The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.340/2014 BETWEEN: 1 . STATE OF KARNATAKA BY LOKAYUKTHA POLICE MYSORE-570001. … APPELLANT (BY SRI. B.S.PRASAD, SPL. PUBLIC PROSECUTOR) AND: 1 . BASAVANNA POLICE SUB-INSPECTOR YELWALA POLICE STATION, MYSORE R/AT DODDAHUNDI VILLAGE GUNDLUPET TALUK-571111 CHAMARAJANAGAR DISTRICT. … RESPONDENT (BY SRI. C.G.SUNDAR, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 20.08.2013 PASSED BY THE III ADDL. SESSIONS AND SPL. JUDGE, MYSORE IN SPL. CASE NO.52/2011 -ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 7 AND 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR THE COURT THIS DAY, JUDGMENT ON 17.03.2025 PRONOUNCED THE FOLLOWING: 2 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT 1. Heard the learned counsel for the appellant and also the learned counsel for the respondent. 2. This appeal is filed challenging the judgment of the acquittal passed against the accused for the offence punishable under Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988 in Spl.C.No.52/2011 dated 20.08.2013. 3. The factual matrix of case of prosecution is that accused is working as Police Sub-Inspector in Yelwala Police Station, Mysore. The complainant was owning a lorry bearing registration No.KA-09-9650 and he was using the same for transportation of sand. That on 05.07.2011, the accused has apprehended the said lorry while transportation of sand on the ground that the sand is being transported without permit or license and accused 3 demanded Rs.5,000/- for release of the vehicle. When the complainant did not pay the illegal demand, he referred the matter to the Mines and Geological Department by reporting the seizure and got booked a case. Thereafter, the fine was imposed by the concerned Department and fine was collected and the vehicle was released on 07.07.2011. 4. It is also the allegation that on 08.07.2011, again lorry was seized while it was transporting the sand and it was not reported in Station House Diary and complainant contacted the accused through CW5 and the accused has demanded Rs.2,000/- per load or Rs.15,000/- per month and a constable who was working in the same Police Station has informed the same to the complainant and asked him to personally contact the accused. When the complainant contacted the accused over telephone, the accused demanded an amount of Rs.15,000/- and subsequently it was bargain for Rs.14,000/- for not to book 4 any cases in respect of transportation of the sand. That on 11.07.2011 at about 7:20 p.m., the accused mis-utilizing his official position by corrupt and illegal means demanded and accepted a sum of Rs.14,000/- from the complainant as an illegal gratification as a motive and he abused the position as public servant and guilty of mis-conduct within the meaning of Section 13(1)(d) of the Prevention of Corruption Act and the accused was also trapped and recovered the amount from him and drawn panchanama in respect of the seizure by taking hand wash and after completing of the investigation, the Lokayuktha Police have filed the charge sheet and accused was secured before the Trial Court and he did not plead guilty and hence, prosecution relies upon PW1 to PW10 and got marked Ex.P1 to Ex.P48 and 13 Material objects as MO.1 to MO.13 are marked. The accused was subjected to 313 statement and there was a total denial and not lead any defense evidence. However, during the cross-examination of witnesses, got 5 marked Ex.D1 to Ex.D7. The Trial Court having analyzed both oral and documentary evidence of PW1 to PW10 and Ex.P1 to Ex.P18 and Ex.D1 to Ex.D7 as well as material objects, acquitted the accused. Hence, the present appeal is filed before this Court. 5. The main contention of the special counsel appearing for the Lokayuktha would contend that it is a case of trap and PW1 is a panch witness and PW2 is a complainant and PW3 is shadow witness, PW4 is driver of the lorry, PW5 is Engineer who had drawn the sketch and PW6 is Jeep Driver, PW7 is ASI, PW8 is Head Constable, PW9 is Inspector General of Police who gave the sanction and PW10 is the Inspector who conducted the investigation.
Facts
The counsel would vehemently contend that the Trial Court committed an error in acquitting the accused. Earlier also there was a demand and acceptance and FSL also corroborates the case of prosecution witnesses and reasoning given by the Trial Court is not correct. There is a 6 demand and acceptance and demanded Rs.2,000/- per trip or Rs.15,000/- per month and the same was negotiated for Rs.14,000/- and the same was accepted and the prosecution witnesses also deposed the same, no explanation on the part of the accused in 313 statement. The demand is very clear that it is left to him either to pay or not to pay the amount. If the same is given, it is pleasure to him and if the same is not given also, it is pleasure to him. When such demand was made and amount was also seized at the instance of the accused. 6. The counsel would contend that inspite of FSL report corroborates with the both oral and documentary evidence, the Trial Court has given erroneous finding. The Trial Court has not given any finding about panch witnesses as well as shadow witnesses, but suspected the complainant evidence since he was transporting the sand and erroneously comes to the conclusion that he was transporting the sand without permit. The counsel would 7 contend that conversation between the accused and complainant is also proved and Ex.P4 reply was given and chain of circumstances was also proved as well as there is a direct evidence and no rebuttal evidence and nothing is elicited in the cross-examination of PW6- Jeep Driver and there is no any enmity and the same is a clear case of conviction. 7. Per Contra, counsel appearing for the respondent would vehemently contend that entire evidence is concocted and evidence of PW2 and PW6 is very clear and earlier also when the vehicle was seized, fine was imposed and the same was paid and got release the vehicle. The PW3-shadow witness also not corroborates each other. The PW10 admits no call by Rajashekar and there is no any pending work and false implication and in the reply specifically stated. The counsel also would vehemently contend that written statement is filed and in paragraph No.25 of the judgment held that mobile sheet does not 8 discloses that there is any call made to the mobile of the accused and no such evidence is forthcoming. 8. The PW1 was categorically admitted that there was no any call made to the accused on 07.07.2011. The CW1 has not contacted the accused over phone as deposed in oral evidence and documentary evidence also nothing is placed on record. There is no material for having demanded Rs.15,000/- and also bargain for Rs.14,000/- and also PW1 categorically admits that with regard to the seizure of the vehicle on 08.07.2011, there are no documents and no work was pending with the accused on 08.07.2011. 9. The counsel relied upon the judgment reported in 2012 (1) KCCR 414 in case of R.Malini V/s State of Karnataka and there is no any evidence for demand and the same is lacking, mere acceptance of money by the appellant will not be sufficient to fasten the guilt. 10. the counsel also relied upon the judgment
Legal Reasoning
22. Having considered these evidence, the Court has to look into whether the Trial Court has committed an error in acquitting the accused. The Trial Court taken note of evidence of all the witnesses. An observation is made that no piece of evidence is produced to show that complainant has stored the sand which was transported by him from T.N.Pura and no documents have produced having transported the sand in 2009 and also discussed the evidence of each witnesses. The Trial Court taking into note of evidence of witnesses particularly PW1 says that 17 investigating officer asked the accused to lift the said amount and hand over the same and he could have straight away seized it without asking the accused to touch it and then he could have taken the hand wash of the accused. The evidence of PW1 is very clear that only on direction of the I.O, accused only handed over the money and conducted the test that is phenolphthalein test. It is also important to note that accused has given the statement immediately wherein he has specifically stated that in his absence, the amount was planted in his drawer, but looking into the conduct of the complainant, his background and evidence of PW1, it appears that defense setup by the accused is more probable. The fact that amount was in the drawer is not in dispute and conversation also does not establish the demand in any way and both PW2 and PW3 says that if money is given, he would be happy and if money is not given also, he would be happy and no 18 scientific report in respect of C.D is concerned and the same is also not played before the Court. 23. The Trial Court also taken note of the fact that complaint was lodged on 11.07.2011 and also it is important to note that voice recorder was handed over on 08.07.2011 and in fact investigation is said to have been commenced on 08.07.2011 without there being a complaint. Apart from that regarding handing over the voice recorder, there is no specific reference in the Station House Dairy which is produced and marked as Ex.P23 and Ex.P27 only an acknowledgement issued by the complainant for having received the voice recorder and the same is also taken note of by the Trial Court. 24. It is also important to note that the defense setup by the accused is very probable than the case of prosecution since recovery of the amount from the accused itself is not a ground to held that he has demanded and accepted illegal gratification. 19 25. It is also important to note that evidence is very clear that recovery of the amount from the custody of the accused and before conducting the phenolphthalein test asked the accused to hand over the money and evidence of PW1 and PW3 is not consistent each other. The evidence is clear that the accused was asked to hand over the money and then conducted the hand wash. 26. It is also not in dispute that earlier very complainant says that vehicle was seized on 05.07.2011 and he says that he demanded Rs.5,000/- and he did not agree and hence, he reported the vehicle to the concerned Department and he paid the fine amount. Hence, it is clear that complainant was also having grudge against the accused in view of seizure of his vehicle and once again vehicle has been seized, but only second occasion he gave the complaint. The Trial Court also having taken note of conduct of the PW1, comes to the conclusion that complainant himself is not a man of good character and 20 investigating officer without application of mind, straight away proceeded for trap and procedure followed by him is not legal and even procedure also after recovering the amount from the hands of the accused, subjected to hand wash and all these factors were taken note of by the Trial Court while giving the finding. 27. The counsel appearing for the Special Lokayuktha also would contend that earlier also there was a demand, but he did not pay the amount. No doubt FSL report is positive but there must be a demand and acceptance in order to invoke Section 7 and Section 13 of Prevention of Corruption Act. The very evidence I have already pointed out that PW2 and PW3 says that if money is given he would be happy and if money is not given also, he would be happy and the same do not come within the meaning of demand. The recovery of the money at the instance of the accused is also not credible and contention that no finding about panch witness and shadow witness, 21 but only suspected the evidence of PW2 cannot be accepted. The Trial Court in detail taken note of evidence of prosecution witnesses and discussed the evidences of material witnesses PW1, PW2 and PW3 and material discloses that there was no any permit to transport the sand and also categorically admits in the cross-examination that he did not mention while lodging the complaint itself when he was asked to come on 11.07.2011 and the same was not mentioned in the complaint and also categorically admits that conversation is in between him and accused and there is a clear conversation that if there was a permit, they are not going to seize the vehicle and only they seize the vehicle if there was no any permit. All these admissions on the part of PW2 also creates the doubt in the mind of the Court. No doubt suggestion was made to the PW2 that directed accused to produce the money and then hand wash was conducted, but the same was denied. 22 28. The PW2 also categorically admits that accused never contacted him over phone and he himself had contacted with accused and all these material clearly discloses that accused never made a phone call and demanded the money and he categorically admits that he himself called the accused on 06.07.2011 and also on 08.07.2011 and also he categorically admits that he had called his friend Rajashekar from 05.07.2011 to 11.07.2011, but he says that lorry was seized and hence, he contacted and material also discloses that he was not having any permit and vehicle was seized and earlier occasion also handed over to the concerned Department and fine was collected and once again it was seized when there was no permit. The Court has to take note of all these factors into consideration. I have already pointed out that PW3 also not spoken anything about the demand, only he also says that if amount is paid, he would be happy and if amount is not paid also, he would be happy. 23 29. Having considered the evidence available on record, though there was a trap and seizure and the very seizure itself is doubtful and also with regard to the demand is concerned, no specific demand and also Court has to take note of the earlier seizure of the vehicle belongs to the complainant and having collected the fine amount. Once again when the vehicle was seized complaint was lodged and admission is very clear that he only contacted the accused and accused never contacted him over the phone and conversation admitted by the PW2 is very clear that accused made it clear that they are going to seize the vehicle if there was no permit and if there was a permit, they are not going to seize any of the vehicle. Having considered all these material on record, I do not find any error in the order of the Trial Court, not accepting the evidence of prosecution since the same do not inspires the confidence of the Court in order to invoke Section 7 and 13 of Prevention of Corruption Act. It is not a case to interfere 24 with the finding of the Trial Court. Hence, I answer the point as ‘Negative’. 30. In view of the discussions made above, I pass the following:
Arguments
reported in 2016 (1) KCCR 815 in case of R.Srinivasann 9 and another V/s State by Police Inspector Lokayuktha Bangalore wherein also held that prosecution should lay the foundation and facts to show that work was pending with the accused for which he could have made a demand and evidence needs corroboration and material particulars. 11. The counsel also would contend that the complainant PW2 admits that he went to Lokayuktha Police and gave the complaint on 08.07.2011 and once again gave the complaint on 11.07.2011. The evidence of PW2 rightly disbelieved by the Trial Court. 12. The counsel also relies upon the judgment reported in 2012 (3) KCCR 1738 in case of Sri.Ramesh Desai and another V/s The State of Karnataka by Raichur Lokayukta P.S wherein held that it is doubtful to believe the credibility and integrity of investigation and final report. The final report cannot be prima facie accepted as credible piece of material for prosecution. 10 13. The evidence of PW2 is very clear that there is no demand even according to trap mahazar Ex.P2 there is no any demand and without any demand and acceptance, question of invoking and convicting the accused does not arise. 14. The counsel also relies upon the judgment reported in 2023(1) Kar.L.J.500 in case of P.Manjunath V/s State by Karnataka, Lokayuktha Police, Chitradurga District and another wherein in discussed with regard to ‘demand’ and ‘acceptance’ and if there is demand there should be acceptance, neither demand alone nor acceptance alone would become an offence under Section 7. 15. The Apex Court held in AIR 2022 SC 5110 in case of Subramanya V/s State of Karnataka that any satisfaction recorded therein that the findings of the Trial Court acquitting accused persons were palpably wrong, manifestly erroneous or demonstrably unsustainable and in 11 the absence of such satisfaction, the High Court should not have disturbed a well-reasoned judgment of acquittal passed by the Trial Court. The counsel referring this judgment would vehemently contend that Trial Court also having considered the evidence available on record rightly acquitted the accused. 16. Having heard the learned counsel for the appellant and also the learned counsel for the respondent, the point that would arise for consideration of this Court are: 1) Whether the Trial Court committed an error in acquitting the accused for the offences punishable under Section 7 and 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act. 2) What Order? 17. The case of the prosecution is that accused being a public servant working as Police Sub-Inspector demanded Rs.15,000/- as illegal gratification from the complainant for 12 allowing the complainant to ply the sand lorry and in order to release, on negotiation got settled for Rs.14,000/- and there was a demand and acceptance of illegal gratification to the tune of Rs.14,000/-. 18. The prosecution in order to prove the same, examined PW1 to PW10. The PW1 is the second pancha and he deposed regarding he was summoned to Lokayuktha office on 11.07.2011 and amount of Rs.14,000/- being produced by the complainant for drawing entrustment panchanama. He also says that complainant and second panch went to Yelwala Police Station and after signal, they rushed to the spot and therein Lokayuktha officials caught hold of accused and he was asked to pay the amount received from the complainant and he handed over the same from the drawer and then his hand wash is being taken which was shown positive to phenolphthalein test and he was partially turned hostile and during the course of cross-examination he has admitted the entire case of the 13 prosecution that is suggestions made by the special counsel. 19. The other witness is PW2 –complainant and he re-iterated the complaint averment that accused has demanded for Rs.5,000/- in the earlier occasion and when he did not pay the amount, vehicle was seized and subsequently on payment of fine, got it released the vehicle and once again vehicle was seized and negotiation was taken place and bargained for an amount Rs.14,000/-, he also says that when he called the accused, he was asked to come on 11.07.2011 and hence, he went to the Lokayukta Police on 08.07.2011 to give complaint and one more complaint he has given on 11.07.2011 and he identifies the signature in Ex.P22(a) and accordingly he went to the office of the accused and he told that if money is given, he would be happy and if not given also, he would be happy and immediately he gave an amount of Rs.14,000/- and he had taken money from the right hand and kept the same in the 14 drawer. Thereafter, he gave the signal and Lokayuktha Police came and seized the same. This witness was subjected to cross-examination. He admits that in order to transfer the sand, permit is necessary and he also did not register the name in the concerned Department. He was not having any difficulty to produce the document to the Police. He also admits that for having stored the sand also, he has not produced any documents to the Police. Even he has not produced the purchasing order and he says that the same was not demanded from him. It is suggested that the vehicle was seized on 05.07.2011 and falsely deposing and the same was denied. However, he admits the signature in Ex.P23 and also he admits that he did not mention asking him to come on 11.07.2011 in the complaint. He also admits that when he went to the office of the accused, there was a disconnection of power supply and also he categorically admits that in the conversation between them accused says that if there was a permit, they would have 15 not seized the vehicle and if no permit they are going to seize the vehicle. 20. The PW3 is the shadow witness and he speaks about the entrustment mahazar in terms of Ex.P3 and he also says that he himself and the complainant went to the office of the accused and he also repeats that if money is paid, he will be happy and if not paid also, he will be happy and he has taken the money from right hand and kept the amount in the drawer and gave the signal and told the Police that amount is kept in the drawer. In the cross- examination, he admits that while giving the statement to the Police, he did not mention that he was given instructions to go to the office of Lokayuktha in terms of the Ex.D3 and also admits that when the amount was seized and the same was not tallied and the signature of the accused was not taken and admits that in Ex.P2 it is mentioned that there was a power disconnection and he 16 says in the conversation that he did not demand the money. 21. The main witnesses are PW1, PW2 and PW3 and other witnesses are formal witnesses regarding sanction by PW4, PW6 and PW9 are the driver of the lorry and driver of the Jeep. In order to prove the case of demand and acceptance, the material witnesses are PW1, PW2 and PW3 that is panch witness, shadow witness and the complainant.
Decision
ORDER The Criminal Appeal is dismissed. Sd/- (H.P. SANDESH) JUDGE RHS