Sri.Altafhussain S/O Saipali Chadachankar Vs the State of Karnataka

SRI.ALTAFHUSSAIN S/O SAIPALI CHADACHANKAR AGED ABOUT 51 YEARS OCC. HEAD MASTER/CLUSTER RESOURCE PERSON O/O THE BLOCK EDUCATION OFFICER URBAN AREA, VIJAYAPUR R/O INGALAGI TALUK INDI DIST. VIJAYPUR – 586 101 … APPELLANT (BY SRI. AVINASH A. UPLOANKAR, ADV.)

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AND:

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Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka

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THE STATE OF KARNATAKA THROUGH POLICE INSPECTOR LOKAYUKTA POLICE STATION. VIJAYPUR REP. BY ITS SPECIAL PUBLIC PROSECUTOR, ADV. GENERAL’S OFFICE, HIGH COURT BUILDING KALABURAGI – 585 103 … RESPONDENT

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(BY SRI.SUBHASH MALLAPUR, ADD. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 05.03.2021 PASSED BY THE PRINCIPAL SESSIONS JUDGE/THE SPECIAL JUDGE AT VIJAYAPUR IN S.C.NO.2/2015 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER

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SECTION 7 AND UNDER SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.03.2025 AT KALABURAGI BENCH, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, 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 being aggrieved by the judgment of conviction and order on sentence dated 05.03.2021 passed in Special (Lok) Case No.2/2015 by the Prl. Sessions Judge/Special Judge at Vijayapura for the offences punishable under Sections 7, 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 (for brevity, ‘P.C. Act,’).

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The ranks of the parties henceforth will be considered as per their rankings before the Trial Court, for convenience.

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The complainant - Sri. Saleem S/o Nabisab Manur, lodged a complaint before the respondent police stating that he was working as a Head Master at Udru Girls School No.1,

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Vijayapura which is minority school. It is further stated that during the year 2013-14, the Government has issued orders to take special classes for the students studying in VII standard and X standard that were lagging behind in their academics. Totally, 69 students attended to such schools in two groups. It is further stated that he had submitted bill for the purpose of release of the remuneration for seven months from the month of September to March through Cluster Resource Person (for brevity, ‘CRP’) viz., A.H.Chadachankar. In the month of April, CRP informed him that a cheque for a sum of Rs. 56,550/- remuneration towards remedial teaching classes has been received and he would issue the same to the complainant.

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When the complainant approached him, he was told that he has to pay Rs.20,000/- as illegal gratification towards issuance of the cheque of 56,550/-. The complainant being aggrieved by the said demand, approached the Lokayukta police and registered the case against the appellant/accused. Based on the complaint, the respondent-police registered the case in Crime No.5/2014

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and drew the entrustment mahazar after securing the panch witnesses. Thereafter, the complainant along with shadow witness went to the spot and stated to have handed over the amount of Rs.20,000/- and received a cheque from the accused. After paying the illegal gratification, the complainant signaled the officers of the respondent police. They came to the spot and seized the amount from the accused. After conducting investigation, submitted the charge sheet against the accused for the aforesaid offences.

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In order to prove the case, the prosecution examined eight witnesses as P.Ws. 1 to 8 and got marked 35 documents as Exs.P.1 to 35 and got identified ten material objects as M.Os.1 to 10. On the other hand, the accused himself examined as DW-1 and got examined two witnesses as D.Ws.2 and 3 and also got marked a copy of circular as Ex.D.1. After appreciation of oral and documentary evidence, the Trial Court recorded the conviction against the accused for the aforesaid offences.

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Heard Sri. Avinash A. Uplaonkar, learned counsel for the appellant and Sri. Subhash Mallapur, learned counsel for the respondent-Lokayukta.

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It is the submission of learned counsel for the appellant that the findings of the Trial Court in recording the conviction against the appellant are perverse, illegal and erroneous and also against to the evidence on record. Therefore, the same is liable to be set aside.

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It is further submitted that the evidence of P.Ws.1 and 2 are not sufficient to implicate the accused in this case for the reason that both are inconsistent in their evidence in respect of the manner in which they reached the office of the accused.

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It is further submitted that the accused is not an authorized person to hand over the cheque to the complainant. Therefore, the conviction ought not to have been recorded based on the evidence of both P.Ws. 1 and

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Having considered the evidence of these two witnesses and also evidence of panch witnesses, it shows that the

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Trial Court convicted the accused, which is not proper and therefore, the interference with the said findings is very much essential. Making such submissions, the learned counsel for the appellant prays to allow the appeal.

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Per contra , learned counsel for the Spl. Public Prosecutor for the respondent-State vehemently justified the judgment of conviction and he submitted that the evidence of P.Ws. 1 and 2 who are the material witnesses to the case are consistent in their evidence that the accused had demanded for a sum of Rs.20,000/- to issue cheque to the complainant. The demand made by the appellant has been explained by these two witnesses. The amount has been recovered in the presence of panch witnesses. They also supported the case of the prosecution. Once these procedures are followed, the Trial Court has to raise a presumption as per Section 20 of P.C. Act. Once the presumption is raised, the appellant has to rebut the presumption by leading evidence that an amount of Rs.20,000/-was not received as illegal gratification. As the accused had not rebutted the

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presumption, the conviction is proper and appropriate. Therefore, interference may not be necessary. Making such submissions, the learned Spl. Public Prosecutor for the respondent prays to dismiss the appeal.

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Having heard learned counsel for the respective partiers and also perused the findings of the Trial Court in recording the conviction, it is appropriate to refer the evidence of the witnesses.

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P.W.1 is the complainant and he was working as a Head Master in the Urdu Girls School at Vijayapura. As per the instruction of Government, he had appointed three teachers to teach the students from 9.00 to 10.00 am in the school. The remuneration to the said teachers had to be paid by the Department. According to him, he approached the Department where the accused was working as a CRP and he is stated to have demanded a sum of Rs.20,000/- as illegal gratification to pay the remuneration of three teachers. He approached the respondent – Lokayukta and lodged a complaint in that regard. The formalities were followed. Thereafter, he along with P.W.2 went to the spot where the accused had

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instructed him to come. Both of them went to the spot. According to P.W.1 the accused had demanded illegal gratification of Rs.20,000/- in the presence of P.W.2. The said amount has been paid. Later, the same was seized by the respondent police in the presence of panch witnesses. He supported the case of the prosecution. In the cross-examination, even though, the defense has made several attempts to discredit the evidence of this witness, nothing has been elicited to discredit the same.

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The evidence of P.W.2 is concerned, he supported the case of the prosecution stating that he was present when the demand was made by the accused and thereafter, the amount was paid to the accused. When both P.Ws. 1 and 2 are consistent that the accused had demanded the illegal gratification to issue the cheque relating to the remuneration of remedial teachers, the initial burden like demand and acceptance has been proved by the prosecution. Similarly, the recovery has also been proved by the prosecution through the other witnesses.

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Now, it is relevant to refer the witnesses namely D.Ws. 1 to 3. The accused examined himself as D.W.1. In his

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evidence, he admitted that he was working as a CRP and though, he tried to impress the Court that he had no authority to issue the cheque, nothing has been produce to substantiate the same. Further, he took the defense that on 26.01.2014, the complainant had been to his house around 6.00 p.m,. stating that the complainant had requested him to lend Rs.20,000/- as a hand loan and also assured that it would be returned on receiving the salary of the complainant. The said contention has also been raised in the statement made before the respondent police at the time of arrest.

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The said contention has been negatived by the Trial Court. The findings of the Trial Court has to be accepted for the reason that the amount of which D.W.1 stated to have given to the complainant has not been witnessed by any independent witnesses.

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Evidence of D.W.2 indicates that on 26.01.2014 around about 5.00 to 5.30 pm, he had been to the house of accused to distribute the invitation. Around about 10 to 15 minutes, Saleem had gone there, then the complainant paid Rs.20,000/- to the accused. Though the

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D.W.2 was cross examined by the prosecution nothing

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has been elicited to discredit the evidence.

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D.W.3 was working as a Head Master at Higher Primary School in Yathnal. He stated to have gone to BEO office on that day when the incident had taken place. He admitted that the complainant-Saleem had paid Rs.20,000/- to the accused. However, it was loan amount of which the complainant had borrowed from the accused.

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On careful reading of evidence of D.Ws.1 to 3, it makes clear that none of these witnesses have spoken about the other witnesses and their presence at the spot. If D.Ws.2 and 3 were really present at the spot, either in the evidence of D.Ws.2 or 3, the presence of other witnesses would have been mentioned. Therefore, it can be inferred that both D.Ws.2 and 3 are tutored witnesses. Therefore, their evidence has been rightly rejected by the Trial Court.

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On over all reading of the evidence of all the witnesses, it can be inferred that the prosecution has proved the case beyond reasonable doubt that the accused had demanded

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the illegal gratification, it was paid and recovered from him by the respondent police in the presence of panch witnesses. Hence, the findings of the Trial Court in recording the conviction is proper and appropriate and there is no occasion for this Court to interfere with the

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said findings.

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