Criminal Appeal No. 1372 of 2015 · The High Court
Case Details
- 1 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 R BEFORE THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL NO. 1372 OF 2015 (A) …APPELLANT BETWEEN: STATE OF KARNATAKA BY LOKAYUKATHA POLICE CHIKKABALLAPUR DISTRICT-563 125 (BY SRI. B.S. PRASAD, ADVOCATE) AND: 1. 2. Digitally signed by SHAKAMBARI Location: High Court of Karnataka K. DORAI S/O P. KRISHNA AGE 49 YEARS, OCC:GOVT. ADD:- SHAHEDA COMPLEX ANJANI EXTENSION CHITAMANI-563 125 CHIKKABALLAPURA DISTRICT N. RAJANNA S/O NARAYANAPPA AGE:50 YEARS, OCC:GOVT. ADD: SHAHEDA COMPLEX ANJANI EXTENSION CHITAMANI-563 125 CHIKKABALLAPURA DISTRICT (BY SRI. C.H. JADHAV, SENIOR COUNSEL FOR SRI. CHETHAN JADHAV, ADVOCATE FOR R1; SRI. VEERANNA G. TIGADI, ADVOCATE FOR R2) …RESPONDENTS - 2 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 THIS CRIMINAL APPEAL IS FILED U/S. 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 01.07.2015 PASSED BY THE LEARNED PRL. DIST. AND S.J., AT CHIKKABALLAPRUA THEREBY PCACC ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 7, 13(1)(d) R/W 13(2) OF PREVENTION OF CORRUPTION ACT. NO.4/2009 IN THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CAV JUDGMENT (PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) The present appeal has been preferred by the State under Section 378 of the Cr.P.C assailing the judgment of acquittal dated 1.7.2015 rendered by the Prl.District and Sessions Judge, Chikkaballapura in PCA CC No.4/2009. By the impugned judgment, the respondent-accused were acquitted of the charges framed against them under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as `the PC Act'). - 3 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 2. Parties to this appeal are referred as per their rank before the trial Court. Facts of the case: • Accused No.1 was working as Commercial Tax Officer and accused no.2 as Inspector in the Commercial Tax Office at Chintamani, Chikkaballapura Dist. at the relevant point of time. • The complainant-Raghavendra (PW.1) was the proprietor of an automobile spare parts business operating under the name and style of 'Indian Madras Motors' situated at Chelur Road, Chintamani. 3. The sequence of events leading to the alleged demand of illegal gratification as brought out by the prosecution is as under: • On 10.6.2008, at about 12.30 p.m. both accused visited the shop of the complainant - 4 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 and purchased one litre of Engine Oil worth Rs.170/-. • Allegedly, the complainant failed to issue a proper sales receipt for the said transaction, upon which, accused imposed penalty of Rs.2,000/- on the spot under the provisions of Karnataka Sales Tax Act. • Additionally, the accused seized all the Account books and business records of the complainant and directed the complainant to appear before them on the following day (i.e. on 11.6.2008) at their office. 4. The subsequent events unfolded in the case of the prosecution are as under: • On 11.6.2008, when the complainant visited the office of the accused, accused no.1 allegedly demanded a bribe of Rs.1,00,000/- to settle the matter to avoid all the further legal consequences. After negotiation, the - 5 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 bribe amount was allegedly reduced to Rs.25,000/-. • The complainant, instead of complying with the said demand of accused decided to approach the Lokayukta Police and accordingly approached on 16.6.2008, after allegedly recording conversations with the accused to substantiate his allegations of demand of bribe amount by the accused. 5. A trap was laid by the Lokayukta police on 16.6.2008, wherein; • The complainant handed over Rs.25,000/- (smeared with phenolphthalein powder) to accused no.2 inside the Commercial Tax Office as instructed by the Lokayukta police. • The raiding team caught accused no.2 red- handed and the phenolphthalein test conducted on his hands yielded a positive - 6 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 result indicating contact with the smeared currency notes. 6. Both the accused were arrested and charge- sheeted. However, after a full-fledged trial, Court acquitted them, leading to the present appeal by the State.
Legal Reasoning
Trial Court Proceedings in detail: 7. During the trial, the prosecution examined four witnesses (PWs.1 to 4) and got marked several documentary evidence in the shape of Ex.P1 to P19 including complaint, pre-trap and post- trap mahazars and sanction order to prosecute the accused so also the FSL report confirming the presence of phenolphthalein powder on the seized currency notes. The defence, in rebuttal, got marked Ex.D1 to D8 to highlight contradictions in the prosecution case. 8. The trial Court acquitted the accused primarily on the following grounds: - 7 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 • There is failure to prove demand and acceptance of bribe amount beyond reasonable doubt. • There are material contradictions in the testimony of the complainant (PW.1). • Unreliable evidence of a shadow witness (PW.2) who failed to corroborate the complainant's version. • Non-production of voice recording evidence in a proper manner. • The accused provided a plausible explanation that the amount was received towards tax dues and not as illegal gratification.
Legal Reasoning
9. The learned counsel for the appellant-Lokayukta Sri B.S.Prasad with all vehemence submits that, the very acquittal of the accused by the trial Court is quite contrary to law and evidence placed on record. There is no proper appreciation of evidence by the trial Court in acquitting the - 8 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 accused. The trap witnesses especially that of complainant and panchas have spoken about demand and acceptance of illegal gratification by both the accused. When a demand and acceptance is proved, the trial Court without appreciating the same has acquitted the accused, which, according to him is improper. Even the voice recorder so produced and marked in evidence do demonstrate that, there is a clear evidence of demand by accused no.1. The accused no.1 has bargained as per the conversation. PW.1 and 3 being the panchas have supported the prosecution case. The learned trial Court has failed to draw the proper inference from the facts and circumstances. He would further submit that, the scientific evidence (phenolphthalein test) was conclusive and proved the acceptance of money by the accused. It is his submission that, the voice recording evidence if properly considered demonstrates a clear demand of bribe. He would submit that, the trial Court wrongly discarded corroborative evidence that supported the prosecution case, thereby, the acquittal order passed by the trial Court was contrary to - 9 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 law and evidence on record warranting interference by this Court. 10. Per contra, the learned Sr.Counsel Sri C.H.Jadhav, appearing for respondent-accused no.1 would submit that, four witnesses are examined in this case and their evidence is quite inconsistent with that of their respective chief examination. He would submit that, when no work was pending with the accused persons as that of the complainant, the question of accused no.1. demanding Rs.25,000/- does not arise at all. It is all fabricated story of the complainant to escape his tax liabilities. He would submit that, the prosecution has failed to prove the crucial elements of demand and acceptance. The learned trial Court rightly appreciated and granted the benefit of doubt to the accused. He submits that, the voice recording was not properly proved and was thus inadmissible in evidence. 11. The learned Sri V.G.Tigadi, counsel for accused no.2, supported the submission of learned Sr.Advocate - 10 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 Sri. Jadhav and would submit that, there is no incriminating evidence against accused no.2. to prove offence against him. He would submit that, the learned trial Court is right in acquitting the accused. 12. In view of rival submissions of the counsel for the parties, the point that would arise for my consideration is: "Whether the judgment of acquittal passed by the trial Court suffers from illegality, infirmity and hence require interference by this Court?" 13. It is a case registered under the provisions of PC Act. Accused nos.1 and 2 are the public servants. Before prosecuting the public servants, the sanction from the appointing authority is necessary. To prove the said fact, prosecution relies upon the sanction as per Ex.P19 issued by the Sanctioning Authority. The sanctioning authority, on receipt of request to accord sanction has prepared the proceedings for sanction as per Ex.P18 and ultimately on satisfaction, 'Sanction Order' came to be - 11 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 issued as per Ex.P19. These two documents are not disputed by the defence. PWs.3 & 4 have emphatically stated in their respective evidence about according sanction to prosecute both the accused. With regard to the sanction, as held by the Hon'ble Apex Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat reported in (1997) 7 SCC 622, that, valid sanction is necessary but, it is not sufficient for conviction. In view of the evidence of PW.3 and 4 and issuance of Ex.P19 which is not disputed by the defence proves that, the prosecution agency has obtained a valid sanction to prosecute both the accused. 14. With regard to the proof of demand, the fundamental requirement is that, there must be a proof of demand of illegal gratification as contemplated under Section 7 of the PC Act. The prosecution much relies upon the evidence of PW.1 the complainant - S.Raghavendra an automobile businessman. He deposed that, on 10.06.2018, both the accused came to his shop to have an - 12 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 Inspection as Commercial Tax officer. They purchased one liter of engine oil. As he was in hurry, he could not issue receipt. After 10 to 15 minutes, again both the accused came to his shop and took out all books and chits etc., regarding his business and imposed a fine of Rs.2,000/- on him. They asked the complainant to come to their office. Accordingly, 2 to 3 times, he went to the office of the accused. At that time, as per the chits so found in his shop, accused has to deposit Rs.2 to 3 lakhs to the Government. At that time, complainant told that, it is not possible for him as he has not committed any illegality. For that accused told him that, atleast complainant has to pay Rs.1,00,000/-. As complainant was not interested to pay bribe amount so demanded, therefore, he went to the office of Lokayukta and lodged a complaint. The lokayukta police informed him to record his conversation with these persons. Therefore, with the help of one Ramachandra, a Constable, he went to the office of the accused, recorded the conversation with regard to the demand made by the accused. - 13 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 15. It is his further evidence that, on 16.6.2008, he filed a complaint as per Ex.P2. At that time, the police called two witnesses and one of them was Avalappa. Accused demanded to pay atleast Rs.25,000/- to them. He did not wish to pay the same. Accordingly, on the day of filing complainant, he took Rs.25,000/- with him and gave 50 notes of Rs.500/- denomination notes to the Lokayukta police. The Lokayukta police took them and smeared phenolphthalein powder to it and kept in his pocket. They also washed the hands of the officials of the Commercial Tax Department who were holding the said currency notes tainted with phenolphthalein powder. It turned into pink colour. He identified the said bottle of pink colour solution marked as MO No.1. He further states that, on instructions, he went to the office of accused along with shadow witness. He was also accompanied with the police officers and other witnesses. Both the accused were in their office. Lokayukta police had given them a recorder which was 'put on' by him. He went to accused and requested to give back all his chits collected by them from - 14 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 his shop. At that time, accused no.1 told him, whether complainant has brought Rs.25,000/- and asked him to give the same. The accused no.2 took the said amount. Thereafter, the chits collected from his shops were returned to him. They told that, Rs.10,000/- is collected towards government fine and a receipt to that effect is issued to him. He identified the receipt at Ex.P4. He also identified the chits of his shop marked at Ex.P5 to 59. Thereafter, he came out of the office of the accused and gave a signal. Immediately Lokayukta staff entered the office of accused and enquired. He showed accused no.2. who has received the money. At the instance of the Lokayukta police, accused no.2 took out the currency notes from his shirt pocket and produced the same before the Police. The said amount is marked at MO No.2. The Lokayukta police made accused no.2. to wash his fingers in the sodium carbonate solution. It turned into pink colour. The said solution was seized. Shirt worn by accused no.2 was got removed and the shirt pocket was dipped in sodium carbonate solution and it turned into - 15 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 pink colour. The Police also took the photographs and wrote post-trap pancahama as per Ex.P10 in the presence of panchas. 16. This PW.1 was thoroughly cross-examined by defence. It is elicited in the cross-examination that, complainant is selling the engine oil. He states that, on sale of oil worth more than Rs.100/- he had to pay tax at the rate of 12.5%. He deposed ignorance that, whenever the tax officers visit/s his shop for inspection, he had to produce all the documents. He deposed ignorance about obtaining of TAN Number with regard to his business. As per his evidence, on 10.6.2008, one litre Engine Oil was purchased for Rs.170/- by accused no.2. He has not issued any receipt to that effect. He denied a suggestion that, as he did not issue the receipt, therefore, accused seized the documents from his shop. So also, he denied the suggestion that, as the accused recovered the documents therefore, he made galata. According to him, accused no.1 took away all his chits/receipts. Further, it is his evidence - 16 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 that, on 16.6.2008, he requested the accused persons to return all his receipts and at that time, accused told him to pay a tax of about Rs.25,600/- and fine of Rs.10,000/-. He further admits that, he has put his signature on Ex.P4. This evidence of PW.1 do establish that, this complainant was due to pay Rs.25,600/- towards tax and as he has committed default in payment of tax amount, he was liable to pay penalty of Rs.10,000/-. Further he states that, on that day, accused no.1 took Rs.10,000/- and issued receipt to that effect. He identified the said receipt at Ex.P4. Further, he states that, accused no.1 told him to take the receipt and pay the money and to that effect he sent accused no.2. But, this suggestion is denied by him. It is his further evidence that, police came towards the table of accused no.2 and recovered money from him. In the cross-examination directed by accused no.2, he states different evidence. As per his evidence, he has studied upto SSLC. Since 2005-2006 he is doing business. He has not mentioned his business transactions in his accounts books. He knows English language. When he went to the - 17 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 office of Lokayukta to lodge a complainant, he knew about all the previous events that, have taken place in his shop. He states that, on 10.6.2008, accused came to his shop and issued notice as per Ex.P5 after purchase of the Engine Oil. Further, he states that, he admitted the guilt and because of his admission, the office of accused imposed a fine of Rs.2,000/- and to that effect he identified Ex.P7 so produced by the prosecution. He admits that, with regard to receipt of Rs.2000/- towards fine amount, receipt was issued. He admits that, with regard to accused no.2, he purchased the engine oil and there is no allegation against accused no.2 in his complaint, so also in the Pancahanama. He categorically states that, before coming to the Court to give evidence, he had read the complaint averments. In the further cross-examination, he deposed that, as per Ex.P10, accused no.2 was asked to collect Rs.25,000/- by way of tax from the complainant. He deposed ignorance as to whether he had signed Ex.P10 or not. - 18 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 17. Likewise, PW.2- shadow witness Avalappa, a Government Officer who was called to Lokayukta Police Station has deposed as under: On 16.6.2008, in his presence complainant told that accused are demanding the bribe amount. In his presence pre trap panchanama was prepared as per Ex.P3. It is the evidence ofPW.2 that on that day itself himself, PW.1 and CW.3 along with Police at 3.45 p.m. went to the Commercial Tax Office at Chintamani. The IO instructed complainant and PW.2 to go inside the office of accused and accordingly PW.1 entered the chambers of accused no.1. This PW.2 stood at the door. It is his further evidence that, inside the said room, accused and PW.1 were talking and thereafter, accused no.1 called accused no.2 and asked him to pass a receipt of Rs.10,000/-. Accordingly, accused no.2 went to his table and complainant followed him. Thereafter, complainant came out and gave a signal to the police. Lokayukta police entered the office of accused. They entered the room of accused no.2 and introduced themselves. On enquiry - 19 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 complainant told that, he had given Rs.25,000/- to accused no.2. The police told accused no.2 that, for having received bribe amount, they are arresting him. CW.3 took out the money from the shirt pocket of accused no.2 and were tallied those 50 currency notes of Rs.500/- each. When the fingers of accused no.2 were dipped in the sodium carbonate solution it turned into pink colour. The police seized the said solution. They asked accused no.2 to remove the shirt also. Pocket of the said shirt was dipped into sodium carbonate solution, it turned into pink colour. At the spot itself, the photographs were taken and panchanama was written as per Ex.P10. He identified his signature. 18. On scrupulous reading of entire evidence of PW.1 and PW.2, I find following infirmities in their testimony. • There was an unexplained delay of six days in lodging the FIR after the alleged demand. - 20 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 • Material improvements were made from the complaint to the deposition. • The alleged voice recording was not produced in a manner that could be relied upon. • The complainant admitted that, he is having tax dues weakening the prosecution's case regarding motive for bribe. With regard to the proof of acceptance, though phenolphthalein test (MO Nos.1 to 4) was positive, the defence explanation that the amount was received towards tax dues creates reasonable doubt. In this regard, the Hon'ble Apex Court in B.Jayaraj vs. State of Andhra Pradesh reported in (2014) 13 SCC 55 has held that "mere recovery of money is not sufficient without proof of demand". The said principle can be made applicable to the present facts of the case. - 21 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 • PW.2 is the shadow witness and on reading his evidence, it can very well be stated that, his evidence is unreliable because he did not enter the chamber to witness the transaction. He could not hear any conversation due to glass partition. He gave contradictory version about the signal given by the complainant. He has failed to corroborate the complainant's version effectively. 19. Sofaras scientific evidence (FSL report) is concerned, on reading the entire forensic report, it is confirmed that, there are phenolphthalein traces but, it does not establish whether the money was taken as a bribe or towards legitimate dues. Thus, the defence successfully created reasonable doubt regarding the purpose of the payment. 20. It is argued by the counsel for the appellant that, there is a presumption available under Section 20 of - 22 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 the PC Act and it is very much applicable to the present facts of the case. In view of the facts and circumstances of this case, so brought on record, the following are the legal principles applicable: - • The presumption under Section 20 of the PC Act arises only after the prosecution proves the demand and acceptance as held in the decision of the Apex Court in State of Kerala and Another vs. C.P.Rao reported in (2011) 6 SCC 450. • The prosecution must prove its case beyond reasonable doubt as held in State of Punjab vs. Gurmit Singh and Others reported in (1996) 2 SCC 384. • The appellate Courts should not lightly interfere in acquittals unless findings are perverse as held in Ghurey Lal vs. State of Uttar Pradesh reported in (2008) 10 SCC 450. - 23 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 21. If the aforesaid legal principles as laid down in the judgments stated supra are applied to the present facts of the case, first of all, there is no proof of demand and acceptance of illegal gratifications by the accused persons. The evidence of PW.1 and 2 suffers from material particulars, infirmity, discrepancies. It creates doubt in the mind of the Court. The trial Court has considered all the aspects of the case and has rightly acquitted the accused by assigning sound findings. The said findings are not at all perverse and illegal. 22. It is well settled that, to bring home the guilt of the accused under the provisions of the Section 7, 13(1)(d) of the Act, particularly with regard to the trap cases, the prosecution is under obligation to establish the existence of demand as well as acceptance of bribe by the public servant. To that effect, the Hon’ble Apex Court in B.Jayaraj vs. State of Andhra Pradesh reported in (2014) 13 SCC 55, it is held as under: - 24 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 ”8.xxxxx The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as 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 established.” CONCLUSION: 23. On meticulous examination of evidence and by applying the settled legal principles, this court concludes that : (i) Prosecution has failed to establish demand and acceptance of bribe amount beyond reasonable doubt. (ii) There are material contradictions in the testimonies of key witnesses which creates serious doubt about the prosecution's version. - 25 - NC: 2025:KHC:15244 CRL.A No. 1372 of 2015 (iii) The trial Court's appreciation of evidence was proper and not perverse. (iv) There are no compelling reasons to interfere with the acquittal. 24. Resultantly, I pass the following:
Decision
ORDER (i) Appeal is dismissed. (ii) Impugned judgment of acquittal passed in PCA CC No. 4/2009 dated 01.07.2018 by the Principal District and Sessions Judge, Chikkaballapura, is affirmed. (iii) Bail bonds of accused if any stand cancelled. (iv) Send back the trial Court records along with copy of this judgment. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE Sk/-