Uday K H S/O Holadde Gowda Vs the State by Police Inspector

THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE DATED: 3.5.12 PASSED BY THE SESSIONS/SPECIAL JUDGE UDUPI DISTRICT IN SPL.CASE NO.27/08CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 8 OF PREVENTION OF CORRUPTION ACT,

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1988; THE APPELLANT-ACCUSED NO.2 CONVICTING FOR THE OFFENCE PUNISHABLE UNDER SECTION 7, 8, 13(1)(D) READ WITH 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988, THE APPELLANT-ACCUSED NO.1 IS SENTENCED TO SUFFER IMPRISONMENT FOR A PERIOD OF ONE YEAR AND PAY A FINE OF RS.6,000/- AND IN DEFAULT TO UNDERGO FURTHER IMPRISONMENT FOR A PERIOD OF 1 MONTH FOR THE OFFENCE UNDER SECTION 8 OF THE PREVENTION OF CORRUPTION ACT; THE APPELLANT-ACCUSED NO.2 IS SENTENCED TO UNDERGO IMPRISONMENT FOR A PERIOD OF ONE YEAR AND PAY A FINE OF RS.2,000/- AND IN DEFAULT TO UNDERGO FURTHER IMPRISONMENT FOR A PERIOD OF 1 MONTH FOR THE OFFENCE UNDER SECTIONS 7, 8, 13(1)(D) READ WITH 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Shri P.B. Umesh, learned counsel for Shri R.B. Deshpande, learned counsel for the appellants and Shri B.B. Patil, learned counsel for the respondent - Lokayuktha.

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Appellants are accused Nos.1 and 2, who suffered an order of conviction in Special Case No.27/2008 by judgment dated 03.05.2012, on the file of the Sessions/Special Judge, Udupi, whereby accused No.1 is convicted for offence punishable under Section 8 of the Prevention of Corruption Act, 1988 and accused No.2 is convicted for the offence punishable

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under Sections 7, 8, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced as under:

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"Accused No.1 is convicted and sentenced to suffer imprisonment for a period of one year and pay a fine of Rs.6,000/- and in default to undergo further imprisonment for a period of 1 month for the offence under Section 8 of the Prevention of Corruption Act.

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Accused No.2 is convicted and sentenced to undergo imprisonment for a period of one year and pay a fine of Rs.2,000/- and in default to undergo further imprisonment for a period of 1 month for the offence under Sections 7, 8, 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988."

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Facts in the nutshell which are utmost necessary for the disposal of the present appeal are as under:

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A complaint came to be lodged by Rajendra Shettigar with Lokayuktha Police contending that he owns a land in Sy.No.70/1P1 measuring 16 cents at Vaderhabli village, Kundapura Taluk. He intended to sell the land to meet his financial necessities. Intended purchasers demanded for the survey sketch of the land. Therefore, he filed an application on 01.02.2007 to the office of the Assistant Director of land Records, Kundapura Taluk and remitted necessary statutory fees in a sum of Rs.103/- and Rs.300/- towards the measurement. Licensed surveyor - Shri Udaya K.H.

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(hereinafter referred to as accused No.1) had informed him that on 07.02.2007, he would measure the land and prepare the sketch.

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On 07.02.2007, accused No.1 carried out the survey and prepared the sketch. After survey, Shri Rajendra Shettigar informed accused No.1 as to when the sketch would be delivered to him. Accused No.1 at that juncture demanded a sum of Rs.2,000/- as illegal gratification as the sketch need to be counter signed by the survey supervisor. When the same was denied by the complainant, accused No.1 said to have demanded Rs.500/- as illegal gratification for having surveyed the land on 07.02.2007 and complainant paid the same, which was accepted by accused No.1. Accused No.1 told that he can collect the sketch on 09.02.2007 after payment of the balance amount.

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The complainant was disinterested in parting away the illegal gratification. Therefore, he approached the Lokayuktha police station and informed the demand made by accused No.1. Lokayuktha Inspector said to have given a small tape-recorder to record the conversation between accused No.1 and the complainant. Accordingly, complainant approached

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accused No.1 and in the guise of bargaining the bribe amount, had a conversation with accused No.1. After sufficient bargain, accused No.1 agreed to receive Rs.800/-. The same was recorded in the tape recorder.

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On 21.02.2007 again complainant enquired accused

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No.1 over telephone and at that juncture accused No.1 told that Rs.800/- be handed over to him and he would hand over the sketch on 22.02.2007 after obtaining the counter signature of survey supervisor (hereinafter referred to as accused No.2). After all these things, the complainant lodged the regular complaint with Lokayuktha Police at about 8.00 a.m.

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Lokayuktha Inspector based on the complaint lodged by Shri Rajendra Shettigar, decided to trap both the accused persons and formed a raid party in comprising of himself and he secured two independent witnesses to act as pancha. After the independent witnesses arrived in the office of the Lokayuktha Police, the complaint contents were read over to the independent witnesses and thereafter chemical reaction of phenolphthalein powder with sodium carbonate solution was demonstrated to them. Rs.800/- obtained from the complainant was taken by the Inspector and the serial

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numbers of those currency notes were recorded separately and thereafter phenolphthalein powder was smeared on intended bribe money. Thereafter, the complainant was instructed by the Inspector that on demand he should hand over the tainted currency to the hands of accused No.1 and shadow witness was instructed to observe the happenings when the demand takes place in the office of the survey supervisor at Byndoor and also observe the conversation that would take place at the time of handing over the tainted currency to the hands of accused No.1. All these particulars were recorded in the form of a Mahazar (Entrustment Mahazar).

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Thereafter, all of them left to the office of accused No.1 at Byndoor. In the office of accused Nos.1 and 2, on demand, complainant handed over tainted currency of Rs.800/which was witnessed by a shadow witness. Thereafter, complainant gave a missed call to the head of the raid party over his telephone and raid party appeared on the scene. They enquired accused No.1 about the tainted currency. At that juncture, accused No.1 took out two currency notes of denomination of Rs.500/- and Rs.100/- from his shirt pocket. The hands of accused No.1 was made to wash in the colorless

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sodium carbonate solution, which were kept in two separate bowls. Colorless solutions in separate bowls turned into pink colour and it was seized by the Lokayuktha Police and they enquired about the balance amount of Rs.200/-, which was handed over by the complainant to accused No.1. Accused No.1 told that it has been handed over to the survey supervisor (accused No.2). The raid party then visited accused No.2 and enquired about the tainted currency for which he denied having accepted the remaining tainted currency. His hands were washed in two separate bowls. Both the bowls, colorless sodium carbonate solution turned into pink color and it was seized separately. Shadow pancha and remaining members of the raid party were told to search in the cabin of accused No.2 for the remaining Rs.200/-. At that juncture, the members of the raid party found two currency notes in the folded form under the steel almirah kept in the cabin of accused No.2, which was taken out and tallied with serial numbers entered in the entrustment mahazar and it was tallied. Explanation offered by accused No.2 was also taken and thereafter both accused No.1 and 2 were arrested by the head of the raid party.

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Thereafter, the file containing the pending

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application of the complainant was seized and Tahsildar was also secured to the place of incident and then, the shirt pocket of accused No.1 was also washed in colorless solution, which also turned into pink and that was separately sealed and seized by the head of the raid party. All these proceedings were reduced into writing in the form of a mahazar (Trap Mahazar) and thereafter accused Nos.1 and 2 were arrested and produced before the Special Judge after completing the necessary formalities and then they were remanded to judicial custody.

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Head of the raid party completed the investigation by sending the sealed samples to the forensic science laboratory and obtaining the report, filed the charge sheet.

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Presence of the accused persons were secured by the learned Special Judge after compliance of Section 207 of the Cr.P.C. Learned Special Judge framed the charges against the accused persons. Both the accused persons pleaded not guilty therefore trial was held.

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In order to bring home the guilt of the appellants, prosecution in all examined 11 witnesses as PW-1 to PW-11,

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among them, PW-1 is the complainant and PW-6 is the shadow witness. Tahsildar, Investigating agency are the remaining witnesses.

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Prosecution placed on record 16 documentary evidence which is exhibited and marked as Ex.P1 to Ex.P16 comprising of complaint, entrustment mahazar, sketch of the place of the incident, covering letter, F.I.R., documents pertaining to the pending work of the complainant with the office of the A.D.L.R., photographs, voluntary statement of accused Nos.1 and 2, acknowledgment, FSL report. Prosecution also placed on record 21 material objects of which the tainted currency recovered from the shirt pocket of accused No.1 as M.O.5 and M.O.6 - two currency notes and two folded currency notes, which was seized from the cabin of accused No.2 as M.O.8 and M.O.9.

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On conclusion of recording of evidence, the learned Special Judge recorded the accused statement as is contemplated under Section 313 of Cr.P.C. Both the accused persons have denied the incriminating materials and did not chose to place any written submissions on record as is contemplated under Section 313(4) of Cr.P.C. Accused did not

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place any defence evidence on their behalf. Thereafter, learned Trial Judge heard the parties in detail and on cumulative consideration of oral and documentary evidence placed on record, convicted the appellants and sentenced as referred to supra.

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Being aggrieved by the same, the appellants are before this Court.

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Shri P.B. Umesh, learned counsel representing the appellants contended that to establish the necessary ingredient to attract the offences as against the appellants, hardly there is any material evidence placed on record, which would be sufficient enough to convict the appellants for the aforesaid offences and sought for allowing the appeal.

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He pointed out that insofar as accused No.2 is concerned, the prosecution evidence lacks insofar as the demand of illegal gratification said to have been made by accused No.2 to the complainant either in the form of contents of the complaint or the oral evidence of the complainant and the shadow witness.

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Shri P.B. Umesh further pointed out that accused No.2 was nowhere in the picture when the survey of the land

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belonging to the complainant took place on 07.02.2007 and after surveying the land when the survey sketch was demanded by the complainant, on 09.02.2007 as per the case of the complaint, complainant had paid a sum of Rs.500/- towards the surveying of the land by accused No.1 and there was no complaint made by the complainant on 09.02.2007, when actually there was a demand of Rs.2,000/- as per the case of the prosecution itself which shows the hollowness in the case of the prosecution and sought for allowing the appeal.

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He further contended that there was no conversation between 09.02.2007 and 21.02.2007 even according to the prosecution and it is only on 21.02.2007, when the complainant approached the Lokayuktha Police, they gave the tape-recorder and material on record would go to show that the conversation on the 'A' side is audible but conversation on the 'B' side of the cassette is not audible. Therefore, the prosecution case suffers from want of evidence to establish demand and acceptance, which has been rightly considered by the learned Judge while convicting accused No.1 for the offence under Section 8 of the Prevention of Corruption Act whereas in the absence of any evidence insofar as accused No.2 is

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concerned in respect of the demand of bribe and acceptance thereof, conviction of accused No.2 for the offence punishable under Sections 7, 8, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is per se illegal and sought for allowing the appeal in toto insofar as accused No.2 is concerned.

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Per contra , Shri B.B. Patil, learned counsel representing the Lokayuktha, supported the impugned judgment by contending that even though there is no demand made by accused No.2 directly, shadow witness - PW6 in his cross examination on behalf of accused No.2 has specifically answered that indirectly accused No.2 demanded the money from accused No.1 which factor cannot be lost sight of and color test having stood positive insofar as accused No.2 is concerned, and currency notes in the folded form were recovered underneath the steel almirah kept in the cabin of accused No.2, handling of tainted currency and the currency notes being seized form his cabin, all necessary ingredients required to maintain the conviction of both the accused has been established by the prosecution by placing cogent and convincing the evidence on record which requires no

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interference by this Court in this appeal even after re-appreciation on the material evidence on record and sought for dismissal of the appeal.

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He further contends that the fact of shadow witness and complainant deposing that after entire amount of Rs.800/has been taken by the accused No.1 and thereafter visiting the cabin of accused No.2 and only Rs.600/- has been recovered by the head of the raid party from the shirt pocket of the accused and on enquiry, accused No.1 having told that the balance amount of Rs.200/- is handed over to accused No.2 and non explanation of accused No.2 either while recording the accused statement or when he gave the explanation soon after the trap with regard to the accused No.1 handing over Rs.200/- to him, and he pushing the said amount being not established by placing necessary evidence on record, the conviction of both the appellants needs to be maintained and thus sought for dismissal of the appeal.

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Having heard the arguments of both sides, this Court perused the materials on record meticulously.

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

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"1) Whether the material evidence placed on record by the prosecution would be sufficient enough to maintain the conviction of appellant No.1 for the offence under Section 8 of PC Act and conviction of appellant No.2 for the offence under Sections 7, 8 and 13(1)(d) read with Section 13(2) of PC Act?

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2) Whether the appellants make out a case of legal infirmities or perversity in recording a finding of conviction of the appellants for the aforesaid offences?

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3) Whether the sentence needs modification?

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4) What order?"

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Regarding point Nos.1 and 2: In the case on

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hand, application having been filed by Rajendra Shettigar for surveying his land bearing No.70/P1 measuring 16 cents in Vader Hobli Village, Kundapura Taluk, is not in dispute. He had paid the necessary fee as per the statute for issue of sketch as well as the charges for measuring the land in a sum of Rs.103/and Rs.300/- respectively. Pursuant to the said application and payment of requisite fee, accused No.1 did visit the land of the

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complainant on 07.02.2007 and measured the land. Till this date, there is no dispute with regard to the factual aspect on either side.

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However, after the land was measured, it is the specific case of the complainant that, he enquired accused No.1 as to when he would get the survey sketch. It is at that juncture, accused No.1 said to have demanded a sum of Rs.2,000/- as the illegal gratification. When the complainant refused to pay the said amount, accused No.1 collected Rs.500/- as his share for having measured the land and told him to collect the sketch after paying the remaining amount on 09.02.2007. The complainant was not willing to pay the balance bribe amount. Therefore, he had approached the Lokayukta Police at Udupi.

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After he met the Lokayukta Police, no formal complaint was taken by the Lokayukta Police; instead a small tape recorder was handed over to the complainant to record the conversation, wherein a demand by accused No.1 for bribe amount is recorded. Accordingly, the complainant along with the tape recorder met accused No.1 and negotiated the bribe

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amount. At that juncture, accused No.1 said to have agreed to receive another sum of Rs.800/- for handing over the survey sketch.

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Based on the said conversation, a formal complaint came to be lodged on 22.02.2007. Thereafter, the raid party was formed and successfully accused Nos.1 and 2 were trapped on 22.02.2007 in the office at Byndoor. The material evidence on record in the form of oral testimony of PWs.1 and 6 consistently establish the fact of accused No.1 obtaining tainted currency in a sum of Rs.800/- comprising of one note of Rs.500/denominations and three notes of Rs.100 denominations from the hands of the complainant. After so receiving the tainted currency in a sum of Rs.800/-, accused No.1 did visit the cabin of accused No.2 and returned. It is then, the pre-designated signal to the remaining raid party members was given by PW1 by giving a missed call from his mobile.

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Raid party, thereafter, appearing on the scene immediately and apprehending accused No.1 and enquiring him about the tainted currency stood established not only by oral

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testimony, but also from the seizure of the part of tainted currency to the extent of note of Rs.600/- which was recovered from the shirt pocket of accused No.1 comprising of one note of Rs.500/- and one note of Rs.100/-. Colour test conducted insofar as accused No.1 stood positive and on enquiry, accused No.1 told that balance sum of Rs.200/- was handed over to accused No.2. Thereafter, raid party visited accused No.2 and enquired him about the tainted currency, for which, accused No.2 flatly refused having received the tainted currency. However, colour test conducted in his place stood positive, which establishes that he did handle the tainted currency. The remaining members of the raid party was told to search for the balance sum of Rs.200/-. After thorough search, the remaining members of the raid party were able to find two currency notes of Rs.100/- denomination in the folded condition under the steel almirah that was kept near accused No.2. Those folded notes were also seized by the head of the raiding party after tallying the serial numbers of those two currency notes as that of the serial numbers entered in the entrustment mahazar.

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These aspects of the matter would clearly establish

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that there is positive and cogent evidence on record with

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regard to the handling of tainted currency and work of PW1 pending in the office of accused Nos.1 and 2.

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No doubt, accused No.2 gave an explanation that he had completed his part of the work by signing the survey sketch being the survey supervisor and he did not demand any money. In this regard, the oral evidence of PW6 assumes importance. A specific question was put to PW6 - shadow witness by the counsel for accused No.2 as to the alleged demand by accused No.2. PW6 did answer that accused No.2 did not demand directly the illegal gratification, but it was an indirect demand.

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Therefore, when the material evidence is reappreciated in the light of the appeal grounds and on behalf of both the appellants, in fact it is accused No.1 who should have been convicted for the offence under Section 13(1)(d) read with Section 13(2) of PC Act, as it is he who demanded the illegal gratification from PW1 at an undisputed point of time i.e., on 07.02.2007. But accused No.1 being only a Surveyor, the learned Trial Judge thought that he is not a public servant, therefore, convicted accused No.1 only for the offence under

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Section 8 of PC Act and proceeded to convict accused No.2 for the offence under Sections 7, 8, 13(1)(d) read with 13(2) of PC Act and sentenced supra.

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Be it what it may, in the absence of any appeal by Lokayukta, when the material evidence on record is reappreciated, since accused No.1 did take Rs.800/- on the day of trap and there is no positive cross-examination except suggesting that accused No.1 did not take any money on 07.02.2007 in sum of Rs.500/-, the conviction of accused No.1 for the offence under Section 8 of PC Act needs no interference.

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Having said thus, in the absence of any cogent evidence wherein accused No.2 had made a direct demand and accepted the bribe amount directly from the complainant, this Court is of the considered opinion that the conviction of accused No.2 for the offence under Sections 8 and 13(1)(d) read with Section 13(2) of PC Act needs a re-look.

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The principles of law with regard to the what exactly will be the offence that would be covered under Section 7 of PC Act and what are the ingredients that are required for

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recording an order of conviction under Section 13(1)(d) read with Section 13(2) of PC Act is no longer res integra.

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The Hon'ble Apex Court in the case of Neeraj Dutta Vs State (Government of NCT of Delhi)¹ , has held as

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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

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1 (2023) 4 SCC 731

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from the public servant. This is an offence under Section 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 Section 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 bribegiver 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 Section 13(1)(d) and (i) and (ii) of the Act."

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The principles of law enunciated in Neeraj Dutta

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(supra) which is a constitutional Bench judgment, wherein, referred questions stood answered in the affirmative was being the subject matter of another judgment of a larger Bench of the Hon'ble Apex Court in the case of Sita Soren Vs Union of

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India² , wherein, the larger Bench has approved the answer to the referred questions by the constitution Bench in Neeraj Dutta (supra) .

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Therefore, on close reading of the principles of law enunciated in the judgment of Neeraj Dutta (supra) , this Court is of the considered opinion that even in the absence of any demand made by accused No.2 directly to the complainant, since the bribe is given i.e., the complainant handed over a sum of Rs.800/- to the hands of accused No.1 and portion of which was handed over to accused No.2 (Rs.200/- recovered from the cabin of accused No.2) by the remaining members of raid party who did not nurture any previous enmity or animosity as against accused No.2, the offence under Section 7 of PC Act, where acceptance of bribe amount having gets established in the case on hand.

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Therefore, conviction of accused No.2 for the offence under Section 7 of PC Act needs to be maintained. However, there is no evidence on record which would also cover under Section 8 and 13(1)(d) read with Section 13(2) of PC Act in so far as accused No.2 is concerned. Counsel for

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2 (2024) 5 SCC 629

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Lokayukta is unable to point out any other material on record which would be sufficient enough to maintain remaining offence as against accused No.2.

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Further, the explanation offered by accused No.2 immediately after the incident is of no avail from escaping the rigors of law under Section 7 of PC Act, inasmuch as said explanation is to be termed as self serving testimony.

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From the above discussion, this Court is of the considered opinion that point Nos.1 and 2 are to be answered partly in the affirmative.

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Regarding point No.3: In view of the findings on point Nos.1 and 2 and accused No.2 being acquitted for the offence punishable under Sections 8 and 13(1)(d) read with Section 13(2) of PC Act, one year imprisonment and fine of Rs.2,000/- with a default sentence of one month needs a relook. Since the incident has occurred before the Act came to be amended, minimum punishment of simple imprisonment of six months is to be ordered taking note of the age of accused No.2 as on today being 72 years.

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In so far as accused No.1 is concerned, he has been

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ordered to undergo imprisonment for a period of one year for the offence under Section 8 of PC Act. The sentence in so far as accused No.1 also needs a re-look, inasmuch as, since the incident has occurred in the year 2007, when the Act stood unamended, sentence of imprisonment of accused No.1 also needs to be reduced to six months instead of one year, while maintaining the fine amount of accused Nos.1 and 2 as ordered by the learned Trial Judge. Therefore, point No.3 is answered partly in the affirmative.

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43. Regarding point No.4 : In view of the finding of

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this Court on point Nos.1 to 3 as aforesaid, the following order is passed:

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ORDER

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(i) Criminal Appeal is allowed in part.

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(ii) Conviction of accused No.1 for the offence under Section 8 of PC Act is maintained and conviction of accused No.2 is maintained for the offence under Section 7 of PC Act and accused No.2 is acquitted for the offence under Sections 8, 13(1)(d) read with Section 13(2) of PC Act.

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(iii) Consequently, the sentence of imprisonment ordered by the learned Special Judge in the impugned judgment granting one year simple imprisonment for the offence under Section 8 of PC Act, in so far as accused No.1 is concerned and one year simple imprisonment of accused No.2 for the offence under Section 7 of PC Act is concerned is reduced to sentence of imprisonment for a period of six months and fine amount of Rs.6,000/- and Rs.2,000/- ordered by the learned Special judge is maintained.

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(iv) Accused Nos.1 and 2 who are the appellants are directed to surrender before the Trial Court on 10.03.2025 positively for serving the remaining part of the sentence.

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Office is directed to return the Trial Court records with the copy of this order, forthwith for issuing modified conviction warrant.

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Sd/(V SRISHANANDA) JUDGE

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JY/BGN List No.: 1 Sl No.: 24 CT: BHK

Uday K H S/O Holadde Gowda v. the State by Police Inspector

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Uday K H S/O Holadde Gowda v. the State by Police Inspector

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