State by Lokayukta Police Vs H.S. Kenge Gowda

THIS CRL.A. IS FILED UNDER SECTION 378(1) AND (3) CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 26.05.2012 PASSED BY THE PRL.S.J. AND SPL JUDGE, HASSAN IN SPL. CASE NO.7/2009 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 03.07.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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NC: 2025:KHC:45173 CRL.A No. 686 of 2013

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HC-KAR

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CAV JUDGMENT

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The appellant/Lokayuktha herein preferred this appeal seeking to set aside the judgment of conviction dated 26.05.2012 passed in Special Case No.7/2009 by the Principal Sessions Judge and Special Judge at Hassan, wherein he has been acquitted for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act,1988 (for short ‘P.C Act’).

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

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Factual matrix of the case:

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The case of the prosecution is that, the complainant – Shivanna S/o Sannaravegowda, resident of Bommenahalli lodges a complaint that Nagamma was his wife. She was allotted a house under the scheme, namely, Janatha Housing Scheme. To obtain that benefit, the documents were required to be given to the Secretary of the Gram Panchayath. Kengegowda/ accused was working as a bill collector at Attavara

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NC: 2025:KHC:45173 CRL.A No. 686 of 2013

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HC-KAR

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Hosalli Gram Panchayath. The Panchayath was supposed to prepare a mortgage deed and the accused was get it to be prepared. On 14.11.2007, at about 12.00 in the afternoon, the complainant on behalf of his wife approached the accused and requested to complete the mortgage deed. The accused demanded Rs.1,500/to prepare the documents and forward the same to the Secretary of the Gram Panchayath. The complainant being unhappy about the demand made by the accused, approached Lokayuktha police. The Lokayuktha police registered a case and conducted trap mahazar. After investigating the case, submitted the charge sheet.

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To prove the case of the prosecution, the prosecution examined 7 witnesses as PWs.1 to 7 and got marked 36 documents as Exs.P1 to P36 and also identified 10 material objects as M.O.1 to M.O.10. The Trial Court after appreciating the oral and documentary evidence on record, acquitted the accused for the offences stated supra. Hence, this appeal.

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HC-KAR

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Heard Sri.B.S.Prasad, learned Special Prosecutor for the appellant-Lokayuktha and Sri.Abhishek R.D, learned counsel for the respondent.

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It is the submission of learned Special Prosecutor for the appellant – Lokayukta that the judgment of conviction passed by the Trial Court is erroneous, illegal and the same is liable to be set aside.

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It is further submitted that merely because the complainant died and he has not led any evidence, it would not vitiate the entire proceedings. The Trial Court ought to have considered the shadow witnesses, panch witnesses and independent witness, namely, PW.3 who is none other than the wife of the complainant.

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It is further submitted that the evidence of PW.3 would indicate that the work was pending with the respondent and he had demanded the amount of Rs.1,500/-. It was paid and the said amount was recovered from the respondent. When the case is proved by the prosecution beyond reasonable doubt, the Trial Court failed to take note of the said fact and opined that the

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HC-KAR

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amount was given to be paid as a fee to the Gram Panchayat for the purpose of sanctioning the Janatha house. Hence, the said findings of the Trial Court is liable to be set aside. Making such submissions, the learned Special Prosecutor for the appellant – Lokayuktha prays to allow the appeal.

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Per contra, learned counsel for the respondent submitted that judgment of the Trial Court is proper and there is no infirmity in the said judgment. In fact, the prosecution has failed to prove the demand of illegal gratification which is sine-qua-non to demonstrate Section 7 of the P.C. Act.

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It is further submitted that recovery of the amount is not sufficient, unless, it is shown that the said amount was demanded by the accused.

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It is further submitted that the amount alleged to have been seized was to be paid as fee to the said Gram Panchayat and the said aspect has been proved through PW.5 who was working as Secretary to the said Gram Panchayat. Therefore, it is not appropriate to interfere

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HC-KAR

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with the said findings. Making such submissions, the learned counsel for the respondent prays to dismiss the appeal.

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Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court in recording the acquittal, it is appropriate to state the facts in brief for the purpose of arriving at a conclusion.

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The respondent was working as a bill collector. PW.3 was the beneficiary under the Janatha Housing Scheme. To avail the said scheme, some documents were to be produced to the Panchayath office and fee should have been paid to prepare the said documents.

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It is noticed that the complainant died during pendency of the case. PW.2 is a shadow witness, though, he supported the case of the prosecution, there are inconsistencies in the evidence of PW.2 and PW.5. As per the evidence of PW.2, the respondent demanded the illegal gratification. However, PW.5 says the amount paid by the complainant was a fee payable to prepare the documents for registration. These inconsistencies

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NC: 2025:KHC:45173 CRL.A No. 686 of 2013

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HC-KAR

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were to be considered by the Trial Court. Accordingly, the Trial Court has rightly considered and rightly recorded the acquittal.

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Even though, the learned Special Prosecutor submitted vehemently that the case has to be looked into with the circumstances when the complainant is not available or if the complainant is turned hostile, the said aspect though it is accepted in the light of law laid down by the Hon’ble Supreme Court in the case of NEERAJ DATTA v. STATE (GOVT. OF N.C.T OF DELHI)¹ , the fact of demand is controversial. Therefore, the said contention of the learned Special Prosecutor is held to be unsustainable.

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In the light of the observation made above, I proceed to pass the following:

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ORDER

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The appeal stands dismissed .

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Sd/(S RACHAIAH) JUDGE

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UN, List No.: 19 Sl No.: 1

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1 (2023) 2 S.C.R. 997

State by Lokayukta Police v. H.S. Kenge Gowda

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State by Lokayukta Police v. H.S. Kenge Gowda

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