Mr Papanna Naik Vs State of Karnataka

MR PAPANNA NAIK S/O. SRI DEVALA NAIK, AGED 51 YEARS, WORKING AS OFFICE SUPERINTENDENT BILLING SECTION SRI JAYADEVA INSTITUTE OF CARDIOLOGY BANNERGHATTA ROAD BANGALOR-560 097 R/OF NO.364, 4^TH MAIN 4^TH CORSS, PIPELINE ROAD T. DASARAHALLI BANGALORE-560 057 …APPELLANT

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(BY SRI. I.S PRAMOD CHANDRA., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY LOKAYUKTA POLICE CITY DIVISION, BANGALORE THROUGH THE SPL. PUBLIC PROSECUTOR, KARNATAKA LOKAYUKTA, M.S. BUILDING DR. AMBEDKAR VEEDHI BANGALORE …RESPONDENT

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(BY SRI. B S PRASAD, SPL.P.P.)

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THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED 28.4.2014 PASSED BY THE SPL. JUDGE, PREVENTION OF CORRUPTION ACT, BANGALORE URBAN DISTRICT, BANGALORE CITY IN SPL.C.C.NO.14/2005 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 7 AND 13(1)(d) P/U/S 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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ORAL JUDGMENT

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This appeal has been filed by the appellant being aggrieved by the judgment of conviction and order on sentence dated 28.04.2014 passed in Spl.C.C.No.14/2005 on the file of Special Judge, Prevention of Corruption Act, Bangalore Urban District, Bangalore City. Wherein, the appellant has been convicted for the offence punishable under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. ( for short P.C. Act ).

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Factual matrix of the case:

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The complainant is an auto driver and his father was aged about 52 years and was suffering from chest pain, the complainant took his father to Jayadeva Hospital, Bangalore for treatment, wherein, angiogram was done. After 23 days from the date of angiogram the father of the complainant was advised to undergo surgery and had to pay the amount of Rs.21,500/-. He was also advised to undergo certain tests in a private hospital and asked him to bring the report. The complainant made an application for refund of the amount which was already been deposited. It is stated to him that it

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would take almost 08 – 10 days to return the amount. In the

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meanwhile, the complainant took his father to Saibaba Hospital, there the complainant was asked to bring the compact disk of the angiogram of which his father had undergone at Jayadeva Hospital. The complainant asked the appellant who was working in the Accounts Section, to refund the deposited amount. However, the appellant had demanded an illegal gratification of Rs.5,000/to give compact disk. The complainant expressed his inability to pay the said amount and also requested him to furnish the compact disk. However, he was advised to meet the Managing Director. Accordingly, he met Mr. Prabhudev – Managing Director and got the compact disk.

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Again, on 19.10.2002, the complainant went and

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met the appellant and requested him to repay the amount which had already been deposited. The appellant told the complainant that the applications were pending since one year and it would be decided on priority basis. If the complainant wanted to take it early, he has to pay the amount of Rs.1,000/. Again, on 24.10.2002 the complainant met the appellant and requested the appellant to refund the amount. However, he

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was demanded Rs.1,000/- which got reduced to Rs.300/-. As the complainant was not interested to pay the said amount, he has lodged a complaint before the Lokayukta - Police.

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On receiving the complaint the respondent – Police registered a case, conducted the investigation and submitted the charge-sheet.

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The prosecution in order to establish the case examined 08 witnesses as PW-1 to PW-8 and got marked 37 documents as Ex-P.1 to P.37 and also identified 14 documents as material objects as MO-1 to MO-14.

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On considering the oral and documentary evidence

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on record the Trial Court convicted the appellant for the offences stated supra .

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Learned counsel for the appellant submits that the judgment of conviction and order on sentence passed by the Trial Court are totally erroneous and based on a misconception of both facts and law. Therefore, the same has to be set aside.

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It is further submitted that P.W.-1 being a shadow

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witness has not supported the case of the prosecution in respect of demand of illegal gratification. Similarly, P.W.-6

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another panch witness stated in his evidence that the Police have not recorded his statement to substantiate that he was present at the spot. P.W.-7 though, is stated to be supported the case of the prosecution, the alleged conversation between himself and the accused is stated to be recorded, it has not been followed by a certificate under Section 65-B of Indian Evidence Act, which is mandatory to substantiate the electronic records. In the absence of cogent and concrete evidence that there was a demand of illegal gratification, the Trial Court has convicted the accused on the basis of assumption and presumption which is beyond the scope of criminal jurisprudence. Hence, the judgment of conviction is liable to be set aside. Making such submissions, the learned counsel for the appellant prays to allow the appeal.

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Per Contra, the learned Special Public Prosecutor for Lokayukta vehemently submitted that the evidence of P.W.-7 is clear and cogent that the appellant was working as First Division Assistant at Jayadeva Hospital, Bangalore, had demanded illegal gratification of Rs.1,000/- to refund the amount which had already been deposited by the complainant for the purpose of getting the treatment done to his father. The

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amount of Rs.1,000/- has been reduced to Rs.300/- and it is alleged that it was paid on instructions by the Lokayukta – Police on the following day. A trap was laid and amount was seized in the presence of witness and a case has been registered against the appellant. The witness supported the case of the prosecution not only in respect of demand of illegal gratification, but also, recovery from the accused. The sanction has also been accorded in accordance with law. Therefore, there is no uniformity or error committed by the Trial Court in recording the conviction. Hence, the judgment of conviction passed by the Trial Court has to be upheld and the appeal has to be dismissed.

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Heard learned counsel appearing for the respective parties and perused the judgment of conviction rendered by the Trial Court. Now, it is relevant to refer the evidence of material witnesses for the purpose of re-appreciation.

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P.W.-1 is stated to be the shadow witness. He was called by the Lokayukta – Police. Accordingly, he went to the Lokayukta office and he was instructed to be a witness to the incident. Accordingly, he had accompanied other witness along with the Lokayukta staff and went to the office of the accused.

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It is further stated that he had been to hospital

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along with the complainant and he was standing 10 meters away from the spot where the conversation had taken place between the complainant and the accused. According to him, the conversation between the complainant and the accused had not been heard by him. However, he is stated in his evidence that P.W.-7 was having tape recorder with him and he did not know as to whom it was given later. The prosecutor has treated these witnesses as hostile and conducted cross-examination. Nothing has been elicited to support the case of the prosecution in respect of demand of illegal gratification.

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P.W.-2 was working as Office Superintendent at Jayadeva Hospital, Bangalore. He has deposed before the Court that P.W.-7 had deposited Rs.21,500/- at the time of getting his father admitted as in-patient in the hospital. It is further stated that the appellant had approved to refund the amount of Rs.14,971/- on 21.10.2002, the same approval letter is marked as Ex-P.1, again, it was approved by the Director and also the Financial Advisor. On 25.10.2002, the cheque of Rs.14,971/was drawn in favor of P.W.-7. However, on 21.10.2002 around 3.00 P.M the accused was called by respondent – Police.

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P.W.-7 is the complainant, he has supported the

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case of the prosecution. However, the evidence of this witness is not consistent in respect of demand and acceptance. As he is an interested witness to the incident, certainly, his evidence should have been corroborated by an independent witness who is known as shadow witness. As the shadow witness did not support the case of the prosecution, the Trial Court should not have recorded the conviction.

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It is well settled principle of law laid down by the Hon’ble Supreme Court in the case of Neeraj Dutta Vs. State (Government of NCT of Delhi)¹ in paragraph No.88 , reads 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 gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct

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1 (2023) 4 SCC 731

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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 bribegiver 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

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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 subpara 88.5(e), above, as the former is a

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mandatory presumption while the latter is discretionary in nature.

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On careful reading of the above judgment passed by the Hon’ble Supreme Court, it emerges that, to constitute an offence under Section 7 and 13(1)(d) of P.C. Act, the demand and acceptance of illegal gratification are sine-qua-non . In the present case, the demand of illegal gratification is not proved by the prosecution. Therefore, even assuming that Rs.300/had been recovered from the accused, that itself is not sufficient to hold that he had demanded illegal gratification to discharge his official duty. Moreover, P.W.-2 has stated in his evidence that on 21.10.2002 the appellant had proved that the work was not pending with the appellant as on the date of the alleged incident of demand of illegal gratification.

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On overall reading of the evidence of all these witnesses, I am of the considered opinion that the prosecution has failed to prove the case beyond reasonable doubt that the accused has demanded amount of Rs.300/from the complainant for the purpose of refund of the amount deposited by him for the purpose of getting his father treated in the

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Jayadeva Hospital, Bangalore. In the light of the observations made above, I proceed to pass the following:

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ORDER

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i. This Criminal Appeal is allowed .

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ii. The judgment of conviction and order on sentence dated 28.04.2014 passed in Spl.C.C.No.14/2005 on the file of Special Judge, Prevention of Corruption Act, Bangalore Urban District, Bangalore City, for the offence punishable under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988, is hereby, set aside.

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iii. The appellant is acquitted for the offence stated supra .

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iv. The bail bonds executed, if any, stands cancelled.

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Sd/(S RACHAIAH) JUDGE

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NM List No.: 1 Sl No.: 15

Mr Papanna Naik v. State of Karnataka

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Mr Papanna Naik v. State of Karnataka

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