Sampath Rao S Bommannavar Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DT.02.12.2011 PASSED BY THE III ADDL. SESSIONS & SPL. JUDGE, MYSORE IN SPL.C.NO.70/2007 CONVICTING THE APPELLANT/ ACCUSED NO.1 FOR THE OFFENCE P/U/S 7 AND SEC.3(1)(d) R/W SEC.13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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THIS APPEAL HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE V SRISHANANDA)

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Accused No.1 who suffered an Order of conviction for

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the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 in Spl. Case No.70/2007 dated 02.12.2011 on the file of the III Addl. Sessions and Special Judge, Mysuru, has preferred the present Criminal Appeal questioning the validity of the said judgment.

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Facts of the case in brief which are utmost necessary

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for disposal of the present appeal are as under:

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Appellant/accused No.1 was working as Commercial Tax Officer in Commercial Tax Office, Mysuru. Accused No.2 by name Smt.H.S.Kanthi was the typist in the very same office. Complainant-Sri. Ganesh Shetty was working as an accountant in Lakshmi Control System situated at

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Hootagalli Industrial Area, Mysuru. Said Ganesh Shetty had been to the office of the appellant to receive Form No.37 on behalf of Lakshmi Control System being the duly authorized by the owner thereof and submitted the requisition for issue of Form No.37.

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On 16.07.2006 when complainant visited the appellant with a request to issue Form No.37, appellant said to have demanded a sum of Rs.3,000/- of which a sum of Rs.2,000/- is his share, balance sum of Rs.300/- to be paid to accused No.2 and Rs.600/- to be paid to the Inspector and remaining balance of Rs.100/- to the attendar of the office. Complainant came back without Form No.37 and intimated the demand made by the appellant to his Boss.

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On 19.07.2006, complainant, as per the instructions of his Boss, made a complaint to the Lokayuktha office to trap the appellant. Based on the said complaint, Lokayukta police, Mysuru, registered a case and secured two independent persons to act as panchas for the

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intended trap. Thereafter, head of the raid party explaining the necessary details of the intended trap, demonstrated the chemical reaction of Sodium Carbonate solution with phenolphthalein powder, took the intended bribe money from the hands of the complainant and smeared phenolphthalein powder, noted the serial numbers of the said currency notes and drafted the experimental mahazar. One of the panchas was directed to accompany the complainant at the time of handing over the tainted currency to the hands of the appellant/accused No.1 only on demand and others were required to wait outside the office of the accused.

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On getting the instructions from the head of the raid party, complainant and shadow witnesses went to the office of the appellant on 19.07.2006 and entered the chamber of the appellant. In the chamber, apart from the appellant, Sri Mallikarjuna was also present. When the appellant demanded the bribe money, complainant handed over the same to the hands of the appellant who counted

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the same and tried to return sum of Rs.1,000/- by saying that Rs.2,000/- is his share and balance sum of Rs.1,000/is to be distributed among the Commercial Tax Inspector, Accused No.2-Typist and ‘D’ group employee.

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At that juncture, Sri Mallikarjuna who was present in the chamber said to have told the appellant that Commercial Tax Inspector is absent on that day. Therefore, appellant retained Rs.600/- being the share of the Commercial Tax Inspector to pay him on the next day and appellant wanted to return Rs.400/- to the hands of the complainant to distribute the same to accused No.2 and the attendar.

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At that juncture, complainant went out of the chamber of the appellant/accused No.1 and gave the predesignated signal to the head of the raid party. Immediately members of the raid party entered the chambers of the appellant and enquired about the bribe money. Mallikarjuna was also present with the raid party who encircled the appellant in his chamber.

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The tainted currency was recovered from the custody of the appellant which was kept in the table drawer. Colour test was conducted by washing the hands of the appellant, so also, washing the place where the tainted money was kept in the drawer of the table of the appellant with a cotton swab. The cotton swab when dipped in the colourless solution turned to pink colour which was sealed and seized. Explanation of the appellant/accused No.1 was obtained and since the appellant had handled the tainted currency head of the raid party arrested the appellant and then produced him before the learned Special Judge.

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After conducting further enquiry, charge sheet came to be filed against the appellant and accused No.2 for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.

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The Special Judge took cognizance of the aforesaid offences and secured the presence of the Appellant/ accused No.1 and accused No.2, and after complying with

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the provisions of Section 207 of the Code of Criminal Procedure, framed the Charge.

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Accused pleaded not guilty and therefore, trial was held.

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In order to prove the guilt of the accused persons, prosecution in all examined 11 witnesses as P.Ws.1 to 11 comprising of complainant, mahazar witnesses, official superior, Mallikarjuna who was present in the chamber at the time of the raid and the investigation agency.

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The prosecution placed on record 64 documents which were exhibited and marked as Exs.P.1 to 64, comprising of complaint, entrustment mahazar, seizure mahazar, application, register issuing Form 37, resolution of Commercial Tax Office, receipt, paper containing details of currency notes, explanation of accused Nos.1, 2 and 8, attendance register, explanation given by P.W.8 to Joint Director of Commercial Tax Office, sanction order,

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statement of P.W.6 before police, statement of P.W.8, FIR, letter addressed to Court and sealed letter.

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The prosecution also placed on record ten material objects comprising of tainted currency notes, sample solution and solution collected after the colour test, cotton swabs used to wipe the table drawer of the appellant and accused No.2.

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On conclusion of recording of evidence, learned Special Judge recorded the accused statement as is contemplated under Section 313 of the Code of Criminal Procedure, wherein, accused persons have denied the incriminatory materials.

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Appellant got examined himself as D.W.1 and thereafter, learned Special Judge heard the arguments of the parties in detail.

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On so hearing the arguments of the parties, learned Special Judge on cumulative consideration of the oral and documentary evidence on record, acquitted the accused

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No.2 who is the typist, noting that there was no demand made by her and convicted the appellant/accused No.1 for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988, and directed the appellant/accused No.1 to undergo rigorous imprisonment for one year and to pay fine of Rs.15,000/with default sentence of three months simple imprisonment.

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Being aggrieved by the same, appellant/accused No.1 has preferred the present appeal on the following grounds:

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That the impugned Judgment and Order of conviction and sentence recorded by the learned Special Judge, is contrary to law, facts and evidence on records. Hence the same is liable to be set aside.

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The reasons assigned by the learned Trial Judge, while passing the impugned Judgment and Order of conviction and sentence are erroneous and as such he has slipped into an error and passed the impugned Judgment and order of conviction and

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sentence, resulting in substantial miscarriage of justice to the case of the Appellant

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It is submitted that the learned Trial Judge ought to have seen that the evidence of the complainant-P.W.1 is unnatural artificial besides being not credit worthy. Accepting the said evidence and convicting the appellant is not proper.

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It ought to have been seen by the learned Trial Judge that the owner of Lakshmi Control System was not examined by the prosecution so as to establish that he had authorized the complainant-P.W.1 to seek form No.37. In the absence of any material to indicate that P.W.1 was authorised by the owner of Lakshmi Control System, the contention of the accused that P.w.1 was an Agent and because of the ill-motive he had falsely implicated the present appellant.

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It is submitted that there is unexplained delay of nearly 3 months. When it is definite case of the complainant that he had approached the accused on 16.10.2005 and demanded bribe why complainant did not lodge complaint till 19.1.2006, is not at all explained. In that view of the matter, the case of the prosecution becomes suspicious and not credit worthy.

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It is submitted that P.W.8 is examined as an eye witness. All though he was initially arrested as having received part of bribe money to an extent of Rs.600/-, subsequently, he was treated as an eyewitness. In

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his evidence he has definitely deposed that the bribe money which was given by the complainant was thrown away by the appellant and went out of the room would create suspicion in the case of prosecution and supports the case of the defence that the complainant had kept money on table and went away, and the money was thrown by accused.

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It is submitted that there is material discrepancy in the evidence of P.w.8 and P.Ws.1 and 7, which goes to the root of the matter and consequently making the entire case of the prosecution unacceptable

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Having regard to the facts and circumstances of the case and the evidence on records, the evidence of P.W.8 supports the case of the defence and innocence of the appellant. The said evidence of P.W.8 with regard to accused throwing the bribe money is not spoken to by P.W.1 and 7. In that view of the matter, the case of the prosecution was not credit worthy of acceptance.

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The learned trial Judge has committed a serious error in not accepting the evidence of the appellant who has got examined himself as D.W.1 in support of defence. In the absence of any reasons to dis-believe the evidence of D.W.1 the approach of the learned trial. Judge is erroneous.

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Having regard to the facts and circumstances of the case, the conclusion of the learned trial Judge that the

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case of the prosecution was acceptable and presumption under section 20 of the Prevention of Corruption act was to be drawn is not proper.

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It is relevant to submit here that on the same set of evidence, when accused-2 is acquitted, the Court below ought to have extended the same benefit to appellant who was tried as accused-1.

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That the appreciation of the evidence of the prosecution witnesses is not in proper perspective and as such the learned Sessions Judge has reached a wrong conclusion and convicted the appellant and that has resulted in substantial miscarriage of justice to the case of the appellant.

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It is submitted that mere recovery of bribe money from the drawer of the accused, itself would not establish that the accused had committed any offence.

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The learned Sessions Judge has not drawn proper probabilities and inferences from the material placed on record and thereby the judgment and order of conviction and sentence has resulted in grave miscarriage of justice.

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Having regard to the facts and circumstances of the case and nature of evidence let in by the prosecution, the learned Special Judge ought to have held that the

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prosecution has not proved the case beyond reasonable doubt.”

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Sri C.H.Jadhav, learned Senior Counsel representing the appellant/accused No.1, reiterating the grounds urged in the appeal memorandum contended that, the learned Special Judge has grossly erred in law in convicting the accused for the aforesaid offences and sought for allowing the appeal.

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He pointed out that there is delay of three months in lodging the complaint and no explanation is forthcoming as to the delay in lodging the complaint, inasmuch as, complainant has visited the office of the appellant on 16.10.2005 and actual trap and registration of the crime has taken place on 19.01.2006.

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He further contended that the detailed explanation has been offered by the appellant soon after the trap which has been totally ignored by the learned Special Judge while passing the impugned judgment. He also pointed out that while refusing to receive the tainted

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currency from the hands of the complainant which was witnessed by Mallikarjuna who has been examined as P.W.8, the currency notes fell down on the table. As such, appreciation of prosecution evidence in the impugned judgment by the learned Special Judge is incorrect resulting in miscarriage of justice and sought for allowing the appeal.

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Sri C.H.Jadhav, also contended that having acquitted accused No.2 on the same set of facts and material evidence on record, learned Special Judge ought not to have convicted accused No.1; more so, when there is material evidence on record that sum of Rs.300/- out of the tainted currency is received by accused No.2.

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It is also submitted on behalf of the appellant that the owner of Lakshmi Control System of which the complainant said to have represented having not been examined, the very authority of lodging the complaint by the complainant itself is incorrect which has been totally ignored by the learned Special Judge.

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He further pointed out the discrepancy in date in Ex.P.3 being mentioned as 19.01.2005 even though the trap has taken place on 19.01.2006.

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Lastly, Sri C.H.Jadav, learned Senior Counsel pointed out that discrepancy in the oral testimony of P.W.1 and the shadow witness and the oral testimony of P.W.8Mallikarjuna would result in material contradictions. Therefore, oral testimony of the complainant and shadow witnesses ought not to have been believed as they are not credit worthy.

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In support of his arguments, Sri C.H.Jadhav, learned Senior Counsel placed on record the following judgments. The relevant portions of those decisions are culled out hereunder for ready reference:

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(i) P. Satyanarayana Murthy v. State of A.P., reported

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in (2015) 10 SCC 152:

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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

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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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(ii) N. Vijayakumar v. State of T.N., reported in (2021) 3 SCC 687

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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.

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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. 58-59)

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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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8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned.

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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

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

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and each case has to be judged on its own merits, having regard to evidence on record.

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(iii) Soundarajan vs. State Rep. by the Inspector of Police Vigilance Anticorruption Dindigul reported in (2023) SCC OnLine SC 424 .

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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 Ac t, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in the case of Neeraj Dutta³ has reiterated that the presumption under Section 20 of the PC Ac t can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof.

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Per contra, Sri Venkatesh S. Arabatti, learned counsel representing Lokayukta while supporting the impugned judgment contended that all the ingredients to attract the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988, have been established in the case on hand by placing cogent and convincing evidence on record.

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He further contended that the fact of the appellant being the public servant is not in dispute, so also, work of Lakshmi Control System was pending with the office of the Commercial Tax. The material evidence on record sufficiently establish that appellant had demanded a sum of Rs.3,000/- on 16.01.2006 for issue of eight sheets of Form No.37.

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He also contended that the appellant did handle the tainted currency and therefore, colour test stood positive. The explanation offered by the appellant that he refused to receive the tainted currency and complainant tried to thrust the money into the hands of the appellant and at that juncture, appellant pushed the complainant along with tainted currency wherein he came into contact with phenolphthalein powder and thus colour test stood positive is beyond comprehension of any prudent person, inasmuch as, the cotton swab which was used to swipe the table drawer where the tainted currency was kept also stood positive in the colour test.

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Sri Venkatesh Arabatti, also contended that Mallikarjuna-P.W.8 being present when complainant went to the chamber of the appellant along with shadow witness-P.W.7. Sri Mallikarjuna supported the case of the prosecution. He did not nurture any enmity or animosity as against the appellant is a factor that cannot be lost sight of by this Court while negating the contentions urged on behalf of the appellant.

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Sri Arabatti also emphasized that demand and acceptance of illegal gratification, work pending, colour test having resulted in positive would conclude the offence charged against the appellant and sought for dismissal of the appeal.

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He further contended that the explanation offered by the appellant is imaginary and is not even probablized by atleast placing plausible evidence on record and thus sought for dismissal of the appeal.

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Lastly, Sri Venkatesh Arabatti, contended that there cannot be any dispute as to principles of law enunciated in the decisions relied on by the learned counsel for the appellant. But the facts and circumstances of the case on hand are altogether different from the facts and circumstances involved in the decisions relied on by the learned counsel for the appellant and thus they are not of any avail in holding that the appellant is entitled for an order of acquittal.

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Having heard the arguments of both sides, his Court considered the material on record meticulously.

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On such consideration of the material on record, following points would arise for consideration:

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(i) Whether the prosecution is successful in placing necessary material evidence to maintain the order of conviction of the appellant for the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988?

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(ii) Whether the appellant has made out a case for interference on the ground that the impugned judgment is suffering from factual defects, legal infirmity and perversity?

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(iii) Whether the sentence needs modification?

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(iv) What Order?

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REGARDING POINT Nos.1 and 2: In the case on hand, the following are the admitted facts which would emerge on perusal of materials on record:

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Appellant being he Commercial Tax Officer, Mysuru.

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Complainant represented Lakshmi Control System as an accountant.

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Complainant visited the office of the appellant for collection of Form No.37 and eight sheets for their business establishment on 16.10.2005 by filing necessary application.

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Said application was not processed.

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Again on 16.01.2006 complainant visited the office of the Commercial Tax and met appellant who directed the complainant to file fresh application along with necessary books of account.

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As per the directions of the appellant, complainant produced books of account and appellant having verified the same, signed the books of account.

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However, Form No.37 as sought for by the complainant were not issued on 16.01.2006.

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Following are the disputed facts emerging from the material on record:

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Appellant demanding a sum of Rs.3,000/- as illegal gratification for issuance of Form No.37 on 16.01.2006.

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Rs.28/received by accused No.2 towards charges for issuance of Form No.37.

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No receipt was passed on to the complainant on the ground that receipt would be issued after appellant signs the forms.

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Appellant demanding Rs.3,000/illegal gratification by saying that his share in the said sum of Rs.3,000/- is to the tune of Rs.2,000/-, Rs.600/- is payable to the Commercial Tax Inspector, Rs.300/- to the Typist and Rs.100/- to the attendar.

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Handling of tainted currency by appellant on 19.01.2006 in the office of the appellant.

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Recovery of tainted currency only to the extent of Rs.2,600/-.

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Appellant directing the complainant to receive Form No.37 from accused No.2 and thereafter, demanding Rs.3,000/-.

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Complainant handing over Rs.3,000/and appellant receiving Rs.3,000/-, returning Rs.1,000/- again receiving Rs.600/-.

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Non completion of work of the complainant as on the date of trap.

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In the background of the above admitted/disputed facts, pursuant to the arguments put forth on behalf of the appellant by Senior Advocate Sri C.H.Jadhav, material evidence on record now needs to be discussed.

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P.W.1 is the complainant. In his examination-inchief, he has deposed about his application pending from 16.10.2005 in the office of the appellant; visiting the office of the appellant on 16.01.2006; demand of Rs.3,000/-; complainant lodging complaint with Lokayukta Police, Mysuru; pursuant thereof Lokayukta police forming the raid team; securing independent panch witnesses, conducting experimental mahazar, complainant and P.W.7 proceeding to the office of the appellant; enquiring the appellant about Form No.37; appellant directing the complainant to meet accused No.2-Smt.H.S.Kanthi; Appellant demanding Rs.3,000/-; complainant handing over tainted currency in a sum of Rs.3,000/- to the hands of the appellant; appellant counting the tainted currency notes and told the complainant to distribute Rs.1,000/- out of the tainted currency to the Inspector in a sum of Rs.600/-, accused No.2 in a sum of Rs.300/- and Rs.100/to the attendar; P.W.8-Mallikarjun who was present at the time of handing over the tainted currency informing appellant that Commercial Tax Inspector is absent on that

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day and therefore, appellant returned Rs.400/- to the complainant to hand over Rs.300/- to accused No.2 and Rs.100/- to the attendar; complainant gave pre-designated signal to the head of the raid party; raid party arriving to the chambers of appellant; enquired appellant recovering sum of Rs.2,000/- from the table drawer and Rs.600/which was scattered here and there; conducting of colour test; seizing the sample and solution after colour test turning to pink; seizure of tainted currency from the drawer of the appellant; taking the explanation of the appellant; arresting the appellant; drawing of mahazar; taking photographs; collection of documents.

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In his cross-examination it is elicited that P.W.1 was not registered as tax consultant in the Office of the Commercial Tax. Suggestion that he has no authority to represent Lakshmi Control System to represent Lakshmi Control System was denied; details of accounts of Lakshmi Control System; suggesting that he has been removed from Lakshmi Control System which has been denied.

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Further, detailed cross-examination of P.W.1 suggesting that the trap is a motivated trap is denied by him. One admission which was elicited favouring the appellant in such cross-examination is about non recording of the demand of illegal gratification in the tape recorder.

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P.W.7 is the shadow witness who had accompanied

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P.W.1 at the time of handing over the tainted currency as directed by head of raid party who is visible in the photographs. He deposed in line with P.W.1 and supported the case of the prosecution in toto .

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In his cross-examination he has answered that the Head Madam had instructed him to visit the Lokayukta office. He admits that his younger brother works as police constable in Heggadadevana Kote. He has answered that earlier to 19.01.2006, he had no acquaintance with P.W.1. He admits that head of the raid party had told him that on 16.01.2005 that had given a request for issue of Form No.37 and same is mentioned in the complaint. He admits

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that he did not enquire the complainant as to prior to 19.01.2006 when he visited the office of the appellant.

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He has answered that powder which was smeared on the currency notes was of while colour and it was phenolphthalein powder. He admits that there was half shutter to the chamber of the appellant. He admits that there is a vacant space adjacent to the veranda of office of the appellant.

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He denied the suggestion that complainant alone went inside the chamber of the appellant and he did not accompany him. He answered that the size of the chamber of the appellant may be measuring 15 x 15 feet and there was no partition. He has stated that there were about 2 or 3 windows to the chamber. He answered that he could not say appellant was facing which direction. He has further answered that soon after the complainant went inside the chamber of the appellant, enquired whether had had brought the register. He pleaded that he is not remembering about enquiry of invoice. He answered that

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head of the raid party had seized the register wherein accused has endorsed that eight sheets are to be given to the complainant and thus, the last order is dated 16.01.2006. He denied that he has given false evidence as per the instructions of Lokayukta police.

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P.W.8 is a chance witness. According to the oral testimony of the complainant and P.W.7, when they went inside the chamber, P.W.8 was sitting inside the chamber of the appellant on a chair in front of the table of the appellant.

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P.W.8 supported the case of the prosecution by stating that complainant and P.W.7 came inside the chamber, he was also sitting in the chamber. P.W.1 came to the appellant and there was conversation between P.W.1 and appellant. In such conversation, appellant demanded the money and at that juncture, complainant gave the money to the appellant and appellant counted the same and said he has received Rs.3,000/-, but his share is only Rs.2,000/and returned Rs.1,000/to the

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complainant and directed P.W.1 to distribute Rs.600/- to the Inspector, Rs.300/- to Typist and Rs.100/- to the Attendar.

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He further deposed that P.W.1 told appellant that he does not know who the Inspector is. Appellant enquired P.W.8 as to where is the Inspector. At that juncture, P.W.8 told the appellant that Inspector-Kumara Swamy was on leave on that day. P.W.8 further deposed that, at that juncture, appellant has taken back said Rs.1,000/and out of which he took Rs.600/- and again returned Rs.400/- to the complainant to be distributed among accused No.2 in a sum of Rs.300/- and Rs.100/- to the attendar.

¶167

He further deposed that complainant switched on his mobile phone. At that juncture, appellant entertained some suspicion and was roaming inside the chamber and came back and sat in his char. At that juncture, P.W.8 came into contact near his leg some object and when he saw, it was currency notes. It is at that juncture P.W.8

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picked up those notes and told the appellant that notes are like goddess Lakshmi and why he has thrown it there and handed over the same. At that juncture, appellant took out those currency notes and kept inside the table drawer. Few notes had also fallen little away. P.W.8 again picked them and wanted to hand over the same to the appellant and at that time, raid party appeared in the chamber and arrested the appellant.

¶170

He further deposed that head of the raid party enquired about the tainted currency received by appellant from the complainant.

¶171

At that juncture, appellant took out the currency which he had kept in his table drawer and handed over the same to the head of the raid party and when balance money was enquired, appellant has shown P.W.8 and police had held him as he was holding balance currency notes in his hand.

¶172

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P.W.8 further deposed that he had nothing to do with the tainted currency notes which were in his hands and he requested the appellant to narrate what the true fact is. At that juncture, appellant told P.W.8 to keep quiet and he himself is in tension. At that juncture, complainant told that P.W.8 has got nothing to do with the tainted currency. Thereafter, police tallied the tainted currency notes with the details recorded in entrustment mahazar and arrested the appellant and colour test was conducted which turned into positive. Thereafter, they swiped the table drawer of the appellant with a cotton swab and immersed the cotton swab into the colourless solution which turned pink and police seized the same.

¶174

In his cross-examination, he denies the suggestion that he has deposed falsely against the appellant. He has denied other suggestions like-complainant was known to him prior to the incident and it is the complainant and P.W.8 who have hatched a plan to trap the appellant as earlier to the appellant it was P.W.8 and complainant who

¶175

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are getting the work done through dubious method by bribing the officials. It was also suggested that appellant is hailing from North Karnataka region and he was not interested in corrupt practices and therefore, P.W.8 and complainant got him trapped through motivated trap. Same has been denied by P.W.8.

¶177

The other oral evidence placed on record is that of P.W.2 who is a co-pancha who has supported the case of the prosecution. P.W.3-Puttegowda handed over a letter as per Ex.P.57 to the Investigation Agency, P.W.4 is the official superior who issued the sanction order to prosecute the appellant, P.W.5 is the person who issued sanction Order vide Ex.P.59 in respect of accused No.2. P.W.6 is the Manager who deposed about the work procedure which has to be followed by Lokayukta police. P.W.9 is the Investigation Officer who deposed about investigation and filing the charge sheet. P.W.10 is the typist in the office of Lokayukta police who prepared the entrustment mahazar

¶178

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vide Ex.P.2. P.W.11 is the police constable who assisted in the investigation.

¶180

Appellant got examined himself as D.W.1. In the examination-in-chief of D.W.1/appellant, he has deposed that he worked as Commercial Tax Officer between 2005 to 2006, in Mysuru. He was not acquainted with complainant earlier. Only in October 2005 he had seen the complainant when the complainant applied for issuance of Form No.37 in respect of Lakshmi Control System. He has further deposed that he could not issue the same as there was no authorization from Lakshmi Control System. He further deposed that complainant has stated that earlier Form No.37 was issued to him without insisting for authorization letter. He has further deposed that complainant had told him that he had already given the requisition for issue of Form No.37, but, it was not found in his office and therefore, he had told him to file a fresh application.

¶181

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After the complainant gave fresh application on 16.01.2006, he has told him to produce the authorization letter register and purchase invoice. On 16.01.2006, complainant again visited him and shown him the register and invoice, but he had not brought the register and therefore, he instructed the sub staff to prepare necessary note and also to collect necessary fee and Form No.37 is to be issued to the complainant after he complies with the necessary requirements and in that regard, he made an endorsement on 16.01.2006 itself.

¶183

D.W.1 further deposed that complainant had already received eight sheets of Form No.37 by signing in Ex.P.5. He further deposed that as per Ex.P.5(b) P.W.1 struck off his signature and he has made an endorsement that he did not collect Form No.37. When the P.W.1 failed to comply with the requirements for collecting Form No.37, there was oral altercation between himself and P.W.1 and at that juncture P.W.1 had told him that he would take revenge on him. Later on, when he enquired with his sub staff, he

¶184

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came to know that P.W.1 was in the habit of getting his work done by dubious methods including forging signatures of his clients and bribing the officials.

¶186

He further deposed that since he hails from North Karnataka region he had not compromised with complainant for his dubious methods. He further deposed that on 19.01.2006 again complainant came and demanded Form No.37 for which he had replied that he had already ordered for issue of the same and he has already taken the same.

¶187

D.W.1 further deposed that he demanded utilization register and the invoice. But complainant had not brought the same. At that juncture, P.W.1 kept bundle of notes on his table. He further deposed that he got enraged by such keeping of bundle of notes and he enquired him as to why he is keeping the notes. At that juncture, P.W.1 started running from there and he chased him and ultimately caught hold of the complainant in the veranda. At that

¶188

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juncture, police came and took him to Lokayukta office which is situated opposite to his office by holding his hand.

¶190

Later on they handed over the currency to his hands and asked him to count the same forcefully. He has specifically stated that no seizure procedure has taken place in his office of Commercial Tax.

¶191

In his cross-examination, D.W.1 admits that he took charge of the post of Commercial Tax Officer on 08.07.2006 and admits that complainant had given an application on 16.10.2005. He denied the suggestion that waiting for bribe money he had kept the application of the complainant pending on one pretext or the other. He has denied other suggestions made by the prosecution.

¶192

The above evidence on record, is re-appreciated in the light of the appeal grounds and arguments addressed on behalf of the appellant. Such re-appreciation depicts that complainant had given a requisition for issue of Form

¶193

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No.37 on 16.10.2005 itself. Admittedly, same was not processed by the appellant on one pretext or the other.

¶195

On perusal of the material evidence on record, admittedly on 16.01.2006, complainant had again visited the office of the appellant and enquired about the pending application. At that juncture, as per P.W.1, appellant has demanded Rs.3,000/- bribe money. Complainant not willing to part with the bribe money has therefore lodged the complaint on 19.01.2006 after consulting his boss.

¶196

On 19.01.2006, after lodging the complaint and completing the entrustment mahazar, complainant and P.W.7 visited the office of the appellant and went into the chambers of the appellant.

¶197

According to the complainant, P.W.7 and P.W.8, appellant asked whether he had brought the register. Complainant had shown the register and appellant has endorsed in the register by signing the same. Such answer having been elicited in the cross-examination of

¶198

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P.W.1 and P.W.7, theory put forward on behalf of appellant that P.W.7 did not visit the chamber of the appellant cannot be countenanced.

¶200

Testimony of P.W.1, P.W.7 and P.W.8 reveals that, later on, appellant demanded the bribe money. At that juncture, complainant handed over the tainted currency consisting of Rs.3,000/- to the hands of the appellant. It is the consistent oral testimony of complainant/P.W.1, P.W.7 and P.W.8 that appellant counted the bribe money and thereafter returned Rs.1,000/- to the hands of the complainant with a direction to pay Rs.600/- to the Inspector, Rs.300/- to the typist and Rs.100/- to the attendar.

¶201

At that juncture complainant/P.W.1 told the appellant that he does not know who the Inspector is. Appellant enquired P.W.8 about the Inspector. P.W.8 replied to the appellant that Inspector-Kumara Swamy was absent on that day. Therefore, appellant again collected Rs.1,000/- from the hands of the complainant and kept

¶202

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Rs.600/- (being the share of the Inspector) and returned Rs.400/- to the complainant to be distributed among the accused No.2 and the attendar.

¶204

Contrary to the oral testimony of P.Ws.1, 7 and 8, appellant propounded the theory that he was an honest official and he was not part of corrupt practice. When complainant did not comply the procedure for issue of Form No.37 there was altercation between himself and the complainant on 16.01.2006 and in furtherance of such altercation, complainant came to him on 19.01.2006 and kept the tainted currency on the table.

¶205

Appellant questioned the said conduct of P.W.1. P.W.1 ran away from chamber. Appellant chased him and caught hold of him in the veranda and thereafter, he was taken to Lokayukta office and was forcefully made to count the tainted currency and thereafter he was arrested. To substantiate the said aspect of the matter, no material is forthcoming on record except the oral testimony of D.W.1.

¶206

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P.W.8 being the chance witness working the same office of the appellant who did not nurture any previous enmity or animosity against the appellant, has specifically deposed in line with examination-in-chief of P.Ws.1 and 7. In fact, when the raid took place, Rs.600/- which had fallen on the ground which was being picked up by P.W.8 to be handed over to the appellant, raid team had seen few tainted currency notes in the hands of P.W.8 as well.

¶208

On enquiry by the head of the raid team, P.W.8 stated that those notes had fallen on the ground and, out of respect (currency notes being treated as equal to goddess Lakshmi) he had picked up the same and was in the process of handing over the same to the appellant and he has nothing to do with those notes. Complainant who was present at the time of the raid had also told the head of the raid team that P.W.8 has got nothing to do with the currency notes and in fact, it was handed over to the appellant.

¶209

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Oral testimony of P.W.8 being natural as a chance witness has been rightly appreciated by the learned Special Judge which sufficiently corroborates the oral testimony of P.Ws.1 and 7.

¶211

Further, P.W.7 being total stranger to complainant as well as appellant, has also supported the case of the prosecution in toto in establishing the demand and acceptance of tainted currency by the appellant.

¶212

P.Ws.1, 7 and 8 withstood the searching crossexamination on behalf of the appellant and no positive materials are elicited so as to disbelieve their oral testimony. Minor contradictions in their cross-examination as to the non observing number of doors of the office of the appellant etc., are immaterial for considering the case of the parties in its right perspective.

¶213

Since the theory that has been put forward by the appellant having not been established to any extent, it should be considered as self serving testimony.

¶214

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On the contrary, material evidence on record clearly establishes that the entire trap proceeding has taken place in the chambers of the appellant as is seen from the photographs placed on record.

¶216

The currency notes were recovered not from the table of the appellant, but were found in the drawer of the table. Cotton swab which has been used to swipe the place where the tainted currency notes were seized also turned into pink colour when immersed in colourless solution fortifies the oral testimony of P.Ws.1 and 8.

¶217

P.Ws.1, 7 and 8 have specifically stated that after the register was shown by the complainant, appellant demanded the money. After the complainant handed over the tainted currency in a sum of Rs.3,000/-, appellant counted and thereafter kept Rs.2,000/- initially for his share and returned Rs.1,000/- to the complainant and again he took Rs.600/- out of said Rs.1,000/- being the share of the Commercial Tax Inspector and balance sum of

¶218

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Rs.400/- was directed to be distributed among accused No.2 and the attendar.

¶220

These factors when viewed cumulatively, it is crystal clear that as on the date of the trap, issuance of Form No.37 was still pending in the office of the appellant, there was a clear demand even on 19.01.2006 for the bribe by the appellant, complainant handed over the tainted currency and acceptance of the illegal gratification has been established by the colour test.

¶221

Therefore, all ingredients to attract the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 have been established by the prosecution by placing cogent and convincing evidence on record. Explanation offered by the appellant is not established even by placing plausible evidence on record.

¶222

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Acquittal of accused No.2 is sought to be taken advantage by the appellant herein to seek for an acquittal of appellant as well.

¶224

Learned Special Judge has noted that accused No.2 had no role whatsoever in demanding illegal gratification from the complainant and it is the appellant who demanded Rs.3,000/in the guise of distributing Rs.1,000/- out of Rs.3,000/- in the form of Rs.600/- to the Commercial Tax Inspector, Rs.300/- to accused No.2 and Rs.100/- to the attendar.

¶225

Therefore, in the absence of demand, mere sum of Rs.300/- recovered from accused No.2 is not sufficient enough to record an order of conviction. Moreover, Lokayukta did not chose to file any appeal against the acquittal of accused No.2 and therefore, said fact cannot be of any advantage to the appellant to seek an order of acquittal.

¶226

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Now coming to the question of decisions that are relied on by the appellant, in the case of P.Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another reported in (2015)10 SCC 152 supra, it has been held that mere acceptance of bribe money would not ipso facto result in commission of an offence punishable under Section 7 and 13 of the Prevention of Corruption Act, 1988, in the absence of proof of demand. In the said case, prosecution failed to prove the demand.

¶228

In the case on hand, demand is proved not only from the oral testimony of P.W.1, but also from the oral testimony of P.Ws.7 and 8. Non production of voice recording through tape recorder need not be taken into consideration in every case when other material evidence is available.

¶229

In the case of N.Vijayakumar vs. State of Tamil Nadu supra reported in (2021)3 SCC 687 , Their Lordships of the Hon’ble Apex court noted that mere

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recovery of tainted currency in the absence of proof of demand and acceptance, no conviction is permissible for the offence punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988. In the case on hand, all the ingredients viz., demand, acceptance and recovery has been established. Therefore, principle stated in N.Vijayakumar’s case though cannot be disputed, same would not be of any avail in recording an order of acquittal of the appellant.

¶232

In the case of Soundarajan vs. State rep. by the Inspector of Police Vigilance Anticorruption Dindigul supra reported in 2023 SCC Online SC 424 , Their Lordships in paragraph 9 of the judgment have reiterated the principle of demand and acceptance is a sine qua non to record an order of conviction for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988. In the case on hand, in view of the discussion made supra, all the ingredients are established to maintain an order of conviction of the appellant for the aforesaid offences.

¶233

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Therefore, viewed from any angle, this Court does not find any legal infirmity or perversity in finding of the guilt of the appellant in the impugned judgment.

¶235

From the above discussion, point Nos.1 and 2 are answered in the affirmative and negative respectively.

¶236

REGARDING POINT No.3: Learned Special Judge has sentenced the appellant to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.15,000/- for the committing the offences under Section 7, Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988, in default of payment of fine, to undergo simple imprisonment for a further period of three months. Same does not require further consideration. Accordingly, point No.3 is answered in the negative .

¶237