Shri. B S Venkatachalapathy Vs State of Karnataka

BANGALORE – 560 003 NOW THE KARNATAKA LOKAYUKTA BENGALURU URBAN POLICE STATION BENGALURU – 560 003 REP. BY LEARNED SPECIAL PUBLIC PROSECUTOR FOR LOKAYUKTA POLICE BANGALORE … RESPONDENT

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(BY SRI. VENKATESH S. ARBATTI, SPL.P.P.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 11.09.2024 PASSED IN SPL.C.C.NO.738/2018 ON THE FILE OF LEARNED XXIII ADDL.CITY CIVIL AND SESSIONS JUDGE AND SPL.JUDGE FOR PC ACT BENGALURU CITY FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 OF PC ACT AND SECTION 13(1)(d) READ WITH 13(2) OF PC ACT AND CONSEQUENTLY, ACQUIT THE APPELLANT FROM THE ALLEGED CHARGES AND HE MAY BE SET AT LIBERTY.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 01.09.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE S RACHAIAH

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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This appeal is filed by the appellant / accused No.1, being aggrieved by the judgment of conviction and order on sentence dated 11.09.2024 in Special C.C. No.738/2018 on the file of the XXIII Additional City Civil & Sessions Judge & Special Judge (P.C. Act), Bengaluru (C.C.H. No.24), wherein the Trial Court recorded the conviction for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short ‘P.C. Act’).

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The ranks of the parties henceforth will be referred to as per their rankings in the Trial Court, for convenience.

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Factual matrix of the case :

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It is the case of the prosecution that, the complainant had approached the accused No.1 for the purpose of getting the RRT changed in respect of his land bearing Sy.No.56 of Gottigere Village measuring 1 acre 37

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guntas. The accused No.1 being a Special Tahsildar and Executive Magistrate of Bengaluru South Taluk, Bengaluru, is stated to have demanded a sum of Rs.20,00,000/- to do the official favour. However, on negotiations, the said amount has been scaled down to an extent of Rs.15,00,000/-. The complainant was asked to pay a sum of Rs.5,00,000/- immediately and the balance amount to be paid at the time of passing the said order.

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The complainant being annoyed and unhappy about the said development, he approached the Lokayukta Police and lodged a complaint in that regard. The Lokayukta - Police conducted a pre-trap panchanama in the presence of independent witnesses and also handed over the voice recorder.

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It is further stated that, the complainant and the shadow witness were sent to the office of the appellant on 15.12.2017. However, they did not find the said Tahsildar in his office. On that day, the trap was failed. On 18.12.2017, again, both the complainant and the

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shadow witness were sent to the office of the appellant. On that day, the appellant was present in his Chamber. The complainant was asked as to whether he had brought the amount as he was instructed. When the complainant was about to give the said amount, he was asked to hand over the amount to accused No.2. Accordingly, the amount was handed over to accused No.2 and in the meantime, the complainant had made a pre-instructed signal to the respondent - Police.

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The respondent - Police have arrested the accused No.2. Thereafter, accused No.1 was also arrested on the statement of accused No.2.

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The respondent - Police after conducting the investigation, submitted the charge sheet. The Trial Court recorded the conviction. Being aggrieved by the same, the accused No.1 has approached this Court by filing this appeal.

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Heard Sri Hashmath Pasha, Senior Advocate for Sri Mohammed Mubarak, learned counsel for the appellant

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and Sri Venkatesh S. Arbatti, learned Spl. P.P. for respondent – Lokayukta.

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It is the submission of learned Senior Counsel for the appellant that the judgment of conviction passed by the Trial Court is erroneous and not sustainable, either in law or on facts, hence, the same is liable to be set aside.

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It is further submitted that, though, it is stated that appellant / accused No.1 had demanded the amount when the complainant had met him on 11.12.2017 and handed over the audio and video recordings to the Investigating Officer and lodged a complaint against the appellant, the said mobile phone, which is the primary evidence, has not been seized, which is fatal to the case of the prosecution. When the primary evidence is not produced, the alleged conversation and transcriptions ought not to have been considered by the Trial Court.

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It is further submitted that, though, the conversation has been reduced to the CD and it has been converted in the form of transcriptions, the person who transcribed the

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said conversation has not been examined. As the shadow witness has not supported the case of the prosecution in respect of the demand, the factum of the demand of illegal gratification is wholly depending on the said transcriptions of the alleged conversation.

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It is further submitted that, the authenticity of the alleged conversation has not been obtained by the Investigating Officer. Therefore, the demand of illegal gratification has not been proved properly.

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It is further submitted that, the prosecution has failed to prove the nexus between accused No.1 and accused No.2. Mere recovery of the amount from accused No.2 and implicating accused No.1 in this case is not proper. Therefore, the said impugned judgment has to be set aside.

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To substantiate his arguments, the learned Senior Counsel relied on following judgments:-

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1. State of Lokayukta Vs C.B.Nagaraj¹

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1 2025 SCC Online SC 1175

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1. Aman Bhatia V/s State (GNCT of Delhi)²

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1. Sri A Vanangamudi V/s State of Karnataka³

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1. Mustafa Ali Hasmi V/s State of A.P⁴

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1. Madan Lal V/s State of Rajasthan⁵

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1. Soundarajan V/s State⁶

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1. C.Sukumaran Vs State of Kerala⁷

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1. C.M.Girish Babu V/s CBI⁸

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1. Punjabrao V/s state of Maharastra⁹

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1. T.Subramanian Vs State of T.N¹⁰

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1. Duraisami Vs State of T.N¹¹

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2 2025 SCC Online SC 1013

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3 Criminal Appeal No.430/2013

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4 2024 (10) SCC 489

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5 2025 (4) SCC 624

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6 2023 (16) SCC 141

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7 2015 (11) SCC 314

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8 2009 (3) SCC 779

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9 2002 (10) SCC 371

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10 2006 (1) SCC 401

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11 2005 (10) SCC 233

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1. Satvir Singh Vs State of Delhi¹²

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1. Neeraj Dutta Vs State¹³

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CBI V/s Ashok Kumar Aggarwal¹⁴

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Making such submissions, learned Senior Counsel prays to allow the appeal.

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Per contra , learned Special P.P. for Lokayukta vehemently submitted that the prosecution has proved that the work was pending with accused No.1 and the order was to be pronounced. The case which was pending before the accused No.1 was relating to the complainant. The prosecution has proved the demand and acceptance of illegal gratification. Accused No.2, who is the middleman of accused No.1, had received the amount and immediately made the statement that, he was introduced

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12 2014 (13) SCC 143

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13 2023 (4) SCC 731

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14 2014 (14) SCC 295

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to the complainant by the accused No.1 and also instructed him to receive the amount.

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It is further submitted that the complainant had produced both video and audio of which the demand was made by the accused No.1 to do some official favour.

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It is further submitted that the shadow witness and also other witnesses have supported the case of the prosecution in respect of the demand of illegal gratification made by the accused No.1. Therefore, the judgment of the Trial Court is appropriate and proper. There is no necessity to interfere with the said findings. Hence, the appeal may be dismissed. Making such submissions, learned Special P.P. prays to dismiss the appeal.

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Having heard learned counsel for the respective parties and also perused the findings of the Trial Court in recording the conviction, it is relevant to state the facts in brief.

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The complainant Sri H.P. Manjunath is stated to have approached the accused No.1, who was working as Special Tahsildar of Bengaluru South Taluk, for the purpose of getting his RRT/55/2013-14 done which was pending before the accused No.1. The said case was pending in relating to the property bearing Sy.No.56 of Gottigere Village measuring 1 acre 37 guntas. It is stated that, the accused No.1 had demanded Rs.20,00,000/- as illegal gratification for the purpose of getting the work done. On negotiations, the amount has been scaled down to Rs.15,00,000/-. Immediately, the complainant was asked to pay a sum of Rs.5,00,000/- as advance. On 15.12.2017, the complainant approached the Anti-Corruption Bureau and lodged a complaint.

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The respondent – Lokayukta police registered a case. On 18.12.2017, they laid a trap after the accused No.1 had received the bait amount through the accused No.2. Both accused were produced before the Magistrate and they were remanded to judicial custody. The Trial Court

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convicted both the accused after having appreciated both

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oral and documentary evidence on record.

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Before adverting to the relevant evidence of the material witnesses, it is appropriate to advert to the law on the point. The Hon'ble Supreme Court observed, in the case of Aman Bhatia (referred to supra), in paragraph

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Nos.53, 54, 55, 56, which read as under:

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53. A five-Judge Bench of this Court in Neeraj Dutta v. State (Government of NCT of Delhi), (2023) 4 SCC 731, categorically held that an offer by bribe-giver and the demand by the public servant have to be proved by the prosecution as a fact in issue for conviction under Sections 7 and 13 (1)(d)(i) and (ii) of the PC Act. Mere acceptance of illegal gratification without proof of offer by bribe-giver and demand by the public servant would not made an offence under sections 7 and 13 (1)(d)(i) and (ii) of the PC Act. The relevant observations are reproduced hereinbelow:

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"88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

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(1) 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

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acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

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

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

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(Emphasis supplied)

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It was further explained by this Court in P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152, as follows:

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

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(Emphasis supplied)

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55. From the above exposition of law, it may be safely concluded that mere possession and recovery of tainted currency notes from a public servant, in the absence of proof of demand, is not sufficient to establish an offence under Sections 7 and 13(1)(d) of the PC Act respectively. Consequently, without evidence of demand for Illegal gratification, it cannot be said that the public servant used corrupt or illegal means, or abused his position, to obtain any valuable thing or pecuniary advantage in terms of Section 13(1)(d) of the PC Act.

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56. The present case is not one of an "offer to pay by the bribe-giver" where, in the absence of any demand from the public servant, the mere acceptance of illegal gratification would constitute an offence under Section 7 of the PC Act. The expression "offer" indicates that there is a conveyance of an intention to give, which must be communicated and understood by the recipient, leading to meeting of minds. Consequently, the offer is accepted. For such an acceptance constitute an offence under Section 7, there must be clear and cogent evidence establishing that the public servant was aware of the offer and accepted it voluntarily, knowing it to be illegal gratification. In other words, even where there is no express demand, the bribe-giver and the bribe-taker must be shown to have been ad idem as regards the factum of offer of bribe.”

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On careful reading of the dictum of Hon'ble Supreme Court, it is made it clear that, in order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind. They are, the proof of the demand of illegal gratification and acceptance thereof.

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Both demand and acceptance are sine qua non to constitute an offence under Sections 7 and 13(1)(d)(i)

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and (ii) of the PC Act. In the absence thereof, the charge therefor would fail.

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Now, let me go through the evidence of the material witnesses and other relevant evidence.

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P.W.1 was working as Under Secretary, Revenue Department, Bengaluru and he accorded the sanction to prosecute the accused No.1. There is no dispute regarding the power vested in him to grant such sanction.

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P.W.2 is the complainant. He is stated to have approached accused No.1 for getting his work done in respect of the immovable property bearing Survey No.56 measuring 1 acre 37 guntas situated at Gottigere. He further stated that, on 11.12.2017, at about 03.00 p.m., he approached accused No.1 and stated to have recorded the conversation of himself and accused No.1 regarding the demand of illegal gratification. However, he admitted that, his mobile phone was not seized to prove the said conversation.

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Further, P.W.2 stated that, on 18.12.2017, he approached the respondent - Police. In the meantime, he was given voice recorder to record the conversation which would take place between himself and accused No.1 regarding the demand of illegal gratification. However, the said voice recorder was not switched on and no conversation was recorded as per the version of the prosecution. Further, P.W.2 stated in his evidence that, he approached accused No.1. Accused No.1 called accused No.2 over a phone to his chamber and the complainant was introduced to accused No.2 and he was instructed to hand over the amount to accused No.2. However, neither the CDR was secured nor the phone was seized by the Investigating Officer.

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It is further stated in the evidence that, P.W.2 handed over the amount on demand made by accused No.1 and the same has been received by accused No.2. However, the prosecution has failed to establish the nexus between accused No.1 and accused No.2.

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The evidence of P.W.3 would indicate that, he had accompanied P.W.2 and went to the office of the appellant. He further stated that, he was asked to wait outside the chamber and he did not hear the conversation between the complainant and accused No.1 regarding the demand of illegal gratification. Hence, his evidence regarding the demand of illegal gratification loses its significance. Hence, the fact of demand of illegal gratification has not been proved by the prosecution.

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Even though the complainant was handed over the voice recorder to record the conversation between himself and accused No.1 at the time of handing over the bait amount on demand, the said voice recorder was not switched on at the time of the alleged demand made by accused No.1, which creates a serious doubt regarding the alleged demand.

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When the evidence of independent witness, namely, shadow witness and other documentary evidence have not supported the case of prosecution in respect of demand made by the appellant to do some official favour,

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recording the conviction by relying on the evidence of an interested witness, namely, P.W.2, in my considered view, is erroneous and not proper.

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It is also necessary to take note of the evidence of P.W.5, which would indicate that, P.W.2 did not give any mobile data or audio and video to show that the appellant had demanded illegal gratification at the time of receiving the complaint. Such being the fact, the alleged audio and video and transcription of the audio recordings which are alleged to have been transferred from mobile to compact disc, which creates a doubt in respect of its genuinity . When such being the fact, the Trial Court ought to have extended the benefit of doubt to the appellant.

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P.W.6 – another witness, has admitted in his evidence that the statement of accused No.2 was immediately reduced into writing by the scriber, as, accused No.2 did not know the reading and writing of Kannada. However, the said scriber has not been examined, which creates doubt regarding its authenticity.

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On overall reading of evidence of all the witnesses would indicate that the prosecution has failed to prove the demand and acceptance of illegal gratification. Mere recovery of the alleged bait amount from accused No.2, to show the nexus between both the accused, in my considered view, it is erroneous and not appropriate. Hence, the judgment of conviction is liable to be set aside.

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In the light of the observations made above, I proceed to pass the following:

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ORDER

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i) The Criminal Appeal is allowed .

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ii) The judgment of conviction and order on sentence dated 11.09.2024 in Special C.C. No.738/2018 on the file of the XXIII Additional City Civil & Sessions Judge & Special Judge (P.C. Act), Bengaluru (C.C.H. No.24), insofar as appellant / accused No.1 is concerned, is set aside.

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