Shivaswamy Vs State by — Corruption | Karnataka HC (2026)

Shivaswamy Vs State by — Corruption | Karnataka HC (2026)

What the court decided

AI extract

Outcome

Appeal partly allowed: conviction upheld; imprisonment reduced from 1 year to 6 months (Section 7, PC Act 1988) and from 2 years to 1 year (Section 13, PC Act 1988); period of imprisonment already undergone set off; both sentences to run concurrently; rest of the Trial Court's judgment of conviction and order of sentence (including fines of Rs.10,000/- and Rs.15,000/-, confiscation of MO.2A Rs.40,000/- and return of MO.3A Rs.11,500/-) maintained.

Issue for consideration

Whether the failure to include the sum of Rs.11,500/- (part of the Rs.51,500/- recovered from accused No.1) in the charges framed by the Trial Court constitutes such error in framing of charges as to require reconsideration/vitiation of the trial. +4 more

Court's answer

Omission of the sum of Rs.11,500/- from the framed charges is not fatal: absent substantial injustice or prejudice occasioned by the error in framing of charges, the prosecution and trial cannot be held to have been vitiated; the appellant's contention on this ground is rejected.

Ratio / Principle

The statutory burden cast on the accused under Section 20 of the Prevention of Corruption Act, 1988 to explain his possession of the amount was not discharged, and no explanation was given even to Question No.42 of the Section 313 statement (specifically directed to the additional Rs.11,500/-), supporting rejection of the charge-defect contention.

Key takeaways

Payment of the additional sum of Rs.11,500/- was proved by the prosecution and corroborated by the evidence of shadow witness PW.3 (and PW.13, bank manager); recovery of the full Rs.51,500/- (Rs.40,000/- + Rs.11,500/-) is undisputed.ratio¶¶115
The prosecution proved the case beyond reasonable doubt, equally supported by the shadow witness PW.3; this Court finds no error or illegality in the judgment of conviction passed by the Trial Court.ratio¶¶145
The inconsistency/so-called contradiction between PW.1 and PW.11 as to the side of the secret pocket in which the money was kept cannot be countenanced, endorsing the Trial Court's justification (voluntary statement Ex.P27, watch pocket normally situated on the right side, and absence of any proper explanation by accused No.1).

Detailed headnote1 paragraphs

Criminal Appeal — Prevention of Corruption Act, 1988 — Lokayukta trap case — conviction under Ss.7, 13(1)(d) r/w 13(2) PC Act affirmed with sentence reduced. (i) Non-mention of Rs.11,500/- (part of Rs.51,500/- recovered) in the framed charge is not fatal; absent substantial injustice or failure of justice, defect in charge does not vitiate trial (following Sandeep Yadav v. Satish, 2026 SCC OnLine SC 474, para 14.7); (ii) statutory burden under S.20 PC Act to explain possession of the amount not discharged by accused; no answer to Q.No.42 of S.313 CrPC statement — adverse inference (Prahlad v. State of Rajasthan, 2019 14 SCC 438, para 11, relied on); (iii) PW.1/PW.11 discrepancy as to left/right secret pocket cannot be countenanced — pant watch pocket normally on right side, accused gave no proper explanation; (iv) no parity with co-accused No.2, who was acquitted only because he was not present when the money was paid; (v) prosecution case proved beyond reasonable doubt with support of shadow witness PW.3 and bank manager PW.13; conviction maintained. Mitigating circumstances — accused now 64 years, ~17 years lapsed since offence (04.08.2009), dismissal from service, two angioplasties (10.05.2019; 02.01.2020) — imprisonment reduced: S.7 offence 1 year to 6 months; S.13 offence 2 years to 1 year; sentences concurrent; period undergone set off (S.428 CrPC); fines of Rs.10,000/- and Rs.15,000/- and property orders maintained; appeal partly allowed.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF APRIL, 2026

BEFORE

THE HON'BLE MR. JUSTICE M.G.S. KAMAL CRIMINAL APPEAL NO. 763 OF 2013 (C)

BETWEEN:

SHIVASWAMY S/O M.N. MALLAPPA AGED ABOUT 51 YEARS OCC: GRAMA PANCHAYAT SECRETARY KROHATTI PANCHAYATH T. NARASIPURA TALUK MYSORE DISTRICT-571101

&APPELLANT

Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA

(BY SRI. CHANDRASHEKARA K A.,ADVOCATE)

AND:

STATE BY LOKAYUKTA POLICE MYSORE

&RESPONDENT

(BY SRI. B.S.PRASAD, ADVOCATE)

THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE ADV. FOR THE APPELLANT/ACCUSED PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED 25.07.2013 PASSED BY THE III ADDL. SESSIONS AND SPL. JUDGE, MYSORE IN SPL. CASE NO.55/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 7,13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 1 YEAR AND PAY FINE OF RS.10,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO FURTHER S.I. FOR 3 MONTHS FOR THE

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OFFENCE P/U/S 7 OF PREVENTION OF CORRUPTION ACT, 1988. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 2 YEARS AND PAY FINE OF RS.15,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO FURTHER S.I. FOR 4 MONTHS FOR THE OFFENCE P/U/S 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. BOTH SENTENCES SHALL RUN CONCURRENTLY. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

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

CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

ORAL JUDGMENT

This appeal is by accused No.1 aggrieved by the judgment of conviction and order on sentence dated 25.07.2013 passed in Special Case No.55/2011 on the file

of the III Additional Sessions and Special Judge, Mysuru, by which, the following order has been passed;

"Acting under Sec.235(1) of Cr.P.C., accused No.2 is acquitted of the offences punishable under Sections 7 and 13(1)(d) read with Sec.13(2) of Prevention of Corruption Act, 1989.

Accused No.1 is found guilty of the offences punishable under Sections 7 and 13(1)(d) read with Sec.13(2) of the Prevention of Corruption Act, 1988 and is convicted under Sec.235(2) of Cr.P.C.

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Accused No.1 is convicted for the offence under Sec.7 of Prevention of Corruption Act, 1988 and sentenced to undergo Rigorous Imprisonment for a period of one year and to pay fine of Rs.10,000/- in default, Simple Imprisonment for further period of 3 months.

Accused No.1 is convicted for the offence under Sec.13(2) of Prevention of Corruption Act, 1988 and sentenced to undergo Rigorous Imprisonment for a period of two years and to pay fine of Rs.15,000/- in default, Simple Imprisonment for further period of 4 months.

Both sentences shall run concurrently.

M.O.2A-tainted amount of Rs.40,000/is confiscated to the State, M.O.3A-amount of Rs.11,500/shall be returned to the Complainant and rest of the properties are ordered to be destroyed, after the appeal period and in case the accused No.1 preferring the appeal, subject tot eh decision of the said appeal.

The period of detention of the accused No.1 is set off against the sentence imposed to him under Sec.428 of Cr.P.C.

The Bail Bond shall stands cancelled.

Furnish free copy of the Judgment to the accused No.1 immediately."

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The case of the prosecution is that; the complainantPW1 was a Class-III Civil Contractor. That in the month of January, 2009, he was awarded the contract work of Hemmige Grama Panchayath in T.Narasipura Taluk for construction of a drainage which he had completed the work on 04.07.2009. The said work was verified by one Sri.Nagraj T.N, Junior Engineer of T.Narasipura Zilla Panchayath Sub Division - accused No.2. Accused No.2 after verifying the work, had approved the bill for Rs.2,94,000/-. After all the permissible deductions, the complainant - PW1 was entitled to receive Rs.2,61,000/-. A cheque was also drawn for the said amount. However, accused No.2 demanded 5% of the cheque amount to be paid to him towards illegal gratification. On 03.08.2009, when he approached accused No.1 who was working as Secretary of Village Panchayath for issuance of cheque, had demanded 20% of the cheque amount ie., Rs.52,000/towards illegal gratification purportedly towards his share and towards the share of other persons.

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When the complainant expressed his inability to pay the said amount, he was directed to pay the amount after encashing the cheque in the Contractors Credit Cooperative Society. That the complainant had brought the above aspect of the matter to the notice of Lokayuktha Police who had prepared the pre-trap mahazar and a sum of Rs.40,000/- which was brought by the complainant was handed over to him after smearing the said amount with phenolphthalein powder in the presence of PWs.2 and 3 and was directed to be handed over to the accused on demand. That on 04.08.2009, between 12.30 p.m. and 01.15 p.m, accused No.1 had illegally demanded Rs.52,000/- from the complainant. The complainant had paid Rs.40,000/- to accused No.1 who received the same for himself and on behalf of accused No.2. As per the instruction, the trap was laid and accused No.1 was apprehended while receiving the bribe amount. Trap mahazar was drawn. Sanction was obtained for the prosecution. Accordingly, charge sheet was filed. After

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taking cognizance of the matter, charges were framed and read over and explained to the accused. Since he pleaded not guilty, the matter was set down for trial.

The prosecution has examined 13 witnesses as PW1 to PW13 and exhibited 55 documents as Exs.P1 to P55. After completion of evidence, statement of the accused was recorded under Section 313 of Cr.P.C. The accused has denied the incriminating material evidence brought by the prosecution. The accused, though did not lead evidence, however, got the document Ex.D1 marked. The prosecution has also marked 12 material objects as MOs.1 to 12.

The Trial Court framed the following points for its consideration;

"1) Whether the prosecution proves beyond all reasonable doubt that the accused being public servants working as Secretary, Village Panchayat, Benakanahally of T Narsipura Taluk and accused No.2 being working as Junior Engineer in Panchayatraj Engineering Sub Division, T Narsipura, in the month of August 2009 demanded 20% of the Bill amount payable to the Complainant in respect of

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civil work done by him as a Contractor and on 04-08-2009 between 12.30 p.m. and 1.15 p.m., at Contractors Credit Co-operative Society, T Narasipura, accused No.1 demanded and accepted illegal gratification of Rs.40,000/from the Complainant as a motive or reward to show official favour to him for issuance of the cheque and thereby committed an offence punishable under Section 7 of Prevention of Corruption Act, 1988?

(2) Whether the prosecution further proves beyond all reasonable doubt that on the above said date, place and time, the accused being public servants have demanded and accepted illegal gratification of Rs.40,000/- from the Complainant by abusing their position as public servants as a motive or reward to show official favour to the Complainant and thereby committed an offence of criminal misconduct within the meaning of Sec.13(1)(d) of the Prevention of Corruption Act, 1988 and thereby committed an offence punishable under Sec.13(2) of the said Act?

(3) What Order?"

On appreciation of the evidence, the Trial Court answered the points No.1 and 2 partly in the affirmative and consequently passed judgment of conviction and order of sentence as noted above. Being aggrieved, the accused is before this Court.

Learned counsel for the appellant, at the outset, taking this Court to the records submits;

(a) that there is error in framing of charges. Though according to prosecution a

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sum of Rs.51,500/- was recovered from the person of accused No.1. The charges framed are only with respect of Rs.40,000/-. But there has been no explanation either by the prosecution or by the Trial Court for this error in framing the charges requiring reconsideration of the matter.

(b) that though the complainant who examined as PW.1, shadow witness examined as PW.3 and the bank manager examined as PW.13 they have deposed about accused receiving Rs.11,500/-. The said portion of evidence cannot be accepted in the absence of specific charge framed in this regard.

(c) that according to prosecution, 20% of the cheque amount was paid as a bribe and the accused had drawn only Rs.40,000/-, which is not equal to 20% of the alleged amount as demanded. Therefore, the Trial Court ought not to have accepted the case of prosecution in the light of the serious discrepancy.

(d) that there is discrepancy in the evidence of PW.1-complainant and the I.O who

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was examined as PW.11. While complainantPW.1 has deposed that on the date of incident accused No.1 had demanded and received the money and kept it in his left hand side secret pocket of his pants, the I.O-PW.11 has deposed that accused No.1 had kept the money in his right hand side secret pocket of his pants. This serious contradiction in this matter which has not been taken note by the Trial Court.

(e) that there is a serious lapse on the part of prosecution in proving the case beyond reasonable doubt which Trial Court has not taken note, that accused No.2 who according to the complainant was the one who had initially demanded 5% of the cheque amount has been let free and the same benefit ought to have been extended to the accused No.1.

(f) that the accused No.1 is presently aged about 64 years and the incident had taken place about 17 years ago. The minimum punishment prescribed for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 is 6 months and for the offence punishable

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under Section 13 is 1 year. However, the Trial Court has imposed a punishment of 1 year for the punishment under Section 7 and 2 years for the punishment under Section 13. In the light of mitigating circumstances of 17 years having been lapsed and accused No.1 is presently 64 years old and he having suffered order of dismissal from the service, he submits that the term of punishment be reduced.

Learned counsel for respondent-prosecution on the other hand submits;

(a) that the sum of Rs.40,000/- was initially brought by PW.1 which was subject matter of the pre-trapped mahazar at Ex.P4 which amount has been paid as demanded by the accused No.1 at Contractors Credit Cooperative society. That the shadow witness has supported the case of the prosecution. Therefore, the charges have been framed taking into consideration the said sum of Rs.40,000/-.

(b) As regards to Rs.11,500/is concerned, the said amount was paid after drawing the cheque which was handed over by

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the accused No.1 to the complainant at the spot. Therefore, the said amount has not been mentioned in the charge. The payment of Rs.11,500/- has been corroborated by the evidence of PW.13 who is the manager of the bank and the accused himself in his voluntary statement has admitted the possession of Rs.11,500/which aspect has not been explained by him under law. Therefore, he submits that there is no error or illegality committed by the trial Court in convicting the accused No.1.

(c) That the maximum punishment prescribed for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 is 3 years and 7 years for the offence punishable under Section 13. The trial Court has in the factual circumstances of the case has imposed punishment in proportion to the gravity of the offence and it does not require any interference. Hence, seeks for dismissal of the appeal.

Heard. Perused the records.

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There is no dispute of the fact that accused No.1 at

the relevant point in time was working as a Secretary, Village Panchayath, Benakanahally of T Narsipura Taluk and was in charge of payment of money towards the work assigned and completed by the contractors like that of the complainant-PW.1. There is also no dispute of the fact that accused No.1 had indeed handed over a cheque for Rs.2,61,144/- to the complainant-PW.1 at Contractors Credit Co-operative Society on 04.08.2009 between 12.30 p.m. and 01.30 p.m. Thus the obligation of the accused No.1 in issuing the cheque and his presence at the contractors Credit Co-operative Society between 12.30 p.m. and 01.30 p.m. on 04.08.2009 has not been disputed.

The only other ingredient in the case of the prosecution sought to be denied is about demand and payment of Rs.40,000/- towards illegal gratification. Counsel for the appellant, as noted above, insisted that though the charge is framed for demand and payment of

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Rs.40,000/-, prosecution apparently recovered

Rs.51,500/-. The said sum of Rs.11,500/- has not been accounted for. Therefore, he insisted that there is lapse and irregularity in framing of charges.

It is necessary to note the relevant part deposition of

PW.1 in this regard who has stated as under:

"£ÀAvÀgÀ £Á£ÀÄ 1£ÉÃ DgÉÆÃ¦UÉ zÀÆgÀªÁtÂ ªÀiÁr ºÀtPÉÆqÀ®Ä J°èUÉ §gÀ¨ÉÃPÀÄ, £À£Àß ZÉPÀÌ£ÀÄß ¥sÉÊ£À¯ï ªÀiÁrPÉÆr JAzÉ. DUÀ 1£ÉÃ DgÉÆÃ¦ £À£Àß dvÉ ªÀiÁvÀ£Ár MlÄÖ gÀÆ.51,500.00 ºÀtªÀ£ÀÄß nÃ.£ÀgÀ¹Ã¥ÀÄgÀzÀ°ègÀÄªÀ PÀAmÁæöåPÀÖgïì PÉÆÃ-C¥ÀgÉÃnªï ¸ÉÆ¸ÉÊn §½ vÀAzÀÄPÉÆqÀ¨ÉÃPÉAzÀÄ ºÉÃ½zÀgÀÄ. �¾¬Í 1 �ÎÝ ��ÎÎÝ��Î ¬¬� ¬� ¬¾�¬Í� �¾�¼ �¾¬��Î ��®Í �ÎÝ��Î . �� 1 �ÎÝ ��ÎÎÝ� ¼®� ¬¾�¬Í� �¾�¼ ½¯½¬Í� ¬�®Í �ÎÎ�ÎÞ$¯&' (ÎÎ) *&'+Ý ,-Í. (ÎÎÍ0Î�Ý�Î ®¬Í� ¼®� ,-.¬Í� �ÎÎ�ÎÞ$¯&'+Ý ¬�2Ý-�3 4�® ½¯½¬Í� *5Î'Ý (ÎÎ) ��®¼Í . �� ¾¬Í �¯Í� ¬678 ��®Í �ÎÝ��Î . *&'¬�2®9�¾:�¾¼¼&';¬<��Î¬¬�=0Î��ÎÎÝ� ¬��Î �ÎÎÝ�¾� �ÎÎÝ> *&' ?�ÎÝ¬Í ¬@Î¯Í¬ � Î ��¬Í®¬Í� �ÎÎÝ)(ÎÎ¿BCÎÝ(Î�®Í �ÎÝ�®¼Í . ®0ÎÎ�¬< �¾:�¾¼��Î ¬¬�DÎÎ0Î E¼CÎÝ(Î�®Í �ÎÝ�®¼Í . ¬�¬¼ �¾¬Í , E¬<¼Í �¾:�¾¼¼Í , FÝ&ÝG *H(¾� ®¬Í� E¬�Î 3¬<�2 �¾'¼Î 5ÎÎÝ(¾¯Í-� I¾½¬®&' $Ý ._ ¬¼3Ý®K¼(Î. �ÎÎÝ�Î½K . �¾½K $Ý . ¬¼3Ý®K¼ ¬G 85¾9¯(Î. �ÎÎÝ®¬�¬¼ �¾¬Í ¬¬� LCÎÞM8�® 1 �ÎÝ ��ÎÎÝ�¯¬Í� ¼�®N73�Î . �� 1 �ÎÝ ��ÎÎÝ� �ÎÎ�ÎÞ$ ¬� E� �¾¬Í *&'�Î ¬¼Í0Î�Ý�Î ��®Í �ÎÝ�®¼Í . ¬�¬¼ �¾¬Í ®¬Í� -Ï¿Q®Î67 $Ý . ¬¼3Ý®K¼®&'¼Í½ -�R¾�-ST (ÎÎÝ �®�ÎÝ$ÝU �ÎÎ�ÎÞ$ ¬��Î �ÎÎÝ�Î½K . ®V¾W½� 1-15 ��RÎ�Î 1 �ÎÝ ��ÎÎÝ� *&'�Î LÝR¾TCÎÞN¬&' ¬�®¼Í ®¬Í� � ¬�¬¼ *½¼Í ¬®X¬Í� �ÎÎ�ÎÞ$ -YÎÝ�Z¾¿(Î. -�Î®Í (ÎÎ�Í �ÎÎÝ®¼Í . -YÎÝ�[¿�Î �ÎÎÝ®¬�¬¼ -Í,7¯&' -Í�¬Í \¾Í' ®¬Í� �ÝG ½]7 *>�^��Î ¼`�¾)�Î . ¬�¬¼ 1 �ÎÝ ��ÎÎÝ� ¬�2¼Í½ ½¯(ÎÎ) ��®Í

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¬¬�¬Í� (ÎÝ�®¼Í . �¾¬Í 1 �ÎÝ ��ÎÎÝ�¯¬Í� ��¾Î *¿ÍS ½¯ (ÎÎ¾Í ��Í½K2¾' . -)^ �¾)(ÎÎ�B ��®Í (ÎÝ��Î . �� 1 �ÎÝ ��ÎÎÝ� ��Í½K2¾' , =Î8¯T E�b8¯T *cÎS (ÎÝ��¾9�Î ��®¼Í . ¬�¬¼ �¾¬Í 1 �ÎÝ ��ÎÎÝ��Î 2 �ÎÝ ��ÎÎÝ��Î ®Î¼I¾d �¾) -)^ �¾)3(ÎÎ) ��Î . �� 1 �ÎÝ ��ÎÎÝ� ¬¬� LCÎÞM8�® 2 �ÎÝ ��ÎÎÝ��Î -�Î�¾) -)^ �¾) ��®Í (ÎÝ¿e6 � ¾9�Î ��®Í �¾¬�¾) , ¬�¬¼ *½�ÎÝ �¾¬�¾Í0¾ � Î �ÎÎÝ) ��®Í �ÎÝ� ¬¬� (ÎÞ�Î LCÎÞM (ÎÎ_S¼Í . ¬�¬¼ �¾¬Í 2 �ÎÝ ��ÎÎÝ�¯¬Í� fÝg¬&' -)^ �¾) ��®Í �¬�6 �¾)(ÎÎ�@Î . �� 2 �ÎÝ ��ÎÎÝ� *�Î5¾' ��Í½K2¾' �¾¬Í �¿ÍS ½¯ �ÎÝ��Î9�ÎÎÝ *¿ÍS ½¯½¬Í� (¾¯7®h7¯½¼ (ÎÞ�Î(ÎÎ_ÍS ,-.¬Í� 0Î�Î®Í(ÎÎ�Í �ÎÎÝ> ��®¼Í . ��¾® ^Ý5Î �¾¬Í �¯Í�) �¾T ��®Í fÝ¬¬Í� 1 �ÎÝ ��ÎÎÝ��Î I¾®G (ÎÎRÎS . ¬�¬¼ ¬¬� DÎÝ\¬&'$S®9 ½¯½¬Í� 0Î�Î®Í �d3 1 �ÎÝ ��ÎÎÝ� (ÎÞ�Î (ÎÎRÎS . ¼®� ½¯½¬Í� 1 �ÎÝ ��ÎÎÝ� 0Î�Î®Í(ÎÎ�Í �d3 ¬�¬¼ i¾W�$¬ ��@Î DÎÝ\�ÎÎ¿�Î E¼Í½ 3Ý(Î�j DÎÝ\�ÎÎ¿>ÍS(ÎÎ�¼Í . ¬�¬¼ 1 �ÎÝ ��ÎÎÝ� 2,61,144-00 ¼Î��Î ¬�Î2®9 ,-.¬Í� ¬¬�(ÎÞ�Î (ÎÎ_S¼Í . 1 �ÎÝ ��ÎÎÝ� ¼®�,-.¬Í� @¾��¾)(ÎÎ�Í 4�®½¯½¬Í� (ÎÎ) ��®Í ¬¬�¬Í� (ÎÝ�®¼Í . ¬�¬¼ ,-.¬Í� C¾W�N�Î(ÎÎ_ÍS ¬¬� k¾0Îl�® ¼Î .2,11,500-00 ¼Î�¿¬Í� `�0Î�Î®Í(ÎÎ¿B¾Í �m @¾�½M n¾o7 ¬Í�(ÎÎRÎS . �� ÎÎ�ÎÞ$¯½¼Í *¿ÍS ½¯ �ÎÎ�ÎÞ$¯&' E¾' , *¯7��RÎ (¾2� ��®Í �ÎÝ�®¼Í . �� ¾¬Í �ÎÎ�ÎÞ$¯½��Î h½�¾�q¯½��Î ¼Î .11,500-00 (ÎÎCÎÝ-Í ®¬Í� *½¼Í *DÎ�7&'�¾9�Î ¬r¯ ¼Î .11,500-00 ½¯(ÎÎ) ®¬Í� 4�® �¼Í ¾r ¼Î�¿¬Í� �¬�¬¼ (ÎÎ) ��®Í (ÎÝ�(ÎÎ� . �� sD¾�, ½�ÎÎ��®Î½�Î �¾�¼ ¼Î�¿¬Í� ¬¬�Î (ÎÎ_S¼Í ®¬Í� �¾¬Í ¼®� ½¯½¬Í� �d3 1 �ÎÝ ��ÎÎÝ� (ÎÞ�Î (ÎÎRÎS . 1 �ÎÝ ��ÎÎÝ� ¼®� ½¯½¬Î� ¼½ �d3 ¬¬� i¾W�$¬ 3Ý(Î�j DÎÝ\�ÎÎ¿>_ÍS(ÎÎ�Í , ¼� �¾¬Í §wÃð¤ ��®Í �ÎÝ� �ÎÎ¼_¼Í . � 2¬ 5ÎÎÝ(¾¯Í-� -YÎÝ�¯&'�¾�5ÎÝ FÝ&Ý¼¼Í �¾¬Í ��ÎÎÝ��Î ½¯ (ÎÎ_S�Î � ¬�¬¼ � ¬�Ît (ÎÞ8�® ®Ís ;�Î3(ÎÎ�Í �¾¬Í *½��Î ¼Îu�Î (ÎÎÍ½�0Î 6�3®9¼Í . *®¼�0Î 1 �ÎÝ ��ÎÎÝ� ¬8��® ®v67 ½¯ ®@Î®Í(ÎÎ�Í *&'�® �ÎÎ¼¾Í *¬ÍI¾�Í6�®9�0Î �¾¬Í �ÎÎ�ÎÞ$l�®�ÎÎ¼(Î. ¬�®Í (ÎÞ8�®®Ís ;�Î3(ÎÎ�Í ¼Îu�Î(ÎÎRÎS ."

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From the perusal of the aforesaid deposition of PW.1 it is clear that after receiving of Rs.40,000/-, the accused had insisted for payment of Rs.11,500/- after encashing the cheque hand over by him. According to the complainant, he requested the bank manager to pay the

cash on self cheque drawn and since there was no sufficient cash, upon the request so made by the complainant, the bank manager had paid Rs.11,500/which was handed over to the accused. The aforesaid

piece of evidence has been corroborated by examining PW.13, who was the manager of the Contractors Credit Co-operative Society, who in his evidence has deposed

that when the complainant presented the self cheque for Rs.2,11,500/- and since the branch did not possess the said sum, the complainant was asked to wait for sometime. In the meanwhile complainant has requested Rs.11,500/- to be paid and had agreed to receive the balance amount after sometime. Accordingly, the said sum of Rs.11,500/- was paid to the complainant. Though

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PW.13 has been cross examined at length, nothing has

been elicited in the cross examination.

The said evidence has been reiterated verbatim by PW.3-Shadow witness. No discrepancy or inconsistency has been pointed out to the extent of amount demanded by accused No.1 and paid by the complainant for the sum

of Rs.40,000/-. Thus, payment of additional sum of Rs.11,500/- has also been proved by the prosecution which aspect is further corroborated with the evidence of shadow witness PW.3.

The trap mahazar at Ex.P7 evidence the recovery of money from the person of accused No.1 i.e. from the secret pocket of the pant and testing of his hands and the clothes by phenolphthalein test. No doubt the charges are

framed by the Trial Court there is no mention of Rs.11,500/- being demanded and paid by the accused

No.1, in the settled position of law unless a substantial injustice is pointed out for error in framing of the charges,

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prosecution and the trial conducted cannot be held to have

been vitiated.

The Apex Court in the case of Sandeep Yadav Vs Satish And Others reported in 2026 SCC Online SC

474 , in paragraph 14.7, has held as under:

"14.7. This Court has consistently held that where the accused clearly understood the nature of the allegations and had a full opportunity to defend themselves, defects in the charge cannot be treated as fatal. In Soundarajan v. State represented by the Inspector of Police, Vigilance Anti-Corruption, Dindigul it was reiterated that omission to frame a proper charge or defects therein are not fatal unless it is shown that such omission has occasioned a failure of justice."

In the statement recorded under Section 313 of the Code of Criminal Procedure the question No.42 has been asked specifically with regard to payment of additional sum of Rs.11,500/-. Question No.42 read as under:

"42. i¾��¾.13, ¬®X ®Í�®Í½�® �¾-.®&', ¼Î. 2,11,500¼¿ÍS ½¯ ¬®X w¾kÎ¯&' E¾'® (¾¼¯, �ÎxÝj C¾W�] �y ^Þ¼Î�8�® ½¯½¬Í� ¬�3(ÎÎÍ½K�¾> 6�3�¾�, zZ¾7®Í�¾¼¼Í, ¼Î. 11,500 =¼Î¼Í CÎÝ(¾>�Î ��®Í (ÎÝ� ®@Î®Í(ÎÎ�Í, 4�® ½¯½¬Í� ¬�¬¼ (ÎÎÍ½�0Î ¬®�Î 6�3®¼Í ��®Í �¾r{ ¬Í)2¼Í0¾ � Î. E®(Î. 8®X �ÎÝ�(Î ?¬Í?"

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The Apex Court in the case of Prahlad Vs State of

Rajasthan reported in 2019 14 SCC 438 , in paragraph

11, has held as under:

"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."

There is no denial of recovery of Rs.51,500/- i.e. Rs.40,000/- + Rs.11,500/-. On the other hand, it is the case of the accused that sum of the Rs.51,500/- was thrusted into his secret pocket by the complainant. As rightly pointed out by the learned counsel for the prosecution, there is a statutory burden casted on the accused under Section 20 of the Prevention of Corruption Act, 1988 to discharge which has not been complied with by the accused No.1, much less any substantial prejudice being cause is pointed out on account of non-mentioning of Rs.11,500/- in the charge. Therefore, the said contention is considered only to be rejected.

As regard inconsistency in the deposition of PW.1 and PW.11, wherein PW.1 has stated accused having received the money, keeping the same in his left hand side secret

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pocket of pants, the deposition of PW.11 has deposed accused receiving the amount and keeping in the right side secret pocket of his pants. The trial Court at paragraph 26 of the judgment has given justifiable reason which reads

as under:

"26. The accused has given his voluntary statement regarding the amount being recovered from his custody as per Ex.P27. In Ex.P27, It is also alleged that the amount was thrusted. But it is to be noted here that, no such defence is taken during the crossexamination of P.W.2, P.W.3 and P.W.10. Apart from that, it is hard to accept that the amount was thrusted in the pant watch pocket which is not easily accessible to anybody. Much arguments have been advanced regarding inconsistency in the evidence regarding keeping the amount in secret pant pocket. But all the witnesses have categorically stated that the amount was kept in the right hand side secret watch pocket. Though the witnesses did not say that it is right hand side secret pocket, it is to be noted here that the pant watch pocket will be normally situated in the right side only. Under these circumstances, it is for accused No.1 to explain as to under what circumstances he received the said amount and he has not given any proper explanation for having possessed this huge amount. It is not the case of the accused that Rs.11,500/- is belonging to him and no such case is made out."

As such, the inconsistency and the so-called contradiction pointed out by learned counsel for the appellant also cannot be countenanced.

The prosecution having proved the case beyond reasonable doubt which is equally supported by the shadow witness-PW.3, this Court do not see any error or

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illegality in trial Court passing the judgment of conviction passed by the trial Court.

As regards the submission made on the issue of sentencing, Sections 7 and 13 of the Prevention of Corruption Act, 1988 prior to the amendment, read as under :

Section 7. Offence relating to public servant

being bribed. 4 Any public servant who,4

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation 1 .4For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

illustration .4A public servant, 8S9 asks a person, 8P9 to give him an amount of five thousand rupees to

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process his routine ration card application on time. 'S' is guilty of an offence under this section.

Explanation 2 .4For the purpose of this section,4

(i) the expressions <obtains= or <accepts= or <attempts to obtain= shall cover cases where a person being a public servant, obtains or <accepts= or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.

Section 13. Criminal misconduct by a public servant.4

[(1) A public servant is said to commit the offence of criminal misconduct,4

(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or

(b) if he intentionally enriches himself illicitly during the period of his office.

Explanation 1 .4A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

Explanation 2.4 The expression 88known sources of income99 means income received from any lawful sources.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [one year] but

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which may extend to [seven years] and shall also be liable to fine.

Thus, Section 7 of the Prevention of Corruption Act, 1988 prescribes minimum punishment of 6 (six) months and the maximum punishment of 5 (five) years. While Section 13 contemplates imposition of minimum punishment of 1 (one) year and maximum punishment is 7 (seven) years.

The offence was committed on 04.08.2009 and accused No.1 had been suspended and thereafter dismissed from service ever since then. As regard to accused No.2 is concerned he was not present at the spot

when the money was being paid and therefore he was acquitted. The said circumstance is not being available with regard to accused No.1 and the same cannot be taken for consideration of submission made on parity. Accused No.1 is currently stated to be aged 64 years. It is

also stated that he has undergone angioplasty on two occasions on 10.05.2019 at JSS Hospital and on

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02.01.2020 at Jayadeva Hospital, Mysuru. A memo in this regard along with medical records is produced. Considering these facts and circumstances, this Court deems it appropriate to reduce the sentence of imprisonment. Accordingly, the following :

ORDER

i. The appeal is partly allowed.

ii. The sentenced of imprisonment imposed is reduced from 1 (one) year to 6 (six) months in respect of offence under Section 7 of the Prevention of Corruption Act, 1988 and from 2 (two) years to 1 (one) year in respect of offence under Section 13 of the P.C.Act, 1988.

iii. The accused No.1 was arrested on 04.08.2009 and released on bail on 08.08.2009. The period of imprisonment already undergone by the accused shall be set off.

iv. Both the sentences imposed shall run concurrently.

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v. Except the above modification rest of the judgment of conviction and order of sentence passed by the trial Court is maintained.

SD/(M.G.S. KAMAL) JUDGE

GH(P3 to P8),RJ (P8 to 24 ) List No.: 1 Sl No.: 1

w

Issues for consideration

5 issues framed by the court

AI extract

1.
Whether the failure to include the sum of Rs.11,500/- (part of the Rs.51,500/- recovered from accused No.1) in the charges framed by the Trial Court constitutes such error in framing of charges as to require reconsideration/vitiation of the trial.¶¶63
The court held
Omission of the sum of Rs.11,500/- from the framed charges is not fatal: absent substantial injustice or prejudice occasioned by the error in framing of charges, the prosecution and trial cannot be held to have been vitiated; the appellant's contention on this ground is rejected.ratio¶¶136
2.
Whether the prosecution proved demand and acceptance of illegal gratification beyond reasonable doubt, notwithstanding that the accused allegedly demanded 20% of the cheque amount (Rs.52,000/-) while Rs.40,000/- plus Rs.11,500/- was paid/recovered.¶¶90
The court held
Payment of the additional sum of Rs.11,500/- was proved by the prosecution and corroborated by the evidence of shadow witness PW.3 (and PW.13, bank manager); recovery of the full Rs.51,500/- (Rs.40,000/- + Rs.11,500/-) is undisputed.ratio¶¶115
3.
Whether the discrepancy between PW.1-complainant (money kept in left hand side secret pocket) and PW.11-I.O. (money kept in right hand side secret pocket) is a serious contradiction undermining the recovery evidence.¶¶70
The court held
The inconsistency/so-called contradiction between PW.1 and PW.11 as to the side of the secret pocket in which the money was kept cannot be countenanced, endorsing the Trial Court's justification (voluntary statement Ex.P27, watch pocket normally situated on the right side, and absence of any proper explanation by accused No.1).ratio¶¶144
4.
Whether acquittal of accused No.2 (who had initially demanded 5% of the cheque amount) entitled accused No.1 to the same benefit on parity.¶¶71
The court held
The parity submission is rejected: accused No.2 was acquitted because he was not present at the spot when the money was paid — a circumstance not available in respect of accused No.1 — and hence cannot be taken for consideration of the parity submission.ratio¶¶178
5.
Whether the sentences imposed (1 year under Section 7; 2 years under Section 13) should be reduced in light of mitigating circumstances — lapse of about 17 years, accused's present age of 64 years, dismissal from service and health condition.¶¶75
The court held
Considering the mitigating facts and circumstances (accused aged about 64 years, offence committed on 04.08.2009, suspension and dismissal from service, and two angioplasties on 10.05.2019 at JSS Hospital and 02.01.2020 at Jayadeva Hospital, Mysuru), the Court deemed it appropriate to reduce the sentence of imprisonment.ratio¶¶183