State appeal against acquittal of two Tahasil office officials in a bribery trap case. Complainant turned hostile; shadow witness's evidence inconsistent; work was completed before the trap. Court held demand not proved and dismissed the appeal, upholding acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC-D:4255 CRL.A No. 2538 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 2538 OF 2012 (A)
BETWEEN:
THE STATE OF KARNATAKA, THROUGH LOKAYUKTA POLICE, KOPPAL.
…APPELLANT
(BY SRI SANTOSH B. MALAGOUDAR, SPECIAL COUNSEL FOR LOKAYUKTA)
AND:
Digitally
signed by
ANNAPURNA
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL
DANDAGAL Date:
2024.02.23
10:25:05
+0530
…RESPONDENTS
(BY SRI NEELENDRA D. GUNDE, ADVOCATE FOR RESPONDENT NOS.1 AND 2)
THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO THE APPELLANT TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTED DATED 20.09.2011 PASSED IN SPL. CASE NO. 02/2007 ON THE FILE OF THE SESSIONS & SPL. JUDGE, KOPPAL AND ALLOW THE APPEAL AND SET ASIDE THE AFORESAID JUDGMENT AND ORDER OF ACQUITTAL AND
CONVICT THE ACCUSED FOR THE CHARGED OFFENCES IN ACCORDANCE WITH LAW.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
briefly as revealed from the records are, the complainant-
Vinayak (PW-1) had approached Koppal Lokayukta police and had filed a complaint as per Ex.P-1, wherein it is averred that he is a physically handicap person. His father Manappa was granted 1 acre 20 guntas of land by the Government, but while effecting mutation, only an extent of 1 acre was mentioned in the revenue records of the
land and therefore in order to rectify the said mistake by making necessary corrections with regard to the extent of
land, his father had filed an application before the Tahasildar, Gangavathi. Since the said application was not considered by accused No.1, the complainant allegedly had approached accused No.2 as well as the Sheristedar of the Tahasildar Office. It is alleged that accused Nos.1 and 2 had demanded bribe from the complainant and since he
was not willing to pay the bribe amount, he had approached the Koppal Lokayukta police on 16.01.2006 and lodged complaint Ex.P-1.
chemical examination and thereafter the arrested accused
were produced before the Court and remanded to judicial custody.
5. After completing investigation, charge sheet
was filed by the prosecution against accused Nos.1 and 2 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the PC Act’). The accused who had appeared before the trial Court, had pleaded not guilty and claimed to be tried. The prosecution in order to substantiate its case and prove its charges against accused beyond reasonable doubt, had examined 12 witnesses as PW-1 to PW-12 and also got marked 33 documents as Ex.P-1 to Ex.P-33. 17 material objects were produced and marked by the prosecution as MO-1 to MO17. On behalf of the defence, 2 documents were marked as Ex.D1 and Ex.D-2. The Trial Court after hearing the arguments addressed on both sides, vide the impugned Judgment and order, acquitted the accused Nos.1 and 2
for the offences charged against them. Being aggrieved by
the same, the State is before this Court.
respondent/accused Nos.1 and 2 has supported the impugned Judgment and order of acquittal. He submits that the demand and acceptance of bribe has not been
proved in the present case. Mere recovery of tainted money from the accused is not sufficient to convict the accused for the offences alleged against them. He submits that no work was pending with the accused as on the date of complaint. In support of his arguments, he has placed reliance on the Judgment of the Hon’ble Supreme Court in
the case of Neeraj Dutta vs. State (Govt. of N.C.T. of Delhi) , reported in 2023 SCC Online SC 280 . He has also placed reliance on the Judgment of this Court in Criminal Appeal No.100066/2015 and connected matters disposed off on 18.01.2024 and the Judgment of this Court in Criminal Appeal No.200105/2015, disposed off on 16.02.2022.
by the prosecution. Though, this witness was extensively cross-examined, nothing material has been elicited from his mouth, which is incriminating against the accused.
shadow witness in the present case. Though, this witness has supported the case of prosecution during the course of his examination-in-chief, in his cross-examination, this witness has stated that when the complainant P.W.1 had gone inside the office of accused, he was standing outside the office and watching the complainant and the accused, through a window. He has stated that he stayed near the window for about half an hour and for the remaining period of time, he was walking around. He has also stated that he does not know what had happened inside the office when he was walking around and not present near the window. This witness has also stated that the complainant and accused were speaking to each other and he could not overhear them clearly. This witness has stated that P.W.1 after coming out from the office of the
accused, had given a signal by combing his hair, which was at about 8.00 pm. It is only thereafter, the Police came to the spot. P.W.9 Investigating Officer has spoken about the complaint lodged by P.W.1 and about the entrustment mahazar Ex.P.3 and also about preparing the trap mahazar Ex.P.4. He has also spoken about subjecting the hands of the accused for chemical examination and thereafter sending the articles to the Forensic Science Laboratory for the purpose of chemical examination. But his evidence will not help the prosecution to prove the demand and acceptance of bribe amount in the present case.
Constable in Lokayukta police Station, Raichur, and he was a party to the raid that was held on 16.01.2006, in the office of P.W.2 Tahashildar. P.W.8 is the person who had issued the spot sketch Ex.P.29 and P.W.9 is the Investigating Officer in the present case, who has initially investigated the case. P.W.10 is the Police Officer, who had further investigated the case and P.W.11 is Police Officer, who had completed the investigation and filed the charge sheet. P.W.12 is the Officer of Social Welfare Department, who had issued sanction for the purpose of prosecuting accused No.1.
conversation of the complainant with the accused with regard to the demand made by the accused for payment of bribe has not been recorded in the present case. From a reading of the statements made by P.W.3 during the course of his cross-examination, a doubt arises as to whether he could hear the conversation of complainant with the accused. P.W.3 has stated that for a period of about half an hour, he was standing outside the window of the office when the complainant was inside the office. Thereafter, he was roaming around and he was not aware what happened inside the office when he was not standing near the window. He has also stated that he could not correctly overhear the conversation of the complainant with the accused person.
NC: 2024:KHC-D:4255 CRL.A No. 2538 of 2012
presumption under Section 20 of the P.C.Act is available against the accused. The Hon’ble Supreme Court in the
case of Neeraj Dutta (2022 SCC Online SC 1724) in paragraph No.74 has observed as follows :
”74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections
7 and 13(1)(d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of Criminal Appeal No.1669 of 2009 illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is Criminal Appeal No.1669 of 2009 a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
NC: 2024:KHC-D:4255 CRL.A No. 2538 of 2012
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said Criminal Appeal No.1669 of 2009 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.
NC: 2024:KHC-D:4255 CRL.A No. 2538 of 2012
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature.”
(emphasis added)
The referred question was answered in paragraph 76 of the aforesaid judgment, which reads thus:”
“76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under :
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.”
(emphasis added)
14. In its subsequent judgment in the case of Neeraj
Dutta’s (2023 SCC OnLine SC 280), at paragraph No.18 the Hon’ble Supreme Court has observed as follows :
“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
NC: 2024:KHC-D:4255 CRL.A No. 2538 of 2012
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 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.”
by the shadow witness P.W.3 are inconsistent, it would be difficult to place reliance on the evidence of this witness and convict the accused for the alleged offences. Though, the Hon’ble Supreme Court in the case of Neeraj Dutta’s supra has observed that in the absence of direct evidence, the prosecution can place reliance on the circumstantial evidence to prove the demand for illegal gratification, the prosecution must establish each and every circumstance
from which the prosecution wants to draw the conclusion of guilt. It is also further observed that facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. In the present case, undisputedly the work was not pending with the accused as on the date of trap. Ex.D.1 and 2 and Ex.P.33 would clearly demonstrate that in the month of December, 2005 itself, the work of the complainant’s father was completed by the accused. Complaint was lodged in the present case on 16.01.2006 and trap was also laid on the very same day. Therefore, as on the date of trap, no work of the complainant or his father was pending with the accused.
“20. In view of the legal principles enunciated in A. Subair’s case (supra), since the work was not pending
before the accused as on the date of trap, the important ingredient to attract and complete the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act cannot be sustained. Accordingly, the finding recorded by the learned trial Judge needs to be interfered with. In view of the foregoing discussion, point No.1 is answered in the negative and point No.2 is answered in the affirmative.”
17. In the case of N. Vijaykumar Nadu Vs. State of
Tamil Nadu , reported in (2021) 3 SCC 687 , at paragraph No.26 the Hon’ble Supreme Court has observed as follows:
“26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh . In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption
under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.”
to prove the demand made by the accused for payment of bribe amount. There are no such circumstances to arrive at definite conclusion that there was demand for payment of bribe by the accused. It is trite that mere recovery of tainted money is not sufficient to convict the accused for the charged offences. The material on record would go to
show that as on the date of trap, the work of the complainant or his father was not pending with the accused. Under the circumstances, I am of the considered view that the Trial Court had rightly acquitted the accused for the offences alleged against them. Unless it is pointed out that the order of acquittal passed by the Trial Court is patently illegal or perverse in nature, there cannot be any interference against the same by this Court. Under the
circumstances, I am of the view that there are no good grounds to interfere with the well reasoned and sound
Judgment and order of acquittal passed by the Trial Court.
Accordingly, the following :
ORDER
Appeal is dismissed.
Sd/JUDGE
KGK/CKK CT:GSM
2 issues framed by the court
Whether demand and acceptance of bribe were proved despite the complainant turning hostile.
Whether mere recovery of tainted money suffices to convict when no work was pending with accused on trap date.
Colour shows how this judgement treated each authority
Neeraj Dutta vs. State (Govt. of N.C.T. of Delhi)Relied on¶14
2023 SCC Online SC 280 · Who else cites this
Neeraj DuttaRelied on¶13
2022 SCC Online SC 1724 · Who else cites this
Chandrasha S/o. Madarsha Katba vs. The State of KarnatakaRelied on¶16
Criminal Appeal No.200105/2015
N. Vijaykumar Nadu Vs. State of Tamil NaduRelied on¶17
(2021) 3 SCC 687 · Who else cites this
Criminal Appeal No.100066/2015 and connected matters disposed off on 18.01.2024Referred
4 provisions across 2 enactments
The State of Karnataka, through Lokayukta Police, Koppal
Moulahussain S/o. Fakruddin Bisarahalli
Somashekharayya S/o. Mahalingayya
S.VISHWAJITH SHETTY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
