Dismissed

State of Karnataka v. H.G.Suresh

Karnataka HC11 Jul 2024CRL.A/453/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the State's special casual appeal against the acquittal of a Block Education Officer. The Court held the prosecution failed to prove demand and acceptance of a bribe beyond reasonable doubt due to uncorroborated evidence and lack of a legal nexus between the money and official duty.

What did the court decide?

Appeal dismissed; judgment of acquittal confirmed; bail bond discharged; records sent back to trial court.

State of Karnataka Vs H.G.Suresh — Corruption | Karnataka HC (2024)

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NC: 2024:KHC:26814 CRL.A No. 453 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CRIMINAL APPEAL NO. 453 OF 2014 (A)

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BETWEEN:

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STATE OF KARNATAKA BY LOKAYUKATHA POLICE TUMKUR DISTRICT-572 101

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…APPELLANT

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(BY SRI. B.S. PRASAD, SPL.PP)

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AND:

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H.G. SURESH S/O GIRIYAPPA AGE ABOUT 40 YEARS BLOCK EDUCATIONAL OFFICER (RBC), TURUVEKERE TUMKUR DISTRICT - 572 101

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…RESPONDENT

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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(BY SRI. K.B. MONESH KUMAR, ADVOCATE FOR SRI. VIJETHA R. NAIK, 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 APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 2.4.2014 PASSED BY THE II ADDL. DIST. AND S.J., TUMKUR IN SPL. CASE NO.249/2008 -ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 7 AND 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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

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JUDGMENT

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This appeal by the complainant/appellant is directed against the judgment of acquittal passed in Special Case No.249/2008 dated 02.04.2014 by the II Addl.District and Sessions Judge, Tumakuru. Parties to this appeal are referred as per their rank before the trial Court for the purpose of convenience.

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The learned trial Court passed the aforesaid judgment of acquittal of the accused of the offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred as the`PC Act’)

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BRIEF FACTS OF THE CASE ARE AS UNDER:

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N.R. Afjalunis, the Assistant Teacher working at

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GIPS, Siddanahatti School, Turuvekere, submitted a complaint at 12.30 p.m. on 10.07.2007 by appearing before the Police Inspector, Karnataka Lokayukta, Tumakuru, stating that, for the last eight years, prior to

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filing the complaint, she was working as an Assistant Teacher at GPS, Siddanahatti School. When the complaint was filed, she was working as the Headmistress of the said school. All the Government grants reserved for the said school were used to be credited to the SDMC Account bearing No. 64400556475-0. The grant so received was utilized for the purpose of the development of the school. It is stated by her that her monthly salary was credited to her personal SB Account No.54042940375 directly from the office of the Block Education Officer (BEO). According to her, she has furnished both the aforesaid accounts to the offices of BEO and BRC; she has also submitted a report about the non-receipt of the grant from the Government for the years 2006–2007 to the BRC Office.

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It is alleged by the complainant that the accused herein, who was working at the BRC office, issued a memo to her dated 20.06.2007 alleging that an amount of Rs.7,400/- was credited to her personal account, and she has cheated the Government department by

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withdrawing the said amount and has misappropriated the same. By issuing such a memo, her explanation was called

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for. Accordingly, she personally met the accused and informed him that the said mistake of crediting the amount to her personal account had occurred in his office only, and she had already deposited the amount into the SDMC account on 25.06.2007. It is alleged that, even then, with an ill will against the complainant, the said accused, on 02.07.2007, issued a second memo. To this memo, she had submitted the reply.

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It is further alleged by the complainant that, on

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09.07.2007, 2007, she and her husband-Sheikh Moiddeen, went to the office of DDPI Tumakuru, met the accused and requested him to accept the explanation. But the accused told them that the complainant had violated the law and committed the mistake; therefore, he made a threat by shouting at her, stating that he was going to get her suspended from her job. He also demanded Rs.5,000/- to set things right. In spite of repeated requests by the

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complainant, he did not agree and has received Rs.2,000/from her and fixed a date to pay the balance of Rs.3,000/to him on 10.07.2007.

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It is further alleged by the complainant that,

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though the BRC office has committed a mistake, it was saddled on the complainant by the accused, and he has mentally harassed her and demanded Rs.5,000/- from her, and after receiving Rs.2,000/-, he has scheduled the date for paying the balance of Rs.3,000/-. Therefore, she filed a complaint against the accused before the Police Inspector, Karnataka Lokayukta, with a request to take legal action against him. The said complaint was registered in Crime No.8/2007, and criminal law was set in motion against the accused for the aforesaid offences.

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The records of this case further reveal that, on

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receipt of the complaint, on the said day itself, he called two panchas by name B. Devaraju, S/o. late Bhootayya and one Sri M. Chidananada S/o. M.V. Marulappa and prepared the pre-trap panchnama as per Ex.P4 narrating

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the contents of the complaint before the panchas, then fixed a date. On the said day itself, they fixed the time to

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trap the accused. Accordingly, on instructions, after completion of pre-trap panchnama, the panchas, the Police Officials and the I.O. departed from the office of Lokayukta in a Government Jeep at 3.00 p.m., and parked their vehicles at a distance from the office of the accused. The I.O. instructed the shadow witnesses and the complainant to visit the accused and gave instructions to give a signal with regard to the demand and payment of the bribe amount to the accused. Accordingly, the complainant and shadow witnesses entered the office of the accused, and at 3.10 p.m., the complainant and shadow witness came out of the office of the accused and gave a prearranged signal to the I.O. On getting such a signal, the I.O., along with his staff, rushed to the office of the accused, where the accused was sitting in his room, introduced himself and conducted the raid on him, recovered Rs.3,000/- from his pocket, and made him put his hands in the sodium carbonate solution, which turned pink as narrated in the

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panchnama. Subsequently, the I.O. apprehended him, recovered the currency notes from the possession of the accused, prepared the trap panchnama as per Ex.P5 and produced him before the Court. Subsequently, he was enlarged on bail.

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On completion of the investigation, the

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investigation officer filed a charge sheet against the accused for the aforesaid offences.

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To substantiate the case of the prosecution, it

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examined 7 witnesses from PWs. 1 to 7 and got marked Exs.P1 to P29 with respective signatures and MO Nos. 1 to 7. During the course of cross-examination, Exs.D1 to D7 were marked.

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On the closure of evidence of prosecution and after recording the statement of the accused under Section 313 of Cr.P.C., the learned trial Court heard the arguments and on evaluation of the evidence placed on record, found the accused not guilty of committing the

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offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act, 1988.

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Submission before this Court:

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i) Submission on behalf of the Appellant/ complainant:

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Being aggrieved by the acquittal of the accused, the complainant has filed this appeal.

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It is argued by learned Panel Counsel Sri B.S. Prasad appearing for the appellant, that the trial Court has committed a grave error in passing the impugned judgment of acquittal. It is his submission that when the complainant and shadow witnesses have clearly spoken about the demand and acceptance of Rs.5,000/- by the accused and the receipt of Rs.2,000/- and Rs.3,000/-, this itself is sufficient to attract the provisions of the PC Act. But the learned trial Court, without appreciating the evidence in a proper manner, has misconstrued the ingredients of offences and has wrongly acquitted the

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accused. It is his submission that the findings of the trial Court in acquitting the accused are not in consonance with the judgment of the Apex Court. He submits that the evidence spoken to by the witnesses clinchingly establishes the demand for a bribe amount by the accused. The accused has not offered any explanation regarding possession of the said amount. Therefore, he submits that, in view of the grounds urged in the appeal memo and in view of the reasons being assigned by the trial Court, the judgment of acquittal passed by the trial Court requires interference by this Court. The accused is liable for conviction and sentence for the serious offence of demanding and accepting the bribe to favor the complainant. Hence, it is prayed to allow the appeal and set aside the impugned judgment.

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ii) Submission on behalf of the Respondent/ accused:

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As against this submission, the learned counsel for the respondent-accused supported the reasons

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assigned by the trial Court and submitted that, the evidence spoken to by the witnesses is full of contradictions, omissions, and discrepancies. These factors are not explained by the prosecution. It is his submission that the learned trial Court has applied its judicious mind and has rightly concluded that the accused is not guilty of committing the said offences. He further submits that, in view of the facts narrated by the trial Court highlighting the lacuna in the case of the prosecution, the demand and acceptance of the bribe money are not duly proved in accordance with the law. When the alleged trap took place, it was a holiday declared by the Government. He submits that the complainant was expected to reply to the show-cause notice, and she was in habit of filing similar complaints against the officials of DDPI and others so as to give a threat to them. According to him, there is no proper application of mind by the Sanctioning Authority.

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It is his submission that the complainant and

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her husband are involved in filing the false complaints and

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thereby they have falsely implicated the accused. There is no evidence that she contacted the accused. To overcome the misappropriation committed by the complainant, he submits that she made a false complaint. He relies on various contradictions and omissions brought about by the cross-examination. He submits that the trial Court has rightly acquitted the accused and no interference is required in the well-considered judgment. He prays to dismiss the appeal.

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In support of his submission, he cited the following judgments:

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i) STATE OF KERALA AND ANOTHER Versus C.P. RAO – (2011) 6 Supreme Court Cases 450

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ii) SELVARAJ Versus STATE OF KARNATAKA – (2015) 10 Supreme Court Cases 230

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iii) ANAND PRAKASH DODDAMANI Versus STATE OF MAHARASHTRA – (2019) 17 Supreme Court Cases 508

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iv) DASHRATH SINGH CHAUHAN Versus CENTRAL BUREAU OF INVESTIGATION – (2019) 17 Supreme Court Cases 509

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v) STATE OF PUNJAN v. MADAN MOHAN LAL VERMA

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(2013) 14 Supreme Court Cases 153

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vi) P. SATYANARAYANA MURTHY Versus DISTRICT INSPECTOR OF POLICE, STATE OF ANDHRA PRADESH AND ANOTHER –

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(2015) 10 Supreme Court Cases 152

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vii) SATVIR SINGH Versus STATE OF DELHI – (2014) 13 Supreme Court Cases 143

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viii) BETWEEN SOMASHEKHRAPPA AND THE KARNATAKA LOKAYUKTA – CRIMINAL PETITION NO.10442/2013 D/D – 18.03.2013

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ix) PARKASH CHAND SHARMA Vs. STATE OF PUNJAB – LAWS(P&H–1993-10-32)

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I have given my anxious consideration to the

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facts of the case and the rival submissions of both sides

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and perused the records. The point that would arise for consideration in this appeal reads as under:

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"Whether the trial Court has committed any

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legal or factual error in passing the judgment of acquittal against the accused of the charges leveled

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against him?"

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Analysis:

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Before adverting to the facts of this case, it is

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just and proper to summarize the essential ingredients of the offences under the P.C. Act in trap cases as laid down by the Hon’ble Apex Court in “NEERAJ DATTA Vs. STATE

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(N.C.T. OF DELHI)¹ ” a Constitution Bench judgment. The said essentials are as under:

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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 P.C. Act.

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b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand for illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence,

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which can be in the nature of oral evidence or documentary evidence.

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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.

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d) It is obligation of the prosecution to prove the aforesaid ingredients. However, as per the provisions of the Act, 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 discretion to raise a presumption of fact while considering whether the fact of demand

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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.

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e) The demand for illegal gratification can be proven by allowing the testimony of any other witness, who can again provide testimony, either orally or through documentary evidence, or by the prosecution using circumstantial evidence in the event that the complainant turns "hostile," has passed away, or is unable to testify during the trial. According to the legislation, neither the trial's abate nor the accused public servant's acquittal are affected.

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f) Regarding Section 7 of the P.C. Act, Section 20 requires the Court to establish a presumption that the unlawful gratification was intended to further a motive or reward specified in that Section based on the proof of the relevant

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facts. The Court must establish the aforementioned presumption as a legal presumption or a presumption in law. Naturally, there is room for refutation of the aforementioned assumption. The P.C. Act's Section 13(1)(d)(i) and (ii) are unaffected by Section 20.

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g) It should be noted that the presumption of facts mentioned above is different from the presumption in law under Section 20 of the P.C. Act, which is mandatory, whereas the latter is discretionary.

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The rulings supra makes clear that, similar to any other fact, the demand and acceptance can be supported by direct or indirect evidence. If direct evidence is not available, the demand and acceptance can be supported by indirect evidence.

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Let us examine the prosecution's oral and documentary evidence while keeping in mind the aforementioned legal standards as established by the Hon'ble Apex Court.

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With regard to the sanction to prosecute the accused public servant, the prosecution examined the Under Secretary, Sri M.M. Hiremath, as PW1. According to his evidence on getting the records with regard to the materials collected for prosecuting the accused public servant, he verified the same and came to the conclusion that, as he is empowered to issue sanction under Section 19 of the P.C. Act, 1999, after satisfying as per the Transaction of Business Rules, 1977, he issued Ex.P1 - the sanction. After carefully examining Ex. P1, and from the evidence of sanctioning authority, the trial Court correctly concluded that the sanction granted to prosecute the accused public worker was lawful. There is not even a meaningful cross-examination aimed at PW1 to cast doubt on his contentment with granting the sanction in

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accordance with Ex. P1. Nothing is brought up throughout the cross-examination, except the denial. As a result, the prosecution can demonstrate the validity of the sentence that was imposed.

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To prove the conduct of trap Ex.P2 - Sketch is relied upon by the prosecution prepared by PW2 – Jagadeeshaiah, the Assistant Engineer of P.W.D. According to him, as per the request of the I.O., he has prepared the sketch. The contents of the sketch are not disputed by the defense. Therefore, evidence of PW2 can be believed to the extent of he preparing the sketch as per Ex.P2.

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PW3 – H.M. Revanna was the Competent Officer in the Education Department at Hulikere. According to him, he submitted the relevant documents marked at MO.1 to the I.O., containing 10 documents. In the crossexamination, the PW3 states that the complainant was directed by him to rectify with regard to the amount granted by the authorities that was credited in her

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personal account is to be re-credited to the concerned Bank account, which belongs to her office. One thing is clear from the allegations made in the complaint and evidence of PW3, that the grant made by the Government was credited to the personal account of the complainant. It

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was the accused public servant who brought it to her notice and requested to set right the same. Accordingly, she took steps to set it right. Evidence of PW3 proves that a direction was given to the complainant to set right the said mistake.

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So far as evidence of PW4 - Afjalunnisa, the complainant is concerned, she is the sterling witness and speaks in line with the contents of the complaint. It is her evidence that personally, as a Headmistress, she was

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having two Bank accounts; out of them, one was her personal account at SDMC Bank and another was an account in her official capacity called as ‘HM Account’. She states that on 10.07.2007 she made a complaint against the accused. According to her, she informed the accused

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that the grant for the year 2006-2007 was not credited to her official Bank Account. She further states that, on 20.06.2007, the accused informed her by sending a memo to her that Rs.7,400/- was credited to her SDMC Account. When she enquired, she came to know about non-crediting the said amount. The accused notified that the aforementioned sum had been credited to her personal account number, 54042940375, when it was brought to her attention. She told the accused that the money had been inadvertently credited to her personal account by the accused's office and that it was not her fault. As a result, she transferred Rs.7,400 from her personal account to the SDMC account on 25.06.2007. She thus informed the accused of the same. It is alleged by her that on getting such a report, accused harassed her, stating that intentionally she got credited the said amount to her personal account and he cautioned her that an action should be taken against her, and by saying so, on 02.07.2007 he issued a memo. For that, the complainant - PW4, submitted her remarks.

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It is her evidence that, on 09.07.2007, herself

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and her husband went to the office of the DDPI and enquired the accused. He told them that the file has come to the office of the DDPI, and to set right her mistake, she has to give Rs.5,000/- bribe to him. Though there were persistent requests by her, the accused was not in a position to hear her. Therefore, as an advance, she gave Rs.2,000/- to the accused; at that time, the accused warned her to give Rs.3,000/- on 10.07.2007 and thereafter he will set right her mistake. Therefore, she lodged a complaint at 12.30 p.m. on 10.07.2007 by appearing before the Lokayukta Office as per Ex.P9. Based on the aforementioned complaint, a crime was reported, the I.O. carried out pre-trap procedures, a panchnama was prepared in accordance with Ex. P4 in front of witnesses, and the M.O. Nos. 1 and 2 were taken. According to her evidence, at 1:30 p.m., she, her spouse, Chidanandappa, Devraju, Inspector N.T. Aswathnarayana, and other office employees traveled to Turuvekere in a government car, arrived at the location around 3 p.m.

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The aforementioned government car was parked at some distance from the accused's office. Initially herself, her husband, and shadow witness Devraju went to the office of the accused. At that time, the accused was present in the office and was found speaking with someone on his mobile phone. On seeing the complainant and others, the accused asked them whether they had brought bribe money; accordingly, the complainant replied that she had brought money and gave the same in his left hand as he was holding his mobile phone in his right hand. He kept

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the said money on the table, and on the money he kept the mobile phone.

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She further states that as per the instructions of the I.O., she came out of the office of the accused and gave signal to the I.O. Accordingly, the Lokayukta team entered the office of the accused and she showed the accused to them. Inspector – Ashwathnarayana showed his ID card to the accused, introduced himself and told him that he was conducting a trap on him. He prepared

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the sodium carbonate solution, made the accused wash his hands in the said solution in a separate container and noticed that his left-hand washed water turned a pink colour and his right-hand washed water turned a light pink colour. The said solution was put in separate bottles and seized and she identifies the same as MO Nos.4 to 6. She identifies the Mahazar as per Ex.P5 and her signature on

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the same. This complainant has been directed lengthy cross-examination. So far as her status as Headmistress is concerned, it is not in dispute. According to her for the

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last 8 years prior to filing of the complaint, she was working at Siddanahatti School. The Government grant has been credited to her official account from 2001 onwards. There is a gradual increase in the grant. She admits that for the year 2006-2007 to the SDMC account, an amount of Rs.7,400/- was released. She admits that during 2007 she had opened an SDMC account at DCC

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Bank. But she admits that such an SDMC account was to be opened in the Nationalized Bank as per the circular issued in the year 2006. According to her, she closed the

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said account with DCC Bank. She admits that, at that time, in the said account, Rs. 1,435/- was an outstanding balance. Ex.D2, the account extract of the SDMC account issued by DCC Bank, was confronted with her. It is stated that the said account was closed on 26.06.2006. But this witness has not admitted the same. She has deposed ignorance with other aspects. She further states that on 24.03.2007 her personal account had an outstanding balance of Rs.500/-. After crediting the amount of Rs.7,400/- to her personal account, she admits that she

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issued two Cheques in the name of Ranganath. According to her, when she issued Cheques stating Rs.9,500/- in the said cheque, she was not having any outstanding balance

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to that extent. She states that she was expecting crediting of her dearness allowance amount to her account. She admits that, on 12.04.2007, there was a credit of Rs.4,353 to her account. Further, she states that

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on seeing the credit of Rs.7,400/-, she was under the impression that the dearness allowance was credited into her account. She admits that the Competent Officer of her

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Department had written a letter stating that wrongly the said amount was credited to her personal account and to that effect the memo was issued to her. She admits to addressing a letter informing the said Officer that the amount of the grant was not credited. She denied the suggestion that, though she has made use of the amount, it belongs to the Government, but only after issuance of the memo, she had transferred the said amount, etc. According to her, she submitted the bank account numbers to the DDPI Office, i.e., her personal account and the official bank account numbers. According to her explanation, her monthly salary is credited to her personal account only.

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It is further brought on record in the crossexamination that, with regard to crediting of Rs.7,400/- to her personal account, she did not enquire. She denied the suggestion that she had misappropriated the amount being credited to the SDMC account and this fact was brought to the knowledge of the Department. She admits

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that one Pattannavar was the Competent Officer and by that time he was transferred. She deposed ignorance that because of such misappropriation of Government grants by the officials of the Educational Department, namely, Shivaramayya, Shivanna, Shantkumar, Chandrayya and Shivakumar, they were suspended. It is suggested that because of the misappropriation of Government grants by her, on apprehension that she may also face the same consequence, she lodged a false complaint against the accused. She admits that she had to reside in the head

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quarters, but herself and her husband were residing in Nittur and used to travel. But denies the suggestion that to leave the headquarters, the Government servants have to get permission from the superior controlling officers. She admits that the DDPI in her division has authority to initiate disciplinary enquiries and can also suspend the officers of the Education Department. According to her, on 09.07.2007 and 19.07.2007 she had not obtained any permission from the BEO to leave the headquarters, but

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states that she had obtained permission from the

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President of SDMC.

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She states that the accused has no authority to supervise her work. According to her, on 09.07.2007 she applied for leave, but states that on that day, the Government had declared a holiday on account of the death of farmer Prime Minister of India Mr.Chandrashekar. She admits that, from 02.07.2007 to 09.07.2007, she did

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not meet the accused, and she tells that, she knew that in between that period, the accused was on deputation for training. According to her, on 09.07.2007 at 10.30 a.m., she met the accused in the office of the DDPI. One Doddajunjayya was the president of SDMC School. She denied a suggestion that to compromise the said case, she sent a word with one Manjunath demanding Rs.2,00,000/from the accused and to that effect, a complaint is lodged against her, in Crime No.17/2011 on 10.12.2011. According to her on 09.07.2007, she has not visited the office of the Lokayukta. She further states that when a

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memo is issued to her, she has stated that she has not committed any mistake and submitted the same in writing. She has not lodged any complaint to the DDPI about the so-called harassment by the accused. She has not mentioned in her complaint that her grievance was redressed by her Superior Officers. It is her evidence that in the presence of the inspector only she wrote a complaint. She admits that whenever money is spent towards the development of the school, receipts are issued. She has shown to the Officer of BEO that the amount was credited to her personal account, though it was expected to be credited to the SDMC account. She states that the said account is maintained jointly in the names of the President and Secretary of the School. She has furnished specimen signatures of both.

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According to her evidence, on 10.07.2007 she was in the office of the Lokayukta till 1.30 p.m., and thereafter she did not visit the said office. She has not put any signatures on 11.07.2007. According to her, within 5

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to 10 minutes of her reaching the Lokayukta office, the police called Devraju and Chidanandappa. She has denied further suggestions directed to her. There is a 30 kilometer distance from her office to the BRC Office. On 10.07.2007, she did not speak with Shivanna and Rekhamani. According to her, when the raid was conducted, herself and Devraju were there, and they were standing outside. She denied that, her husband went inside the office of the accused. It is suggested that, as her husband was knowing the accused, he went inside the office of the accused and kept the money on the table of the accused, etc., but she denied the said suggestion. When the accused was arrested, it was in between 5.00 and 5.30 p.m. on that day. The fact of his arrest was not informed to anybody. According to her, herself, her husband and shadow witness Devraju went to the office of BRC and about 20 to 25 minutes later, they were in the office of the accused. She states that, first she came out of the office, and thereafter two persons came out. According to her, when she entered the office, she did not

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notice the standing of the other two members of the team.

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She states, when they went inside the office of the accused, he was found talking on his mobile phone and when they greeted him, he disconnected the telephone. When herself and her husband went near the table of the accused, she was standing on the on the right side of the table. According to her, accused took the money and kept his mobile phone on the money. But the said mobile of the accused was not seized by the police. She admits that there was no work pending with the accused at that time.

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With regard to the crediting to Rs.7,400/- to her personal account, she has personally gone to the bank and inspected the same. She did not give a letter to the bank about the miscrediting of the amount to her personal account. There was no personal ill-will between herself and the accused. The complaint so filed by her is not dated. She admits that M.O. Nos.4 to 6 do not bear her signatures.

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On scrupulous reading of the entire crossexamination directed to her, as rightly observed by the trial Court, there are so many improvements, contradictions, omissions, and discrepancies in her evidence. As per her evidence, she has already given Rs. 2,000/- to the accused and the remaining amount he demanded to bring on 10.07.2007. She speaks with regard to the denominations of currency notes given to the accused. It is the defence of the accused that, he had issued a memo for crediting the grant amount to her

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personal account as she had not informed the same; therefore, a show-cause notice was issued to her. She requested to go through the same, as it was a misappropriation by using the same by the complainant. In order to escape the liability of facing an inquiry against her, she designed a story in which the accused demanded bribe money from her. As rightly observed by the trial

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Court, she admits crediting the Government Grant to her personal account. Even after crediting the said amount, she made use of the same and issued Cheques. When it

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was brought to the notice of the complainant about crediting the said grant to her personal account, she deposited the amount into the concerned official account. As per the submission of the counsel for the accused, when the said amount was credited and used belongs to the Government Grant and thereafter depositing the said amount into the SDMC account is a temporary misappropriation by the complainant. To overcome the blunder by her, she has filed a false complaint. Though she denies all these aspects in her cross-examination, her evidence is full of improvement, contradictions, omissions, and discrepancies, as rightly observed by the trial Court. These factors are not properly explained by the prosecution.

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PW5 - B. Devraju is a shadow witness who accompanied the complainant and Police Officers and spoke regarding the conduct of a pre-trap panchnama and post-trap panchnama. According to his evidence, when the complainant and her husband entered the office of the

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accused, he was at a small distance. When the accused enquired about the complainant, at that time the complainant replied that as told yesterday she had come. At that time, accused asked her to pay Rs.5,000/-. The husband of the complainant requested to reduce the amount, and by saying so, the complainant paid him Rs.3,000/-. As the accused was holding a mobile phone in his right hand, he took the same from his left hand and kept it on his table. Thereafter, on the said amount, he kept his mobile phone. Then, the complainant and her husband came out of the office and gave a signal to the Lokayukta Police.

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If the evidence of PW5 is perused, he never says that, there was a demand made by the accused in the manner stated by the complainant. He speaks about conducting the post-trap. In the cross-examination, he states that, orally he was requested to act as a shadow witness. He did not note down the currency notes’ denominations. Even complainant has not told him about

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misappropriation of Rs.7,400/- by her. It is his evidence that, he was directed to note down the currency notes’ denomination and numbers by the Lokayukta Police. According to him, he has not visited the office of the Lokayukta on 10.07.2007. It is his evidence that, just he glanced at the panchnama and he has not given the statement before the police. When he put his signature on panchnama (Ex.P4), it was 1.00 p.m. According to him, the Lokayukta Police bought the bottles, but those bottles were not shown to him. He was unable to say what those bottles contained. All these processes were completed by 3.30 p.m. He cannot say who were all standing in the office of the accused at that time. As per the evidence of the complainant, herself, her husband and the shadow witness together went to the office of the accused, but this PW5 states that the complainant and her husband went inside the office. According to him, he was standing at a distance of 15 feet from the accused at that time. In the office of the accused, at that time, the complainant, her husband, the accused, and himself were only there. He

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admits that, by crossing the aforesaid persons, he went near the accused and stood there. They were in the office of the accused for 20 minutes. The complainant and her husband spoke to the accused for 2–3 minutes and he has not heard the said talk. According to him, the accused was on his right side. If the evidence of this witness is perused, he has not given any concrete evidence. It is further stated by him that, he has not understood what the accused was saying through his cell phone. He states that, he does not know whether the accused was possessing two telephones at that time. In Ex.P8, there is

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a recital that there were three pens at that time. He showed the place to the police. Even he has signed the PF. He admits that in M.O. Nos.4 and 6, do not contain any colour.

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In trap cases, the evidence of the shadow witness plays an important role. But his evidence is not corroborative with that of the evidence of the complainant.

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If such evidence is placed on record, it requires further corroboration.

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PW6 - M. Chidanandappa is an Assistant

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Engineer of PWD at the relevant point in time, and he acted as panch-witness to the pre-trap and post-trap panchnamas. He identified M.O. Nos.2 and 3 when Ex.P4 was prepared. So also M.O. Nos.4 to 6 were seized after conducting a trap. It is his evidence that when he left his office, he had not signed his Movement Register kept in the office. According to him, when he reached the office of the Lokayukta, there were 6 to 7 persons, but he does not know who they are. He admits that in the office of the Lokayukta no document was given to him and Rs.3,000/was with Ashwathnarayana. He counted the said amount.

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After counting the amount, he kept the same in the Vanity bag of the complainant. He has not noted down the currency denomination and numbers. According to him, he has not kept the cover in the Vanity bag of the complainant. He says that no seal was made to the said

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amount. He cannot state who typed the said panchnama. In all, six people went in a jeep to the office of the accused. According to him, the complainant, her husband and Devraju went inside the office of the accused, but Devraju says that, he was standing outside. The said proceedings took place for 10 minutes and on getting the signal, Ashwathnarayana and this witness and another staff went inside the office of the accused; at that time, one teacher was found talking with the accused. He has identified the complainant as per his evidence. According to him, when the inspector asked the accused, he noticed that the said amount was on the table. In the office of the accused at that time, there were 10 people, and on the table, there were two telephones. He was standing about 5–6 feet back at that time. The said mobile phones were not seized by the police. According to him, in the office of the Lokayukta, he stayed till 8.30 pm. Documents were prepared between 4.30 pm and 5.30 p.m. He is a witness to the pre-trap panchnama as well as the post-trap

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panchnama, but his evidence is not strictly corroborative

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in nature with that of the evidence of other witnesses.

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The PW7 - N.T. Ashwathnarayan, Dy.S.P., at

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the relevant time, was the I.O.; he speaks about conducting a raid on receipt of the complaint. He also speaks about pre-trap and post-trap proceedings. In the cross-examination, he states that prior to 10.07.2007, the complainant, Afjal Unnisa, used to visit his office for the

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last 3 to 4 days. He has not given any tape recorder to her. The complainant states that in his presence, she wrote a complaint, but he states that Ex.P3—Complaint was not written in his presence. He has not enquired about the Bank account to which the amount was credited. He came to know about misappropriation of Rs.7,400/- by the

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accused during the course of his investigation. According to him, when the trap was conducted, by that time the complainant had deposited the amount. He admits that, about the said misappropriation, the superior officers of the complainant had issued notice to her and even enquiry

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was made regarding her under suspension. He admits that the accused, in his explanation, stated that not only the complainant but also 4 to 5 other Government employees misappropriated the grant amount, and when he enquired about the same, they escaped from the said liability, and a false complaint is filed. According to his evidence, he did not ask the complainant why the said grant amount was credited into her personal account. He admits that the accused has no authority to suspend any of the employees. He admits that he put the

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phenolphthalein powder on the currency notes and said the powder had reached the hands of the accused. He admits that if phenolphthalein powder is mixed with the sodium carbonate water, it will turn into pink color. According to him, he removed one mobile phone from the table of the accused and handed over the same to the husband of the complainant; thereafter, he seized the currency notes. Either complainant or anybody has spoken about this.

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As the I.O. has conducted a raid on the person of the accused, it was his duty to speak in line with the evidence of the complainant and other witnesses. Though the prosecution is able to establish that, at the relevant time accused was a public servant, on reading the evidence of all the witnesses, the evidence is silent about demand and acceptance of bribe money by the accused from the complainant. That means though the prosecution examined number of witnesses to prove the guilt of the accused, as per the evidence brought on record, the accused has initiated action against the complainant and similarly positioned officials who misappropriated the grant amount were suspended. As rightly argued by the counsel for the accused, to get rid of liability for said suspension, the complainant must have designed the complaint. It is the serious argument of the learned counsel for the appellant to that effect.

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As held in the catena of judgments to prove the offence of present nature, demand of illegal gratification is

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sine quo non for constituting an offence under the P.C. Act, 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, so as to say, the prosecution is under obligation to prove payment of bribe and to show that the money was taken voluntarily as a bribe. Here it is the case that the accused is not denying recovery of amount from him.

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It has been held by the co-ordinate bench of this Court that, the accused need not prove his case to the extent as it required as part of the prosecution, but if the accused is able to prove his case, even on preponderance and raised a doubt in the case of prosecution, a doubt that is not considerable but a reasonable doubt, emerging from evidence on record, it is held that, the benefit of doubt in such circumstances is to be given to the accused.

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Here, in this case, as averred by the complainant herself, others were also facing the suspension order because of crediting the amount into

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their personal accounts amounts to misappropriation therein. It is a settled principle of law that, a complainant

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is a person who gives a bribe; therefore, she can be termed as an ‘accomplice’ who participated in the crime and was very interested in seeing conviction of the accused. Therefore, she can be termed an interested or partisan witness. Therefore, the evidence of the complainant in this case has to be scrutinized properly and carefully. It is for the prosecution to prove that the accused had accepted or agreed to accept and attempted

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to accept the bribe amount as a motive or reward to favour the complainant. In this case, nothing remained with the accused, as he was not the suspending authority.

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The complaint wanted to escape the clutches of law of her suspension as that of her other colleagues, who were already suspended. As per the directions of her superior officers, the accused has issued a memo to her. As rightly observed by the trial Court, when the complainant met the accused, he shouted at her, stating that he would get her suspended, but agreed to set at right and demanded

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Rs.5,000/-. According to the case of the prosecution, the accused received Rs.2,000/- and demanded to Rs.3,000/on 10.07.2007. When PW1 herself admits that the accused had no power to suspend her and to initiate any departmental inquiry, then what made her pay that

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amount to the accused is not explained by her. The question of he doing any favour to her does not arise, as the accused was not empowered to suspend her or to initiate any departmental enquiry. She categorically states that after she filed the complaint, the accused has not initiated any proceedings against her. It is her evidence that on 02.07.2007, the accused issued a memo to her, for which she has given a suitable reply. Thereafter, she approached the accused and the office of DDPI on 09.07.2007. When she enquired, he told her that the file is with the DDPI and nothing can be done by him. At that time, the complainant's husband and herself requested the accused to set things right. At that time, it is alleged that the accused demanded Rs.5,000/- as a bribe. This

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evidence is not corroborated by the evidence of PW5, a shadow witness.

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As per the evidence brought on record, on 09.07.2007, the accused demanded a bribe in the office of DDPI and similarly, he also demanded again. It is submitted that on 09.07.2007 was declared a government holiday because of the death of former Prime Minister Sri Chandrashekhar and it was not disputed by the complainant. When the holiday was declared, how the complainant went to the office of the DDPI on that day is not mentioned or stated. No doubt, she states that the said holiday intimation was received in the afternoon, but to prove that really in the afternoon the said holiday intimation was received, except her say, there is no evidence. There, the question of the accused demanding Rs.5,000/- as a bribe from the complainant on 09.07.2007 does not arise at all as per the submission of the counsel for the accused.

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It is her further evidence that, even on 10.07.2007, the accused demanded Rs.3,000/- and at that

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time shadow witness Devraju and her husband were present. As rightly observed by the trial Court, when the case of the complainant is that she paid Rs.2,000/- on 09.07.2007, but her question of again demanding Rs.5,000/- by the accused on 10.07.2007 does not arise at all. The sterling witness, Seikh Mohiddin, the husband of the complainant, who was all along present with the complainant, has stayed back from giving any evidence. He would have been the best witness. Therefore, nonexamination of the husband of the complainant by the prosecution, who was all along present with the complaint right from 2.07.2007 till 10.07.2007, is fatal to the case of the prosecution.

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We find sufficient improvement in the evidence of the complainant and her witnesses. As it has come in the evidence that, the accused was speaking on the telephone when the complainant reached his office, at that

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time the demand of Rs.5,000/- by the accused appears to be improbable, as rightly observed by the trial Court. The trial Court has a threadbare discussion of the evidence placed on record by the prosecution and then arrived to the conclusion that, the presumption, which is available under Section 20 of the P.C. Act, is rebutted by the accused. In view of the peculiar facts brought on record, the accused, being a Government servant, had faced such a situation wherein he had no authority to favour the complainant.

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When the demand and acceptance are not proved in accordance with law, the presumption, which is available to the accused, stands rebutted of his innocence. To escape from the clutches of law and get rid of her suspension, she might have lodged a false complaint against the accused. This possibility cannot be ruled out. In view of all these factual features and position of law, it cannot be stated that the prosecution is able to prove its case with legal evidence.

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More so, this is an appeal filed by the state challenging the acquittal judgment. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397 , the Hon’ble Apex Court has held that,

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20. Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] has held : (SCC p. 415, para 7)

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“7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the

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appellate court can interfere with the order of acquittal.”

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(emphasis supplied)

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A miscarriage of justice by acquitting the

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accused who is guilty of the offence is not warranted, but, however, the appellate Court has to scrutinize the evidence and has to give the proper findings. Even on reevaluation of evidence placed on record by the prosecution, the prosecution has utterly failed to prove its case with legal evidence. Therefore, I do not find any factual or legal error in acquitting the case by giving benefit of doubt. There is no merit in this appeal and it is liable to be dismissed. Accordingly, the point for consideration is answered against the appellant-State and in favour of the accused. Resultantly, I pass the following:

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ORDER

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i) Appeal is dismissed .

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ii) The judgment of acquittal of the accused passed in Spl.C.249/2008

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