Muddasheety Vs State by Lokayuktha Police

SMT. SUSHEELA, W/O LATE MUDDASHETTY, AGED ABOUT 68 YEARS, R/O C/O MUDDASHETTY, MANJU PEER MAKHAN, WARD NO.2, JYOTHI NAGARA, NEAR PRESIDENCY SCHOOL, SIRA-572 137.

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(AMENDED VIDE COURT ORDER DATED 29.11.2024)

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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AND:

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…APPELLANT

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(BY SRI. A.N.RADHAKRISHNA, ADVOCATE)

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STATE BY LOKAYUKTHA POLICE, TUMAKURU.

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…RESPONDENT

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(BY SRI. B.S.PRASAD, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 30.11.2012 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, TUMAKURU IN SPL.CASE NO.63/2009 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d)

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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 the learned counsel for the appellant and the

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learned counsel for the respondent.

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This appeal is filed against the order of conviction and sentence passed in Special Case No.63/2009, on the file of the II Additional District and Sessions Judge, Tumkur, sentencing the accused to undergo rigorous imprisonment for one year and to pay fine of Rs.5,000/- and in default to undergo further imprisonment for three months for the offence punishable under Section 7 of the Prevention of Corruption Act (‘PC Act’ for short). The accused was also sentenced to undergo rigorous imprisonment for three years with fine of Rs.5,000/- and in default to undergo further imprisonment for three months for the offence punishable under Section 3(1)(d) punishable under Section 13(2) of the PC Act.

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The factual matrix of the case of the prosecution is that P.W.6 had constructed a cowshed in his land and for the purpose of getting electric connection, he required NOC and in this regard, application was given on 10.04.2008 to the Nada Kacheri and the accused who was working as Village Accountant demanded bride of Rs.2,000/- and the same was informed to his son i.e., P.W.3 and complaint was given. Based on the complaint, the case was registered and pre-trap mahazar was drawn in terms of Ex.P.3 and also conducted the trap in terms of Ex.P.4 and the bait money was seized at the instance of the accused. In this regard, mahazar was conducted in terms of Ex.P.5 and 13 photographs with negatives were marked as Ex.P.6. The statement of P.W.6, since he had turned hostile, was marked in terms of Ex.P.7. FSL report was marked as per Ex.P.11 and sanction order Ex.P.12 are marked to substantiate the case of the prosecution. The prosecution also relied upon M.O.1 to M.O.8, i.e., hand wash solution of Manjunath, sample sodium carbonate solution, right and left hand wash of the accused, shirt pocket wash of the accused, cash of Rs.2,000/-, shirt of the accused and seized documents. The Trial Court having

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considered the evidence of the prosecution witnesses P.W.1 to P.W.8, relied upon the evidence of P.Ws.3, 4, 6 and the evidence of the Investigating Officer and convicted the accused for the above offences.

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Being aggrieved by the said order, the present appeal is filed before this Court.

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The learned counsel for the appellant would vehemently contend that first of all there is no any demand. The learned counsel contend that the Court below ought not to have acted on the testimony of P.Ws.1, 3, 4, 5, 6 and 8 and contend that P.W.3, who is the son of the owner of the cowshed i.e., P.W.6, both of them have not supported the case of the prosecution with regard to the demand and acceptance is concerned. The learned counsel contend that P.W.3 has not supported the case of the prosecution deposing before the Court that the accused has not demanded any money, but only he says that he gave signal and the police came and subjected for hand wash of left and right hand of the accused and seized the solution and also shirt pocket was subjected to wash and the same was also seized, since it

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turned to pink colour. He speaks with regard to the seizure is concerned, but with regard to demand is concerned, he has not supported the case of the prosecution. This witness was not treated as hostile by the prosecution. In the crossexamination, he categorically admits that he went alone to the office of the accused and he does not know anything about the contents of the complaint and also he does not know who wrote the complaint and the police have not recorded the statement and all these answers elicited were not properly appreciated by the Trial Court. He admits that when the amount was demanded at the time of seeking NOC, he did not make any statement before the police to the effect that his father had told him and also he does not know about the contents of Exs.P.3 and 5. The learned counsel contend that even the evidence of P.W.4 shadow witness also does not inspire the confidence of the Court. In the cross-examination, he admits that no demand was made, but says that a signal was given. He also not speaks about the demand and in the absence of demand, the question of convicting the accused for the offence punishable under Section 7 of the PC Act does not arise. P.W.4 says that print was taken at Tumkur, but

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says that Ex.P.5 was drawn in the office of the Revenue Inspector. The learned counsel contend that P.W.8 categorically admits that there was a disruption of electricity and hence mahazar was drawn in the office of Grama Panchayat and not in Revenue Inspector office. All these discrepancies were found and merely because the bait money was recovered at the instance of the accused, the same cannot be a ground to convict the accused. The evidence of prosecution witnesses not inspires the confidence of the Court to invoke Sections 7 and 13 of the PC Act.

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The learned counsel for the appellant in support of his arguments relied upon the judgment of the Apex Court in the case of SURAJ MAL v. STATE (DELHI ADMINISTRATION) reported in (1979) 4 SCC 725 and contend that mere recovery of bribe money divorced from the circumstances under which it was paid is not sufficient to convict when the substantive evidence in the case was not reliable and case not proved beyond reasonable doubt.

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Per contra, the learned counsel for the respondent

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would contend that though P.W.3 not supported the case of

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the prosecution with regard to the demand and he was not treated as hostile, the evidence of P.W.4 shadow witness, is clear with regard to trap is concerned. P.W.4 is also a witness to the trap mahazar as well as entrustment mahazar and he categorically deposed that he was called to the Lokayuktha office and the complainant handed over the bait money and mahazar was drawn in terms of Ex.P.3. He says that he accompanied the complainant to the office of the accused and when the complainant demanded the accused to give NOC, the accused enquired whether he had brought the money and at that time, the complainant gave money, which was kept in his pocket to the accused and the accused received the same and kept it in his pocket and immediately the Lokayuktha police, on signal came and conducted the trap and seized the bait money and mahazar was drawn. The learned counsel submits that nothing is elicited in the cross-examination of P.W.4 to disbelieve the case of the prosecution. The learned counsel contend that even P.W.6 turned hostile and he also says that the accused demanded Rs.2,000/- to give NOC.

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The other witness is P.W.7 and in his presence the records are seized and mahazar was drawn in terms of

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Ex.P.5. The learned counsel contend that the evidence of the Police Inspector who conducted the trap and investigated the matter, is clear, but nothing is elicited in the crossexamination of P.W.8 with regard to the trap as well as seizure and though enmity was suggested, the same was denied and hence the Trial Court rightly considered the material on record.

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The learned counsel for the respondent in support of his arguments relied upon the judgment of the Apex Court in the case of NEERAJ DUTTA v. STATE (GOVT. OF NCT OF DELHI) reported in AIR Online 2022 SC 1160 and brought to the notice of this Court paragraph No.68, wherein it is held that presumption in law under Section 20 of the PC Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature. The learned counsel also brought to the notice of this Court paragraph No.69, wherein it is held that in view of the aforesaid discussion and conclusions, we find that there is no conflict in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga

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Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases.

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The learned counsel referring this judgment would contend that in case if the complainant passed away or if the complainant turned hostile, the Court has to take note of the entire material available on record and in view of the judgment of the Apex Court in the case of Neeraj Dutta (supra), the contention of the learned counsel for the appellant cannot be accepted.

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The learned counsel also relied upon the decision of this Court passed in Crl.A.No.289/2012 c/w Crl.A.No.266/2012 dated 25.02.2025 and brought to the

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notice of this Court that this Court relying upon the judgment in the case of Neeraj Dutta (supra), allowed the appeal in part setting aside the judgment with regard to the demand is concerned, but confirmed the judgment for the offence punishable under Section 13(1)(d) of the PC Act and modified the sentence. The learned counsel relying upon this judgment would contend that the Court has to take note of the entire evidence available on record and confirm the judgment.

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Having heard the learned counsel for the appellant and the learned counsel for the respondent and considering the principles laid down in the judgments referred supra by the learned counsel for the appellant and the learned counsel for the respondent, the points that arise for the consideration of this Court are:

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(i) Whether the Trial Court committed an error in convicting the accused for the offence punishable under Sections 7 and 13(1)(d) read with 13(2) of the PC Act and whether it requires interference of this Court?

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(ii) What order?

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Point No.(i):

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Having heard the learned counsel for the appellant and the learned counsel for the respondent, the case of the prosecution in nutshell is that P.W.6, who is the father of P.W.3 had constructed a cowshed and in order to take the electricity connection he made an application with the accused office to issue NOC and when he went and met the accused, he demanded illegal gratification of Rs.2,000/- from the complainant. Hence, he informed the same to his son P.W.3 and complaint was lodged in terms of Ex.P.2 and entrustment mahazar was done in the office of the Lokayuktha. Thereafter, P.W.3 and P.W.4 went to the office of the accused and the accused demanded money and the complainant gave money in the presence of P.W.4 and trap was laid and mahazar was drawn and to that effect, exhibit ‘P’ series are marked before the Court. The seized articles were sent to the FSL and FSL report was received in terms of Ex.P.11. Before filing the charge-sheet, sanction is obtained and with regard to sanction, P.W.1 is examined.

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Now, this Court has to consider the evidence available on record whether the Trial Court has properly

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appreciated the evidence on record. Having considered the evidence on record, P.W.1 is the sanctioning authority and he gave sanction stating that he had perused the records and given the sanction and he admits that he did not put the seal on Ex.P.12. He also admits that there is a correction in respect of date i.e., 26.03.2009 as corrected in page No.12 and he did not counter sign the same.

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The other witness is P.W.2 and he only drawn the mahazar in terms of Ex.P.1 sketch and he admits that he prepared the sketch in his office based on the notes and draft sketch.

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P.W.3 is the material witness since he is the son of the owner of the cowshed. He says that his father told him that the accused demanded an amount of Rs.2,000/- and hence he had lodged a complaint in terms of Ex.P.2 and also he gave Rs.2,000/-, 4 notes of denomination of Rs.500/- and he says that phenolphthalein powder was smeared on those notes. Thereafter, notes were given to him and entrustment mahazar was drawn in terms of Ex.P.3 and he had signed the same in the Lokayuktha Office. He says that they went to the

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office of the accused and he demanded NOC from the accused and the accused gave NOC, but he says that the accused did not demand money from him. He says that he gave signal and subjected for trap mahazar and money was seized from the accused. This witness was not treated as hostile as contended by the learned counsel for the complainant, since this witness not speaks about the demand and demand was made to the father of the complainant and with regard to the demand is concerned also, hearsay evidence. In his evidence he categorically says that the accused did not make any demand and when he asked the NOC, the accused gave NOC. It is important to note that though he has not turned hostile, but the learned counsel for the accused cross-examined this witness.

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In the cross-examination of P.W.3, he says that he

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went alone to the office of the accused and he does not know the contents of the complaint and did not know who has written the complaint. He says that he has not given any statement before the police and also he did not inform the police about the demand made by the accused to his father and he cannot tell the contents of Ex.P.3. Having taken note

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of the evidence of P.W.3, regarding demand is concerned, nothing is on record. But with regard to seizure is concerned, he speaks about the same. In the cross-examination, answers are elicited that he went alone to the office of the accused. But P.W.4 says that he went along with P.W.3 and in chief evidence he says that when the complainant asked about NOC, the accused enquired whether he had brought the money and hence the complainant gave the money, which was kept in his pocket to the accused and the accused received the same and kept in his pocket. He also speaks about remaining procedure conducted by the Lokayuktha police. But in the cross-examination, he admits that he himself and P.W.3 went to the office of Nada Kacheri and some other persons were standing and he was unable to see them. When a suggestion was made that the accused did not make any demand, he says that he gave signal, but not says anything about the demand made by the accused. With regard to remaining procedure is concerned, he denied the suggestion. He says that printout was taken in respect of Ex.P.5 at Tumkur, but the same was drawn in the office of R.I. In further cross-examination, he says that photographs

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were taken and he cannot tell that in which camera the same was taken.

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P.W.6 is the material witness i.e., father of P.W.3

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and owner of the cowshed. He says demand was made to the tune of Rs.2,000/- and he informed the same to his son and he came to know that the police arrested the accused. But in the cross-examination, he admits that he did not make any statement with the police regarding demanding of Rs.2,000/-. He says that he gave an application to the office of the accused.

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P.W.7 speaks with regard to the seizure of the register and taking of xerox copy and drawing of mahazar in terms of Ex.P.5.

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P.W.8 material witness speaks about receiving of

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complaint and FIR was forwarded to the Court and secured the panch witnesses and informed about the case details and procedure was made. In his chief evidence, he says that in the office of the accused there was no electricity and hence Ex.P.4 was prepared in the office of Grama Panchayat and the accused produced the documents. In the cross-examination, a

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suggestion was made that no such procedure was conducted and the same was denied. With regard to enmity, a suggestion was made and the same was denied.

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Having considered the evidence available on record, particularly when Sections 7 and 13 of the PC Act are invoked against the accused, the demand and acceptance is a sina quo non to invoke the offence under Sections 7 and 13 of the PC Act. No doubt, in the judgment relied upon by the learned counsel for the appellant in the case of Suraj Mal (supra), it is held in 1979 itself that mere recovery of bribe money divorced from the circumstances under which it was paid is not sufficient to convict when the substantive evidence in the case was not reliable and case not proved beyond reasonable doubt.

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As against this judgment, the learned counsel for the respondent relied upon the judgment of the Apex Court in the case of NEERAJ DUTTA (supra) and brought to the notice of this Court paragraph No.68, wherein discussion was made with regard to proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by

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the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and (ii) of the Act. It is also observed that the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. It is also observed that if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. The Apex Court also discussed that in both cases of without demand and an offer and was accepted and if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment in order to invoke Section 13(1)(d) (i) and (ii) of the Act. Having considered both of them, the Apex Court held that the offer by the bribe giver and demand by the public servant

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respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d) (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a Court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. In the event the complainant turns hostile or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. A detailed discussion was made in paragraph No.68(g) and (h) and in paragraph No.69 sum up the case after discussion with regard to invoking of

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Sections 7 and 13(1)(d) (i) and (ii) of the Act i.e., primary evidence of the complainant if it is unavailable and position of law when a complainant or prosecution witness turns hostile is also discussed.

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Keeping in view the judgment of the Apex Court as well as followed by this Court in other connected appeal, this Court has to examine the material on record. Having considered the evidence on record, first of all, to whom a demand was made by the accused at the first instance i.e. P.W.6, though he has been examined before the Court, he turned hostile and he was cross-examined and he did not support the case of the prosecution. The prosecution also relies upon the evidence of P.W.3 and P.W.3 is only a hearsay evidence. He deposed before the Court that the accused did not demand any money and when he asked the NOC, the same was given. Having considered the cross-examination and the answers elicited from the mouth of P.W.3, not suffice with regard to the demand is concerned.

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The other witness is P.W.4, who is a shadow witness. P.W.3 says that he went alone to the office of the accused, but P.W.4 says that he went along with the

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complainant. In his chief evidence, he says that when P.W.3 asked about the NOC, the accused demanded money and hence the complainant gave money, which was kept in his pocket. In the cross-examination, when a question was put to him that the accused did not make any demand, he says that he only gave the signal. The answer elicited from the mouth of P.W.4 is contrary to his own chief evidence. In his chief evidence, he says that the accused demanded money, but in the cross-examination he says that he gave signal. When such being the case, the very demand is doubtful and it is settled law that fact in issue with regard to demand, there must be foundational evidence before the Court as observed by the Apex Court in Neeraj Dutta’s case.

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The learned counsel for the respondent brought to the notice of this Court the discussion made in paragraph No.68 in the case of Neeraj Dutta (supra). In paragraph No.68(d)(i), discussion is made with regard to the offer is concerned. Here is not a case of offer and acceptance, but the case of demand according to P.W.6, but he turned hostile. P.W.3 also turned hostile, who is the son of P.W.6. P.W.6 also not given any complaint, but he only gave information to

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his son and his son gave the complaint. In paragraph No.68(d)(iii), the Apex Court made it clear that, in other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) or (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. In paragraph No.68(e), it is held that the presumption of fact with regard to demand and acceptance or obtainment of an illegal gratification may be made by a Court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof.

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Having taken note of the said fact into consideration, no foundational facts have been proved by the prosecution. The very complainant as well as his father, who says about the demand, not supported the case of the prosecution and even the evidence of the shadow witness also not credible. Once he says that in his presence demand was made and again says that only signal was given. The

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evidence of P.W.4 not inspires the confidence of the Court with regard to the demand is concerned. With regard to acceptance is concerned, no doubt, P.W.3 says that he gave the signal, but once he says that the accused has not demanded any money from him and when he asked NOC, he gave NOC. What made him to give signal is doubtful and also the answers elicited from the mouth of P.W.3 with regard to the seizure of money at the instance of the accused. No doubt, FSL report supports the case of the prosecution and mere recovery of bait money from the accused is not enough to convict the accused.

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The learned counsel for the respondent brought to

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the notice of this Court the judgment in the case of Neeraj Dutta (supra) and in that judgment it is discussed that even if the complainant is no more, other evidence could be taken note of. In the case on hand, even considering the other evidence also, I have already pointed out that the evidence of P.W.4 is not credible with regard to the very demand. No doubt, the amount was recovered at the instance of the accused and mere recovery of bribe money at the instance of

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the accused is not enough to convict the accused, unless demand is proved and the complainant and the complainant’s father, who makes the allegation of demand have not supported the case of the prosecution. With regard to acceptance is concerned, an application was pending in the office of the accused. P.W.8 Investigating Officer says that mahazar was drawn in the Grama Panchayat office, since there was interruption of electricity and nothing is elicited in the cross-examination of P.W.8 with regard to drawing of trap mahazar is concerned. The evidence of main witnesses P.Ws.3, 4 and 6 is not credible. Only on the basis of the evidence of P.W.8, there cannot be any conviction and hence the Trial Court committed an error in passing the impugned order of conviction relying upon the evidence of P.Ws.3, 4 and 7 arriving for a conclusion of proving of the fact in issue by the prosecution.

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The Trial Court in paragraph No.34 comes to the conclusion that the prosecution case get the support from the evidence of shadow witness i.e., P.W.4 G.R.Manjunath. He is very definite in his evidence that when he and the complainant went inside the office of the accused, he

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enquired about the money and after the complainant gave the money, he took it and kept it in his shirt pocket. But the Trial Court fails to take note of the specific answer given by P.W.4 that he gave signal and not made any demand. This answer elicited from the mouth of P.W.4 was not discussed by the Trial Court while coming to the conclusion that the evidence of P.W.4 is credible. The Trial Court mainly relies upon the seizure of bait money that chemical report gives positive result with regard to the hand wash and fails to take note of mere recovery of bait money is not sufficient to convict the accused and also fails to take note of the contra evidence of P.W.3. P.W.3 says that he went alone to the office of the accused, but P.W.4 says that he went along with the complainant. P.W.4 shadow witness not speaks anything about demand and acceptance, but in chief evidence he only says that the accused demanded the money. In the crossexamination, he says that he only gave signal and there was no any demand. When such weak piece of evidence was relied upon by the Lokayuktha police, the Trial Court committed an error in convicting the accused and hence the very reasoning given by the Trial Court that the prosecution

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has proved the case, requires interference when the evidence on record not sufficient to convict the accused. Hence, I answer the point in the affirmative.

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Point No.(ii):

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The criminal appeal is allowed.

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(ii) The impugned judgment of the Trial Court convicting the accused for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the PC Act is set aside.

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(iii) The fine amount, if any, deposited by the appellant, is ordered to be refunded in favour of the appellant, on proper identification, since the original accused is no more and wife has come on record.

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Sd/(H.P.SANDESH) JUDGE

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MD

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List No.: 1 Sl No.: 63

Muddasheety v. State by Lokayuktha Police

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Muddasheety v. State by Lokayuktha Police

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