. However, he did not support the case of the prosecution and he turned hostile.

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P.W.6 was working as Head Master, Hirebidari,

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Ranenbennur and he was also asked to identify the voice in the voice recorder which was played before him. Though he identified the voice of the accused, according to him, there was no demand of illegal gratification. Further, he admitted that the voice of the accused was not clear and it was not identifiable.

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On careful reading of the evidence of the material witnesses stated supra, it can be inferred that none of the witnesses have spoken about the pendency of the work with

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the accused and even the shadow witness did not depose that the accused demanded amount of Rs.3,000/- to do official favour to the complainant. In the absence of demand and acceptance which were sine-quo-non to constitute an offence, I am of the considered opinion that the prosecution has not proved the case beyond all reasonable doubt. However, the Trial Court ignored the said principle and recorded the conviction which is not appropriate and proper. Therefore, the same is liable to be set aside. Accordingly, I answer the as under:

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Point No.1: in the negative;

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Point No.2: in the affirmative.

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In the light of the observations made above, I proceed to pass the following:

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ORDER

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The appeal is allowed.

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The judgment of conviction and order on sentence dated 18.02.2017 passed by the Court of II Addl. District and Sessions Judge, Haveri (sitting at Ranebennur), in Spl. Vigilance Case No.1/2009 is hereby set aside.

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The accused is acquitted for the offence punishable under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act, 1988.

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The bail bonds executed, if any, stand cancelled.

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Sd/(S.RACHAIAH) JUDGE

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JS/-&BSS CT:KA List No.: 2 Sl No.: 21

Sri. Bharamappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri. Bharamappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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