Sri H Suresh Vs the State by Police Inspector

THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 03.12.2022 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL COURT FOR TRIAL OF CASES UNDER P.C. ACT, D.K., MANGALURU IN SPL.C.NO.136/2017 AND THE APPELLANT/ACCUSED IS CONVICTED FOR THE OFFENCE P/U/S 13(1)(D) R/W 13(2) OF PREVENTION OF CORRUPTION ACT AND ETC.,

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THIS CRL.A, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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HC-KAR

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ORAL JUDGMENT

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The appellant being the accused in Special Case No.136 of 2017 on the file of the learned III Additional District and Sessions Judge, D.K., Mangaluru, is impugning the judgment of conviction and order of sentence dated 03.12.2022, convicting him for the offence punishable under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act (for short, 'the P.C. Act'), and sentencing him to undergo simple imprisonment for a period of four years and to pay fine of ₹.4,00,000/-, with default sentence.

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Brief facts of the case as made out by the prosecution is that, the accused who was working as Assistant Director of Factories, Division-2 at Mangaluru, was a public servant. He demanded and accepted illegal gratification of Rs.3,49,515/from many factory owners on 30.11.2016, and got the money from corrupt or illegal means. Thereby, he has committed criminal misconduct under Section 13(1)(d) punishable under Section 13(2) of the P.C. Act.

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It is stated that PW.1 - a right spirited person has lodged the first information as per Ex.P1 with Lokayukta police

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stating that he received credible information that, the accused being the public servant demanded and accepted illegal gratification from various factory owners or employees for the purpose of renewing their licence. Therefore, he requested the police to register the case and to initiate legal action. On the basis of same, the FIR as per Ex.P28 came to be registered, the search warrant was obtained, and the raid was held on the office and the residence of the accused. Separate mahazars were drawn for having recovered the cash found in the office as well as in his residence. It is the contention of the prosecution that a sum of Rs.1,12,865/- and one silver coin was found in his office premises and when the house was searched, cash of Rs.2,36,650/- was found. Thus, the accused was in possession of Rs.3,49,515/- as on the date of raid. According to the prosecution, this is the illegal gratification obtained by him. Thereby, he has committed misconduct.

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The Investigating Officer completed the investigation

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after recording the explanations of the accused as per Exs.P4 and 6 regarding the cash that was found in his office and the

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house when the raid was held separately, and final report came to be filed after obtaining sanction as per Ex.P27.

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The learned Magistrate took cognizance of the offence

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and registered the special case. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 11, got marked Exhibits P1 to P48 and identified MOs.1 to 13 in support of its contention. The accused denied all the incriminating materials available on record in his statement under Section 313 of Cr.PC, and got examined DWs.1 to 6 in support of his defence.

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The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, and accordingly proceeded to pass the impugned judgment of conviction and order of sentence as stated above. Being aggrieved by the same, the accused has preferred this appeal.

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Heard Sri. Rahul P., learned counsel for the appellant and Sri. B.B. Patil, learned Special P.P for the respondent-

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HC-KAR

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Lokayukta. Perused the materials on record including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the points that would arise for my consideration is as under:

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"Whether the appellant-accused has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?"

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My answer to the above point in the 'Negative' for the following:

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REASONS

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It is the contention of the prosecution that, the accused was a public servant as he was working as Assistant Director of Factories at Mangaluru. It is an admitted fact. It is the further contention of the prosecution that PW.1 had filed the first information as per Ex.P1 with Lokayukta police stating that he had received credible information regarding the accused demanding and accepting illegal gratification from the owners/employees of various factories, for the purpose of renewal of their licences. On the basis of which, FIR came to be

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registered, search warrants were obtained and raids were held in the office of the accused as well on his residence. A mahazar was drawn as per Ex.P3 in his office where cash of Rs.1,12,865/- with one silver coin were seized. When the search was held in the house of the accused, cash of Rs.2,36,615/- was recovered and the mahazar as per Ex.P14 was drawn. Search and seizure of cash as referred to in Exs.P3 and 14 is also not in dispute as the learned counsel for the appellant has never raised such a dispute. On the other hand, he conceded that such raids was held and cash belonging to the accused was seized.

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PWs.3, 4, 5, 6 and 9 are either employees or owners of various factories. These witnesses have categorically stated about the demand and acceptance of illegal gratification by the accused. Even though these independent witnesses were crossexamined by the learned counsel for the accused at length, nothing has been elicited from them. There is absolutely no reason as to why their version is to be disbelieved. On consideration of the evidence of PWs.3, 4, 5, 6 and 9, the contents of the first information Ex.P1 gets support. It is

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further strengthened with the raid held on the office and the house of the accused, and seizure of unexplained money of Rs.3,49,515/- under two different mahazars-Exs.P3 and 14.

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It is the specific contention of the learned counsel for the appellant before this Court that, the accused has explained the source of this money properly and therefore, the Trial Court was not right in convicting the accused. He refers to the evidence of DW.1-the brother-in-law of the accused who states that he had given Rs.56,000/- to the accused i.e. 28 currency notes of Rs.2,000/- denomination. DW.2 is the brother of the accused who deposes that he had given Rs.52,000/- to the accused i.e. 26 currency notes of Rs.2,000/denomination. DW.3 is the sister of the accused, who deposed that she had given Rs.40,000/- to the accused i.e. 20 currency notes of Rs.2,000/- denomination. DW.6-the friend of the accused who deposed that he had given Rs.20,000/- to the accused i.e. 10 currency notes of Rs.2,000/- denomination. Even if the evidence of these witnesses are to be accepted, they explained about paying in all Rs.1,68,000/- on the date of raid, but cash recovered in the office of the accused and in his

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house is totalling to Rs.3,49,515/-. There is absolutely no explanation for the same offered before the Trial Court.

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Learned counsel for the accused contended that Ex.P25 is the Bank Statement pertaining to the accused, according to which, a sum of Rs.3,90,000/- was drawn by the accused from 01.09.2016 to 15.10.2016. Therefore, it is also to be taken as an explanation by the accused regarding remaining amount found during the raid. Unfortunately, this Ex.P25 was got marked by the prosecution. The accused has never taken any defence that the cash withdrawn during the period from 01.09.2016 to 15.10.2016 was retained by him either in his office or in his house for his personal expenses. It is for the first time such a defence was raised by the learned counsel for the appellant. There is no such cross examination to the Investigating Officer. On perusal of the statement of the accused recorded under Section 313 of Cr.PC, no such explanation is forthcoming as he has only denied the incriminating materials and stated that a false complaint was registered against him and a false charge sheet was filed by the Investigating Officer. It is also pertinent to note that the

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accused had never stepped into the witness box to speak about his defence.

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It is relevant to refer to Ex.P4-the Explanation Letter given by the accused at the earliest point of time i.e. on 30.11.2016 when the raid was held in his office and cash of Rs.1,12,865/- was recovered. As per Ex.P4, which is in his own hand writing, the accused stated that he had received cash of Rs.1,00,000/- from his friends, Promond Shenoy and Rajesh, and that was kept in his office for the purpose of shifting his luggage from Mangaluru to Bengaluru. He states that the balance amount belongs to him.

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Ex.P6 is the similar explanation found in the hand writing of the accused given by him after search and seizure in his house where cash of Rs.2,36,615/- was found, and the explanation offered by the accused is that, he has no clue about the cash that was kept in his house. It is not in dispute that the premises was in exclusive occupation of the accused, but he pleads ignorance about the cash. It is pertinent to note that, the explanation offered at the earliest point of time i.e. on the date of incident as per Exs.P4 and 6, are quite inconsistent

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with his explanation offered by examining DWs.1 to 6. In other words, the explanations given by the accused by leading defence evidence is quite contrary to his earliest explanationsExs.P4 and 6. There is absolutely no explanations as to why there was such inconsistency in the defence taken by the accused.

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Learned counsel for the appellant contended that, since the raids were held in the office and the house of the accused, and the Investigating Officer asked the accused to give the explanation, he could not give proper explanation out of fear. He further submitted that the Investigating Officer might have taken the explanations Exs.P4 and 6 forcibly. Even the learned counsel for the appellant was not sure about this defence. However, this was not the defence taken before the Trial Court. There is absolutely no cross-examination even to the Investigating Officer who is examined as PW.1, in that regard. Under such circumstances, the defence taken by the accused is to be disbelieved.

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When the accused admits that he was a public servant working in the Government office, and the raid was

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held in his house as well as in his office and cash of Rs.1,12,865/- and Rs.2,36,615/- respectively were found, it was the bounden duty of the accused to explain the same, once the prosecution discharges his burden of proving demand and acceptance of illegal gratification and recovery of such illegal gratification during search and seizure. But the accused has not offered any explanation. Even though he had offered explanations as per Exs.P4 and 6, and through the evidence of DWs.1 to 6, they are quite contradictory to one another, and the same cannot be accepted.

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It is also pertinent to note that even if the explanations offered either in Ex.P4 or the depositions of DWs.1, 2, 3 and 6 are to be accepted, still the amount that was recovered under the mahazars Exs.P3 and 14 exceeds the amount explained in such explanation and there is no explanation for the remaining amount recovered under the seizure mahazar.

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It is an admitted fact that when the accused is working as a public servant in a Government office, he is required to maintain a 'Cash Declaration Register' as per

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Circular No.DPAR (AR) 23 KTV 2022 dated 04.02.2022. Admittedly, the accused was working as Assistant Director of Factories, Division-2 at Mangaluru. He has not maintained any such register to declare the cash. All these facts and circumstances, unmistakably points accusing finger towards the accused regarding commission of the offence. The accused is charged for the offence punishable under Section 13(1)(d) read with Section 13(2) of P.C. Act, for which a presumption under Section 20 of the P.C Act is not applicable. But however, as per Section 114 of the Evidence Act, the Court may presume existence of certain facts, considering the common course of natural events, human conduct and public and private business. I do not find any reason for not invoking Section 114 of the Evidence Act.

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Learned counsel for the respondent places reliance on the decision of the Hon'ble Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi)¹ , wherein the Hon'ble Apex Court after discussing at length about the position of law

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1 2023 (4) SCC 731

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on the subject and referring to its earlier decisions summarized

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the position of law in para-88 read as under:

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"88- What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by 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.

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88.2. (b) In order to bring home the guilt of the accused, 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.

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88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

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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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(i) 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.

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(ii) On the other hand, if the public servant makes a demand and the bribegiver 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 (i) 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)(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. 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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88.5. (e) 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. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of

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course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

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88.6. (f) 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. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

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88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.

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88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in subpara 88.5 (e), above, as the former is a mandatory presumption while the latter is discretionary in nature.”

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(Emphasis supplied)

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Thus, a prior demand by the public servant and when

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the bribe giver accepts the demand and tenders the demanded gratification, which in turn is received by the public servant and

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when he is found in possession of the cash, it amounts to

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misconduct as referred to under Section 13(1)(d) r/w 13(2) of P.C. Act. Thus, he has committed the criminal misconduct punishable under Section 13(2) of the P.C. Act.

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Learned counsel for the appellant has placed reliance on the decisions of the Hon'ble Apex Court in B.Jayaraj v. State of Andhra Pradesh² ; P. Satyanarayana Murthy v. State of A.P.³ ; and M.Narasinga Rao v. State of A.P.⁴ All these decisions were referred to by the Hon'ble Apex Court in the Neeraj Dutta (supra) as the same were referred in the order of reference in M.Narasinga Rao (supra) and the Court observed that once the foundational facts are proved by the prosecution, the presumption for payment or acceptance of illegal gratification was applicable. If the presumption is not rebutted by the accused, the fact of demand must be proved. Consequently, the legal presumption was to be drawn that the said gratification was accepted as motive or reward for showing the official favour.

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2 2014 (13) SCC 55

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3 2015 (10) SCC 152

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4 2001 (1) SCC 691

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In M.Narasinga Rao (supra), it is held that the

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Court is bound to draw the legal presumption regarding acceptance of illegal gratification as a reward for doing the public duty, once the primary facts are proved by the prosecution. The Hon'ble Apex Court referred to its decisions in B.Jayaraj (supra) and M.Narasinga Rao (supra), wherein, it was held that proof of demand is a sine qua non for an offence under Section 7 of the P.C. Act. However, it has proceeded to observe in P. Satyanarayana Murthy (supra), that the materials on record discloses that prosecution has failed to prove the demand for illegal gratification and thus, the conviction of the accused was held to be unsustainable.

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In view of the decision of the Constitution Bench in Neeraj Dutta (supra), the controversy was laid to rest. If the said settled position of law is applied to the facts in the present case, I do not have any hesitation to hold that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, but the accused has not taken any probable defence and therefore he is liable for conviction.

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Learned counsel for the respondent submits that, even though the appellant had not raised the ground of lack of proper sanction to prosecute him before the Trial Court, the same is raised in the memorandum of appeal. Therefore, he places reliance on the decision of the Hon'ble Apex Court in State of Karnataka Lokayukta Police v. S.Subbegowda⁵ , wherein, the Hon'ble Apex Court considered the defence taken by the accused with reference to Section 19 of P.C. Act and held in para 19 as under:

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"19. Thus, it is clear from the language employed in sub-section (3) of Section 19 that the said sub-section has application to the proceedings before the court in appeal, confirmation or revision, and not to the proceedings before the Special Judge. The said sub-section (3) clearly forbids the court in appeal, confirmation or revision, the interference with the order passed by the Special Judge on the ground that the sanction was bad, save and except in cases where the appellate or revisional court finds that the failure of justice had occurred by such invalidity."

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(Emphasis supplied)

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He also referred to the decision of Hon'ble Apex Court

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in Vinod Kumar Garg v. State (Government of NCT of

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5 2023 (17) SCC 699

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Delhi)⁶ , wherein, the Hon'ble Apex Court had again considered the validity of the sanction and held in para 28 as under:

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" 28. This Court in Ashok Tshering Bhutia v. State of Sikkim referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial."

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(Emphasis supplied)

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In the present case, PW.10 is the Assistant Executive in the Labour Department, accorded sanction to prosecute the

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accused as per Ex.P27. No prejudice is highlighted by the accused even when the Trial Court took cognizance of the

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6 2020 2 SCC 88

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offence, and the trial was proceeded which resulted in his conviction.

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The Sanctioning Authority who is examined as PW.10 was cross-examined at length. There is nothing on record to show that there was miscarriage of justice by accepting such sanction. Under such circumstances, I do not have any hesitation to reject the claim of the accused that the sanction was bad under law.

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I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It has taken into consideration all the materials on record and arrived at a right conclusion. I do not find any reason to interfere with the same. From the discussions held above, I am of the opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and he is liable for conviction. Accordingly, I answer above point in the negative and I proceed to pass the following:

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ORDER

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The appeal is dismissed .

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Registry to send back the Trial Court records along with copy of this judgment to the Trial Court, for information and needful action i.e., to issue conviction warrant, if not already

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issued.

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Sd/(M G UMA) JUDGE

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MKM

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List No.: 1 Sl No.: 12

Sri H Suresh v. the State by Police Inspector

Case brief

What is this about?

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Sri H Suresh v. the State by Police Inspector

Case brief

What is this about?

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