Criminal Appeal No. 385 of 2013 · The High Court
Case Details
- 1 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.385 OF 2013 BETWEEN: H MANJUNATH S/O HUCCHANGAPPA AGED ABOUT 36 EYARS SDA, O/O THE DY COMMISSIONER BBMP YELAHANKA, BANGALORE R/AT JAGADIBBA CIRCLE 4TH CROSS, I MAIN ROAD, GANDHINAGAR, DAVANAGERE Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA …APPELLANT (BY SRI PARAMESHWARA N HEGDE, ADVOCATE) AND: STATE BY POLICE INSPECTOR, KLA, REP. BY STANDING COUNSEL AND SPL. PUBLIC PROSECUTOR IN THE HON’BLE HIGH COURT FOR LOKAYUKTHA CASES, BANGALORE (BY SRI B S PRASAD, SPL. PP) …RESPONDENT THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 28.02.2013 PASSED BY - 2 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 THE SPL. BANGALORE IN SPL.C.C.NO.28/2008 AND ETC. JUDGE, BANGALORE URBAN DISTRICT, THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT 1. The appeal is filed challenging the judgment of conviction and sentence dated 28.02.2013 passed in Spl.C.C.No.28/2008 for the offence punishable under Section 7 of the Prevention of Corruption Act and sentenced the accused to undergo simple imprisonment for a period of six months with fine of Rs.200/- and rigorous imprisonment for a period of one year with fine of Rs.400/- for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. 2. Heard the learned counsel appearing for the respective parties. - 3 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 3. The factual matrix of the case of the prosecution before the Trial Court that the complainant purchased a property bearing No.1831, EWS, Yalahanka Upanagara 3rd Stage and he has paid the necessary tax and also filed an application to the BBMP for change of katha but the said application was not considered even after lapse of six months and when the complainant met the accused who was the case worker in the Yalahanka office, he demanded an amount of Rs.2,000/- and on request, the accused scaled down the bribe amount to Rs.1,500/-. Since the complainant was not willing to pay the bribe amount, he approached the Lokayuktha police and lodged the complaint on 13.06.2007. On the basis of the said complaint, Lokayuktha police registered a case for the offences punishable under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act and investigated the matter and filed the charge-sheet against the accused alleging that the accused got trapped on 13.06.2007 at about 5.43 p.m. while accepting the illegal gratification of Rs.1,500/- from the complainant. Accused was also - 4 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 granted bail. Charge was framed and accused did not plead guilty and claims for trial. The prosecution in order to prove the case, examined the witnesses as PW1 to PW5 and also got marked the documents at Ex.P1 to P25 and the material objects at MO1 to MO9. The accused was subjected to 313 statement but he has not led any
Legal Reasoning
defence evidence. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that there was a demand and acceptance of bribe amount and the prosecution has proved the case. Hence, the present appeal is filed. 4. The main contention of the learned counsel for the appellant that the appellant is working as a BBMP employee. The case of the complainant that he has purchased the property and made an application for change of khatha and no action was taken by BBMP for changing of khatha and the accused demanded bribe of Rs.2,000/- for the said work and the same was scaled down to Rs.1,500/- on his request. The counsel also would vehemently contend that the very demand of - 5 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 Rs.2,000/- was scaled down to Rs.1,500/- but there was no any material in this regard. The complaint was lodged on 13.06.2007. The counsel would vehemently contend that Ex.P.P10 is the pre-trap mahazar and case of the prosecution that the Lokayuktha police along with the complainant went to the BBMP office at 3.30 p.m. and accused asked the complainant to come at 5.30 p.m., since he was having a meeting. It is also the case of the prosecution that when they went again to the office of BBMP, accused accepted the bribe money by receiving the same in left hand and kept the same in a cupboard and gave signal by changing the watch and hence, trap was conducted. It is the case of the prosecution that there was a demand and acceptance. The counsel also would vehemently contend that PW1 was given sanction but he was not cross-examined. PW2 is the complainant and PW3 is the shadow witness and both of them deposed before the Court that there was a demand and acceptance. PW4 is the panch witness. The evidence of these witnesses particularly PW2 to PW4 is not consistent. The evidence of - 6 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 PW5 also very clear wherein he categorically admits that when the accused asked to wash his hand, it did not turn to pink colour. The counsel also would vehemently contend that immediately, accused also given explanation as per Ex.P.P11 wherein he categorically stated that somebody may be kept the money in his absence when he was not in the office between 3.30 p.m. to 5.30 p.m. The counsel also brought to notice of this Court that FSL report at Ex.P24 is also negative. The counsel would vehemently contend that though PW2 speaks that he has recorded the conversation made between him and accused, there was no any such conversation. The counsel also brought to notice of this Court to the sketch at Ex.P12 and contend that PW3 was outside the cabin at that time, thus, he is also a chance witness since he has not seen what transpired between the accused and the complainant. PW5 evidence also not inspires the confidence of this Court and the Trial Court only on presumption and assumption comes to the conclusion that accused committed the alleged offence in the absence of material before the Court - 7 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 and there is no finding with regard to the demand and acceptance of bribe. When the shadow witness was outside the premises of the accused, the Trial Court ought not to have considered the same. 5. The counsel in support of his arguments relied upon the judgment reported in (2017) 8 SCC 136 in the case of MUKHTIAR SINGH (SINCE DECEASED) THROUGH HIS LEGAL REPRESENTATIVE vs STATE OF PUNJAB and brought to notice of this Court paragraphs 13, 14 and 24 wherein discussion was made with regard to indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. The Apex Court referring the judgment of SUBAIR v. STATE OF KERALA reported in (2009) 6 SCC 587 held that this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to - 8 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 be innocent and also discussed the judgment of STATE OF KERALA v. C.P. RAO reported in (2011) 6 SCC 450 that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. The counsel also brought to notice of this Court paragraph 14 wherein also the Apex Court referred the judgment reported in (2015) 10 SCC 152 in the case of P SATYANARAYANA MURTHY v. STATE OF A.P., wherein also discussion was made with regard to Sections 7 and 13 of the Act and held that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The counsel also referring paragraph 24 of the judgment would contend that a detail discussion was made in this judgment that not only the date or time of first - 9 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3000/- at the first instance is alleged to have been paid i.e., Santosh Singh Lambardar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3000/- as well as the demand of Rs.2000/- has remained uncorroborated. The counsel referring these paragraphs would vehemently contend that in the absence of any proof of demand for illegal gratification or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. 6. The counsel also relied upon the judgment reported in AIR ONLINE 2023 SC 217 in the case of NEERAJ DUTTA vs STATE (GOVT. OF N.C.T. OF DELHI) and brought to notice of this Court paragraph 14 wherein discussion was made with regard to the allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable - 10 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. The counsel referring this judgment would vehemently contend that in the case on hand also thee was no any direct evidence as well as circumstantial evidence and contend that this judgment is aptly applicable to the case on hand. 7. The counsel also relied upon the judgment reported in (2013) 12 SCC 406 in the case of SUJIT BISWAS vs STATE OF ASSAM and brought to notice of this Court paragraph 13 wherein also discussion was made with regard to the suspicion, however grave it may be, cannot take the place of proof and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, - 11 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusion. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. 8. The counsel also relied upon the judgment reported in 2025 SCC ONLINE SC 390 in the case of STATE OF MADHYA PRADESH vs BALVEER SINGH and brought to notice of this Court paragraphs 75 to 77 wherein discussed with regard to Section 106 of the Evidence Act which obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory. The counsel also brought to notice of this Court paragraph 66 wherein discussed the principles of law governing the applicability of Section 106 of the Evidence - 12 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 Act and in paragraph 67 discussion was made with regard to burden of proving fact especially within knowledge as per Section 106 of the Evidence Act. 9. Per Contra, the counsel appearing for the respondent in his argument would vehemently contend that the shadow witness and complainant evidence is very corroborative evidence with regard to the demand and acceptance is concerned and also contend that evidence is very clear with regard to demand and acceptance and though Ex.P24 - FSL report is negative, the counsel would vehemently contend that it is the case of the prosecution also that he has issued the amount by finger print with main thumb and even if in the absence of pink colour solution, the Court has to take note of material on record. The counsel would vehemently contend that even in the absence of any application, tax paid receipt is very clear that after the paper sent to the office of accused, he has produced the tax paid receipt and hence, it is clear that papers are in process for transfer of khata. The counsel also would vehemently contend that pre trap and post trap - 13 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 mahazar is very clear that both the pre trap and post trap clearly discloses that the amount which was given by the complainant to the I.O at the time of conducting pre trap and also the post trap very same notes are recovered at the instance of the accused. 10. The counsel also would vehemently contend that when the 313 statement was given by the accused and there was no any explanation and though he contend that someone kept the amount in the cupboard and there was no any cross-examination to that effect by cross- examining the witnesses P.W.2 and P.W.3 and also I.O and the counsel would vehemently contend that demand and acceptance are proved and recovery is also proved and panch witness who has been examined as P.W.4 also supports the case of prosecution and shadow witness as well as the complainant evidence is very clear with regard to the demand and acceptance and when such being the case, the Trial Court rightly considered the material available on record. Hence, it does not requires any interference of this Court. - 14 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 11. In reply to this argument, the counsel appearing for the appellant would vehemently contend that even pendency of work is not the factor, but the fact is that when the specific defense was taken by the accused that he has not received any amount and somebody kept the amount in the cupboard, in that regard, there is no question raised in the cross-examination and the same will not helpful to the prosecution and Ex.P11 is very clear that he had given immediately explanation and when such explanation is given in terms of Ex.P11, the very contention that no question was put to the witness is immaterial. The counsel also would vehemently contend that the accused did not prove and only probabilize the case of his defense and suspicion cannot be a ground to convict the accused and also no voice recorder was placed before the Court and when such being the material on record, the very Trial Court committed an error in accepting the case of prosecution and hence, it requires interference of this Court. - 15 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013
Legal Reasoning
12. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, the points that would arise for consideration of this Court are: 1. Whether the Trial Court committed an error in convicting the accused and whether it requires exercising of Appellate Jurisdiction? 2. What order? Point No.1: 13. Having considered the grounds urged in the appeal as well as material available on record and also the principles laid down in the judgment referred supra by the counsel appearing for the appellant, it is also settled law that in a case of invoking section 7 and 13 of Prevention of Corruption Act, it is the sin qua non of demand and acceptance must be proved. In the absence of proving of demand and acceptance, question of invoking Section 7 and 13(1)(d) does not arise. Even the Apex Court also while dealing with the matter in Neeraj Dutt’s case in the - 16 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 constitution bench also held that even circumstantial evidence if it is found sufficient, the Court can convict the accused invoking Section 7 and 13 of Prevention of Corruption Act and no dispute with regard to the principles laid down in the judgment of the Apex Court which have been relied upon by the counsel for the appellant. In keeping the principles laid down in the judgments referred above and also considering the material available on record, particularly evidence of prosecution witnesses, it is very clear that no application was pending, but the fact is that when the document was registered a J-Form has to be sent to the concerned department. It is also not in dispute that Ex.P19 tax paid receipt also placed on record for transfer of khata. It is also not in dispute that khata was not transferred and material witness is P.W.2 complainant and also the P.W.3 and both of them also supports the case of prosecution by giving their evidence that there was a demand and the same was settled to Rs.1,500/- and also report that was lost by the complainant which is in his hand writing as per Ex.P2 was - 17 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 also marked and also it is the case that when they went to office of the accused at 3:30 pm, he was asked to come at 5:30 pm and both himself and shadow witness went to the office at 5:30 pm, he was asked to stay for five minutes and also asked whether he brought the bribe money and he said that he brought the bribe money and he paid the amount and shadow witness also observing after giving money and he also changed and given the signal and thereafter the accused also produced the amount and the hand was also dipped and it was white colour and 2nd time it was turned to rose colour. In the cross-examination, he admits that the complaint was written in the Lokayuktha office but complaint was written on his own. He gave the signal and he remembered that watch was removed to facilitate washing the hands, but he admits that demand was not made by the accused at 3:30 pm, but the accused demanded money at 5:15 pm and also admits that proceedings was written in Lokayuktha office in the form of mahazar after return. - 18 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 14. The P.W.3 also speaks about the complainant was asked to produce the currency notes and he gave the currency note and thereafter pre trap mahazar was also conducted and he also re-iterate that money was demanded and complainant gave and accused received it in the left hand and kept it in his cupboard and also he says that he received the money with his left hand and with use of index finger and thumb and there is an improvement in the evidence of P.W.2 that amount was received with his left hand with the use of index finger and thumb. This witness was subjected to cross-examination, he admits that voice recorder was given to the complainant by the Police Inspector, but no such voice recorder evidence placed before the Court and he admits that Ex.P10 was prepared in his presence and he was behind the complainant and the sketch was prepared by telling it. He also says that he has stated earlier regarding receiving the amount in two fingers. 15. The other witness is P.W.4 and he says he was one of the panch witness and he speaks about the - 19 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 procedure what has been done about the pre trap mahazar and also the post trap and in the cross-examination, suggestion was made that he has not gone through the mahazar and he has not seen the proceedings and the same was denied and except the suggestion, nothing was elicited and he admits that the amount was shown to P.W.3. 16. The other witness is P.W.5 –Investigating Officer who conducted the pre trap mahazar for having received the complaint as well as post trap mahazar and also documents are marked through him. In the cross- examination it is suggested that Ex.P2 was prepared in his office and the same was denied and he admits that in the complaint he did not mention the demand on what date it was made and placed and also complainant has not placed any document by lodging the compliant. He admits that the glass which was put and the same was not transparent. He categorically admits that the shadow witness did not mention anything about that he had observed the same from outside and the same was not - 20 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 mentioned in trap panchanama. He also admits that for having collected the money by the accused by using two fingers and the same was not mentioned in the mahazar, but also he admits that in the mahazar it is mentioned that the accused accepted the amount from his left hand and kept the same in the cupboard. He categorically admits that in the FSL report there is no any positive report that phenolphthalein was found in the solution. It is suggested that accused has not demanded any amount and also no amount was not accepted and the same was denied. 17. Having considered both oral and documentary evidence placed on record, it is not in dispute that complaint was given and thereafter pre trap mahazar was conducted in the presence of P.W.3 and P.W.4 and also it is the case of the complainant that he gave the money to the Investigating Officer and made use of the same for pre trap mahazar and thereafter also went to the office of the accused. It is also the case of the complainant that when they went and met the accused, the accused told that he has got the meeting and asked the complainant to come at - 21 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 5:15 pm. It is the specific case of the complainant P.W.2 and also the P.W.3 that both of them went together, but on perusal of the sketch Ex.P12 which discloses that the shadow witness was sitting outside the chamber of the accused and also question was put to him it is not possible to observe what was happening inside room and Investigating Officer also categorically says that though it was not transparent, but he says and the same can be observed and hence, it is very clear that the shadow witness was outside the room and his evidence also that accused demanded the amount and complainant gave the same, but the fact that he was outside and also the glass was not transparent and also the very evidence of P.W.3 cannot be accepted and though P.W.2 says that he went and made the payment on demand and there is a improvement that I have already mentioned that P.W.2 says that he has received the amount through his left hand and kept the same in the cupboard, but in the improvement, P.W.3 says that he collected the same with index and thumb finger and also the Investigating Officer - 22 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 categorically admits in the cross-examination that the same was not stated in the trap mahazar for having received the amount with index finger and also the thumb. 18. It is important to note that when the FSL report placed on record which is marked as Ex.P.24 and even if he has collected the amount with index finger as well as thumb and the same was subjected to hand wash, but Ex.P24 is very clear that presence of phenolphthalein is not detected in both the right and left finger after washing. Hence, having accepted the bribe money, no positive evidence before the Trial Court. It is the specific case of the P.W.2 and P.W.3 that he had accepted the amount through his left hand. In order to prove the fact that he has received the money through his left hand, the same has not been proved by placing any record and the very FSL report goes against the case of prosecution. 19. It is also important to note that no doubt the transfer of khata was pending in the office of the accused, but I have already pointed out that in case of invoking of Section 7 and 13 there must be a positive evidence before - 23 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 the Court regarding demand and acceptance and though P.W.2 and P.W.3 deposes regarding demand and acceptance and I have already pointed out that the P.W.3 shadow witness was outside and even he did not speaks about what was conversated between the complainant and the accused regarding demand and acceptance. Even assuming the evidence of P.W.2 is truthful that there was a demand and acceptance and the very FSL report is very clear that no such positive report and the same is negative. It is also important to note that immediately after the trap the accused given the reply in terms of Ex.P11 wherein he has categorically stated that somebody might have kept the amount in the cupboard. Immediately after the trap he has given a probable defense before the Investigating Officer and also it is deposed before the Court also that somebody might have kept the amount in the cupboard and may be the cupboard belongs to the accused and also the fact that it is very clear that when the complainant went and met the accused at 3:30 pm he has categorically says that he has got the meeting and - 24 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 asked the complainant to come at 5:15 pm and hence, it is very clear that he was not at the office between 3:30 to 5:15 pm and when such being the case, the benefit of doubt also goes in favour of the accused that he was not in the office in between 3:30 to 5:15 pm and when such probable defense was taken by the accused that somebody might have kept the amount in the cupboard and also Ex.P24 the FSL report is negative and the probable defense was raised immediately after the trap as well as the defense which was taken clear that the accused took specific defense immediately and also the same is not proved by placing any corroborative evidence and when such being the case, the Trial Court ought not to have accepted the evidence of P.W.2 and P.W.3 and there is a clear admission on the part of Investigating Officer also that though he says that it could be visible from P.W.3 shadow witness with regard to what is transpired inside the room of the accused, but the fact that it was not transparent glass not been considered by the Trial Court while convicting the accused. The material available on - 25 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 record, not substantiate the case of prosecution to invoke Section 7 as well as Section 13(1)(d) r/w Section 13(2) and Trial Court committed an error in coming to the conclusion that though no application was pending, but the material available on record clearly discloses with regard to demand and acceptance has not been properly appreciated by the Trial Court. 20. The Trial Court taken note of discussion made in paragraph No.25 and 26 with regard to asking the complainant to meet at 5:15 pm and also shadow witness evidence of C.W.2 who has been examined as P.W.3 and also comes to the conclusion that solution was prepared and sample was taken in bottle as MO.1 and the remaining solution of hand of witness Fayaz washed and the solution was turned to pink colour and those material was not the important and important material would be immediately after the trap when the solution was prepared and hand of the accused was dipped into the solution and solution was not turned pink colour that would be the important aspect has not been taken note of by the Trial Court. The Trial - 26 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 Court mainly relies upon the evidence of P.W.2 and P.W.3 and even fails to consider the document Ex.P11 which was given immediate explanation and when proper explanation was given by the accused immediately after the trap also, ought to have taken note of the said fact into consideration and committed an error in believing the evidence of P.W.2 and P.W.3 and committed an error. Hence, it requires interference of this Court and this Court has to exercise appellate jurisdiction when the Trial Court committed an error in appreciation the evidence of P.W.2 and P.W.3 and the same was not in proper prospective. The demand and acceptance has not been proved by placing cogent evidence before the Trial Court and hence, the accused is entitled for acquittal. 21. In view of the discussions made above, I pass the following:
Decision
ORDER i) The Criminal Appeal is allowed. - 27 - NC: 2025:KHC:15327 CRL.A No. 385 of 2013 ii) The impugned judgment and conviction passed against the appellant in Spl.C.C.No.28/2008 dated 28.02.2013 for the offence punishable under Section 7, 13(1)(d) and 13(2) of Prevention of Corruption Act is hereby set- aside. Consequently, the accused is acquitted and if any fine amount is deposited by the appellant before the Trial Court is ordered to be released in favour of the appellant on proper identification. iii) The bail bond executed by the appellant and surety stands cancelled. Sd/- (H.P.SANDESH) JUDGE SN/RHS