Allowed

Beeralinga S/O Hanumantappa v. State of Karnataka

Karnataka HC7 Jun 2024WP/105067/2023

Case brief

AI extract

What is this about?

A Panchayat Development Officer arrayed as accused No.2 in a Lokayukta trap case under Sections 7 and 7A of the PC Act sought quashing of the FIR. The court found no demand or acceptance by him, no pending work, and no trap laid on him, and quashed proceedings qua him.

What did the court decide?

Entire proceedings in ACB/Lokayukta Crime No.7/2022 pursuant to complaint dated 30.06.2022 quashed qua petitioner/accused No.2.

Beeralinga S/O Hanumantappa Vs State of Karnataka — Corruption | Karnataka HC (2024)

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Reserved on : 14.03.2024 Pronounced on : 07.06.2024

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 07^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.105067 OF 2023 (GM - RES)

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BETWEEN:

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BEERALINGA S/O HANUMANTAPPA AGED ABOUT 36 YEARS OCC.: PANCHAYAT DEVELOPMENT OFFICER NO.10, MUDDAPURA KAMPLI TALUK BALLARI DISTRICT R/O YARADONI VILLAGE KARTIGI TALUK KOPPAL DISTRICT – 583 229.

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... PETITIONER

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(BY SRI VISHWANATH S. BICHAGATTI, ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA BY LOKAYUKTA POLICE (A.C.B. FORMERLY) REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE BALLARI DISTRICT BALLARI – 583 101.

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2 . M.NARAYANSWAMI S/O M.BHUGAYYA

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AGED ABOUT 46 YEARS OCC.: BUSINESS R/O: WARD NO.8, SATYANARAYAN PET KAMPLI DIST: BALLARI – 583 101.

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... RESPONDENTS (BY SRI SRINIVAS B. NAIK, ADVOCATE FOR R-1; R-2 SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER, THEREBY QUASH THE IMPUGNED COMPLAINT DATED. 30.06.2022 AT ANNEXURE-A AND ENTIRE PROCEEDINGS PURSUANT TO THE A.C.B BALLARI CRIME NO. 07/2022 DATED. 30.06.2022 REGISTERED BY THE RESPONDENT NO.1 POLICE AT ANNEXURE-B PENDING ON THE FILES OF THE HON’BLE III ADDL. DISTRICT AND SESSIONS COURT AND SPECIAL JUDGE (PC ACT), BALLARI, SITTING AT. HOSPETE FOR THE OFFENCES PUNISHABLE UNDER SECTION 7(A) OF PREVENTION OF CORRUPTION ACT, 1988 AGAINST THE PETITIONER/ACCUSED NO.2.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.03.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner/accused No.2 is before this Court calling in question registration of a crime in Crime No.7 of 2022 for offences punishable under Sections 7 and 7A of the Prevention of Corruption Act, 1988 (‘the Act’ for short).

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Heard Sri Vishwanath S. Bichagatti, learned counsel appearing for the petitioner and Sri Srinivas B. Naik, learned counsel appearing for respondent No.1/Lokayukta.

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Facts, in brief, germane are as follows:-

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The petitioner was appointed as a Panchayat Development Officer (‘PDO’) in the year 2011 and at the relevant point in time i.e., from 2016 to 2022 was functioning as PDO at Muddapur Village Panchayat of Kampli Taluk, Koppal District. The issue in the lis relates to the petitioner functioning as PDO at Muddapur Village Panchayat. The 2^nd respondent/complainant files an application before the petitioner seeking a No Objection for approval of a layout plan, which had to be at the hands of the Assistant Director of the Department of Town and Country Planning, Bellary. The said

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application comes to be filed on 25-04-2022. The petitioner on 26-04-2022, transmits the application to the concerned office i.e., the Assistant Director of the Department of Town and Country Planning; issues an endorsement on 28-04-2022 and communicates it to the complainant. On 30-06-2022, the 2^nd respondent registers a complaint before the then Anti-Corruption Bureau (‘ACB’), Bellary alleging that one B. Madhav, accused No.1 had demanded illegal gratification for an official favour of getting the approval from the office of the Assistant Director of Town Planning. A First Information Report comes to be registered based upon the said complaint in Crime No.7 of 2022. Based upon the said registration of FIR, a trap was laid on accused No.1, Member of the Village Panchayat – B. Madhav and all traits of the trap were brought down into the proceedings on 30-06-2022. The petitioner is arrayed as accused No.2 on the score that accused No.1 has in his statement reveals that the amount that was found at the time of trap was for the purpose of handing it over to accused No.2, the petitioner. Drawing up of the name of the petitioner is what has driven him to this Court in the subject petition.

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The learned counsel appearing for the petitioner would vehemently contend that the petitioner’s job was to forward to the competent authority, the application/s filed before him. He is neither the approving authority nor any kind of authority to grant necessary sanction for the layout plan to be approved. The application was filed for issuance of a No Objection certificate. On the same day, the petitioner forwards the letters to the concerned. Plan is approved about two months later. After the approval of the plan, the complainant gives the complaint before the ACB. In the complaint what is narrated is that, the application was submitted before the petitioner who had demanded illegal gratification. He would contend that the complaint is registered after two months and four days of filing the application. If at all the petitioner had demanded any amount for issuance of NOC, the complaint ought to have been registered immediately. It is his further case that for offences under Sections 7 and 7A of the Act, demand and acceptance are necessary. In the case at hand, there is neither demand nor acceptance. There was no work of the complainant pending on the table of the petitioner. Trap is not laid on the petitioner. It is laid against accused No.1 and without there being

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any rhyme or reason, the petitioner is drawn into these proceedings. He would place reliance upon plethora of judgments which would all bear consideration qua their relevance in the course of the order.

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Per contra, the learned counsel representing the then ACB, now the Lokayukta would vehemently refute the submissions to contend that the application did not meet its end at all. The application which was forwarded by the petitioner was found in the custody of accused Nos.1 and 3. Provisional approval of the layout plan was granted by the Assistant Director, Department of Town and Country Planning. It was the Gram Panchayat which had to pass the final order. If the application had been forwarded by the petitioner and it was withheld by accused Nos.1 and 3, it is presumed that the work before the petitioner is still pending. The co-accused i.e., accused No.1 has made a statement under Section 161 of the Cr.P.C., that the amount was taken for the purpose of handing it over to the petitioner. Certain voice recordings are also said to have been secured by the prosecution. In all, he would contend that this Court should not interfere at this stage as it is a

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case of demand and acceptance as necessary under Sections 7 and 7A of the Act.

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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The afore-narrated facts are not in dispute. The petitioner is drawn into the web of crime as accused No.2. The allegation is for the offences punishable under Sections 7 and 7A of the Act. Before embarking upon consideration of the issue on merits of the matter, I deem it appropriate to notice the provisions of the Act that are alleged against the petitioner; their interpretation by the Apex Court and then proceed to make the facts applicable to the law as declared by the Apex Court.

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The provisions of the Act that are alleged are as follows:

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

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

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duty either by himself or by another public servant; or

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(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

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

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

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

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

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

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

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(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to

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obtain the undue advantage directly or through a third party.

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7-A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence .—Whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.”

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Section 7 directs that any public servant who accepts or attempts to obtain from any person undue advantage with an intention to perform or cause performance of public duty or to forbear such performance either by himself or by another public servant is said to have committed the offence of bribe. Therefore, the soul of Section 7(a) is demand and acceptance for the performance of public duty or forbearance of such performance. Section 7A of the Act deals with taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence. The Section mandates that whoever accepts or obtains or attempts to obtain from another person for himself or for any other person

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undue advantage for performance of a public duty or its forbearance is amenable for punishment. Here again, there should be demand and acceptance by himself or through some other person.

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Interpretation under the un-amended Act:

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The Apex Court in the case of B.JAYARAJ v. STATE OF ANDHRA PRADESH¹ interprets Section 7 and holds as follows:

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“…. …. ….

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7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779: (2009) 2 SCC (Cri) 1].”

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(Emphasis supplied)

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The Apex Court later in N.VIJAYAKUMAR v. STATE OF

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TAMILNADU² has held as follows:

1 (2014) 13 SCC 55

“…. …. ….

26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.

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27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] read as under: (SCC pp. 5859)

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“7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] .

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2 (2021) 3 SCC 687

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8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.

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9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.”

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The abovesaid view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us

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above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment [State of T.N. v. N. Vijayakumar, 2020 SCC OnLine Mad 7098] of the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

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(Emphasis supplied)

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The Apex Court later in the case of K.SHANTHAMMA v. STATE OF

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TELANGANA³ has held as follows:

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“…. …. ….

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10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.

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11. In P. Satyanarayana Murthy v. State of A.P. [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] , this Court has summarised the wellsettled law on the subject in para 23 which reads thus : (SCC p. 159)

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3 (2022) 4 SCC 574

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“23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.”

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(emphasis supplied)

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12. The prosecution's case is that the appellant had kept pending the return of commercial tax filed by the said Society for the year 1996-97. The appellant had issued a notice dated 14-2-2000 to the said Society calling upon the said Society to produce the record. Accordingly, the necessary books were produced by the said Society. The case made out by PW 1 is that when he repeatedly visited the office of the appellant in February 2020, the demand of Rs.3000 by way of illegal gratification was made by the appellant for passing the assessment order. However, PW 1, in his cross-examination, accepted that the notice dated 26-2-2000 issued by the appellant was received by the said Society on 15-3-2000 in which it was mentioned that after verification of the books of accounts of the said Society, exemption from payment of commercial tax as claimed by the said Society was allowed. PW 1 accepted that it was stated in the said notice that there was no necessity for the said Society to pay any commercial tax for Assessment Year 1996-97.

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13. According to the case of PW 1, on 23-3-2000, he visited the appellant's office to request her to issue final assessment order. According to his case, at that time, initially, the appellant reiterated her demand of Rs 3000. But she scaled it down to Rs 2000. Admittedly, on 15-3-2000, the said Society was served with a notice informing the said Society that an exemption has been granted from payment of commercial tax to the said Society. Therefore, the said Society was not liable to pay any tax for the year 1996-97. The issue of the final

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assessment order was only a procedural formality. Therefore, the prosecution's case about the demand of bribe made on 233-2000 by the appellant appears to be highly doubtful.

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14. PW 1 described how the trap was laid. In the pre-trap mediator report, it has been recorded that LW 8, Shri R. Hari Kishan, was to accompany PW 1 — complainant at the time of offering the bribe. PW 7 Shri P.V.S.S.P. Raju deposed that PW 8 Shri U.V.S. Raju, the Deputy Superintendent of Police, ACB, had instructed LW 8 to accompany PW 1 — complainant inside the chamber of the appellant. PW 8 has accepted this fact by stating in the examination-in-chief that LW 8 was asked to accompany PW 1 and observe what transpires between the appellant and PW 1. PW 8, in his evidence, accepted that only PW 1 entered the chamber of the appellant and LW 8 waited outside the chamber. Even PW 7 admitted in the cross-examination that when PW 1 entered the appellant's chamber, LW 8 remained outside in the corridor. Thus, LW 8 was supposed to be an independent witness accompanying PW 1. In breach of the directions issued to him by PW 8, he did not accompany PW 1 inside the chamber of the appellant, and he waited outside the chamber in the corridor. The prosecution offered no explanation why LW 8 did not accompany PW 1 inside the chamber of the appellant at the time of the trap.

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15. Therefore, PW 1 is the only witness to the alleged demand and acceptance. According to PW 1, firstly, the demand was made of Rs.3000 by the appellant on 24-2-2000. Thereafter, continuously for three days, she reiterated the demand when he visited the appellant's office. Lastly, the appellant made the demand on 29-2-2000 and 23-3-2000. On this aspect, he was cross-examined in detail by the learned Senior Counsel appearing for the appellant. His version about the demand and acceptance is relevant which reads thus:

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“In the vicinity of office of AO the jeep, in which we went there was stopped and I was asked to go into the office of AO and the trap party took vantage positions. Accordingly, I went inside the office of AO. I wished AO. At that time apart from AO some other person was found in the office room of AO and he was talking to the AO. AO offered me a chair. After discussion with the AO the said other person left the room of AO. I informed AO that I

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brought the bribe amount as demanded by her and also asked her to issue the final assessment orders. Then I took the said tainted currency notes from my shirt pocket and I was about to give the same to the AO and on which instead of taking the same amount directly by her with her hands she took out a diary from her table drawer, opened the diary and asked me to keep the said amount in the diary. Accordingly, I kept the amount in the said diary. She closed the said diary and again kept the same in her table drawer and locked the drawer and kept the keys in her hand bag which was hanging to her seat. She pressed the calling bell and a lady attender came into the room of AO, then she instructed the lady attender to call ACTO concerned to her along with the society records concerned.

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Accordingly, ACTO came to AO along with record. After going through the ledger and cash book, etc. AO signed on the last page of the said ledger and cash book mentioning 26-2-2000 below her signature in the said register though she signed on 27-3-2000 in my presence. AO directed her attender to affix official rubber stamp below her signature in the ledger and cash book and accordingly attender affixed the same. AO also signed on the office note of final assessment orders at that time. Thereafter, I collected the general ledger and cash book from the attender after affixing the said rubber stamp thereon and came out of the office of AO and relayed the pre-arranged signal to the trap party.”

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(emphasis supplied)

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16. Thus, PW 1 did not state that the appellant reiterated her demand at the time of trap. His version is that on his own, he told her that he had brought the amount. What is material is the cross-examination on this aspect. In the cross-examination, PW 1 accepted that his version regarding the demand made by the appellant on various dates was an improvement. The relevant part of the cross-examination of the appellant reads thus:

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“I did not state to ACB Inspector in Section 161 CrPC statement that on the evening of 24-2-2000 I met the AO and that she demanded the bribe. I did not mention in Ext. P-3 complaint that continuously for 3 days after 24-2-2000 I met the AO and the AO reiterated her demand. I did not mention in Ext. P-3 complaint that on 29-2-2000 I

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approached the AO and the AO demanded bribe of Rs 3000 and that unless I pay the said bribe amount she will not issue final assessment orders. I did not state in my Section 164 statement before the Magistrate that 13-3-2000 to 163-2000 I was on leave and from 1-3-2000 to 12-3-2000, I was engaged in recovering the dues of the society. It is not true to suggest that I did not meet the AO continuously 3 days i.e. on 25-2-2000, 26-2-2000 and 27-2-2000 and that 27-2-2000 is Sunday. It is not true to suggest that I did not meet the AO in the evening of 24-2-2000 and that AO did not demand any money from me. I did not state in my Section 161 CrPC statement to Inspector of ACB that before I left the office of DSP on the date of trap I made a phone call enquiring about the availability of AO and the AO was in the office and informed me that she should be available in the office from 6.00 to 7.00 p.m. on that day so also in my Section 164 CrPC. I made such a phone call from the office of the DSP, ACB. I do not remember as to from which phone number I made phone call on that day. I cannot describe office telephone number of the AO. It is not true to suggest that I did not make any such phone call to AO and that she did not give any such reply to me. I did not state to ACB Inspector in my Section 161 CrPC statement or to the Magistrate in my Section 164 CrPC statement that I went inside the office of AO and I wished AO and at that time apart from AO some other person was found in the office room of AO and that he was talking to the AO and that the AO offered me a chair and that after discussion with the AO the said person left the room of AO and then I informed the AO that I brought the bribe amount. I did not state that said aspects to DSP during the post trap proceedings also.”

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(emphasis supplied)

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17. Thus, the version of PW 1 in his examination-in-chief about the demand made by the appellant from time to time is an improvement. As stated earlier, LW 8 did not enter the appellant's chamber at the time of trap. There is no other evidence of the alleged demand. Thus, the evidence of PW 1 about the demand for bribe by the appellant is not at all reliable. Hence, we conclude that the demand made by the appellant has not been conclusively proved.

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18. PW.2, Shri B.D.V. Ramakrishna had no personal knowledge about the demand. However, he accepted that on 15-3-2000, the said Society received a communication

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informing that the said Society need not pay any tax for the year 1996-97. PW 3 Shri L. Madhusudhan was working as Godown Incharge with the said Society. He stated that on 15-32000, when he visited the appellant's office, ACTO served the original notice dated 26-2-2000 in which it was mentioned that the Society was not liable to pay any tax. It is his version that when he met the appellant on the same day, she enquired whether he had brought the demanded amount of Rs 3000. However, PW 3 did not state that the appellant demanded the said amount for granting any favour to the said society.

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19. PW.4 Ahmed Moinuddin was ACTO at the relevant time. He deposed that on 27-3-2000, the appellant instructed him to prepare the final assessment order, which was kept ready in the morning. He stated that he was called at 6 p.m. to the chamber of the appellant along with books of the said Society. At that time, PW 1 was sitting there. He stated that the appellant subscribed her signature on a Register of the said Society and put the date as 26-2-2000 below it. He was not a witness to the alleged demand. However, in the crossexamination, he admitted that the appellant had served a memo dated 21-3-2000 to him alleging that he was careless in performing his duties.”

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(Emphasis supplied)

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The afore-quoted judgments were rendered interpreting Section 7 as it stood prior to amendment. The Apex Court holds that demand and acceptance are sine qua non for an offence under Section 7 of the Act.

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Interpretation post amendment:

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The Apex Court has further interpreted Section 7(a) post amendment in the case of NEERAJ DUTTA v. STATE (GOVT. OF NCT OF DELHI⁴ and holds as follows:

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“….

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8. Before we analyze the evidence, we must note that we are dealing with Sections 7 and 13 of the PC Act as they stood prior to the amendment made by the Act 16 of 2018 with effect from 26^th July 2018. We are referring to Sections 7 and 13 as they stood on the date of commission of the offence. Section 7, as existed at the relevant time, reads thus:

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“ 7. Public servant taking gratification other than legal remuneration in respect of an official act.—

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Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.

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Explanations.-

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4 2023 SCC OnLine SC 280

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(a) “Expecting to be a public servant”- If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

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(b) “Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.

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(c) “Legal remuneration”The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

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(d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

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(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.”

¶123

9. Section 13(1)(d), as existed at the relevant time, reads thus:

¶124

“ 13. Criminal misconduct by a public servant.—

¶125

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

¶126

(a) ……………………………… (b) ……………………………… (c) ……………………………… (d) if he,-

¶127

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

¶128

¶129

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

¶130

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

¶131

(e) ………………………………….”

¶132

10. The demand for gratification and the acceptance thereof are sine qua non for the offence punishable under Section 7 of the PC Act.

¶133

11. The Constitution Bench⁴ was called upon to decide the question which we have quoted earlier. In paragraph 74, the conclusions of the Constitution have been summarised, which read thus:

¶134

“ 74. What emerges from the aforesaid discussion is summarised as under:

¶135

(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

¶136

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

¶137

(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.

¶138

(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the

¶139

¶140

public servant, the following aspects have to be borne in mind:

¶141

(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

¶142

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment . In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.

¶143

(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.

¶144

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to

¶145

¶146

raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

¶147

(f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

¶148

(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.

¶149

(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point

¶150

(e) as the former is a mandatory presumption while the latter is discretionary in nature.”

¶151

(emphasis added)

¶152

12. The referred question was answered in paragraph 76 of the aforesaid judgment, which reads thus: “76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:

¶153

In the absence of evidence of the complainant (direct/primary, oral/ document-tary evidence), it is permissible to draw an inferential deduction of

¶154

¶155

culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution .”

¶156

(emphasis added)

¶157

13. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayara j¹ and P. Satyanarayana Murth y² . There is another decision of a three Judges' bench in the case of N. Vijayakumar v. State of Tamil Nadu⁵ , which follows the view taken in the cases of B. Jayaraj¹ and P. Satyanarayana Murth y² . In paragraph 9 of the decision in the case of B. Jayaraj¹ , this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9, this Court held thus:

¶158

“9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.”

¶159

(emphasis added)

¶160

14. The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are ‘demand’ and ‘acceptance’ of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as

¶161

¶162

contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.

¶163

15. In the case of N. Vijayakuma r⁵ , another bench of three Hon'ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus:

¶164

“ 26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1) (d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.”

¶165

(emphasis added)

¶166

16. Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.

¶167

17. Section 7, as existed prior to 26^th July 2018, was different from the present Section 7. The unamended Section 7

¶168

¶169

which is applicable in the present case, specifically refers to “any gratification”. The substituted Section 7 does not use the word “gratification”, but it uses a wider term “undue advantage”. When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of sub-section (1) of Section 13, which existed on the statute book prior to the amendment of 26^th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence.

¶170

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

¶171

¶172

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

¶173

Subsequent to NEERAJ DUTTA’S case, the Apex Court in the case of SOUNDARAJAN v. STATE⁵ has held as follows:

¶174

“ FINDING ON PROOF OF DEMAND:

¶175

9. We have considered the submissions. It is well settled that for establishing the commission of an offence punishable under Section 7 of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in the case of Neeraj Dutt a³ has reiterated that the presumption under Section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof.

¶176

10. As stated earlier, complainant PW-2 has not supported the prosecution. He has not said anything in his examination-inchief about the demand made by the appellant. The public prosecutor cross-examined PW-2. The witness stated that there was no demand of a bribe made by the appellant. According to him, he filed a complaint as the return of the sale deed was delayed. Though PW-2 accepted that he had filed the complaint, in the cross-examination, he was not confronted with the material portions of the complaint in which he had narrated how the alleged demand was made. The public prosecutor ought to have confronted the witness with his alleged prior statements in the complaint and proved that part of the complaint through the concerned police officer who had reduced the complaint into writing. However, that was not done.

¶177

5 2023 SCC OnLine SC 424

¶178

¶179

11. Now, we turn to the evidence of the shadow witness (PW-3). In the examination-in-chief, he stated that the appellant asked the PW-2 whether he had brought the amount. PW-3 did not say that the appellant made a specific demand of gratification in his presence to PW-2. To attract Section 7 of the PC Act, the demand for gratification has to be proved by the prosecution beyond a reasonable doubt. The word used in Section 7, as it existed before 26^th July 2018, is ‘gratification’. There has to be a demand for gratification. It is not a simple demand for money, but it has to be a demand for gratification. If the factum of demand of gratification and acceptance thereof is proved, then the presumption under Section 20 can be invoked, and the Court can presume that the demand must be as a motive or reward for doing any official act. This presumption can be rebutted by the accused.

¶180

12. There is no circumstantial evidence of demand for gratification in this case. In the circumstances, the offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) have not been established. Unless both demand and acceptance are established, offence of obtaining pecuniary advantage by corrupt means covered by clauses (i) and (ii) of Section 13(1)(d) cannot be proved.”

¶181

(Emphasis supplied)

¶182

The Apex Court in the case of NEERAJ DUTTA (supra) was clarifying and interpreting the judgment in the case of NEERAJ DUTTA , which was rendered by a Constitution Bench and further holds that proof of demand and acceptance of gratification is sine qua non for any allegation under Section 7 of the Act, be it preamendment or post- amendment. This is reiterated in the case of

¶183

SOUNDARAJAN (supra) .

¶184

¶185

On a coalesce of the judgments rendered by the Apex Court, as quoted supra , the soul of Section 7 of the Act is demand and acceptance. The unmistakable inference on the interpretation, in the considered view of the Court, would be if there is demand but no acceptance, it would not make an offence under Section 7 of the Act. If there is acceptance but no demand, it would then also make no offence under Section 7 of the Act. An act alleged under Section 7 of the Act should have the ingredients of demand and acceptance and it is for the performance of a public duty or forbearance from performance. Therefore, demand and acceptance should be for the purpose of performance of some public duty. For such performance, there should be work pending at the hands of the public servant against whom Section 7 of the Act is alleged.

¶186

The issue is at the stage of registration of crime. Since the entire issue has now sprung from the complaint, I deem it appropriate to notice the complaint so registered before the then ACB on 30-06-2022. The complaint reads as follows:

¶187

“EAzÀ

¶188

JA.£ÁgÁAiÀÄt ¸Áé«Ä vÀAzÉ JA.§ÄUÀÎAiÀÄå ªÀ:46 ªÀµÀð

¶189

¶190

PÀªÀÄä d£ÁAUÀ, ¨sÀvÀÛ ªÁå¥ÁgÀ, ªÁ¸À: 8£ÉÃ ªÁqÀð, ¸ÀvÀå £ÁgÁAiÀÄt ¥ÉÃmÉ, PÀA¦è.

¶191

¶192

ªÀiÁ£ÀågÉ,

¶193

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¶194

¶195

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¶196

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¶197

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¶198

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¶199

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¶201

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¶202

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¶203

£ÀAvÀgÀ ¢£ÁAPÀ: 29/06/2022 gÀAzÀÄ ¸ÀAeÉ 05-00 UÀAmÉ ¸ÀÄªÀiÁjUÉ ªÀiÁzsÀªÀ gÀªÀjUÉ ªÉÆ¨ÉÊ¯ï PÀgÉ ªÀiÁr ªÀiÁvÀ£ÁrzÀÄÝ, 20,000/- gÀÆUÀ¼À£ÀÄß £Á¼É ¢£À PÉÆlÄÖ ¤Ã£ÀÄ ¤£Àß PÁUÀzÀ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄ JAzÀÄ w½¹zÀgÀÄ. £Á£ÀÄ F ªÀiÁvÀÄPÀvÉAiÀÄ£ÀÄß gÉPÁqïð ªÀiÁrPÉÆArgÀÄvÉÛÃ£É.

¶204

£ÀA-10 ªÀÄÄzÁÝ¥ÀÄgÀ UÁæªÀÄ ¥ÀAZÁ¬ÄÛ ªÁå¦ÛAiÀÄ 2.15 JPÀgÉ «¹ÛÃtð ¥ÀæzÉÃ±ÀzÀ §qÁªÀuÉ £ÀPÉëUÉ C£ÀÄªÉÆÃzÀ£É ¤ÃqÀ®Ä ®AZÀzÀ ºÀtªÀ£ÀÄß £À£ÀUÉ ¤ÃqÀ®Ä EµÀÖ«®èzÀ PÁgÀt, £À¤ßAzÀ gÀÆ 20,000/- ®AZÀzÀ ºÀtªÀ£ÀÄß PÉÃ¼ÀÄwÛgÀÄªÀ §¼Áîj ªÀiÁzsÀªÀ vÀAzÉ §¼Áîj PÀ®è¥Àà, UÁæªÀÄ ¥ÀAZÁ¬ÄÛ ¸ÀzÀ¸ÀågÀÄ, ºÁUÀÄ £ÀA-10 ªÀÄÄzÁÝ¥ÀÄgÀ UÁæªÀÄ ¥ÀAZÁ¬ÄÛAiÀÄ ¦.r.N gÀªÀgÀ ªÉÄÃ¯É F ¢£À oÁuÉUÉ §AzÀÄ zÀÆgÀÄ ¤ÃqÀÄwÛzÉÝÃ£É. DzÀÝjAzÀ ªÀiÁzsÀªÀ ªÀÄvÀÄÛ ¦.r.N gÀªÀgÀ ªÉÄÃ¯É PÁ£ÀÆ£ÀÄ PÀæªÀÄ dgÀÄV¸À®Ä PÉÆÃgÀÄvÉÛÃ£É.

¶205

£À£Àß ªÀÄvÀÄÛ ®AZÀzÀ ºÀt PÉÃ½gÀÄªÀ §¼Áîj ªÀiÁzsÀªÀ ºÁUÀÆ ¦.r.N gÀªÀgÀ £ÀqÀÄªÉ £ÀqÉzÀ ªÀiÁvÀÄPÀvÉ gÉPÁqïð DVgÀÄªÀ ªÉÆ¨ÉÊ®£ÀÄß ªÀÄvÀÄÛ ¤ÃqÀ¨ÉÃPÁVgÀÄªÀ gÀÆ 20000/ºÀtªÀ£ÀÄß vÁªÀÅ ¸ÀÆa¹zÁUÀ £Á£ÀÄ ºÁdgÀÄ¥Àr¸ÀÄvÉÛÃ£É.

¶206

¶207

The complaint is that, an application is tendered on 25-04-2022. What happens to the application is required to be noticed. The application was forwarded by the petitioner to the Department of Town and Country Planning on the next day. The communication so made on 26-04-2022 reads as follows:

¶208

“PÀ£ÁðlPÀ ¸ÀgÀPÁgÀ

¶209

UÁæªÀÄ ¥ÀAZÁ¬Äw £ÀA10 ªÀÄÄzÁÝ¥ÀÄgÀ

¶210

vÁ®ÆPÄ:À -PA¦è À f¯Áè:-§¼Áîj

¶211

PÀæ.¸ÀA/UÁæ.¥ÀA/£ÀA10ªÀÄÄ/E-¸ÀévÀÄÛ/2022-23 ¢£ÁAPÀ:-26/04/2022

¶212

UÉ, ªÀiÁ£Àå ¸ÀºÁAiÀÄPÀ ¤zÉÃð±ÀPÀgÀÄ £ÀUÀgÀ ªÀÄvÀÄÛ UÁæªÀiÁAvÀgÀ AiÉÆÃd£É E¯ÁSÉ §¼Áîj

¶213

ªÀiÁ£ÀågÉÃ,

¶214

«µÀAiÀÄ:- §¼Áîj f¯Éè PÀA¦è vÁ®ÆèPÀÄ £ÀA 10 ªÀÄÄzÁÝ¥ÀÄgÀ UÁæªÀÄzÀ ¸ÀªÉð £ÀA 361/2/ B, 0.89 JPÀgÉ ¥ÀæzÉÃ±ÀzÀ ªÀ¸Àw ¤ªÉÃ±À£À §qÁªÀuÉ £ÀPÉëUÉ C£ÀÄªÉÆÃ¢¸ÀÄªÀ §UÉÎ

¶215

G¯ÉèÃR:-ªÀiÁ£Àå f¯Áè¢üPÁjUÀ¼ÀÄ §¼Áîj EªÀgÀ DzÉÃ±ÀzÀ ¸ÀASÉå:-269118 ¢£ÁAPÀ:-10/03/2022

¶216

********

¶217

F ªÉÄÃ°£À «µÀAiÀÄ ªÀÄvÀÄÛ G¯ÉèÃRPÉÌ ¸ÀA§A¢ü¹zÀAvÉ §¼Áîj f¯Áè PÀA¦è vÁ®ÆPÀÄ PÀA¦è ºÉÆÃ§½ ¤ªÁ¹AiÀiÁzÀ ²æÃ PÉÆÃUÀAn ¸ÀÄ¨ÁâgÁªï vÀAzÉ £ÁgÁAiÀÄtgÁªï JA§ÄªÀªÀgÀÄ ªÉÄÃ¯É PÁtÂ¹gÀÄªÀ d«ÄÃ¤£À°è ªÀ¸Àw ¤ªÉÃ±À£À §qÁªÀuÉ £ÀPÉë C©üªÀÈ¢Þ ¥Àr¸À®Ä GzÉÝÃ²¹zÀÄÝ, F PÁAiÀiÁð®AiÀÄPÉÌ C£ÀÄªÉÆÃzÀ£ÉUÁV Cfð¸À°è¹gÀÄvÁÛgÉ. CfðzÁgÀgÀÄ ¸À°è¹gÀÄªÀ CfðAiÀÄ ¥ÀæwAiÀÄ£ÀÄß ºÁUÀÆ ¸À°è¹gÀÄªÀ zÁR¯ÉUÀ¼À£ÀÄß zÀÈrÃPÀj¹ PÀ¼ÀÄ»¸ÀÄvÁÛ CfðzÁgÀgÀÄ PÉÆÃjgÀÄªÀAvÉ

¶218

¶219

ºÁUÀÆ ¸À°è¹gÀÄªÀ ªÀ¸Àw ¤ªÉÃ±À£À GzÉÝÃ²vÀ £ÀPÉëAiÀÄ£ÀÄß vÁAwæPÀªÁV ¥Àj²Ã°¹ C£ÀÄªÉÆÃzÀ£É ¤Ãr PÀ¼ÀÄ»¹PÉÆqÀ®Ä PÉÆÃgÀ¯ÁVzÉ.

¶220

The technical approval of the layout is granted to the complainant. In the document of reference, a reference is found qua reference No.6. Reference No.6 is the hand-book dated 11-11-2014 of the Department of Rural Development and Panchayat Raj. It is indicated that in accordance with the said hand-book that technical approval is granted. After the technical approval being granted on 10-05-2022, all necessary approvals are in place for the layout plan of the complainant. The note sheet appended to the writ petition is a complete indication of the layout plan being approved at the hands of the Department of Town and Country Planning. After all these, comes the afore-quoted complaint. If the complaint is considered on the touch-stone of the ingredients of Sections 7 and 7A of the Act and their interpretation by the Apex Court, what would unmistakably emerge is that, there was no occasion for the petitioner to demand money or accept money. There is neither demand nor acceptance in the case at hand. No trap is laid on the

¶221

¶222

petitioner. On 30-06-2022, the date on which the trap is laid against accused No.1, the petitioner is said to be on leave and had returned only on 10-07-2022. If the petitioner’s job was only to forward any application filed before him, for grant of an NOC, the petitioner had done the job on 26-04-2022 itself and an endorsement to that effect was also issued on 28-04-2022 to the complainant. These are matters on record and undisputed.

¶223

What the learned counsel for the respondent/Lokayukta would seek to contend is that, the application was returned stating that the complainant had not produced certain documents. The petitioner had then forwarded the application to the Town Planning Authority for approval. The application comes to be seized from the hands of accused Nos.1 and 3. Therefore, the application did not reach the competent authority for approval at all. The said statement is on the face of it belied by the approval being granted by the Department of Town and Country Planning. In the said approval reference Nos.3 and 4 read as follows:

¶224

¶225

¶226

¸ÀASÉå: UÁæ.¥ÀA/£ÀA.10 ªÀÄÄ/E-¸ÀévÀÄÛ/2022-23 ¢£ÁAPÀ: 26/04/2022 04 ¥ÀAZÁAiÀÄw C©üªÀÈ¢Þ C¢üPÁjUÀ¼ÀÄ, UÁæªÀÄ ¥ÀAZÁAiÀÄw PÁAiÀiÁð®AiÀÄ, £ÀA 10 ªÀÄÄzÁÝ¥ÀÄgÀ gÀªÀgÀ PÁAiÀiÁð®AiÀÄzÀ ¥ÀvÀæ ¸ÀASÉå: UÁæ.¥ÀA/£ÀA.10 ªÀÄÄ/E-¸ÀévÀÄÛ/2022-23 ¢£ÁAPÀ: 26/04/2022.” ... ... ...

¶227

¸ÀzÀj «£Áå¸ÀªÀ£ÀÄß PÁAiÀÄðUÀvÀUÉÆ½¸ÀÄªÀ ¸ÀA§AzsÀ UÁæªÀÄ ¥ÀAZÁAiÀÄwAiÀÄÄ «£Áå¸À C£ÀÄªÉÆÃzÀ£É DzÉÃ±À ºÉÆgÀr¸À¨ÉÃPÁVzÀÄÝ, G¯ÉèÃR (06) gÀ PÉÊ¦rAiÀÄ°è£À ªÀiÁUÀð¸ÀÆaUÀ¼À£ÀÄß ºÁUÀÆ F PÉ¼ÀPÀAqÀ CA±ÀUÀ¼À£ÀÄß PÀqÁØAiÀÄªÁV C£ÀÄ¸Àj¸ÀÄªÀ ¤§AzsÀ£ÉUÉ M¼À¥ÀlÄÖ PÁAiÀÄðgÀÆ¥ÀPÉÌvÀgÀ®Ä vÁAwæPÀ C£ÀÄªÉÆÃzÀ£É ¤ÃqÀ¯ÁVzÉ.”

¶228

Both these entries relate to the communication of the petitioner quoted supra . If the communication of the petitioner has resulted in the grant of technical approval by the Department of Town and Country Planning, where from an offence under Section 7A of the Act would spring, is a mystery. There is neither demand nor acceptance. There is no work pending on the table of the petitioner to have demanded any bribe. The incident narrated in the complaint is said to have taken place on 26.04.2022. The complaint is registered on 30-06-2022, which is clearly 64 days after the alleged demand of bribe. The demand is not made by the petitioner and the bribe is not accepted by the petitioner. Therefore, registration of crime would run foul of the judgments of the Apex Court noted supra which clearly hold that for an offence

¶229

¶230

under Section 7A of the Act, demand and acceptance is sine qua non . If there is demand and no acceptance, it would not become an ingredient of Section 7A of the Act. If there is acceptance and there is no demand, it would even then not become an offence under Section 7A of the Act. Therefore, both demand and acceptance is said to be sine qua non . For what purpose is also narrated by the Apex Court. It is for the purpose of taking undue advantage of any public duty / work pending before the accused. In the case at hand, trap was never laid against the petitioner. It is laid against accused No.1. Therefore, the entire case of the respondent No.1 / Lokayukta is shrouded with glaring improbabilities, which would be one of the postulates laid down by the Apex Court in the case of STATE OF HARYANA v. BHAJAN LAL⁶ wherein it is held as follows:

¶231

“….

¶232

102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse

¶233

6 1992 Supp (1) SCC 335

¶234

¶235

of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

¶236

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

¶237

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

¶238

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

¶239

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

¶240

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

¶241

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

¶242

¶243

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

¶244

(Emphasis supplied)

¶245

The Apex Court lays down circumstances in which a proceeding at the stage of crime can be quashed.

¶246

For the aforesaid reasons, the following:

¶247

O R D E R

¶248

(i) The Writ Petition is allowed.

¶249

(ii) The entire proceedings initiated by the ACB, Bellary (Now Lokayukta) in Crime No.7 of 2022 pursuant to Complaint dated 30.06.2022 of the 2^nd respondent qua the petitioner/ accused No.2 stand quashed.

¶250

(iii) It is made clear that the findings rendered in the case at hand will not become applicable to any other accused facing proceedings since the petition

¶251

¶252

concerns the petitioner answering the petition under

¶253

Section 482 of the Cr.P.C.

¶254

Sd/JUDGE

¶255

nvj CT:MJ

Beeralinga S/O Hanumantappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Beeralinga S/O Hanumantappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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