Sri B S Mahesh Vs State by Police Inspector

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 29.09.2012 PASSED IN SPL. CASE NO.27/2010 BY THE SESSIONS/SPECIAL JUDGE, UDUPI - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d) R/W. SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard learned counsel for the appellant and learned counsel or the respondent.

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This appeal is filed against the order of conviction and sentence imposed by the Trial Court in Special Case No.27/2010 vide judgment dated 29.09.2012 for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

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The factual matrix of case of the Lokayukta Police before the Trial Court is that accused demanded an amount of Rs.1,000/- from complainant, who has been examined as P.W.2 for issuance of RTC, consequent upon acceptance of mutation, since his brother has purchased the property. Since, both himself and his brother were not interested to pay the bribe amount of Rs.1,000/- as demanded by the accused, lodged the complaint and Lokayukta Police registered the case and

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conducted the formalities of entrustment mahazar and conducted trap and seized the bribe amount of Rs.1,000/- at the instance of the accused and further investigation was conducted and filed charge-sheet against the accused. The accused was secured before the Trial Court and was granted bail and he did not plead guilty.

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The prosecution relied upon the evidence of prosecution witnesses P.Ws.1 to 8 and relied upon the documents of Exs.P1 to P25(a) and (b). The accused did not lead any defence evidence, but he was subjected to recording of 313 statement. The prosecution also got marked M.Os.1 to 12 in support of their case.

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The Trial Court having considered both oral and documentary evidence placed on record, convicted the accused and sentenced him to undergo imprisonment for a period of one year and to pay fine of Rs.10,000/-, in default to pay the fine amount shall undergo imprisonment for a period of three months. Being aggrieved by the said judgment of conviction and sentence, the present appeal is filed before this Court.

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Learned counsel for the appellant in his argument would vehemently contend that it is not in dispute that complainant purchased the property and as a result, J-Form was sent to Revenue Department and mutation was also accepted, but only allegation against the accused is that he did not issue the RTC, but he demanded money of Rs.1,000/-. Learned counsel would vehemently contend that mutation was accepted long back, but complaint was given on 09.03.2009. Learned counsel also brought to notice of this Court Ex.P20 i.e., M.R.No.10/2008-2009, wherein accepted the M.R. pertaining to the property purchased by the brother of the complainantP.W.2. Learned counsel also vehemently contend that the work was not pending with the accused, since the accused was not having any power to issue the RTC and the same ought to have been collected in the Bhoomi Counter.

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Learned counsel also would vehemently contend that though an allegation is made that he made payment of Rs.1,000/- and the same has not been proved by the prosecution. Learned counsel would contend that P.W.1 is the sanctioning authority and the evidence of P.W.1 is very clear with regard to the fact that accused was not having any power

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to issue RTC and the same has to be collected from the Bhoomi counter. Learned counsel also contends that though P.W.2 depose with regard to there was demand and the same is not substantiated by P.W.2. In the chief evidence, he says with regard to purchasing of property by his brother and when he met the accused, he demanded amount of Rs.1,000/- and when he did not make the payment, he did not issue the RTC and this incident has happened two months prior to lodging of the complaint. It is also his evidence that Lokayukta Police after filing of the complaint secured two witnesses Kishore Kumar and Narayanamurthy and also collected amount of Rs.500/- as well as 5 notes of 100 denominations and smeared the phenolphthalein powder and the same was given to Kishore Kumar and thereafter, his hands were washed and drawn the panchanama of entrustment mahazar.

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It is also his evidence that he himself and Kishore Kumar went to office of accused and he gave money to the accused. The Lokayukta Police also gave him tape recorder and he kept the same in order and accused collected the money

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from his right hand and kept the same in his shirt pocket and Lokayukta Police came and drawn the mahazar and hand of the

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accused was dipped in the liquid and the same turned to pink colour and his signature was taken and except this, he is not aware of anything. Hence this witness was treated as hostile and treating him as hostile, suggestion was made that he was asked to note down the number of the notes and he says, he does not remember the same and suggestion was also made that when the hands of other panch witness, Narasimhamurthy was dipped in liquid and the same turned to pink colour and the same was denied. However, he admits that he signed the mahazar. The suggestion was made that accused asked to pay Rs.1,000/- and take the RTC and the said suggestion was admitted. He admits that on 16.03.2009, he was asked to come to office and photos was shown and signature was taken. In the cross-examination, when the question was put to him that RTC will be available in the Bhoomi Centre, he admits that the same will be available in the Bhoomi Centre, but he volunteers to state that his brother had told him to collect and hence, he went and demanded to issue the same, at that time, demand was made, but he admits that M.R. was given to him. He also says that he went to office of Lokayukta and he spoke to C.W.14-Ramachandra Bhat in respect of this case and says

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that when application was given, endorsement was given after 15 days and Lokayukta Police have given the statement to him. In the further cross-examination, he admits that after lodging the complaint, he went to office of Lokayukta 10 to 20 days. But he claims that in respect of work of his brother only, he gave the amount of Rs.1,000/-. He says that when he went near the accused, he has recorded the same in the tape recorder. He also says that he told the accused that the bike was not in order hence, there was delay and delay has caused in making the payment and the same is also recorded in the tape recorder.

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The other witness is P.W.3, who is a shadow witness. He also speaks that he was called to Lokayukta and did the formality of entrustment mahazar and came to now that demand was made to make the payment of Rs.1,000/- to issue the RTC and he also speaks with regard to handing over of Rs.500/- and 5 notes of Rs.100 denominations and the same was given to him to note down the number and he identifies his signature in Ex.P6. It is also his evidence that, he himself and complainant went to the office of the accused and accused was there in the office and identifies him, and the complainant went

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forward and spoke to the accused and thereafter, he handed over the money which was kept in his shirt pocket and the same was accepted by the accused in his right hand and counted the same and kept the same in his shirt pocket and they gave the signal and Lokayukta Police conducted trap mahazar and seized the amount. This witness was subjected to cross-examination. In the cross-examination, suggestion was made to him that there was a prior ill-will against the accused and to him and the same was denied. But he claims that in the year 2009, the accused has to issue the RTC. However, he admits that in 2008, anybody can obtain RTC by making an application and the accused was not having any power or prevent the issuance of RTC. He denies the suggestion with regard to proceedings has been drawn regarding the trap mahazar.

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Learned counsel also relied upon the evidence of Investigating Officer, who has been examined as P.W.8 with regard to conducting of entrustment mahazar as well as trap, who gave the details and through him documents are marked. But, in the cross-examination, he categorically admits that the procedure for obtaining the RTC started in 2003 itself and the

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same would be taken in Bhoom Centre, but denies the suggestion of collecting the same in Bhoomi Centre and he was also not aware of who is the officer to issue the RTC. He also admits that in the office of Village Accountant, no record was seized and also admits, before registration of this case, already made the RTC. It is also elicited from the mouth of P.W.8, there was no reference in the tape recorder about the demand and also having given the complaint. Learned counsel having considered this admission would contend that Trial Court committed an error in relying upon the evidence of P.Ws.2, 3 and 8, who are the material witnesses.

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Per contra, learned counsel for the respondent would vehemently contend that though enmity defence was taken between P.W.3 and the accused, nothing is suggested to P.W.3 and only said suggestion was made to Investigating Officer. Learned counsel would vehemently contend that recovery has been proved and no work was pending with the accused is not the criteria to acquit the accused and when the acceptance was proved and all the witnesses speak about receipt of money and keeping the amount in his shirt pocket which was received from the complainant, the material placed

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on record were taken note by the Trial Court and the minor discrepancies found in the evidence of P.Ws.2, 3 and 8 will not go to the very root of the case of the prosecution. Hence, it does not requires any interference.

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In reply to the argument of learned counsel for the respondent, learned counsel for the appellant relied upon the judgment in SOUNDARAJAN VS. STATE REPRESENTED BY THE INSPECTOR OF POLICE VIGILANCE ANTICORRUPTION, DINDIGUL reported in 2023 (16) SCC 141 and brought to notice of this Court discussion made in paragraph No.7, in any event, the complainant had not supported the prosecution, and the shadow witness did not depose that in his presence there was any demand of the sum of amount of Rs.500/- by appellant for returning the sale deed to the complainant. In the case on hand also, learned counsel would vehemently contend that shadow witness not spoken anything, except both of them spoke to each other and there must be demand and 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 and brought to notice of this Court paragraph No.12. Learned counsel would vehemently contend that this

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Court already discussed the judgment of Neeraj Dutta’s case which has been relied upon by the learned counsel for respondent.

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Learned counsel would vehemently contend relying upon the recent judgment of the Apex Court in MIR MUSTAFA ALI HASMI VS. STATE OF ANDHRA PRADESH reported in (2024) 10 SCC 489, wherein also with regard to invoking of Section 7 and 13(1)(d) read with Section 13(2), the Apex Court held that demand of bribe during trap proceedings, absence of corroboration as to evidence of complainant and the shadow witness, as grounds for acquittal and in detail discussed the same. Learned counsel brought to notice of this Court the discussion made by the Apex Court in the judgment of NEERAJ DUTTA VS. STATE (NCT OF DELHI) reported in (2023) 4 SCC 731 in paragraph No.28, wherein particularly discussed paragraph No.88 of the Neeraj Dutta’s case and at 88.4(d)(iii), it is discussed that mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 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

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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 Sections 13(1)(d)(i) and (ii) of the Act. Learned counsel brought to notice of this Court discussion made in paragraph No.88.5 (e) with regard to the presumption is concerned, wherein it is held that only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence there of and so also presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while latter is discretionary in nature and also discussed in paragraph No.29 that the Constitution Bench in Neeraj Dutta’s case also went on to hold that in order to bring home the guilt of the accused, the prosecution has to prove the demand of illegal gratification and the subsequent acceptance, by either direct or circumstantial evidence. The learned counsel would vehemently contend that though learned counsel for the respondent relied upon Neeraj Dutta’s case, the same has

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been discussed and distinguished by the Apex Court and brought to notice of this Court paragraph No.41 as well as paragraph Nos.51 and 54, wherein discussion was made that a prudent and unbiased Police Officer would be persuaded to make at least a basic enquiry into these facts rather than following the dictate of the complainant. Learned counsel referring this judgment would vehemently contend that in the case on hand, there is no demand and acceptance and mere acceptance will not be a ground and unless Sine qua non of demand and acceptance is proved, question of invoking Section 7 and 13(1)(d) read with Section 13(2) does not arise.

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Having heard learned counsel for the appellant and learned counsel for the respondent and also considering the judgment referred by learned counsel for the respondent in Neeraj Dutta’s case as well as the judgments referred by the learned counsel for the appellant, the points that would arise for consideration of this Court are:

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(1) Whether the Trial Court committed an error in accepting the evidence of prosecution witnesses, in coming to the conclusion that there is a demand and acceptance which is

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erroneous and whether it requires interference?

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(2) What order?

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Point No.(1)

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Having considered the material on record, it is not in dispute that the charge is that accused has demanded an amount of Rs.1,000/- from P.W.2 to issue RTC. It is also important to note that P.W.1 says that on the instruction of his brother, who had purchased the property, he went and met the accused and he has demanded the amount for issuance of RTC. No doubt, P.W.1 has given sanction, but subjected to crossexamination. Even in the cross-examination, P.W.1 categorically admits that RTC will be issued in the Bhoomi Centre and copy will be given in the said Centre and Village Accountant is not having power to issue the same. However, admits that the records are also sent to Revenue Inspector Officer from the office of Village Accountant.

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The main contention of learned counsel for the appellant is that work was not pending with the accused and the fact that mutation was also accepted is not in dispute.

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P.W.2 also admits in the cross-examination that he has collected the mutation, but only his evidence is that RTC was not given. But, in the cross-examination, he categorically admits that RTC will be available in the Bhoomi Centre, but volunteers to state that his brother had told him to collect the same from the accused and hence, he went and met the accused. It is also important to note that, in his chief evidence, he says that he went to office of accused and he gave the money of Rs.1,000/-, but not spoken anything about the fact that he demanded the money and he gave the money. But, he says the same was recorded in the tape recorder and also deposes with regard to the receipt of money and this witness was treated hostile and cross-examined and certain questions are put to witness and elicited answer from the mouth of P.W.2 regarding payment of amount of Rs.1,000/-. But, in the crossexamination, he categorically admits that he had given complaint and went to the Lokayukta Office after 10 to 20 days and he went and made the payment on behalf of his brother and no unequivocal evidence before the Trial Court that accused demanded the money and he made the payment, but in his chief evidence itself he says that he went and made the

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payment and no any evidence that he voluntarily made the demand.

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It is also important to note that prosecution relies upon the evidence of witness P.W.3. He also categorically deposes before the Court that the accused being a Village Accountant not having any power to issue the RTC and in his evidence, he has not spoken anything about the demand, but only says that complainant went forward and spoke to the accused and thereafter, he handed over the money. But, what conversation has taken place between both of them, he has not spoken anything about the demand. Though he claims that the Village Accountant is having power to issue the RTC, but in the categorical admission, he deposes that, in the year 2008, the same could be obtained from Bhoomi Centre and accused was not having any power and he cannot prevent obtaining the same from Bhoomi Centre. Having considered the evidence available before the Court, the evidence of P.W.2-complainant and P.W.3, there is no any unequivocal evidence before the Court with regard to the demand, except stating that he only gave the money and P.W.3 says that both of them spoke to each other and not spoken anything about the demand made

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by the accused with the complainant, the prosecution relied upon the conversation recorded through the instrument of tape recorder. Even considering the contents of the mahazar, wherein the conversation is noted in Ex.P4-trap mahazar, the conversation is also not specific for having made the demand of Rs.1,000/- though there was reference of Rs.1,000/-. Though the Investigating Officer in the cross-examination, when he was examined as P.W.8 categorically admits that there was no reference in the tape recorder recording the conversation with regard to the demand and was there any reference in the complaint, the Investigation Officer also categorically admits in the cross-examination that RTC was already issued before registration of the case and though he denies that RTC will be supplied in the Bhoomi Centre, but he categorically admits that the said process will be done in the Bhoomi Centre from 2003

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and he was also not aware on the date of issuance of complaint, who is the Officer to issue the RTC.

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Having considered all these materials and admissions, there is no piece of evidence of corroboration with regard to demand and acceptance having considered even the evidence of P.W.2 and P.W.3, though it is mentioned in the

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complaint that a demand was made to the tune of Rs.1,000/and while examining before the Court, P.W.2-complainant also not stated anything about demand, but only says he went and made the payment. P.W.3 shadow witness also not speaks about the demand is concerned, but only says about handing over money to the accused. The judgments which have been relied upon by learned counsel for the appellant aptly applies to the case on hand. It is also settled law that demand and acceptance are the S ine qua non to invoke the offence under Section 7 and 13(1)(d) read with Section 13(2). The Trial Court committed an error in particularly considering the material with regard to recovery of money and it is also settled law that mere recovery of money i.e., bribe cannot be a ground to convict the accused for the offence under Section 7 and 13(1)(d) read with Section 13(2) and when there are discrepancies in the evidence, particularly with regard to the demand is concerned, the Trial Court ought not to have given much importance to the evidence of P.Ws.2 and 3 and throughout, it is emerged in the evidence that no work was pending with the accused and there was no demand and the accused was not the competent authority to issue the RTC and very foundational facts have not

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been proved, even though in Neeraj Dutta’s case discussed in detail and the same is also taken note by the Apex Court in the recent judgment, particularly in Mir Mustafa Aku Hasmi’s case in detail discussed the same that there must be demand and acceptance and unless the same is proved, the question of convicting the accused does not arise. Hence, material on record was not considered properly by the Trial Court while convicting the accused. Hence, I answer point No.(1) as ‘affirmative’.

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Point No.(2)

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In view of the discussion made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed.

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(ii) The impugned judgment of conviction passed by the Trial Court for the offence under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is hereby set aside.

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(iii) If any fine amount is deposited by the appellant, the same is ordered to be refunded in favour of the appellant on proper identification.

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Sd/(H.P.SANDESH) JUDGE

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ST

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List No.: 1 Sl No.: 60

Sri B S Mahesh v. State by Police Inspector

Case brief

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Sri B S Mahesh v. State by Police Inspector

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