Allowed

S.K. Narayanamurthy v. State of Karnataka by

Karnataka HC12 Jul 2024CRL.A/961/2011

Case brief

AI extract

What is this about?

Appeal against conviction under Sections 7 and 13(1)(d)/13(2) PC Act in a Rs.3,000 trap over an occupancy certificate. Court found unexplained complaint delay, no pending work due to KAT status-quo order and unpaid premium, and held the Section 20 presumption rebutted. Conviction set aside, accused acquitted.

What did the court decide?

Conviction and sentence set aside; accused acquitted under Sections 13(1)(d) and 13(2) PC Act giving benefit of doubt; bail bonds cancelled; fine refunded.

S.K. Narayanamurthy Vs State of Karnataka by — Corruption | Karnataka HC (2024)

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NC: 2024:KHC:26990 CRL.A No. 961 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^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. 961 OF 2011 (C)

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BETWEEN:

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S.K. NARAYANAMURTHY S/O KRISHNAPPA AGED ABOUT 57 YEARS (RTD) FIRST DIVISION ASSISTANT OFFICE OF THE SPECIAL TAHASILDHAR K.G.ROAD, BANGALORE RESIDING AT NO.35, BHEEMARAO LAYOUT ANEKAL TOWN BANGALORE URBAN DISTRICT

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…APPELLANT

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(BY SRI. BIPIN HEGDE, ADVOCATE)

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AND:

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY LOKAYUKTHA POLICE (REP. BY SPL. PUBLIC PROSECUTOR)

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…RESPONDENT (BY SRI. VENKATESH S. ARBATTI, ADVOCATE)

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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:03.09.11 PASSED BY THE SPL.JUDGE, BANGALORE URBAN DIST., BANGALORE CITY IN SPL.C.C.NO.14/2006 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 7 OF PREVENTION OF CORRUPTION ACT AND SEC. 13(1)(d) P/U/S 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.06.2024, POSTED FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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JUDGMENT

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The appellant - accused has assailed the judgment of conviction and order of sentence dated 3.9.2011 passed in Spl.CC No.14/2006 by the Special Judge, Bengaluru Urban District, Bengaluru City, by filing this appeal.

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Parties to this appeal are referred to as per their rank before the trial Court.

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Proceedings before the trial Court:

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That Police Inspector, Karnataka Lokayukta Police Wing, City Division, Bengaluru charge sheeted the accused for the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred as `the Act'). It is alleged in the Complaint filed by the ComplainantPW.1-Channappa that at the relevant time, accused was working as the First Division Assistant in the office of Special Tahsildar, KG Road, Bengaluru. It is stated that,

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the revenue authorities granted occupancy rights in favour

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of the complainant in respect of the land bearing Sy.No.32/1B situated at Purudapalya, Tavarekere Hobli, Bengaluru South Taluk. It is alleged that, at the relevant time, accused was annoyed with the complainant by not attending the file to issue occupancy certificate. Because of frequent visit of the complainant to the accused, he made repeated delays and ultimately demanded a bribe of Rs.3,000/- to get the work done on 19.3.2005. It is alleged that, unless complainant pays Rs.3,000/- bribe for recommending issuance of the occupancy certificate, he will not move the file. As the complainant was not ready to pay the bribe amount, he approached the respondentpolice and lodged a complaint which was registered in Crime No.5/2005 for the aforesaid offences. Accordingly, on 21.3.2005, the raid was conducted at 3.10 p.m. in the office of the accused and at that time, accused demanded and accepted Rs.3,000/- from the complainant as bribe amount in the Court Hall of the Tahasildar as a motive or reward for issuing occupancy certificate.

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After completion of the investigation, respondent-Police filed the charge sheet against the accused for the aforesaid offences. Accused was enlarged on bail. After hearing the accused and the prosecution, the learned trial Court framed the charges against the accused person in respect of the aforesaid offences for which, accused pleaded not guilty and claimed to be tried.

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The learned Prosecutor to prove the case of the prosecution examined in all seven witnesses and got marked Ex.P1 to P36 with respective signatures and also MOs Nos.1 to 18 and closed prosecution evidence.

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After hearing the arguments and on evaluation

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of the evidence placed on record by the prosecution, the learned trial Court answered the points raised in favour of the prosecution and ultimately, found the accused guilty for the aforesaid offences and sentenced him as under:

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"It is ordered that the Accused S.K. Narayanamurthy, shall undergo Rigorous imprisonment for a period of 6 months for the offence punishable under section 7 of Prevention of Corruption Act and to pay fine

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of Rs.1,000/- (Rupees one thousand) in default to undergo Simple imprisonment for 15 days and the accused is further sentenced to undergo Rigorous imprisonment for a term of one year for offence defined under section 13(1)(d) which is punishable under section 13(2) of Prevention of Corruption Act and to pay fine of Rs.1,000/- (Rupees one thousand) in default to undergo simple imprisonment for 15 days".

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This judgment of conviction and order of

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sentence is now challenged by the appellant-accused before this Court.

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The learned counsel for the appellant-accused Mr.Bipin Hegde submits that, the learned trial Court has committed a grave error in finding the accused guilty. It is his submission that, alleged demand was on 19.3.2005 and the date of complaint was 21.3.2005. Thus, there is a delay of two days which is not explained by the complainant PW.1 either in the complaint or in his evidence. The application was filed by the complainant for grant of occupancy rights in respect of 8 acres 2 guntas situated at Sy.NO.32/1B of the aforesaid village by

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applying the provisions of Section 77 of the Karnataka Land Reforms Act. On consideration of the application the

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Land Tribunal granted only 3 acres 19 guntas. In support of this submission, he relied upon the orders of the Assistant Commissioner marked as Ex.P17(c). According to

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him there was an excess holding. The complainant preferred an appeal before the KAT being aggrieved by the said order of the Assistant Commissioner. It is his submission that, when the Assistant Commissioner has passed an order granting occupancy rights in respect of 3

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acres 19 guntas of land, it is mandatory on the part of the grantee i.e. complainant to deposit the occupancy price. In this case, the complainant has not deposited the same.

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The order of the Assistant Commissioner granting of occupancy rights in respect of 3 acres 19 guntas, but, PW.1 says in his evidence that it was 8 acres 2 guntas. Ex.P.21 is produced by the prosecution being a legal notice dated 9.3.2005. As PW.1 has not deposited the occupancy price termed as ` Premium' , no certificate of occupancy

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rights could be granted unless the said premium is paid or deposited.

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9. According to his submission, there was no

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demand, no acceptance and whatever the amount so alleged have been received by the accused is towards the statutory premium to be deposited by the complainant. He submits, appellant-accused was not the authority to issue the occupancy certificate. There was no motive for demand. The cassette which was used by the complainant for recording the conversation in between accused and the complainant is not produced. To that effect evidence of the PW.2 is scanty. There was bias against the accused by the complainant. Complainant knew that the KAT has passed an order of status-quo. Unless the status-quo order is

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raised or set aside or vacated, the file to issue occupancy certificate could not have been moved. As per the defence of the accused, the premium amount was seized by the police. IO ought to have sent the tape recorded version to the FSL for the purpose of scientific examination. There is

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no proper sanction being issued by the competent sanctioning authority. The incident in question if read in its entirety as placed by the prosecution, two views are possible and as per the criminal jurisprudence, the view in favour of the accused has to be preferred. No discussion

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has been made about this fact in the entire judgment of the trial Court. Now accused has attained the age of 70 years. In view of the inconsistencies in the evidence of the prosecution so also the discrepancies as highlighted in the cross-examination directed to the witnesses, it is prayed

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by the learned counsel for the appellant-accused to allow

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this appeal, set aside the impugned judgment and pass an order of acquittal.

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In support of his submission, he relied upon the

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following judgments:

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(i) Om Parkash v. State of Harnayana - (2006) 2 SCC 250

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(ii) Babu Lal Bajpai v. State of U.P - AIR 1994 Hon'ble Apex Court 1538

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(ii) R. Malini v. State of Karnataka - (2012) 1 KCCR 414

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(iv) P.L. Tatwal v. State of Madhya Pradesh - (2014) 11 SCC 431

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(v) Babappa v. State by Lokayukta Police, Gulbarga - (2010) 2 KCCR 1010

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(vi) State of Karnataka v. Ameerjan - (2007) 11 SCC 273

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(vii) State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede - (2009) 15 SCC 200

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(viii) V. Venkata Subbarao v. State represented by Inspector of Police, A.P - (2006) 13 SCC 305

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(ix) Bal Krishan Sayal v. State of Punjab - (1997) 2 SCC 647

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(x) T. Subramanian v. State of Tamil Nadu - (2006) 1 SCC 401

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(xi) State of Himachal Pradesh v. Tej Ram - (1989) SCC Online HP 72

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(xii) C.M. Girish Babu v. CBI, Cochin, High Court of Kerala - (2009) 3 SCC 779

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As against this submission, Sri Venkatesh

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S.Arabatti, the special counsel and special prosecutor

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appearing for respondent in addition to submitting the synopsis submits, that in view of the evidence placed on

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record by the prosecution, most of the facts are admitted with regard to the designation of the accused as FDA in

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the office of the Tahasildar. On reading the contents of Ex.P1 complaint, demand is proved. Trap panchanama

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proves about demand and acceptance of bribe amount. The evidence of PW. 1 is supported by evidence of PW.2 and other witnesses. Though the defence has crossexamined the witnesses on the line that no work of issuing occupancy certificate was with the accused but, the file

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was with accused and he has to move the same for issuance of the occupancy certificate. Accused, being Government servant demanding the bribe amount shows

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his conduct which is the cause for committing the said offences. Notice was received by the complainant stating that he had to pay a premium of Rs.1,640/- and not Rs.3000/-. Therefore, the defence so set up by the accused is contradictory in nature. He submits that, PW.3 being the sanctioning authority, after considering the prima facie case against the accused has issued the sanction, no fault can be found in the valid sanction obtained by the prosecution.

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In support of his submission, he too relies upon

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the following judgments:

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(i) P. Sarangapani (Dead) Through LR Paka Saroja v. State of Andhara Pradesh - Criminal Appeal No.2173 of 2011

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(ii) Krishan Pillai Sree Kumar and another v. State of Kerala - 1981 (Supp) SCC 31

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(iii) Hazari Lal v. State (Delhi Administation) - (1980) 2 SCC 390

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(iv) Vinod Kumar v. State of Punjab - (2015) 3 SCC 220

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(v) Neeraj Dutta v. State (Government of NCT of Delhi) - (2023) 4 SCC 731

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(vi) M. Narsing Rao v. State of Andhra Pradesh - AIR 2001 SC 318

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Refuting the submission of the learned special

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counsel, learned counsel Sri Bipin Hegde submits that, it is a question of issuance of occupancy certificate. The complainant was expected to deposit the premium amount then only the question of issuing of occupancy certificate

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arises. The concerned Government official who was in-

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charge of issuing the occupancy certificate must had the custody of the file. When complainant gave the money to

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the accused, it was towards the payment of premium. He submits that, it is a usual practice before such authorities to request the officials themselves who know the procedures of deposit, receive the amount towards premium and they make an arrangement to deposit the same with the sub-treasury. The same thing has happened in this case. But, because of the grudge, the complainant

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has designed a false complaint i.e. after two days of alleged demand by the accused. No discussion has taken place about the pendency of the case before the KAT. The learned trial Court has not applied the mind in proper manner. He submits that the argument of the learned special counsel cannot accepted.

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I have given my anxious consideration to the

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arguments of both the side. Meticulously perused the records.

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In the backdrop of the rival submissions of both

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the side and the evidence so placed on record, the case of

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the prosecution has to be looked into to ascertain that whether the prosecution is able to establish the guilt of the accused in the manner alleged by it.

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It is a specific case of the prosecution as per the complaint Ex.P1 that, it was accused who had demanded Rs.3,000/- in order to issue the occupancy certificate to the complainant in respect of the aforesaid land which was granted by the Assistant Commissioner. As per the evidence spoken to by PW.1 as well as shadow witnesses PW.2, they went to the office of the accused and noticed his presence there. At that time, accused asked the complainant that, whether he has brought the amount. When the complainant told that, he has brought the amount, the accused asked him to give it. Therefore, accused removed the same from his pocket and handed over the same. At that time, the concerned raid laying officer conducted the raid and trapped the accused for having received the amount from the complainant. He followed all the procedures of seizing the said amount

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from the pocket of the accused and prepared the sodium carbonate solution, made the accused to dip his hands which turned into pink colour. Prepared the seizure mahazar in the presence of panchas. That means, this PW.1 speaks in line with the contents of the complaint in his evidence on oath.

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This evidence of PW.1 will have to be examined in the light of the pancha witness i.e. PW.4. B.R.Narasimhamurthy, the Assistant Executive Engineer in

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the office of Chief Engineer, Minor Irrigation Department, Bengaluru. PW.1 speaks about demand and acceptance of bribe money in his evidence on oath. Through him, prosecution got marked several documents and MOs. At the time of marking the documents, the defence has not raised any objections.

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It is submitted by the learned Special Counsel that PW.1 being the complainant has spoken about demand of Rs.3,000/- from the complainant by the accused on the day of conducting the trap, the accused

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has accepted the same. He pointed out the evidence spoken to by PW.1 to that effect in the chief-examination of PW.1. As per the evidence of PW.1 on demand of the accused, he gave tainted currency notes to him, accused counted the said currency notes and kept the same in his left side pant pocket saying that it is correct. He states that he came out of election office and gave pre-arranged signal by removing his spect so worn by him. Immediately raiding party rushed to the said spot and conducted raid on the accused by taking him to the accused office. He speaks with regard to procedure of trap conducted by IO and identifies them.

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This PW.1 was directed with intensive crossexamination by the counsel for the accused. This PW.1 is retired Asst. Surgeon and he retired by taking voluntary retirement. According to him, for the last 30 - 32 years he is wearing the spectacle and he cannot see the objects beyond 10 ft. without wearing the spectacles. According to him, as per the address so stated in Ex.P1, he was

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residing in Bengaluru. In his cross-examination on 20.8.2007, he states that he was required to deposit premium amount to the govt. treasury and produced the challan before the concerned authority to get the occupancy certificate. He states that he had not deposited the said amount. He gave an explanation that he had not received any notice to deposit. He admits that he had filed

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an appeal before the Karnataka Appellate Tribunal, Bengaluru against the orders passed in Ex.P17(e) and he identifies 17(h). In the said appeal, he has sought for setting aside of orders passed by the Asst. Commissioner. He admits that, the KAT has passed an order on 21.2.2005 to maintain status-quo from the date of order. It is his further submission that, notices were issued to the respondents therein and no further action was taken pursuant to the order passed by the Asst. Commissioner. Though he had a knowledge as per the submission of the counsel for the accused-appellant, in view of the matter being ceased before the Appellate Tribunal, how the complainant insisted to issue the occupancy certificate by

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approaching the accused is not explained. Even he has not deposited the premium to get the occupancy certificate from the Tahsildar. So this conduct of PW.1 as per the submission of the appellant's counsel goes to establish that, he wanted to implicate the accused. Though he approached the accused on 19.3.2005, the complainant was lodged on 21.3.2005. There is a delay in filing the complaint. The complaint or the evidence of PW.1 as argued by the counsel for the appellant is silent with regard to filing of complaint after two days of approaching the accused by the complainant.

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He states that to get the occupancy certificate, he has not approached the Tahsildar and he know about deposit of premium amount to get the occupancy certificate. It is his evidence that, when he approached Tahsildar's office it was directed to him to deposit the premium amount and at that time, the appeal was pending. In the cross-examination, he says that he had not approached the accused for grant of occupancy

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certificate. He had not noticed any mistake in the name of his wife in Ex.P20 till date. He was confronted with Ex.P21, a notice and he had not filed any contempt petition against the concerned Tahsildar for changing the khatha in respect of the land in question for violating the stay order passed by the appellate tribunal. He states that Ex.P17 is Form No.7A filed by him and in Ex.P20, his age is mentioned as 75 years. He admits that, the notice dated 13.6.2003, issued by the Asst. Commissioner, Bengaluru South Division was served upon him. It is marked as Ex.P17(k). According to him, he got changed his name about two years back prior to 4.3.2007. His son Srinivasa is residing separately with his family.

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For the first time in the cross-examination, he states that, he had met the accused for the first time five days after the order passed by the Land Tribunal in connection with the grant of occupancy certificate. Further he states that, on 18^th or 19^th March 2005, he again met the accused to get the occupancy certificate, at that time,

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accused advised him that he is not supposed to wait till the orders passed by Appellate Court and accused demanded Rs.3,500/- from him for issuing the occupancy certificate. This version of PW.1 as rightly submitted by the counsel for the appellant do not find place either in the complaint or in examination-in-chief.

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It has come in the evidence of PW.1 that, when there is demand made by accused, he did not complain the concerned Tahsildar or Asst. Commissioner regarding demand made by the accused. He admits that he had not deposited premium amount as ordered by the Land Tribunal in its order. He had obtained status-quo order by KAT in the month of February 2005. Even after passing the stay order by the KAT, he never approached the accused requesting him to issue occupancy certificate in respect of the land granted to him by the Land Tribunal. As per his evidence, he has not lodged any complaint against the accused to his higher officers.

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He states that he lodged a complaint to the Lokayukta office after discussing with Lokayukta Police. He states that Lokayukta Police searched him and gave him a tape recorder to record the conversation between himself and the accused. He speaks with regard to the presence of shadow witness, Pancha and other witness when the trap was conducted. He states that, conversation between himself and accused were not recorded and states that he could not properly operate the tape recorder. He denied the suggestion that, there was no demand by the accused. He denied the suggestion that he voluntarily gave money to the accused. According to him, when he gave tainted currency notes, C.W 2 shadow witness was standing at a distance of 2 to 3 ft. from him. He denied the suggestion that he had received notice from Tahsildar office demanding him to deposit Rs.1640/-.

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On scrupulous reading of the evidence spoken

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to by PW.1, it shows that, he has not deposited the premium amount which was required to be deposited to

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get the occupancy certificate. Even there is an appeal filed by the complainant challenging the order of Land Tribunal wherein he obtained the status-quo order.

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It is argued by the learned counsel for the appellant that, when the matter was ceased before the Appellate Authority wherein the interim order was passed, the question of complainant approaching the accused does not arise at all. Even he has not deposited the premium amount. Unless the premium amount is deposited by the complainant, the Secretary of the Land Tribunal cannot issue the Occupancy Certificate. According to his submission, whole story of the prosecution is based upon the issuance of the occupancy certificate which was not permissible unless the premium amount is deposited and the interim order passed by the Appellate Tribunal stands vacated.

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According to him, no such deposit was made

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and the interim order was still operating. Merely because

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there was an advise by the officers of Tahsildar's office to deposit the premium and to get the occupancy certificate as spoken to by PW.1, would not help the case of the complainant that there was demand made by the accused to issue the occupancy certificate. If such an evidence is placed on record by the prosecution through a sterling witness like PW.1, it requires corroboration.

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PW.2 Smt.B.A.Bhuvaneshwari was the

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Shirestedar in the office of Tahsildar, Bengaluru South Taluk at the relevant time. She states that the accused

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was working as FDA in the said office and the nature of the duty entrusted to accused was to receive the orders from the Land Tribunal and then put up the file before her. Even accused has to report from the revenue inspector and put up the file before her for further action.

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As per her evidence, the IO seized the entire file pertaining to Sy.No.32/1B of Paradi Palya village from her and took the photocopies of the entire file and she only attested the same. The said file contain 78 pages. The

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original file is before the KAT in appeal No.161/2005. According to her, on the date of incident, the occupancy certificate was not issued in the name of complainant from her office.

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She has been directed with cross-examination

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and she has spoken about her role in processing the file to issue the occupancy certificate. She states that, the complainant was required to pay the premium to the Treasury and then obtain the Occupancy Certificate. That

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means as per the submission of the counsel for the appellant, accused has processed the file to issue the certificate but, complainant has not deposited the premium amount as on 8.2.2005. The endorsement to that effect is issued as per Ex.P17. She further states that, whatever the work which was with accused was already completed. Even in the cross-examination, she has stated that, the complainant has sent the copy of the order sent by KAT granting interim order in his favour. She states that, the accused could not issue Occupancy

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Certificate to the complainant without the payment of the premium amount to the treasury. The evidence of PW.2 can be accepted to the extent that, it was she who had to process the file belonging to the complainant to issue the Occupancy Certificate and not the accused.

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PW.4 Narasimhamurthy speaks about pre-trap proceedings as well he accompanying raid laying officer to the office of the accused. He identifies Ex.P2 the trap panchanama. As per his evidence, he was instructed to accompany the complainant and when he went along with the complainant Lokayukta Inspector gave a small tape recorder to the complainant with instructions to record the conversation between the complainant and accused. He identifies the Mahazar as per Ex.P3. It is his evidence that, at 2.30 p.m. he went to Lokayukta office and all together went to the Special Tahsildar's office located at KG Road, Bengaluru in a Government Jeep. He accompanied the complainant to the office of the accused wherein himself and complainant went inside the office of the accused at

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3.00 p.m, accused was present on his chair. After 7 to 8 minutes complainant came out of the building and gave a signal by wiping his spectacles with kerchief. Immediately, himself, Lokayukta Police Inspector and his staff met near the complainant, showed the accused to the inspector. When enquired, accused told that he received the money, there the procedure of trap was conducted, amount was seized from the possession of the accused, sodium carbonate solution was prepared, accused was asked to dip his fingers. In this case, as stated, receipt of Rs.3000/-

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is not specifically denied by the accused. His defence is that, the said amount was received towards deposit of premium amount to get the occupancy certificate. Therefore, the only aspect that has to be ascertained is, really was there any demand for money made by the accused to favour the complainant and whether he has received the said money as a bribe?

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This PW.4 has been thoroughly cross-examined

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by the defence. This PW.4 admits that accused had no

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power to issue Hakku Patra. He admits that in the entrustment panchanama, the currency note no. were not written by him on the dictation of other panchas. Even he states that Shafiulla had gone along with the accused to the office of the accused and Shafiulla does not know where this PW.4 was sitting. There is no evidence that because of this incident accused was perplexed.

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It is his evidence that, on conducting the raid,

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accused gave his written report stating that in respect of land granted to the complainant, matter was ceased before Appellate Tribunal etc. So, when the matter was ceased before the Appellate Tribunal, whether the Land Tribunal can issue the occupancy certificate is not explained by the prosecution. It is submitted by the counsel for the appellant-accused that the whole story appears to be created.

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PW.5 Syed Shafiulla, is termed as a shadow witness. In his evidence he speaks with regard to

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conducting of pre-trap procedures on 21.3.2005. As per his evidence, when he went to the office of Lokayukta situated at M.S.Building Bengaluru, Sri Dharmappa Lokayukta Inspector showed a complaint lodged by complainant wherein he noticed that there was demand of Rs.3,000/- for issuing Hakku Patra as per the allegations made by the complainant. He identifies the said complaint as Ex.P1 It is his further evidence that, in his presence complainant produced six currency notes of Rs.500/denomination in all Rs.3,000/- and as per the dictation of PW.4, the Sl. Nos. of currency notes were written on Ex.P2. It is his further evidence that, Police Constable Sri Shankarappa applied phenolphelene powder to both the side of currency notes and gave for verification. The said currency notes were directed to be kept in shirt pocket of the complainant which was empty at that time. Thereafter, as per the instructions of the Lokayukta Inspector- Sri Dharmappa, all of them went to the office of accused at 2.30 p.m. This PW.5 and complainant were asked to meet the accused. Accordingly, both went inside

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the office of the Tahsildar, Bengaluru South Taluk and went to RRT Section. He states that, at that time, accused

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was not present in the office and they waited for him. Accused came to his office at 2.45 p.m. and they saw the accused coming in the verandah of office. Complainant met the accused in the verandah itself and asked about Hakku Patra. He told that he will get it done. Accused asked the complainant whether he has brought the money asked by him, the complainant answered in the affirmative. Thereafter, the complainant took the accused to the court hall of the Tahsildar and complainant took out the money from his shirt pocket and gave it to the accused. Accused received the money with his right hand and counted the same. He states that, he was accompanying the complainant at that time.

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It is his further evidence that thereafter, himself, complainant and accused came out from the court hall and complainant gave signal by wiping his spectacles with his kerchief. Immediately, Lokayukta Inspector and

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his staff rushed to the said spot and surrounded and then the accused took him to his office. Complainant identified the accused. Lokayukta Inspector introduced himself there and prepared the Sodium Carbonate solution and hands of the accused were washed. The said solution turned into pink colour. Accused produced the said Rs.3,000/- which was compared and tallied with the currency note nos. He identifies the said currency notes as MO No.11. In the examination-in-chief he states that the work was still pending with regard to the issuance of the Hakku Patra to the complainant. The file pertaining to the same was also seized containing 78 pages and photocopies of the file were attested by the Shirestedar Bhuvaneshwari. He speaks with regard to the preparation of post-trap proceedings.

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This PW.5 has been cross-examined by defence counsel. He admits in the cross-examination that, the order of the Asst. Commissioner was enclosed with the complaint which is marked at Ex.P17(e). He admits that,

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there was condition to deposit the premium amount to get the Hakku Patra. There was recommendation to deposit the said amount so noted in the said file. It is within the knowledge of the PW.5 that, when the discussion took place in the office of the Lokayukta, it was revealed that, complainant has not deposited the premium amount.

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He admits that in complaint Ex.P1, it is not mentioned that accused has demanded Rs.3,000/- for issue of Hakku Patra. He admits that Hakku Patra will be issued by the Tahsildar. He further admits that, when the entrustment mahazar was prepared as per Ex.P3, it is not mentioned that he dictated the note no. and it was written by PW.4 Narasimhamurthy in a sheet of paper. He admits that in the office of Lokayukta, Constable Shankarappa applied phenolphelene powder to the currency notes produced by the complainant, but, in the examination-inchief, he says it was Dharmappa Police Inspector who applied the said powder. He states that at the dictation of Lokayukta Inspector, Ex.P4 was typed. According to him,

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himself and pancha went for lunch, he identifies the sketch as per Ex.P26. He denied so many suggestions directed to

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him. According to him, constable Shankarappa, on instructions of Lokayukta Inspector, washed the hands of the accused and also pant. As stated supra, the defence is not denying about the receipt of Rs.3,000/- from the complainant. Therefore, when there is a clear admission of the defence of receipt of the said amount, the post-trap proceedings pale into significance. The question is whether really there was a demand and acceptance of the gratification by the accused in the manner alleged in the complaint. Evidently, as per the evidence of PW.5, there is no mention in the complaint about demand made by the accused to favour the complainant.

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PW.6, the IO N.M.Dharmappa the then Lokayukta Inspector speaks regarding the pre-trap and post-trap proceedings so conducted by him based upon the complaint filed by the complainant. This fact is not denied by the defence.

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As per his evidence, after conducting the trap on the accused, he asked the accused to produce the bribe amount taken by the accused from the complainant. Accused produced the bribe amount and he prepared the panchanama to that effect. He also enquired the shadow witness Syed Shafiulla about happening of events and got information from him. Even he asked the accused to produce the file belonging to the complainant and accordingly accused has produced the same. But, Bhuvaneshwari says that, she has produced it and attested the same.

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A lengthy cross-examination is directed to this PW.6. He admits about production of orders of the Asst. Commissioner along with the complaint by the complainant where a condition was there to deposit the premium amount. There is no evidence placed on record by the IO that whether complainant has really deposited the said premium amount as it is mandatory to get the occupancy certificate (Hakku Patra). When it was within

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the knowledge of the IO about non-payment of premium by the complainant, he would have ascertained about issuance of the Occupancy Certificate without deposit of premium as directed in the orders. That means, simply he believed the version of the complainant and registered the crime against the accused and proceeded to conduct raid on the accused. It was also duty of the IO to know whether the accused was competent/ designated official of Revenue Department to issue Occupancy Certificate. His duty as per the office procedure is to put the file only after

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deposit of the premium amount. In Ex.P17 there is a note to call upon the complainant - grantee to deposit the premium for issuing Occupancy Certificate. When the raid was conducted, the appeal was already filed before the KAT and complainant had obtained the interim order. To that effect, none of the witnesses except the complainant have deposed, that means, complainant must have suppressed the said fact of filing the appeal before the KAT when he lodged complaint before the Lokayukta.

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It has come in the evidence of PW.6 that, he

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has not instructed the complainant to represent the accused that the Shafiulla accompanied him for land problem. This PW.6 admits that, this complainant has not stated before the Police in his presence stating that Shafiulla had come with him because of his land problems.

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On reading the evidence of this PW.6, as discussed above, he never says that, there was a demand made by the accused in the manner stated by the complainant. PW.7 V.Shekar is the charge sheeting officer. So far as filing of charge sheet is concerned, the defence is not disputing the same.

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The learned counsel for the appellant-accused submits that, in view of the discrepancies in the evidence of witnesses, the whole story of the prosecution cannot be accepted. The complainant was resident of Bengaluru at the relevant time. As per his evidence, he met the accused on 19.3.2005 and after two days, he filed a complaint.

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This delay is not explained either in the complaint or in the evidence on oath. Therefore, the whole story set up by the complainant appears to be created one. As complainant is the resident of Bengaluru at the relevant time, when he met the accused on 19.3.2005, at that time, as per the allegations made in the complaint, there was a demand to pay the gratification by the accused. What prevented the complainant to lodge a complaint on 19.3.2005 itself is not made clear.

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The learned counsel for the appellant relied

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upon the judgment of Hon'ble Apex Court stated at Sl.No.1 above wherein it is stated that, on the facts of the case, if there is delay in lodging FIR it raises doubt as per the prosecution case. In Para.14 and 17 of the said judgment, the Hon'ble Apex Court has narrated how the delay in a case of present nature is fatal to the case of the prosecution. To this delay, as rightly submitted by the counsel for the appellant, there is no explanation offered by the prosecution.

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With regard to the motive, the learned counsel for the appellant relied upon a judgment of Babu Lal Bajpai case stated at Sl.No.2 above. In this case, though the complainant was expected to deposit the premium amount, he has not deposited but, he wanted the Occupancy Certificate without depositing the same though he knew that he was expected to deposit the same. The story put forth by the complainant appears to be, he has got a motive to implicate the accused. Though the accused admits about acceptance of money from the complainant

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but, for what purpose the said money was received by him is the concrete defence set up by the accused.

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The counsel for the appellant relying upon the judgment of a co-ordinate bench of this Court in R. Malini case , wherein it is stated that, where no work was pending with the accused, and if he is trapped, no offence is complete. The file was with Shirestedar and even if the premium amount was deposited, in view of the interim order passed by the KAT as submitted by the counsel for

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the appellant, the Tahsildar ought not have issued the Occupancy Certificate.

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Thus, from the evidence of witnesses, it is very much clear, that when the so called trap was conducted there was no work pending with the accused as spoken to by the witnesses in this case. As it has come in the evidence of the IO and the witnesses, there was no possibility of issuing the Occupancy Certificate in view of the interim order passed by the KAT. Therefore, the question of complainant approaching the accused to issue the Occupancy Certificate and offering the bribe amount to get issued Occupancy Certificate does not arise at all as the matter was ceased before the KAT. Even otherwise, in view of the interim order passed by the KAT there was no likelihood of accused demanding the bribe amount. Thus it cannot be stated that, the whole case of the prosecution is trustworthy.

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So far as sanction is concerned, prosecution examined PW.3 M.A.Sadiq the then Deputy Commissioner of Bengaluru Urban District who has issued sanction. As per his statement as narrated in para.2 of his examination-in-chief, after satisfaction, he has issued sanction as per Ex.P22. Though searching crossexamination is directed to this witness but, nothing worth is elicited though intensive cross-examination is directed to this witness, so as to disbelieve his satisfaction in issuing the sanction. Therefore, accused cannot contend that, sanction is invalid. Even this Ex.P22 refers to source of report so also other relevant documents based on which on satisfying the prima facie case against the accused, PW.7 filed the charge sheet. Even the sanctioning authority has referred the search made by the police. Therefore, the sanction order issued by the sanctioning authority is a valid sanction and now the accused cannot question the same as no prejudice is caused to him.

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Even the evidence of shadow witness also does not disclose about the manner in which the conversation took place in between complainant and accused and what was transpired in between them. There is a lack of such evidence in this case. Therefore, on the facts so placed on record by the appellant-accused, with the preponderance of probabilities that the money was paid by the complainant towards premium to be deposited and not a bribe. Therefore, the principles laid down in the judgment of the SCI in T.Subramanian vs. State of Tamil Nadu

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reported in 2006 1 SCC 401 can be made applicable to the present facts of the case wherein it is held that:

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"Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused in the absence of evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe".

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The learned counsel for the respondent also relied upon the aforesaid judgments. But, in view of the facts and circumstances brought on record by the prosecution, it is a categorical defence of the accused that, the complainant paid the amount towards the deposit of premium amount. Throughout the trial he has maintained

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the said defence. Even in his explanation under Section 313 of Cr.PC he had accepted about the receipt of the alleged amount. If the defence of the accused is appreciated in consonance with the evidence lead by the prosecution and in the light of the explanation offered by the accused, in view of the mandatory provisions of Sec.20 of PC Act, the presumption which was available is rebutted

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by the defence. Section 20 of the PC Act reads as under:

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" 20. Presumption where public servant accepts any undue advantage.

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- Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to

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obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11".

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Thus, once the prosecution fails to prove the

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presumption available under the provisions of Sec.20 of

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the PC Act, then the accused is entitled to raise the rebuttable presumption under Section 20 of the Act, that though he had received the said money but without any motive or reward but, it was received towards the payment of premium. Therefore, a proof is required, to prove the said offence with legal evidence. The learned trial Court believed the evidence of prosecution without keeping in mind the rebuttable presumption available to the accused as required under Section 20 of the Act. He has to rebut the presumption with preponderance of

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probability and not in stricto sensu as beyond all reasonable doubt. There must be conscious acceptance of the tainted currency by the accused which is missing in this case. Therefore, the decisions so relied upon by the appellant cannot be made justifiably applicable to the facts of this case.

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If all these factual features coupled with the rebuttable presumption which is very much available to the accused if put together, all is not well with the case of the prosecution. Therefore, there arises doubt in the prosecution and hence that benefit of doubt has to be given to the accused. Because of this, appeal succeeds and consequentially, the appellant-accused is entitled for acquittal by giving benefit of doubt.

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In view of the discussion made above, the

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appeal succeeds.

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Resultantly, I pass the following:

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ORDER

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(i) Appeal is allowed.

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(ii) Impugned judgment of conviction and

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order of sentence passed by the Special Judge, Bangalore Urban District, Bangalore City in Spl.C.C. No.14/2006 dated 03.09.2011 is set aside.

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(iii) Appellant-accused is acquitted of the charges under Section 13(1)(d) and p/u/s 13(2) of Prevention of Corruption Act, 1988 by giving benefit of doubt.

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