C.S. Gopala Vs State by Lokayukta Police

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NC: 2025:KHC:5826 CRL.A No. 1352 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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CRIMINAL APPEAL NO. 1352 OF 2012 (C)

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BETWEEN:

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C.S. GOPALA S/O SHIVALINGEGOWDA MAJOR IN AGE OCC: LICENSED SURVEYOR TALUK OFFICE, HASSAN R/A. CHIKKAKADLUR VILLAGE DUDDA POST AND HOBLI HASSAN TALUK AND DISTRICT - 573 201.

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…APPELLANT

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Digitally signed by MALATESH K C

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Location: HIGH COURT OF KARNATAKA

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(BY SRI. SIDDHARTH B MUCHANDI, ADVOCATE)

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AND:

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STATE BY LOKAYUKTA POLICE HASSAN

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…RESPONDENT

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

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 28.11.2012 PASSED BY THE PRL. S.J. & SPL. JUDGE, HASSAN IN SPL. CASE NO.64/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 7, 13(1)(D) READ WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988; THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR A PERIOD OF 1 YEAR AND PAY A FINE OF RS.5,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR A PERIOD OF 3 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 OF THE PREVENTION OF CORRUPTION ACT; THE APPELLANT/ACCUSED IS

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SENTENCED TO UNDERGO R.I. FOR A PERIOD OF 3 YEARS AND TO PAY FINE OF RS.5,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 13(1)(D) PUNISHABLE UNDER SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT; BOTH THE SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY; THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

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

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Siddharth B Muchandi and Sri B S Prasad, learned counsel for the parties.

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Accused in Special Case No.64 of 2010 on the file of the learned Principal Sessions Judge and Special Judge at Hassan, who was convicted for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act') and sentenced to undergo one year and three years rigorous imprisonment respectively and to pay fine of Rs.5,000/- each, with default sentences for the aforesaid offences by judgment dated 28.11.2012, is the appellant.

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NC: 2025:KHC:5826 CRL.A No. 1352 of 2012

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Facts in a nutshell for disposal of the present criminal appeal are as under:

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Sri H S Mohankumara (hereinafter referred to as the complainant - PW4) lodged a complaint with Lokayukta Police, Hassan on 11.07.2007 inter-alia contending that Sri Suresha, son of Nanjegowda owned 0.34 guntas of land in Sy.No.30/1 at Doddamallenahally, Shanthigrama Hobli, Hassan District. Out of the said 34 guntas of land, 12 guntas of land was agreed to be sold to the relative of PW4 by name Sundaram of Mangalore for a sum of Rs.2,10,000/- and an agreement came to be entered into between the owner of land and said Sundaram on 03.05.2007. To complete the sale transaction, survey sketch was necessary. Therefore, the prescribed fee of Rs.103/- was paid by the owner of the land and submitted an application for surveying the land. The survey supervisor promised to get the survey sketch and handed over the file to the accused - Gopala.

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The complaint averments further reveal that since

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the sketch was required urgently, he approached the accused - Gopala, who in turn, demanded the bribe in a sum of

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Rs.1,000/- with a promise to prepare the survey sketch the very next day. As such, PW4 met the accused on 11.07.2007 at about 12.30 p.m. and PW4 was told to visit after lunch with a sum of Rs.1,000/-, by then, the survey sketch would be kept ready.

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Admittedly, PW4 was representing the prospective purchaser Sundaram. PW4 discussed the same with Sundaram. Sundaram refused to part away the illegal gratification and therefore, PW4 sought for action against the accused by filing the complaint.

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On receipt of the complaint, Lokayukta Inspector formed a raid comprising of himself, his sub-staffs and two independent responsible panchas were secured to the office of Lokayukta.

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The complainant present before the Court handed over Rs.1,000/- for the intended bribe amount consisting of one currency note in a sum of Rs.500/- denomination and five 100 notes of Rs.100 denomination. The contents of the complaint were read over to the independent pancha witnesses and one of them (PW5 - Sri Thimmegowda agreed to act as shadow

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witness). The serial numbers of the notes were recorded by the co-pancha and thereafter, the chemical reaction of phenolphthalein powder with a colourless solution of sodium carbonate was demonstrated and thereafter the phenolphthalein powder was smeared on the intended bribe amount. The complainant was directed to hand over the tainted currency notes to the hands of the accused only on demand and PW5 - Thimmegowda was directed to observe the happenings when the demand takes place and the complainant hand over the tainted currency to the accused.

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A mahazar was drawn about the above aspects. Thereafter, the raid team along with PWs.4 and 5 proceeded to the office of the accused.

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The complainant and shadow witness met the accused and on demand, the tainted currency notes was handed over and pre-designated signal was given to the remaining members of the raid party. Immediately, the raid party appeared on the scene and enquired the accused about the tainted currency and colour test was conducted. The colour test stood positive and thereafter, the tainted currency was

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seized and so also the application given by the complainant was also seized. The pant worn by accused where the tainted currency was kept was also seized by the Investigating agency and colour test of the inside pant pocket of the accused was also conducted which also turned into positive. After seizure of necessary documents and articles, the trap mahazar was drafted.

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The accused was enquired, who did not offer any explanation and thereafter he was arrested and then produced before the learned Special Judge.

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After thorough investigation, the charge sheet came to be filed against the accused for the offence under Sections 7, 13(1)(d) read with Section 13(2) of PC Act.

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Learned Special Judge took cognizance of the aforesaid offences and thereafter summoned the accused. On compliance with Section 207 of Cr.P.C., the learned Special Judge framed the charges for the aforesaid offences.

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The accused pleaded not guilty, therefore, the trial was held.

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In order to bring home the guilt of the accused, the prosecution examined 10 witnesses comprising of complainant, shadow witness, official superior and investigating agency, officer from Forensic Science Laboratory.

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The prosecution placed on record 35 documents, which were exhibited and marked as Exs.P1 to P35 comprising of the documents which were furnished along with application by the complainant, receipt, photographs, seizure mahazar, entrustment mahazar, FSL report, service particulars of the accused, requisition letter issued by the investigating agency to the official superior of the complainant, sanction order and the sketch of the place of incident.

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The prosecution also placed on record 9 material objects comprising of pant of the accused which was worn by him on the date of incident, sample of sodium carbonate solution and phenolphthalein powder, distilled water, seized currency notes and the sample collected, where the colourless solution turning into pink.

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On conclusion of recording of evidence, the learned Trial Judge recorded the accused statement as is contemplated

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under Section 313 of Cr.P.C. The accused has denied all the incriminating circumstances, but did not chose to place his version about the incident on record by furnishing any written statement under Section 313(4) of Cr.P.C. nor placed any defence evidence.

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Thereafter, the learned Trial Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence on record, especially the oral testimony of PWs.4 and 5 who unequivocally deposed before the Court about the demand made by the accused in a sum of Rs.1,000/for preparing the survey sketch out of turn, and the tainted currency notes having been seized from the custody of the appellant, convicted the appellant and sentenced as referred to supra.

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Being aggrieved by the same, the appellant is before this Court.

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Sri Siddharth B Muchandi, learned counsel for the appellant re-iterated the grounds urged in the appeal memorandum and contended that the prosecution evidence is hardly sufficient to maintain conviction of the appellant for the

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aforesaid offences in the absence of proper proof of demand and acceptance which is a sine qua non for concluding the offence under Section 13(1)(d) read with Section 13(2) of PC Act and sought for allowing the appeal.

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He would further contend that the materials evidence on record would also go to show that the appellant would not have been prosecuted by the Lokayukta as he is not a public servant in the eye of law and therefore, very initiation of the proceedings by the Lokayukta and proceeding against him is incorrect and sought for allowing the appeal.

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He would further contend that the materials on record would go to show that PW4 - complainant is not the real beneficiary of the application, inasmuch as, the said application has been filed on behalf of the land owner Suresha for the intended purchaser Sri Sundaram, and therefore, the trap is a motivated trap, which has been ignored by the learned Trial Judge, and thus sought for allowing the appeal.

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Alternatively, Sri Siddharth B Muchandi, contended that as on today, the accused is aged 56 years and in the event this Court upholding the order of conviction, may consider the

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modification of the sentence taking note of the fact that he has been removed from the post of Surveyor and he is eking out his livelihood by doing coolie work and has to maintain his family.

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Per contra, Sri B S Prasad, learned counsel for the Lokayukta opposed the appeal grounds in toto.

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He would further contend that all the ingredients required to attract the offence under Sections 7, 13(1)(d) read with Section 13(2) of PC Act, is established by the prosecution by placing cogent and convincing evidence on record, inasmuch as, not even suggestion is made in the cross examination of PWs.4 and 5 as to there was no demand at all by the accused, which would expose the hollowness in the appeal grounds and thus sought for dismissal of the appeal.

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He would further contend that in the case on hand, PW4 admittedly filed the application seeking the survey sketch. He would further point out that the materials seized by the investigating agency shows that necessary and requisite fee has been paid by PW4 and papers required to prepare survey sketch in respect of 12 guntas of land, out of 32 guntas owned

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by Sri Suresha had been agreed to be sold to Sundaram, vide sale agreement dated 03.05.2007.

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In that regard, on 11.07.2007 when PW4 met the survey supervisor, he told that conducting survey has been entrusted to the accused and the accused in turn, demanded a sum of Rs.1,000/- and asked the complainant to come after lunch with sum of Rs.1,000/- and collect the sketch on that day itself, which shows that there was a clear demand. Acceptance of tainted currency is proved having regard to the fact that colour test of the fingers of both the hands of the accused having turned pink in colour, so also the colour test of pant pocket turning into pink colour.

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Therefore, all ingredients have been established by the prosecution by placing cogent and convincing evidence on record and thus, sought for dismissal of the appeal.

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In so far as alternative submission is concerned, Sri B S Prasad, would contend that no leniency or mercy can be shown for the persons who have been convicted for the offence under the provisions of Sections 7, 13(1)(d) read with Section 13(2) of PC Act and this is found from the very fact that the PO

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Act is not made applicable to the special statute under the PC Act and therefore, the alternative submission is bereft of merit and thus sought for dismissal of the appeal in toto.

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Having heard the parties in detail, this Court perused the materials on record meticulously.

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On such perusal, the following points would arise for consideration:

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"1) Whether the materials evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of the appellant for the offence under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988?

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2) Whether the appellant makes out a case of legal infirmity or perversity in recording the findings of the guilt of the appellant for the aforesaid offences?

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modification?

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4) What order?"

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32. Regarding point Nos.1 and 2: In the case on

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hand, the appellant being the registered Surveyor is not in

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dispute. The application filed by the complainant - PW4 seeking survey of the land in Sy.No.30/1 measuring 34 guntas of Doddamallenahally, Shanthigrama Hobli, Hassan Taluk, is not in dispute. The requisite fee and necessary documents having been annexed along with the application filed by PW4 is also not in dispute.

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When the matter has reached the survey supervisor table, the complainant said to have enquired the survey supervisor in his office about his application. It is at that juncture, survey supervisor told him that the actual work of surveying of the land has been entrusted to the appellant herein.

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Immediately, PW4 approached the appellant on 11.07.2007 at about 12.30 p.m. The appellant said to have told that if the sketch is to be given on the same day, PW4 is required to pay Rs.1,000/- as bribe to him. He also told PW4 that with Rs.1,000/- if he meets him in the post lunch session, he would keep the survey sketch ready.

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This aspect of the matter was conveyed to Sundaram by PW4. Discussions took place between Sundaram and PW4 in not parting away the illegal gratification resulting in filing the complaint to the Lokayukta and thereafter, accused has been successfully trapped.

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The colour test conducted by the head of the raid party in the presence of pancha witnesses stood positive. The money was handed over by PW4 in the presence of PW5 on demand, which has been unequivocally deposed to by PWs.4 and 5. As rightly pointed out on behalf of the Lokayukta, except suggesting that the contents of trap mahazar has not taken place, there is not even a suggestion made by counsel for the appellant in the cross examination of PWs.4 and 5 that there was no demand of bribe amount at all by the accused.

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Admittedly, PW5 - Thimmegowda is a total stranger and a responsible Government Official who has been deputed to act as shadow witness. Why would he falsely implicate the appellant in a matter of this nature is a question, that remains unanswered.

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Crowning all these aspects of the matter, the appellant did not chose to offer any explanation whatsoever immediately after the incident or atleast at the time of recording the accused statement.

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Taking note of the above aspects of the matter, learned Trial Judge found that all ingredients required to convict the appellant for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the PC Act has been made out by the prosecution.

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However, in view of the authoritative principle of

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law enunciated by the Hon'ble Apex Court in the case of

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Neeraj Dutta Vs State (Government of NCT of Delhi)¹ ,

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especially paragraph 8, offence under Section 7 telescopes into Section 13(1)(d) and when the prosecution is able to place on record that there was a demand of illegal gratification by the public servant and that has been accepted by the bribe given and then actually tenders the bribe money which has been received by the public servant, the offence under Section 13(1)(d) would get attracted and it is case of 'obtainment'.

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1 (2023) 4 SCC 731

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Therefore, to the extent that the conviction recorded by the learned Trial Judge both under Sections 7 and 13(1)(d) needs to be modified as higher offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, is proved by the prosecution in the case on hand. Hence, separate punishment to Section 7 of PC Act needs to be set aside.

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No other points are urged on behalf of the accused so far as to hold that the impugned judgment suffers from illegality or perversity and thus, the conviction of the appellant for the offence under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, needs to be maintained.

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In view of the foregoing discussions, point Nos.1 and 2 are answered partly in the affirmative.

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Regarding point No.3: Sri Siddharth B Muchandi,

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learned counsel for the appellant would submit that at the time of incident, the accused was aged 41 years and now 55-56 years. Having lost his job, he is doing coolie work and maintaining the family. He would therefore, request the Court to modify the sentence of three years imprisonment for the

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offence under Section 13(1)(d) read with Section 13(2) of PC Act, to a reasonable extent.

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Sri B S Prasad, however, contended that age is not

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the only criteria or loss of job in a matter of this nature would not act as a mitigating circumstance inasmuch as the consequences of taking the bribe is loss of job.

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Taking note of the attendant facts and circumstances of the case, having regard to the fact that the incident has occurred when the Act was un-amended, this Court is of the considered opinion that reducing the punishment of imprisonment of three years to 1½ years would meet the ends of justice in the case on hand.

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Accordingly, point No.3 is answered partly in the affirmative.

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In view of the findings of this Court on point Nos.1 to 3, the following order is passed:

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(i) Criminal Appeal is allowed in part.

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(ii) While maintaining the conviction of the accused for the offence under Section 13(1)(d) read with Section 13(2) of Prevention of

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Corruption Act, 1988, the conviction of the appellant for the offence under Section 7 of Prevention of Corruption Act, 1988, is hereby set aside.

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(iii) Consequently, the sentence ordered by the learned Special Judge is modified as under:

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(a) Appellant - accused is directed to undergo simple imprisonment for a period of 1½ years for the offence under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988, while maintaining the fine amount of Rs.5,000/-.

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(iv) Appellant - accused is directed to surrender before the Trial Court on or before 10.03.2025 to serve remaining part of the sentence.

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Office is directed to return the Trial Court records with a copy of this order, forthwith, for issuing modified conviction warrant.

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Sd/(V SRISHANANDA) JUDGE

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*bgn/CT:VS List No.: 1 Sl No.: 25

C.S. Gopala v. State by Lokayukta Police

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C.S. Gopala v. State by Lokayukta Police

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