K S Prakash Vs the State by the Police Inspector

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF FEBRUARY, 2025 BEFORE

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THE HON'BLE MR. JUSTICE V. SRISHANANDA CRL.A.NO.289/2012

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C/W CRL.A.No.266/2012

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IN CRL.A.NO.289/2012

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BETWEEN

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K S PRAKASH FIRST DIVISION ASSISTANT OFFICE OF THE DEPUTY DIRECTOR DEPARTMENT OF PRE UNIVERSITY EDUCATION, CHITRADURGA, PRESENTLY WORKING AS FDA GOVERNMENT PU COLLEGE N.G.HALLY, HOLALKERE TALUK

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...APPELLANT

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(BY SRI C G SUNDAR, ADVOCATE)

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AND

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THE STATE BY THE POLICE INSPECTOR LOKAYUKTHA POLICE STATION, CHITRADURGA, REP. BY SPECIAL PUBLIC PROSECUTOR FOR LOKAYUKTHA CASES HIGH COURT BUILDING, BANGALORE.

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…RESPONDENT

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(BY SRI B.S.PRASAD, ADVOCATE)

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THIS CRL.A FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF

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CONVICTION AND SENTENCE DT.28.02.2012 PASSED BY THE PRL. DIST., AND S.J. CHITRADURGA IN SPL.C (P.C.A.) NO.2/2009-CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S 7 AND 13(1)(d) R/W SEC. 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988.

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IN CRL.A.No.266/2012

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BETWEEN

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G H KATTIMANI S/O HANUMANTHAPPA AGED ABOUT 60 YEARS OCC: D.D.P.U.E. BELGAUM R/AT NO.2009/250, RANGANATHA LAYOUT, VIDYANAGAR, DAVANAGERE

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...APPELLANT

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(BY SRI H.S.CHANDRAMOULI, SR. COUNSEL FOR SRI K A CHANDRASHEKARA, ADVOCATE) AND

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1 . THE STATE BY LOKAYUKTA POLICE CHITRADURGA

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…RESPONDENT

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(BY SRI B S PRASAD, ADVOCATE)

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THIS CRL.A IS FILED UNDER SECTION 374(2)CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 28.2.2012 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SPL.C.(P.C.A.)NO.2/2009 - CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 AND SECTION 13(1)(d) R/W SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988.

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THESE APPEALS HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE V SRISHANANDA)

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These two appeals are filed by accused Nos. 1 and 2 respectively challenging the order of conviction passed in Spl.C.(PCA) No.02/2009 on the file of Principal District and Sessions Judge, Chitradurga challenging the validity of the judgment of conviction dated 28.02.2012 for the offence punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

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Facts which are utmost necessary for disposal of the appeals are as under:

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2.1. K.Nagaraja, who was a lecturer in Government Composite Junior College, Kashipura, Holalkere Taluk lodged a complaint with Lokayukta Police, Chitradurga contending that on 29.11.2007, he had severe toothache. As such, he telephoned the Principal of college and

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informed that he is unable to attend the college on that day as he had to take immediate treatment for his toothache. He also prayed for grant of a day’s casual leave on 29.11.2007.

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2.2. It is further alleged in the complaint that Principal of the college agreed to the request made and directed him that he can come next day and hand over the leave letter. On 30.11.2007, complainant usually visited the college and noticed that against his name, it was marked as ‘absent’ for the date 29.11.2007 in the attendance register. Therefore, he made an enquiry that accused No.2 was at that time working as Deputy Director of PreUniversity Education (DDPU), Chitradurga and accused No.1 was working as First Division Assistant in the office of accused No.2. Accused No.2 told him that he has visited the college and noted the absence of complainant and marked ‘absent’.

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2.3. Accused No.2 also issued show cause notice to the complainant seeking explanation for his absence on

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29.11.2007. A reply was sent by the complainant on 10.12.2007. Despite the same, on 05.01.2008 accused No.2 instructed the Principal of the College for withholding a day’s salary for his absence on 29.11.2007.

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2.4. Thereafter, complainant went to the office of accused No.2 on 21.01.2008 and met accused No.1 and enquired him as to why his explanation is not considered and why instructions have been issued on 05.01.2008 for withholding the salary. Accused No.1, at that juncture, demanded the bribe amount of Rs.1000/- for himself and Rs.5,000/- for accused No.2 to set right the instructions already issued and the money for himself and for accused No.2 is to be kept in two separate envelopes. Complainant was not willing to part away the bribe money and therefore, he decided to take action against the accused persons and filed the complaint.

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2.5. Pursuant to the complaint, Lokayukta Police Chitradurga registered the case and for the intended trap, secured two independent Government servants to act as

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panchas in the intended trap. The contents of the complaint were explained to them and chemical reaction of phenolphthalein powder with the sodium carbonate solution was demonstrated to them. Later, the intended bribe money was received from the custody of the complainant and thereafter, phenolphthalein powder was smeared on those currency notes. Serial number of the currency notes was noted on separate paper. Complainant and one of the panch witness (shadow witness) was told to visit accused No.1 and on demand should hand over the tainted currency and then give predesignated signal to the remaining members of the raid team. Shadow witness was directed to observe the proceedings that would take place at the time of demand and handing over the tainted currency by the complainant to accused No.1. All these proceedings were reduced into writing in the form of entrustment mahazar.

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2.6. Thereafter, raid team left the office of the Lokayukta and as per the instructions, complainant and shadow witness went inside the office and met accused

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No.1. Accused No.1 then took them to the another room and he demanded the bribe amount. Therefore, complainant handed over two separate envelopes as demanded by accused persons i.e., one envelope containing Rs.1,000/- and another envelope containing Rs.5000/-. Both the envelopes were taken by accused No.1.

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2.7. Thereafter, complainant came out and gave a predesignated signal. Immediately, rest of the raid team came inside and enquired accused No.1 as to tainted currency. Colour test of the hands of accused No.1 was conducted. Colourless sodium carbonate solution turned into pink colour which was collected, sealed and seized by the Lokayukta Police. When they demanded the handing over of the tainted currency to accused No.1, he took out three notes of Rs.500/- denomination and he told that balance of Rs.4,500/-, he has given it to accused No.2. Therefore, raid team proceeded to the chamber of accused No.2. On demand, accused No.2 said to have been told that tainted currency is on his table. Colour test of

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accused No.2 was also conducted which also turned positive. Same was sealed and seized. From the custody of accused No.2, nine currency notes of Rs.500/denomination was recovered from his shirt pocket. Shirt pocket was also tested for chemical reaction which turned into pink colour and same was collected, sealed and seized.

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2.8. Explanation of accused Nos.1 and 2 were also received by the head of the raid party. Accused Nos.1 and 2 were arrested. Entire proceedings were photographed and trap mahazar was recorded. Documents pertaining to the pending application of grant of leave was also seized by the Lokayukta Police.

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2.9. Thereafter, accused Nos.1 and 2 were produced before the jurisdictional Special Judge then remanded to judicial custody. On completion of the investigation, Lokayukta Inspector, Chitradurga filed charge sheet.

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On receipt of the charge sheet, learned Special Judge took cognizance of the offence alleged against the accused persons and secured the presence of the accused persons.

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After compliance of Section 207 of Cr.P.C., charges were framed. Accused pleaded not guilty and therefore, trial was held.

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In order to bring home the guilt of the accused persons, prosecution in all examined eleven witnesses comprising of complainant, shadow witness, co-panchas, other circumstantial witness, official superior of accused persons, Investigation Officer.

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Prosecution placed on record 39 documentary evidence which were exhibited and marked as Exs.P.1 to 39 comprising of complaint, entrustment mahazar, FIR, photographs, letter of explanation given by accused Nos.1 and 2, file containing 14 documents, explanation notice, reply to the notice, attendance register, trap mahazar, rough sketch, FSL report etc.

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As many as eighteen material objects were placed on record by the prosecution which were marked as MO.1 to 18 comprising of sample of phenolphthalein powder, pink colour solution seized at the time of entrustment mahazar and trap mahazar, pant and shirt worn by accused No.1 and shirt of accused No.2 and tainted currency.

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On conclusion of recording of the evidence, accused statement as is contemplated under Section 313 of Cr.P.C. was recorded, wherein accused persons have denied the incriminatory materials found against him.

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Thereafter, learned Special Judge heard the arguments of the parties and by impugned judgment convicted the appellants and sentenced them as under:

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“For the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 both the accused No.1 and 2 are punished with rigorous imprisonment for a period of one year and each shall pay fine of Rs.5,000/- and in default they shall undergo further imprisonment for a period of three months.

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For the offence under Section 13(1)(d) punishable according to Section 13(2) of the Prevention of Corruption Act, 1988 both the accused No.1 and 2 are

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punished with rigorous imprisonment for a period of three years and each shall pay fine of Rs.10,000/and in default they shall undergo further imprisonment for period of six months.

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Both the substantive sentences shall run concurrently.”

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Being aggrieved by the same, appellants are before this Court, in these two appeals.

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Sri.C.G.Sundar, learned counsel for the appellant in Crl.A.No.289/2012 and Sri.H.S.Chandramouli, learned Senior Counsel appearing for Sri.K.A.Chandrashekara, learned counsel for the appellant in Crl.A.No.266/2012 respectively, contended that the impugned order is not based on the material evidence on record but on the basis of surmises and conjectures and needs to be set aside.

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Sri.C.G.Sundar, learned counsel representing accused No.1 contended that he was working as First Division Assistant in the office of Deputy Director, Department of Pre-University Education, Chitradurga and allegations leveled against him by the complainant is

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totally incorrect inasmuch as accused No.1 was no way connected with the order said to have been passed on 05.01.2008 intimating the Principal of the Government Composite Junior College, wherein the complainant was working as a lecturer to the effect that one day salary is to be with held as leave without pay for the day 29.11.2007 on the ground that complainant was absent and his leave was not sanctioned.

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He would further contend that complainant in his cross-examination admitted that on 07.12.2007, there was explanation of four employees from the office of the accused No.2. He also brought to the notice of the Court that P.W.1 has admitted that on 10.12.2007, he had visited the office of Deputy Directory, Department of PreUniversity Education and met accused No.2 and personally explained to him.

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He further pointed out that P.W.1 has improved the contents of the complaint in his examinationin-chief. He argued that when there is no demand made

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by accused No.1, question of complainant handing over the bribe amount on the date of trap to accused No.1 would not arise and thus, it is a motivated trap wherein, accused No.1 has been falsely implicated.

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He also argued that accused No.1 had no role to demand the money inasmuch as accused No.2 had already passed an order on 05.01.2008 and therefore, the very fact of accused No.1 demanding the bribe amount and complainant intimating the police and trapping accused No.1 would not arise at all.

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In support of his arguments, he placed reliance on the judgment delivered by this Court in the case of

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Umesh v. State of Karnataka reported in 2023(2) KAR. Law Journal 397 .

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Sri.H.S.Chandramouli, learned Senior Counsel representing accused No.2 contended that there was no demand made by accused No.2 to the complainant about the illegal gratification even according to the case of the prosecution.

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He would further contend that if accused No.1 has demanded sum of Rs.5,000/- in the name of accused No.2, accused No.2 cannot be held responsible for the same.

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He further pointed out that on the date of trap, there was no pending work with accused No.2 inasmuch as after issuing the notice on 07.12.2007 and reply being received on 10.12.2007, accused No.2 had already issued an order on 05.01.2008 and second notice on 16.01.2008 where under a day’s salary of the complainant was ordered to be with held for his unauthorized absence on 29.11.2007. As such, further there was no scope for demanding illegal gratification by accused No.2 and therefore, no ingredients are attracted either for the offence punishable under Section 7 of the Prevention of Corruption Act,1988 or for the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

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He further pointed out that when there is no demand at all by accused No.2, for the act of accused No.1, accused No.2 cannot be penalized.

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Learned Senior counsel further argued that P.W.1 admitted in his evidence that against the order passed by accused No.2, an appeal would lie to the Joint Director, Department of Pre-University Education. Therefore, the only remedy that was left for the complainant was to file an appeal before the Deputy Director, Department of Pre-University Education. As such, no official favour could have been made by accused No.2 by misusing his office. Hence, no question to demand for illegal gratification would arise in the case on hand.

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He further pointed out that monthly salary of

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the complainant is in a sum of Rs.20,000/- and per day salary would work out to Rs.666/- and for saving per day salary of Rs.666/-, nobody would agree to pay exorbitant

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amount of Rs.6,000/- as the bribe which itself shows the hollowness in the case of the prosecution.

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He would further contend that prosecution witness – Zareen Taj in her cross-examination admitted that accused No.2 had issued notice to her also in accordance with law for her unauthorized absence. So also, he invited the attention of this Court to the crossexamination of P.W.5-Nagabhushana, wherein he has also admitted that accused No.2 had ordered deduction of one day salary of three persons namely Principal of the college who is examined as P.W.5, complainant who is examined as P.W.1 and Keshavamurthy as well.

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He further contended that as a routine act as per law, since accused No.2 had already passed an order on 05.01.2008, accused No.1 keeping accused No.2 in dark, if has demanded any money, accused No.2 cannot be held responsible for the same and thus, sought for allowing the appeals.

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In support of his contentions, he placed reliance on the judgment of the Hon’ble Apex Court in the case of P.Satyanarayana Murthy v. District Inspector of Police and Another in Crl.A.No.31/2009 .

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In respect of improper sanction order, Sri.H.S.Chandramouli, learned Senior Counsel placed reliance on the judgment of this Court in the case of Karnataka Lokayukta v. M.Nanjunda passed in Crl.A.No.421/1996 and in the case of State by Lokayukta v. C.Mrutyunjayaswamy in WP No.5248/2020 .

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Learned Senior Counsel would place reliance on the discrepancies on record and conspiracy that existed between the complainant and Lokayukta Police to trap accused No.2 based on the judgment of the Hon’ble Apex Court in the case of Neeraj Dutta v. State(Government of NCT of Delhi) reported in 2023 4 SCC 731 and invited the attention to paragraph No.88.4 wherein it is held as under:

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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 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 (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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Sri.H.S.Chandramouli, lastly contended that since there is no role directly or indirectly played by accused No.2 in the incident, conviction of accused No.2 by

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the learned Special Judge in the impugned judgment is thus suffering from legal infirmity and perversity and calls for interference by this Court, in this appeal, by reappreciating the material evidence on record and sought for allowing the appeals.

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Per contra, Sri.B.S.Prasad, learned counsel appearing for the Karnataka Lokayukta while supporting the impugned judgment contended that material evidence placed on record by the prosecution is sufficient enough to maintain the conviction of the appellants for the aforesaid offences.

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He would further contend that fact of demand

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and acceptance is established by the prosecution by placing cogent evidence on record. He also pointed out that demand need not be always be established by direct evidence and in the case on hand, accused No.2 demanded the money through accused No.1, who is a First Division Assistant working under accused No.2. He further contended that very issue of order on 05.01.2008 by

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accused No.2 was sought to be reviewed by the complainant and therefore, he met accused No.1 who in turn told that if sum of Rs.1,000/- is paid to him as bribe and Rs.5,000/- towards the share of accused No.2, then the order passed on 05.01.2008 would be reviewed. Complainant being not willing to part away the illegal gratification; approached the Lokayukta Police and trap has been conducted and appellants have been successfully trapped.

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He also contended that material on record clearly establishes that hand wash of both the appellants having turned into pink colour, the question of handling the tainted currency by the appellants has been established by the prosecution by placing cogent evidence on record.

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He would also contend that handling the tainted currency in a sum of Rs.4,500/- (Rs.1,500/- has been recovered from the custody of accused No.1, was kept only in the envelope without handled by accused

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No.2), hardly there was any scope for colour test to turn positive. Colour test having turned positive, there is a proof of handling of tainted currency by accused No.2. Therefore, the contentions urged on behalf of the appellants cannot be countenanced in law.

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He would also contend that accused No.1 being the sub-ordinate official of accused No.2 could not have demanded the money for and on behalf of accused No.2 that too in a sum of Rs.5,000/- unless there was a tacit understanding between accused Nos.1 and 2 and thus, sought for dismissal of the appeals.

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

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On such perusal of the material on record, following points would arise for consideration:

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1. Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellants for the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988?

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2. Whether the appellants make out a case of legal infirmity or perversity in the impugned judgment?

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3. Whether sentence needs modification?

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4. What order?

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REG.POINT Nos.1 AND 2:

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Incidentally, facts as per the prosecution case is that complainant was absent for his duty on 29.11.2007 as he had toothache. Complainant requested for a day’s casual leave by telephoning to the Principal of the college and got oral consent for the leave. However, next day, when he attended the college and wanted to sign the attendance register, he noted that against his name for the date 29.11.2007, it has been entered as ‘absent’ instead of casual leave. Ultimately, he enquired the concerned and a show cause notice was issued from accused No.2. On 10.12.2007, he replied to the show cause notice narrating the fact that he had oral permission from the Principal. Not only the complainant received such notice, there were few more employees who received similar notice from accused No.2.

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Material on record would go to show that explanation offered by the complainant was not accepted by accused No.2 and order came to be passed on 05.01.2008 intimating the Principal that for the unauthorized absence of the complainant on 29.11.2007, one day salary should be withheld. After such communication, complainant again met accused No.2. He in turn, directed complainant to meet accused No.1. Accordingly, complainant met accused No.1 and enquired about the order dated 05.01.2008.

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It is at that juncture, accused No.1 demanded sum of Rs.6,000/- (Rs.1,000/- for himself and Rs.5,000/to accused No.2 to be kept in two separate envelopes) to withdraw the order dated 05.01.2008 by showing official favour. Complainant being not interested in parting away with the illegal gratification, approached the Lokayukta Police. He lodged a written complaint narrating the above facts.

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Based on the said complaint, Lokayukta Police, Chitradurga registered the case and thereafter, secured panch witnesses and entrustment mahazar was prepared. Thereafter, raid party proceeded to the office of accused Nos.1 and 2. Shadow witness and complainant went inside the office and met accused No.1 who took them to another room. Shadow witness no doubt stood outside the cabin but he was unable to hear the conversation between the complainant and accused No.1 and witnessed the actual handing of the tainted currency kept in two separate envelopes. Thereafter, predesignated signal was issued to remaining members of the raid team and then remaining members of the raid party arrived there and accused No.1 was enquired about the tainted currency. Accused No.1 handed over two 500 currency notes from his pant pocket and separate 500 notes from his shirt pocket. In all Rs.1,500/-.

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When the head of the raid team enquired about the balance money, accused No.1 told to the head of the raid party that balance money is handed over to

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accused No.2. Colour wash of accused No.1 was done and turned positive and raid party was proceeded to the colour test of accused No.2 and enquired about the remaining money.

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According to the contents of Ex.P.29, when accused No.2 was enquired about the tainted currency notes, he took out the same from the left-hand side shirt pocket and handed over the same. It contained nine notes of 500 denominations each in all Rs.4,500/-. Colour test of accused No.2 had turned positive which was conducted before seizing the currency notes. However, in the crossexamination, it has been elicited by confronting the photograph that envelope is seen on the table. Photograph also corroborates the trap mahazar.

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Thus, material evidence placed on record would establish that there was a demand made by accused No.1 formed on behalf of accused No.2 as well, for reconsidering the order dated 05.01.2008.

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In order to attract the offence under Section 7, 13(1)(d) of the Prevention of Corruption Act punishable under Section 13(2) of the Prevention of Corruption Act, prosecution must necessarily establish the following ingredients:

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There must be demand and acceptance of illegal gratification.

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Some work must be pending for which he has demanded illegal gratification.

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Colour test must have stood positive

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Authoritative pronouncement of the Hon’ble

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Apex Court in the case of Neeraj Dutta supra, Nos.88 to

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90 is held as under:

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“88. What emerges from the aforesaid discussion is summarised as under:

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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

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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 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 (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

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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 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 sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.

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89. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three-Judge Bench

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decisions of this Court in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] and P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] with the three-Judge Bench decision in M. Narsinga Rao [M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 : 2001 SCC (Cri) 258] , with regard to the nature and quality of proof necessary to sustain a conviction for the offences under Sections 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.

¶158

90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:

¶159

In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.”

¶160

On careful application of the principles of law to the facts of this present case enunciated in Neeraj Dutta supra , it is crystal clear that accused No.2 had also passed an order on 05.01.2008. Being not satisfied with that order, a review is sought for by the complainant and

¶161

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¶162

in that regard, he has contacted accused No.2 who in turn told the complainant to meet accused No.1.

¶163

Therefore, contentions urged on behalf of the appellants that accused Nos.1 and 2 had no role to play with regard to the pending work of the complainant and therefore, there cannot be any demand of payment of illegal gratification cannot be countenanced in law.

¶164

Admittedly, none of the prosecution witnesses including the complainant nurtured any previous enmity or animosity so as to falsely implicate the accused persons in the incident.

¶165

Mere fact that accused No.2 has also issued notice to other erring employees would not ipso facto establish that accused No.2 discharged his duty in a routine manner. Further, if there is no handing of the tainted currency by both the accused, colour test would not have turned positive.

¶166

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¶167

On close reading of contents of the trap mahazar marked at Ex.P.29, would make out that accused No.1 though demanded sum Rs.1,000/- but he has kept sum of Rs.1,500/- out of sum of Rs.6,000/-.

¶168

Serial numbers of seized currency notes tallied with the serial numbers entered in the entrustment mahazar. Two notes of 500 denomination and one hundred note of 500 denomination was recovered from accused No.1 from his pant and shirt pocket respectively. Balance sum of Rs.4,500/- was recovered by the head of the raid team from the custody of accused No.2 consisting of nine currency notes of 500 denominations whereby, entire currency notes of Rs.6000/- which was with serial numbers mentioned in the entrustment mahazar was recovered under trap proceedings.

¶169

Explanations offered by accused Nos.1 and 2 are placed on record which are marked at Exs.P.24 and 25. Contents of Exs.P.24 and 25 are carefully considered by this Court. In the explanation offered by accused No.1, he

¶170

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¶171

has stated that he is working as First Division Assistant and narrated about visiting the college of the complainant on 29.11.2007 and noting the absence of complainant and passing of order on 05.01.2008 by accused No.2.

¶172

He also stated that apart from the complainant, three more persons namely Nagabhushan, Zareen Taj, Keshavamurthy were also issued similar orders. It is his case that complainant himself requested accused No.1 that the matter should not be precipitated and he would voluntarily offer to give two envelopes containing currency and told him that one should be kept by him and another should be handed over to accused No.2.

¶173

In the explanation offered by accused No.2, it has been stated that there were many complaints received by the complainant that he used to leave early than the usual office hours and in that regard, there was a surprise inspection conducted and noted that neither the Principal

¶174

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¶175

nor any other staff members were present. When he

¶176

sought for explanation, they gave a evasive explanation.

¶177

It is also his case that complainant voluntarily contacted accused No.1 and complainant in turn handed over two envelopes to accused No.1; of which one envelope was handed over by accused No.1 to him. Without knowing the contents of said envelope, he kept the same and he came to know about the currency notes in the envelope only after the raid has taken place by Lokayukta Police as could be seen from the explanations offered and suggestions made to the prosecution witnesses, there is a total deviation from the contents of explanation and the trend of cross-examination to the prosecution witnesses.

¶178

Taking note of these aspects of the matter and also taking note of the fact that if the appellants have not at all handled the tainted currency, colour test could not have turned positive, this Court is of the considered opinion that learned Special Judge has rightly appreciated

¶179

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¶180

the material evidence on record while recording the order of conviction of the appellants and sentenced him as referred to supra.

¶181

No doubt, learned Special Judge in the impugned judgment took note of the principles of law enunciated in the various decisions which were cited before him.

¶182

Taking note of the principles of law enunciated in Neeraj Dutta supra, since prosecution evidence is sufficient enough to establish all ingredients to attract the offence under Section 13(1)(d), conviction of the appellants for the offence under Section 7 of the Prevention of Corruption Act, needs to be set aside. Accordingly, point Nos.1 and 2 are answered partly in the affirmative.

¶183

REG.POINT No.3:

¶184

In view of the foregoing discussions on point Nos.1 and 2 as above, sentence of three years rigorous

¶185

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¶186

imprisonment ordered by the learned Trial Judge for the offence punishable under Section 13(1)(d) of the Prevention of Corruption Act, needs to be maintained by setting aside the sentence passed for the offence punishable under Section 7 of the Prevention of Corruption Act. Accordingly, point No.3 is answered partly in the affirmative.

¶187

REG.POINT No.4:

¶188

In view of the foregoing discussions on point

¶189

Nos.1 to 3 as above, following:

¶190

ORDER

¶191

i. Criminal appeals are allowed in part.

¶192

ii. Accused Nos.1 and 2/appellants are acquitted for the offence punishable under Section 7 of the Prevention of Corruption Act and therefore, conviction for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is maintained and

¶193

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¶194

consequently, sentence is modified by directing the appellants to undergo three years rigorous imprisonment for the offence punishable under Section 13(1)(d) of the Prevention of Corruption Act and sentence ordered for the offence punishable under Section 7 of the Act is hereby set aside.

¶195

iii. Time is granted for the appellants to surrender before the Trial Court on or before 20.03.2025 for serving remaining part of the sentence.

¶196

iv. Office is directed to return the Trial Court Records with copy of this order for issuing modified conviction warrant.

¶197

Sd/(V. SRISHANANDA) JUDGE

¶198

KAV

K S Prakash v. the State by the Police Inspector

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K S Prakash v. the State by the Police Inspector

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