Allowed

C N Krishnamurthy v. State of Karnataka

Karnataka HC18 Dec 2024CRL.A/249/2013

Case brief

AI extract

What is this about?

Appeal against conviction of a police office assistant under Sections 7 and 13(1)(d)/13(2) PC Act for accepting Rs.5,075 in a trap. Complainant and shadow panch did not prove demand; panch could not see the occurrence room. Court held demand unproven, presumption unavailable, acquitted accused.

What did the court decide?

Conviction and sentence set aside; appellant acquitted under Sections 7, 13(1)(d) r/w 13(2) PC Act; fine paid to be refunded.

C N Krishnamurthy Vs State of Karnataka — Corruption | Karnataka HC (2024)

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NC: 2024:KHC:52199 CRL.A No. 249 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL No. 249 OF 2013

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BETWEEN:

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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C N KRISHNAMURTHY S/O NINGAPPA AGED ABOUT 32 YEARS SECOND DIVISION ASSISTANT CRIME DIVISION, DISTRICT POLICE OFFICE, TUMKUR NATIVE OF CHINGAVARA, SIRA TALUK TUMKUR DISTRICT - 572 132.

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…APPELLANT

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(BY SRI H PAVANA CHANDRA SHETTY, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY LOKAYUKTHA POLICE TUMKUR - 572 101.

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…RESPONDENT

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(BY SRI B S PRASAD, ADVOCATE)

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THIS CRL.A. IS FILED UNDER SECTION 374(2) Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 21.02.2013 PASSED BY THE II ADDITIONAL DISTRICT & S.J., TUMKUR IN SPECIAL CASE No.182/2009 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 7, 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988 AND ETC.,

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THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the sole accused praying to

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set aside the judgment of conviction and order on sentence dated 21.02.2013 passed in Spl.C.No.182/2009 by the II Additional District and Sessions Judge, Tumkuru, whereunder the appellant -accused has been convicted for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “P.C. Act” for brevity) and sentenced to undergo rigorous imprisonment for a period of 01 year and to pay fine of Rs.5,000/- for offence punishable under Section 7 of the P.C. Act and sentenced to undergo rigorous imprisonment

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for a period of 03 years and to pay fine of Rs.5,000/- for offence punishable under Section 13(1)(d) read with Section 13(2) of the P.C. Act.

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NC: 2024:KHC:52199 CRL.A No. 249 of 2013

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The factual matrix of the prosecution case is

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that the appellant –accused was working as Second Division Assistant in the office of the Superintendent of Police Tumakuru and complainant –Vivek Vallabh Gujjar (P.W.4) was working as Investigator for M/s United India Insurance Company and used to get information regarding accidents form the appellant –accused. It is further alleged that the appellant –accused used to demand and receive bribe of Rs.25/- in respect of information furnished for each case and receiving the said amount in the form of cheque in the name of A.N. Manjunath and in this way he has received Rs.21,650/through cheque and Rs.3,500/- in cash for the period of September -2002 to August -2007. Even though the case of prosecution is that for the information furnished during the month of September-2007 he had received cheque No.575039 for Rs.3,825/-, but the same was dishonoured for want of sufficient funds and when complainant told the accused that he would stop getting

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the information, accused demanded payment of

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Rs.5,075/- i.e. 3825/- being the cheque amount and balance of Rs.1,250/- towards the information collected up to 23.10.2007 and on 24.10.2007 in the office cum residence of complainant he received bribe of Rs.5,075/in the presence of shadow witness and committed offences. Charge sheet has been filed against the appellant –accused for the said offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act.

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The Special Court has framed charges for the said offences. In order to prove charges, the prosecution has examined 07 witnesses as P.W.1 to 07, got marked documents as Ex.P1 to 13 and material objects as M.O.1 to 11. The statement of accused person came to be

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recorded under Section 313 of Cr.P.C. Learned Special

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Judge after hearing arguments on both sides has formulated points for consideration and passed impugned judgment convicting the appellant –accused for offences

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punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act which is challenged in this appeal.

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Heard learned counsel for appellant –accused and learned counsel for the respondent.

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Learned counsel for the appellant –accused would contend that the prosecution has not proved that the alleged demand of bribe by the appellant –accused. There are no materials on record to establish the demand of bribe by the appellant –accused. P.W.4 –complainant has not stated in his evidence regarding demand of bribe at the time of trap. The cross examination of P.W.1 – Shadow Pancha indicate that he was not present in the room in which P.W.4 –complainant and accused were present and he was in the other room. Therefore, he has not seen and heard any conversation between P.W.4 – complainant and appellant –accused. The prosecution has not produced any material to indicate that work of the complainant was pending with the appellant –accused.

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The alleged cheque amount withdrawn in the name of one A.N Manjunath who was employee of P.W.4 – complainant and it is created to implicate the appellant – accused. The said M.O.10(a) –cheque has not been seized from possession of the appellant –accused. M.O.10 -documents are secured form P.W.3 who was

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working in the office of the Superintendent of Police, Tumkuru. The original cheque -M.O.10(a) has not been produced even though it is stated in Ex.P2 –trap mahazar that it is found with the appellant –accused at the time of trap and seized under trap mahazar. The presumption under Section 20 of the P.C. Act is not attracted since the alleged demand of bribe has not been established. Learned counsel for the appellant in support of his contention has placed reliance on the following decisions

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1) M.R.Purushotham Vs State of Karnataka¹ 2) B.Jayaraj Vs State of Andra Pradesh² 3) R.P.S.Yadav Vs C.B.I³

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1 Reported in (2015) 3 SCC 247

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2 Reported in (2014) 13 SCC 55

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3 Reported in 2015 AIR SCW 2828

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4)State of Karnataka Vs Anand Gururao Deshpande⁴

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5)V.Venkata Subbarao Vs. State rept.by Inspector of Police A.P⁵

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6) Banarsi Dass Vs. State of Haryana⁶

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7)Ganapathi Sanya Naik Vs. State of

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Karnataka⁷

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8)Meena (Smt) W/o Balwant Hemke Vs. State of Maharashtra⁸

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9) State of H.P Vs. Sukhdev Singh Rana⁹ 10)Suraj Mal Vs. The State (Delhi Administration)¹⁰ 11)Suresh Kumar Vs. State by Karnataka Lokayukta Police¹¹

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12) State of Karnatka Vs. K T Hanumanthaiah¹² 13)T Siddaiah Vs. State of Karnataka by Lokayukta Police¹³

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On these grounds he prays to allow the appeal and acquit the appellant accused for offences punishable

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4 Reported in ILR 2010 KAR 1983

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5 Reported in (2006) 13 SCC 305

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6 Reported in (2010) 4 SCC 450

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7 Reported in 2007 AIR SCW 5824 SC

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8 Reported in (2000) 5 SCC 21

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9 Reported in 2005 CRI.L.J. 1136

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10 Reported in AIR 1979 SC 1408

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11 Reported in Crl.A.No.975/2014

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12 Reported in Laws (KAR) 2006 3 129

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13 Reported in Cr.A.No.843/2015

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under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act.

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Learned counsel for the respondent would contend that the bribe amount was found with the appellant –accused and P.W.4 –complainant has stated in his evidence that he has handed over the said bribe amount to the accused person. As bribe amount was found in the possession of the appellant –accused therefore, the presumption arises under Section 20 of the P.C. Act. It is for the appellant –accused to rebut the said presumption and that has not been done. The appellant – accused coming to the home office of the complainant itself indicate that he has came there for collecting the bribe amount. The appellant –accused in his explanation -Ex.P10 has not disputed his visit to the home office of complainant and receiving the money from him. The hand wash of the appellant –accused was turned pink and FSL report indicate that the test has resulted in positive as it contains phenolphthalein. The contents of Ex.P10 –

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statement of the appellant –accused is not probable. The

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appellant –accused has not given any explanation at the

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time of recording his statement under Section 313 of Cr.P.C. Learned counsel for the respondent has placed reliance on the following decisions.

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1) Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi)¹⁴

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2) Phula Singh Vs. State of Himachal Pradesh¹⁵

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3) M Narsinga Rao Vs. State of A.P¹⁶

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4) State of A.P Vs. C.Uma Maheswara Rao and another¹⁷

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5) C.M. Sharma Vs. State of A.P.TH.IP¹⁸

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6) C.I. Emden Vs. State of U.P¹⁹

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7) Dhanvantrai Balwantrai Desai Vs. State of Maharashtra²⁰

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8) V.D.Jhingan Vs. State of U.P²¹

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14 Reported in AIR 2023 SCC 330

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15 Reported in AIR 2014 SCC 1256

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16 Reported in 2001 SC 318

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17 Reported in AIR 2004 SCC 2042

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18 Reported in AIR 2011 SCC 608

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19 Reported in AIR 1960 SCC 548

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20 Reported in AIR 1964 SC 575

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On these grounds he prays for dismissal of the appeal.

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Having heard learned counsels, perusing the impugned judgment, trial Court records and considering the grounds urged, the following point arises for my consideration:

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Whether the Trial Court has erred in convicting the appellant –accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act?

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My answer to the above point is in Affirmative for

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the following reasons

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P.W.4 is the complainant and he has filed complaint

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which is at Ex.P4. P.W.4 –complainant used to make an application for getting information in Superintendent of Police Office, Tumkuru and it is stated that this appellant –accused used to furnish information and for furnishing information he used to demand bribe of Rs.25/- per

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21 Reported in AIR 1966 SC 1762

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accident information. In Ex.P4 –complaint it is stated

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that the bribe amount paid to the appellant –accused by

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way of open cheque in the name of A. N. Manjunath and the said cheques were given by P.W.4 –complainant. In Ex.P4 –complaint it is stated that the appellant –accused collected bribe of Rs.3,500/- in cash and Rs.21,650/- in

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open cheque drawn in the name of A.N.Manjunath from

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the savings bank account of P.W.4 –complainant. The statement of bank account of P.W.4 –complainant has not been collected and produced to show that cheques in the name of A.N. Manjunath have been en-cashed to the

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extent of Rs.21,650/-. It is also alleged in Ex.P4 – complaint that cheque for Rs.3,825/- has been issued in the name of A.N Manjunath and it is given to the appellant –accused and it came to be dishonoured for want of sufficient fund in the account of complainant and therefore, the appellant –accused demanded the said amount by cash. To establish that there was no sufficient funds in the account of P.W.4 to en-cash the said cheque

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drawn for Rs.3,825/- bank account statement has not been produced.

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P.W.4 –complainant has stated in his evidence that as the appellant –accused demanded bribe of Rs.5,075/- and he has filed complaint as per Ex.P4. The conversation between P.W.4 -complainant and the appellant –accused has not been placed on record even though conversation between them is over phone. P.W.4 in his evidence has stated that the appellant –accused

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came to his home office at 2.45p.m. and he asked him to return the cheque and accused returned the said cheque

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and thereafter, he gave money to him and he kept that money in his pant pocket. P.W.4 has not stated that the appellant –accused has demanded bribe at the time of trap. As per evidence of P.W.4, the cheque for Rs.3,825/has been received by him from the appellant –accused but as per evidence of P.W.7 –Investigating Officer, the said cheque was found with the appellant –accused and it is seized under trap mahazar along with other documents

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which were with the appellant –accused. If the said cheque was returned by the appellant –accused to P.W.4 then P.W.4 was having possession of the said cheque. It is not case of P.W.4 that he has handed over the said cheque to P.W.7 –Investigating Officer.

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P.W.1 is Shadow Pancha and in his evidence

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he has stated that he was taken to the house of P.W.4 and accused came there at 2.00p.m. and accused received money given by P.W.4 –complainant and he has kept that money in his pant pocket. P.W.1 –Shadow Pancha has not stated any demand of bribe by the appellant –accused. The sketch of scene of offence is at Ex.P5. Ex.P5 has been drawn by P.W.6 –Junior Engineer as shown by the Shadow Pancha –P.W.1. The room which is shown as place of occurrence has been marked as Ex.P5(b), living room is marked as Ex.P5(a) and another room adjacent to the place of occurrence is marked as Ex.P5(c). On seeing Ex.P5 –sketch, P.W.1 –

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Shadow Pancha has stated that he was sitting in living

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room which is marked as Ex.P5(a). He further stated

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that by sitting in that room what was happening in the room which is shown as place of occurrence Ex.P5(b) was not visible and also he admitted that what happened in room i.e. Ex.P5(b) and for how much time that happened he is not aware. P.W.4 has also admitted that there is computer in living room in which he was sitting and he was playing computer game in that computer. Considering the said admissions given by P.W.1 in his cross examination, it is clear that what happened in the room i.e., place of occurrence has not been seen by him. P.W.2 –another pancha in his cross examination has

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stated that he and Inspector were in room which is marked as Ex.P5(b) and he also admitted that P.W.1 was in the room which is marked as Ex.P5(a). As per Ex.P5 P.W.1, P.W.4 and the appellant –accused were in the room which is showed in place of occurrence which is marked as Ex.P5(b) but in the evidence of P.W.1 and 4 is contrary to what is shown in Ex.P5 –sketch. Considering

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the cross examination of P.W.1 and 2 they have not seen what happened in the room which is shown as place of occurrence at the time of trap. P.W.4 –complainant has also not stated that at time of trap the appellant – accused has demanded the bribe and thereafter, he gave money to him.

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The appellant –accused gave his statement in writing which is at Ex.P10. The appellant –accused has admitted his visit to the home office of P.W.4 – complainant and as per the said explanation P.W.4 – complainant gave cash of Rs.5,075/- to him to give the same as salary to employees of P.W.4 as he is going out of station. In absence of proof of demand of bribe, the said explanation as per Ex.P10 given by the appellant – accused appears to be probable.

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P.W.3 –Assistant Administrative Officer

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working in the Superintendent of Police Office, Tumakuru has produced relevant documents to the Investigating

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Officer and they are marked as M.O.10. M.O.10 also

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contains copy of cheque for Rs.3,825/- which is marked as M.O.10(a). Considering the evidence of P.W.7, the copy of cheque has been seized from possession of P.W.3. M.O.10(a) is copy of the said cheque. The original of M.O.10(a) –cheque has not been placed on record.

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The full bench of Hon’ble Apex Court in the case of Neeraj Dutta Vs State (Govt. of N.C.T of Delhi)²² has held that the demand of bribe can be proved by circumstantial evidence. The Hon’ble Apex Court in the case of M. Narsinga Rao Vs State of A.P (Supra) has held that on proof of receiving gratification a legal presumption that such gratification was accepted as reward for doing public duty has to be drawn. The Hon’ble Apex Court in the case of State of A.P. Vs Uma Maheshwara Rao and another(Supra) has held that for drawing presumption under Section 20 of the P.C. Act proof of “acceptance or agreed to accept” any

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22 Reported in 2023 SCC OnLine SC 280

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17 -

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gratification is condition precedent for drawing presumption. The Hon’ble Apex Court in the case of C.M.Sharma Vs State of A.P.TH.I.P(Supra) has held that mere recovery of currency notes itself does not constitute offence under P.C. Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. The Hon’ble Apex Court in the case of Dhanvantrai Balwantrai Desai Vs State of Maharastra (Supra) has held that if the accused shown to have accepted money which was not legal remuneration –Presumption can be raised. The Hon’ble Apex Court in the case of V.D. Jhingam Vs State of U.P(Supra) has held that when it is shown that the accused has received a certain sum of money which was not his legal remuneration, the condition prescribed by the section is satisfied and the presumption must be raised. In the case of Sita Ram Vs The State of Rajasthan²³ relied upon by the learned counsel for the

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23 Reported in (1975) 2 SC 227

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appellant, the Hon’ble Apex Court has held that if the prosecution has failed to prove that the appellant had demanded any gratification from the complainant, if the charge was for accepting gratification, the presumption cannot be pressed into service.

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The Hon’ble Apex Court in the case of Neeraj

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Dutta (Supra) has held as under

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“18. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a

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NC: 2024:KHC:52199 CRL.A No. 249 of 2013

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conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand.

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23. There is one more important factual aspect to be noted which creates serious doubt about the prosecution's case. In the complaint filed by the deceased complainant on 17th April 2000, in the form of his statement recorded by the Anti-Corruption Bureau, he has stated that pursuant to the application dated 6th May 1996, a meter was installed in his shop and after a few months, he found that the meter was removed. However, the Special Court has observed in paragraph 19 of the impugned judgment that a complaint regarding a stolen electricity meter was registered at the instance of the complainant on 25th April 2000. Thus, the grievance regarding stolen meter was made by the complainant 8 days after the alleged demand for bribe. In fact, PW-7

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admitted that the complainant did not produce a copy of the application made by him for providing electricity meter. PW-7 further stated that the complainant did not clearly tell him that he had given such application. In absence of proof of making such application, the prosecution's case regarding demand of bribe for installing new electricity meter becomes doubtful. Moreover, till 24th April 2000, the complainant did not register a complaint regarding commission of offence. This makes the prosecution's case regarding the demand of gratification on 17th April 2000 for installing a new electricity meter extremely doubtful.

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24. In the present case, there are no circumstances brought on record which will prove the demand for gratification. Therefore, the ingredients of the offence under Section 7 of the PC Act were not established and consequently, the offence under Section 13(1)(d) will not be attracted.”

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The Hon’ble Apex Court in the case of Indrakunwar Vs State of Chhattisgarh²⁴ has held as under

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24 Reported in AIR 2023 SC 5221

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“34. A perusal of various judgments rendered by this Court reveals the following principles, as evolved over time when considering such statements .

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34.1 The object, evident from the Section itself, is to enable the accused to themselves explain any circumstances appearing in the evidence against them.

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34.2 The intent is to establish a dialogue between the Court and the accused. This process benefits the accused and aids the Court in arriving at the final verdict.

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34.3 The process enshrined is not a matter of procedural formality but is based on the cardinal principle of natural justice, i.e., audi alterum partem.

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34.4 The ultimate test when concerned with the compliance of the Section is to enquire and ensure whether the accused got the opportunity to say his piece.

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34.5 In such a statement, the accused may or may not admit involvement or any incriminating circumstance or may even offer an alternative version of events or

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interpretation. The accused may not be put to prejudice by any omission or inadequate questioning.

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34.6 The right to remain silent or any answer to a question which may be false shall not be used to his detriment, being the sole reason.

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34.7 This statement cannot form the sole basis of conviction and is neither a substantive nor a substitute piece of evidence. It does not discharge but reduces the prosecution's burden of leading evidence to prove its case. They are to be used to examine the veracity of the prosecution's case.

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34.8 This statement is to be read as a whole. One part cannot be read in isolation.

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34.9 Such a statement, as not on oath, does not qualify as a piece of evidence under Section 3 of the Indian Evidence Act, 1872; however, the inculpatory aspect as may be borne from the statement may be used to lend credence to the case of the prosecution.

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34.10 The circumstances not put to the accused while rendering his statement under the Section are to be excluded from consideration as no opportunity has been afforded to him to explain them.

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34.11 The Court is obligated to put, in the form of questions, all incriminating circumstances to the accused so as to give him an opportunity to articulate his defence. The defence so articulated must be carefully scrutinized and considered.

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34.12 Non-compliance with the Section may cause prejudice to the accused and may impede the process of arriving at a fair decision.”

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Considering the evidence on record in the present case the prosecution has not established the demand of bribe by the appellant –accused. P.W.4 – complainant has not stated in his evidence that at the time of trap the appellant –accused has demanded bribe and thereafter, he gave money to him. In the absence of proof of demand of bribe by the appellant –accused, the

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explanation given in Ex.P10 –statement that the said money is given by P.W.4 to him for making payment of salary to employees of P.W.4 as he is going out of station appears to be probable. Merely because the appellant – accused visited the home office of P.W.4, the presumption cannot be drawn that he went there for collecting bribe amount.

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The Hon’ble Apex Court in the case of

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B.Jayraj Vs State of Andra Pradesh(Supra) has held that

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’’9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow

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only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.”

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The proof of demand of bribe by the appellant –

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accused is lacking in the present case that the prosecution has not established primary facts of demand of bribe and acceptance of bribe. Considering all these aspects, learned Special Judge has erred in convicting the appellant –accused for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C Act.

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The appellant –accused has made out grounds for setting aside the impugned judgment of conviction and order on sentence. In the result, the following

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ORDER

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i) The appeal is allowed. ii) The judgment of conviction and order on sentence dated 21.02.2013 passed in

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Spl.C.No.182/2009 by the II Additional District and Sessions Judge, Tumkuru is set aside and the appellant –accused is acquitted for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act. iii) The fine if any paid by the appellant –accused is ordered to be returned to the appellant – accused.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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DSP

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List No.: 1 Sl No.: 6

C N Krishnamurthy v. State of Karnataka

Case brief

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C N Krishnamurthy v. State of Karnataka

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M/S Trishul Buildtech and Infrastructures Pvt. Ltd. Vs Directorate of Enforcement

Sri. Shivanna, Vs the State of Karnataka

Sri.Mahantesh Vs State by Police Inspector

Sudeep a Vs State by K R Puram Police Station