MARY ANITHA v. STATE OF KARNATAKA

Judgment

1. This appeal is filed by the appellant – accused praying to set-aside the judgment of conviction and order on sentence

30.08.2012 passed Special C.C.No.65/2007 by the Court of the Special Judge, Bengaluru Urban District, Bengaluru, whereunder, the appellant – accused has been convicted for the offences under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short hereinafter referred to as “the P.C.Act”) and has been sentenced to undergo rigorous imprisonment for a period of six years and to pay fine of Rs.1,000/- for the offence under Section 7 of the P.C.Act and to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1,000/- for the offence under Section 13(1)(d) r/w Section 13(2) of the P.C.Act. - 3 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012

2. The factual matrix of the prosecution case is that; (i) PW1 – complainant was running S.M.S Bar and Restaurant at Chamrajpet, Bengaluru. The said Bar and Restaurant stands in the name of his wife. As per the Government Order, he had given National Savings Certificates (for short hereinafter referred to as ‘N.S.Cs’) to the extent of Rs.90,000/- to the Commercial Tax Department on 14.03.2000. Since one year, he was consulting with the Commercial Tax Department for returning the said N.S.Cs. Fifteen days prior to 25.08.2006, he met the appellant – accused who was working the Commercial Tax Department, Gandhinagar, Bengaluru and she had promised to return the said N.S.Cs. On 24.08.2006, when the complainant met the appellant – accused in the house, she demanded Rs.10,000/- for returning the N.S.Cs. The accused told the complainant to pay Rs.5,000/- immediately and Rs.5,000/- after the work is completed. Since the complainant was not interested in paying the bribe amount to the appellant – accused, he lodged a complaint before the - 4 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 Police Inspector, Lokayukta against the appellant – accused. The Police Inspector, Lokayukta, Bengaluru has conducted investigation and submitted charge sheet against the appellant – accused for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C.Act. In the charge sheet, it is alleged that during August, 2008, the appellant – accused who was working as a public servant as Second Division Assistant in the Commercial Tax Department, Gandhinagar, Bengaluru has demanded bribe of Rs.10,000/- for returning the N.S.Cs which were given by the complainant

– Sri.J.Mariyappa and demanded Rs.5,000/- immediately and that on 25.08.2008, at about 3.50 pm, near Kamath Yathri Nivas Hotel, Gandhinagar, Bengaluru, the appellant – accused has demanded an illegal gratification of Rs.5,000/- other than the legal remuneration from the complainant for returning the N.S.Cs, thereby the appellant – accused has committed the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C.Act. The Special Court framed charge against the appellant – accused for the - 5 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C.Act. (ii) The prosecution in order to prove the charge, has examined five witnesses as PWs.1 to 5 and got marked 18 documents as Exs.P1 to P18 and material objects as MOs.1 to

9. The statement of the appellant – accused came to be recorded under Section 313 of Cr.P.C. The Special Court, after hearing the arguments on both sides, has formulated the points for consideration and passed the judgment convicting the appellant – accused for the aforesaid offences and passed the order on sentence as noted above. The said judgment of conviction and order on sentence has been challenged in this appeal.

3. Heard learned counsel for the appellant – accused and learned Special Public Prosecutor for the respondent – State.

4. Learned counsel for the appellant – accused would contend that; - 6 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 (i) the prosecution has not proved the demand of bribe by the appellant – accused. In the absence of proof of demand of bribe, mere possessing the bribe money does not attract the offence alleged against the appellant – accused. The alleged trap has been laid in the public place in front of a wine shop, where several public will move and the trap mahazar has not been drawn at that place stating that, that place is not conducive for drawing the mahazar. PW2 in his cross examination has stated that he was at a distance of 3 to 5 meters when the appellant – accused and the complainant were talking and there was a noise created by the public and conversation between the appellant – accused and the complainant was not audible clearly to him. Therefore, PW2 has not heard the conversation between the appellant – accused and the complainant. Therefore, the alleged demand of bribe by the appellant – accused has not been proved. PW2 has admitted in the cross examination that he had assisted the Lokyukta in three cases, therefore, he is a stock witness to the Lokayukta. PW4 – Pancha to Ex.P3 – pre-trap mahazar and Ex.P5 – trap mahazar has not - 7 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 stated about the procedure that was conducted at the time of pre-trap mahazar and the trap mahazar. Even she has not stated her presence at the time of preparing the trap mahazar. Except the evidence of PW1 regarding the demand of bribe, there is no corroboration of any other witness with regard to the demand. The contents of Ex.P4 – explanation given by the appellant – accused itself would indicate that it was forcibly taken while the appellant – accused was in the custody of the police and therefore, it amounts to confession and it is admissible. The office of the appellant – accused is near the spot ie., wine store and inspite of that, the Investigating Officer went along with the appellant – accused and others to the Lokayukta Office where he drawn the mahazar. It is alleged that the appellant – accused was holding the bribe money in her hand and in that position, she was taken in the vehicle to the Lokayukta Office. What was the work pending, who is having the authority to return the N.S.Cs belonging the complainant has not been investigated. The prosecution has not placed on record any document to show that the appellant – accused was incharge - 8 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 of those N.S.Cs belonging to the complainant and she had authority to return them. PW3 who has issued the sanction order – Ex.P13 has not applied his mind and issued sanction order mechanically. The same can be ascertained by reading Ex.P13 - sanction order, where it is written that the appellant – accused accepted bribe of Rs.10,000/-. The demand of bribe by a public servant in a public place ie., near wine store which is a public road is not probable. He submits that, it appears that the complainant was fed up with non return of the N.S.Cs by the officials of the Commercial Tax Department, therefore he foisted a false complaint against the appellant – accused only to get back his N.S.Cs. PW1 in his evidence ie., in the chief examination itself has stated that he went to the Commercial Tax Department several times seeking return of N.S.Cs and he was embarrassed with the said aspect. (ii) Learned counsel for the appellant – accused has placed reliance on the following decisions; - 9 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012

8. V. Sejappa vs. State by Police Inspector Lokayukta, Chitradurga – reported in (2017) 3 SCC (Cri) 699. Suraj Mal vs. State (Delhi Administration) – reported in (1979) 4 SCC 725. Panalal Damodar Rathi vs. State of Maharashtra – reported 1980 SCC (Cri) 121. R Srinivasan and Another vs. State by Police Inspector Lokayuktha, Bangalore – reported in 2016(1) KCCR 815. R Malini vs. State of Karnataka – reported in 2012 (1) KCCR 414. D. Rajendran vs. State by Police Inspector, B.O.I. – reported in 2004 (2) KCCR 1233. State of Maharashtra vs. Anant Gurunath Jotrao – reported in 2005 Crl. L. J. 4450. The State of Karanataka vs. Dr.R Venkatesh – held in Crl.A.No.453/2011.” On these grounds, learned counsel for appellant – accused has prayed for allowing the appeal and acquitting the appellant – accused. - 10 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012

5. Per contra, learned Special Public Prosecutor for the respondent – State would contend that; (i) the demand and acceptance of bribe has been proved by the evidence of PWs.1 and 2. PW1 has specifically stated the demand of bribe by the appellant – accused prior to the trap and also at the time of trap in his evidence. PW2 – shadow witness has also stated regarding the demand of bribe at the time of trap. The explanation given by the appellant – accused as per Ex.P4 itself would establish that she demanded bribe from the complainant for return of N.S.Cs. When the demand and acceptance are proved, the presumption under Section 20 of the P.C.Act, is required to be drawn. The discrepancies pointed out in the evidence of PWs.1, 2 and 5 are the minor discrepancies. The pendency of the work is not a criteria and it is not at all required to be proved. (ii) Learned Special Public Prosecutor has placed reliance on the decision of the Hon’ble Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) - 11 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 reported in AIR Online 2022 SC 1160. With this, he prayed for dismissal of the appeal.

6. Having heard the learned counsels and on perusal of the impugned judgment and the Trial Court records, the following point arises for my consideration; “Whether the Special Court has erred in convicting appellant – accused for the offences under Section 7 and Section 13(1)(d) r/w 13(2) of the P.C.Act?”

7. My answer to the above point is in the affirmative for the following reasons; PW1 is the complainant. He was running a Bar and Restaurant in the name of his wife Smt.Jayamma. PW1 had given N.S.Cs worth Rs.90,000/- to the Commercial Tax Department on 14.03.2000. The said N.S.Cs were provided for getting “No Objection Certificate” from the Commercial Tax Department. PW1 has to get back the said N.S.Cs after some years. PW1 stated to have approached the Commercial Tax Officials seeking return of the said N.S.Cs and he had - 12 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 approached the said Office several times and he was embarrassed by going to their office now and then, as he was badly in need of getting back the said N.S.Cs worth Rs.90,000/-. In Ex.P1 – complaint filed by PW1, it is stated that he had approached the appellant – accused on

24.08.2006 in her office and at that time, she had demanded Rs.10,000/- for getting search the said N.S.Cs and asked him to give Rs.5,000/- immediately and balance of Rs.5,000/- has to be given after completing the work. PW1 in his evidence has not stated when he met the appellant – accused and when she demanded the bribe amount. There is no conversation recorded which took place between appellant – accused and PW1 – complainant regarding the alleged demand of bribe by the appellant – accused which is alleged to have taken place one day prior to filing of the complaint. PW1 has not stated the date as to when he met the appellant – accused and where the appellant – accused demanded the bribe. In the complainant – PW1 has stated that he met the appellant – accused on 24.08.2006 in her - 13 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 office, but in his cross examination, he has stated that he first met the appellant – accused on 24.06.2006.

8. The trap has been laid on 25.08.2006. On that day, the appellant – accused was on leave. On that day, PW1 met the appellant – accused in Kamath Yathri Nivas hotel. At that time, PW2 - shadow witness was with PW1 – complainant. PW2 – shadow witness has stated that he, the appellant – accused and PW1 sat in Kamath Yatrhi Nivas hotel and they had tea / coffee. As per PWs.1 and 2, after having tea / coffee, they came out of Kamath Yathri Nivas hotel and when they were in front of the wine store, the appellant – accused demanded bribe and PW1 gave bribe money to her and she had counted and was holding the amount in the left hand and at that time, he flashed the signal by removing the spectacles. PW2 had also deposed that the appellant – accused asked the complainant to pay the money near the wine store and the complainant gave Rs.5,000/- to the appellant – accused and she received in the right hand and counted and holding it in the left hand. At that time, the - 14 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 complainant flashed the signal by removing the spectacles and wearing it. As per the evidence of PWs.1 and 2, the said demand had taken place near the wine store on the road in front of the wine shop. PW5 was the Police Inspector, Karnataka Lokayukta, Bengaluru, who had laid the trap. He has deposed that the complainant and the shadow witness went to Kamath Yathri Nivas hotel after the appellant – accused came to Kamath Yatri Nivas Hotel at 3.30 pm and he was standing near the wine store. He stated that at 3.45 pm., the complainant and the shadow witness came out and signal was flashed by the complainant. The said aspect would itself indicate that when the complainant and the shadow witness came out of the Kamath Yathri Nivas hotel signal was flashed and they surrounded the appellant – accused. The said aspect would itself indicate that the alleged demand and acceptance of bribe has taken place in the Kamath Yathri Nivas hotel, but as per the evidence of PWs.1 and 2, it is in front of the wine store. PW5, the staff of Karnataka Lokayukta and another pancha – PW4 were standing near the wine store. In the sketch – Ex.P7, the positions of PWs.1 and - 15 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 2 and the appellant – accused has been shown in front of wine store. The positions of PW5, PW4 – pancha and the other staff of Lokayuktha has not been shown. The said place of trap is a public road and that too, in the presence of another person ie., PW2, the appellant – accused demanding bribe from the complainant does not appears to be natural and probable. More so, there is a contradiction with regard to the place of demand ie., in front of the wine store or in the Kamath Yathri Nivas hotel in the evidence of PWs.1, 2 and 5.

9. PW2, in his cross examination had admitted that he was at a distance of 3 to 5 meters when the appellant – accused and the complainant were talking and due to the noise created by the customers, their talks were not audible clearly. As PW2 was at a distance of 3 to 5 meters from the appellant – accused and the complainant, it is not possible for him to hear the conversation between the complainant and the appellant – accused regarding demand of bribe that too, in a public place. Therefore, the alleged demand of bribe by the appellant – accused with the complainant at the time - 16 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 of trap has not been established. The complainant – PW1 was fed up with the officials of Commercial Tax Department since, he was made to wander to that office to visit again and again to get back his N.S.Cs and he was embarrassed with the same and he has stated the same in his chief examination.

10. The Hon’ble Apex Court in the case of V.Sejappa, supra has held that mere recovery of tainted money is not sufficient to convict the accused and in order to draw the presumption under Section 20 of the P.C.Act, foundational facts of demand and acceptance has to be established by the prosecution.

11. The Co-ordinate Bench of this Court in the case of R.Srinivasan and another, supra has held that in a trap case, the complainant will normally be interested in getting the accused trapped, since, the accused is stated to have not acted legally according to him. Hence, his evidence needs corroboration in the material particulars and this is where corroboration of the shadow witness assumes importance. In the case on hand, the evidence of PW2 – shadow witness - 17 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 does not corroborate the evidence of PW1 – complainant with regard to demand of bribe by the appellant – accused.

12. The Co-ordinate Bench of this Court in the case of R.Malini, supra, has held that mere acceptance of money by the accused will not be sufficient to fasten the guilt in the absence of any evidence of demand and acceptance of amount as illegal gratification.

13. In the State of Maharastra Vs. Anant Gurunath Jotrao, supra, Bombay High Court has held that acceptance of bribe by the accused and recovery of the amount from him has not been proved by the prosecution beyond reasonable doubt, as panch witness who accompanied the complainant stated that he could not hear the conversation between the complainant and the accused as he was far away from the accused. In the case on hand also, PW2 – shadow witness had stated that he was 3 to 5 meters away from the complainant and the appellant – accused and he could not hear the conversation clearly. - 18 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012

14. In the case of Jagtar Singh Vs. State of Punjab reported in 2023 Livelaw (SC) 232, the Honble Apex Court has held that demand and recovery, both must be proved to sustain conviction under the P.C.Act.

15. The prosecution has not brought on record whether this appellant – accused was having power and authority to return the N.S.Cs pertaining to the complainant. Considering the said aspect, the prosecution has not established that the work of the complainant is pending with the appellant – accused. Therefore, the evidence on record will not establish beyond all reasonable doubt that the appellant – accused demanded bribe from the complainant. Considering the said aspect, the Special Court has erred in convicting the appellant – accused for the offences under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C.Act. In the result, the following; ORDER The appeal is allowed. The impugned judgment of conviction and order on sentence dated 30.08.2012 passed in - 19 - NC: 2024:KHC:47490 CRL.A No. 1075 of 2012 Special C.C.No.65/2007 by the Court of Special Judge, Bengaluru Urban District, Bengaluru is set-aside. The appellant – accused is acquitted of the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C.Act. The appellant – accused is entitled to refund of the fine amount, if any, paid by her. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE GH List No.: 1 Sl No.: 11