✦ High Court of India

Criminal Appeal No. 769 of 2011 · The High Court

Case Details

- 1 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.769 OF 2011 BETWEEN: 1. K.K.SUBBAIAH, S/O KUNDARAMASTRI, AGED ABOUT 50 YEARS, PRESIDENT, HARADOOR GRAMA PANCHYATH, SOMWARPET TALUK, KODAGU DISTRICT. (BY SRI. NITIN RAMESH, AMICUS CURIAE) …APPELLANT AND: 1. STATE OF KARNATAKA, BY LOKAYUKTHA POLICE, REP. BY SPL. PUBLIC PROSECUTOR, (BY SRI. B.S.PRASAD, ADVOCATE) …RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 28.06.2011 PASSED BY THE SESSIONS JUDGE, KODAGU AT MADIKERI IN SPL.C.(CORRPN) NO.3/2004 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d) AND 13(2) OF THE PREVENTION OF CORRUPTION ACT. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel for the appellant appointed as amicus curiae and the learned counsel for the respondent. 2. This appeal is filed against the judgment of conviction passed in Special Case No.3/2004 convicting the appellant/accused No.2 for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act (‘PC Act’ for short) sentencing the appellant for a period of one year with fine of Rs.2,000/- for the offence punishable under Section 7 of the PC Act and also imprisonment for two years with fine of Rs.3,000/- for the offence punishable under Sections 13(1)(d) read with 13(2) of the PC Act. 3. The factual matrix of the case of the prosecution before the Trial Court against accused Nos.1 and 2 is that both of them are working as Secretary and President, respectively in Haradoor Grama Panchayat, Somwarpet Taluk, Kodagu District. While discharging their duties, on 08.11.2001, with a common intention they demanded illegal gratification of Rs.500/- from P.W.1/Sri G.Vijaya to give licence to start liquor shop at Hosatota within the limits of Haradoor Village Panchayat and - 3 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 asked P.W.1 to pay the said amount on 09.11.2001. In pursuance of the said demand, raid was conducted on 13.11.2001 at 12.20 p.m. and the accused had received illegal gratification of Rs.500/- in their office. Hence, both of them have committed the offence under Section 7 of the PC Act. The charges against both of them is that with a common intention both of them have abused their position as such public servant in discharging their duties and accused No.2 accepted the illegal gratification and both of them committed the offence under Sections 13(1)(d) read with 13(2) of the PC Act. 4. The Lokayuktha police conducted the trap based on the complaint and investigated the matter and filed the charge-

Facts

sheet. The accused persons were secured before the Trial Court and both of them pleaded not guilty and hence the prosecution examined P.W.1 to P.W.14 and got marked the documents at Exs.P.1 to 23. The prosecution also relied upon M.O.1 to M.O.9. On the other hand, defence have not led any defence, however got marked the document of Ex.D.1. The Trial Court having considered the material on record and since the complainant turned hostile against accused No.1 and having assessed the evidence of P.W.1 and P.W.2 and other witnesses including the Investigating Officer, acquitted accused No.1 and convicted - 4 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 accused No.2 that he had accepted the money and there was a demand and sentenced him to undergo imprisonment for a period of one year with fine of Rs.2,000/- for the offence punishable under Section 7 of the PC Act and sentenced to undergo imprisonment for a period of two years with fine of Rs.3,000/- for the offence punishable under Sections 13(1)(d) and 13(2) of the PC Act. 5. Being aggrieved by the said judgment of conviction and sentence, the present appeal is filed by accused No.2/appellant herein before this Court. 6. The learned counsel for the appellant would vehemently contend that the very evidence of the complainant cannot be looked into once he has turned hostile in respect of accused No.1 and he had even gone to the extent of denying the complaint given by him in respect of both accused Nos.1 and 2. The Trial Court ought to have given the benefit of doubt in

Legal Reasoning

as there was a prima facie case against accused No.2, they have issued the sanction order as per Ex.P.18, but not says anything about after the order passed by the Minister sanction was given. In the cross-examination, he admits that there is a procedure for appointment and removal of the President of the Panchayat. The Grama Panchayat President does not come under the category of Government servant. A suggestion was made that he has no power to remove or appoint the President of the Grama Panchayat and he denies the same as if he is the sanctioning authority. 22. The other witness is P.W.14 Investigating Officer, who conducted the trap and investigated the matter. He speaks about giving of complaint in terms of Ex.P.1 and drawing of entrustment mahazar in terms of Exs.P.2 to 4 and seizure of the bribe money and recording of the statement of witnesses. In the cross-examination, he says that the complainant had brought the typed complaint and prior to filing the typed complaint, he had not informed him about filing of the complaint. He says that he did not enquire the complainant whether the bribe is to be given to accused No.1 or accused - 19 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 No.2. He says that he had sent the FIR to the Court. He says that at the time of drawing entrustment mahazar, he has told the complainant to give the bribe amount to either of the accused. On his instructions only the complainant had brought the money and he admits that in Ex.P.1 complaint, the complainant has mentioned that he has furnished bribe money of Rs.500/- along with the complaint. He admits that the complainant is the resident of Gargandoor Village of Somwarpet Taluk and the same is at a distance of 20-25 kms. from Madikeri. He admits that he conducted the entrustment mahazar on 12.11.2001 before going to the spot. He admits that the same has not been mentioned in the entrustment mahazar. He also admits that in the third entrustment mahazar, there is no mention that the complainant is wearing the same dresses and the powder smeared on the currency notes is intact. He admits that he did not conduct the personal search of the complainant. After returning to the Lokayuktha office, they conducted the third entrustment mahazar. He admits that the colour and identity of the said dress has not been mentioned in the said mahazar. The complainant and the panchas were sent back with the instruction to come on the next day on 13.11.2001. On 13.11.2001, the complainant and the panchas - 20 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 came to the office and on the said day, he conducted the personal search of the complainant and panchas. He admits that the said fact has not been mentioned in the mahazar. He further admits that on 13.11.2001, the entrustment mahazar was not prepared in the Lokayuktha office. 23. Having considered the evidence available on record, no doubt, the complainant gave the complaint in terms of Ex.P.1 as against accused Nos.1 and 2. I have already pointed out that P.W.1/complainant has turned hostile in his evidence against accused No.1 and also he made an attempt to save accused No.1. He had even gone to the extent of denying the contents of Ex.P.1 saying that he does not know the contents of Ex.P.1. It is important to note that an attempt was made by P.W.1 saying that he has not given any complaint against accused No.1, but identifies accused No.1 before the Court. He categorically admits that he got the complaint written by one Laxmana, his neighbour. It is emerged in his evidence that no confidence motion was moved by this accused against Laxmana, who was earlier member of the Panchayat. Hence, the learned counsel contend that the complaint was written by Laxmana, who has not been examined before the Court since there was a motive and the fact that no confidence motion was moved by - 21 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 the accused against Laxmana was spoken by P.W.3. It is important to note that the evidence of P.W.1 is not consistent with the evidence of P.W.2. I have already pointed out that even though shadow witness has been examined before the Court, he has not spoken anything about the demand. He says that accused No.2 and the complainant talked to each other and what was the conversation between them, there is no material before the Court. Though in the complaint an allegation is made against accused Nos.1 and 2, but subsequently P.W.1 turned hostile against accused No.1. He deposes against accused No.2 and his evidence is not credible, since he himself says that he does not know the contents of Ex.P.1 and he had even gone to the extent of saying that the complaint was not read over to him though once he says that complaint was read over to him and thereafter only he signed the same. On the date of earlier demand, an allegation was made against accused Nos.1 and 2, but he says that he did not see accused No.1 on 08.11.2001 and even he had not talked about accused No.1 pertaining to his matter. Even he had gone to the extent of denying the contents of Exs.P.2 to 5 and the same was not read over to him by anybody. - 22 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 24. I have already pointed out that the shadow witness evidence is not consistent with the evidence of P.W.1 and P.W.3, the other witness, according to the shadow witness, he was present at the time of receiving money, but P.W.3 says that both of them went outside and thereafter returned to the office and Lokayuktha Police came and held the formalities of trap mahazar. When such material is available on record, the evidence of the prosecution not inspires the confidence of the Court. It is important to note that the entrustment mahazar was made on two dates in terms of Exs.P.2 to 4 and trap was not conducted since accused Nos.1 and 2 were not there in the office. The trap was conducted on 13.11.2001 and on that day, no entrustment mahazar was conducted. The same was admitted by P.W.14 Investigating Officer. The fact that both raiding parties went to the office in the previous day and the amount was entrusted to the Investigating Officer is not in dispute. For having entrusted the amount to the complainant on the date of trap, no material on record and there was no separate entrustment on the date of trap and handing over the bait money to the complainant and having delivered the same. No doubt, FSL report discloses that the same is positive and the FSL report only cannot be relied upon and even the evidence - 23 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 placed before the Court says that there was an acceptance of money and recovery of bribe money from the accused and that cannot be only ground to convict the accused. 25. The learned counsel for the respondent brought to the notice of this Court the judgment of the Apex Court in the case of Neeraj Dutta (supra), wherein the Apex Court discussed in detail regarding demand and acceptance is a sine qua non to invoke Sections 7 and 13(1)(d) and 13(2) of the Act. Even subsequent to Neeraj Dutta case also, the Apex Court in the case of SOUNDARAJAN v. STATE REP. BY THE INSPECTOR OF POLICE passed in Criminal Appeal No.1592/2022 distinguished the earlier judgment of Neeraj Dutta (supra). Hence, the very contention of the learned counsel for the respondent that chain of circumstances has not been rebutted cannot be accepted and the evidence of P.W.1 not inspires the confidence of Court. He denies the contents of Ex.P.1 complaint and Exs.P.2 to 5 entrustment mahazar and also drawing of trap mahazar and though the same bribe money was used for seizure and the same number of notes are used for conducting of trap, the very contention of the learned counsel for the respondent that as on the date of the trap, there was no need of separate entrustment mahazar once again cannot be - 24 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 accepted unless bait money is entrusted to the complainant to hand over the same to the accused, the question of convicting the accused as contended by the learned counsel for the respondent cannot be accepted. It is emerged during the course of evidence that there was no confidence motion and the same was spoken by P.W.3 and the scribe of the document of complaint indulged in such an act and when such material is available on record with regard to the motive, it creates a doubt in the case of prosecution. The Trial Court not discussed anything about post entrustment mahazar on the date of trap and when such being the case, the accused is entitled for the benefit of acquittal in the absence of credible evidence and the same has not been considered by the Trial Court while considering the material on record. Hence, I answer the point in the affirmative. Point No.(ii): 26. In view of the discussions made above, I pass the following: (i)

Arguments

favour of accused No.2 also. The learned counsel contend that the complaint was given on the demand dated 08.11.2001 that both the accused persons demanded illegal gratification and that is the allegation made by the complainant. It is the case of the prosecution that the complainant went to the Lokayuktha police - 5 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 on 09.11.2001 and entrustment mahazar was made and trap was not conducted on that day and hence again on 12.11.2001 also entrustment mahazar was made in terms of Ex.P.3 and could not conduct the trap as the accused persons were not there in the office and the trap was conducted on 13.11.2001. The learned counsel for the appellant would contend that there was no any entrustment mahazar on the date of trap. The learned counsel contend that there was a motive to lodge the complaint. Admittedly, the complaint was prepared by one Sri Laxmana and the said Laxmana was having ill-will against the appellant, since no confidence motion was moved against him and the same is emerged in the evidence. 7. The learned counsel contend that even in the evidence of P.W.3 shadow witness, he do not speak anything about demand and only he speaks about the complainant and accused No.2 talked to each other and amount was given. The prosecution relies upon the evidence of P.W.3, who is the Bill Collector and in his evidence he says that the complainant came and both the complainant and the accused went outside and when them came inside, the Lokayuktha police came and subjected the accused for hand wash. The learned counsel contend that the evidence of P.W.2, who turned hostile, is not - 6 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 credible. P.W.2 in his evidence not speaks anything about demand. The evidence of P.W.3 is contrary to the evidence of P.W.2. When the sanctioning authority was examined before the Court, he categorically says that the Minister is the competent authority to give sanction, but admits that he gave the sanction and the same is invalid sanction and the same is not issued by the Minister. The learned counsel referring these materials on record would contend that the very finding of the Trial Court is erroneous. The learned counsel contend that the evidence of P.W.14 also not inspires the confidence of the Court to convict the appellant invoking the offence under Sections 7 and 13(1)(d) read with 13(2) of the PC Act. 8. The learned counsel in support of his arguments relied upon the judgment of the Apex Court in the case of MANSUKHLAL VITHALDAS CHAUHAN v. STATE OF GUJARAT reported in (1997) 7 SCC 622 with regard to sanction is concerned and brought to the notice of this Court paragraph No.17, wherein discussion was made that the grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions. The learned counsel also brought to the notice of this Court - 7 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 paragraph No.18, wherein discussion is made that the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. The learned counsel also brought to the notice of this Court paragraph No.19, wherein discussion is made that since the validity of “sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The learned counsel referring this judgment would contend that there was no proper sanction and apart from that, no application of mind. 9. The learned counsel also relied upon the judgment of the Apex Court in the case of CENTRAL BUREAU OF INVESTIGATION v. ASHOK KUMAR AGGARWAL reported in (2014) 14 SCC 295 and brought to the notice of this Court paragraph No.17, wherein it is held that we do not find force in the submissions advanced by the learned ASG that the - 8 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 competent authority can delegate its power to some other officer or authority, or the Hon’ble Minister could grant sanction even on the basis of the report of the SP. 10. The learned counsel also relied upon the judgment of this Court in the case of M.SIDDALINGAYYA v. STATE THROUGH KARNATAKA LOKAYUKTA POLICE, BANGALORE reported in 2013 SCC Online Kar 10542 and brought to the notice of this Court paragraph No.10, wherein discussion is made that on the face of it, the order does not indicate that the authority was competent to issue such an order. The very author of the sanction order having been examined as P.W.24 has categorically admitted that he was not competent to do so. The learned counsel referring this judgment would contend that P.W.9 has admitted that the competent authority is the Minister. 11. The learned counsel also relied upon the judgment of this Court in the case of J.S. SATHYANARAYANA (DECEASED) BY LRS. AND ANOTHER v. STATE BY INSPECTOR OF POLICE, KARNATAKA, LOKAYUKTA, MADIKERI reported in 2000 SCC Online Kar 340, wherein discussion was made in paragraph No.10 that though authority is given to issue the notification under rules of business to - 9 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 delegate the powers and that is only for authorization to issue the orders and not to sanction the same. 12. The learned counsel also relied upon the judgment of this Court in the case of MALLIKARJUNA AND OTHERS v. THE STATE OF KARNATAKA reported in 2017 (1) AKR 720 and brought to the notice of this Court paragraph No.10, wherein discussion was made with regard to non-examining the scribe to Ex.P.39 is also an important suspicion that would render the case of the prosecution to be fatal. The learned counsel referring this judgment would contend that the material emerges during the course of evidence that the person who drafted the complaint was having enmity against the accused, since he had moved the no confidence motion against the scribe of the complaint and hence motive is also proved for having registered the case against this appellant and hence prays this Court to acquit the appellant. 13. Per contra, the learned counsel for the respondent would contend that in the case on hand there was an earlier demand and the same was spoken by P.W.1 that accused Nos.1 and 2 had demanded Rs.500/- to issue the licence. P.W.1 though not supported the case against accused No.1, the same - 10 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 is not fatal. But he categorically deposes against this appellant. The learned counsel contend that FSL report is clear that the appellant/accused had accepted the money and the same was seized at the instance of the accused and all formalities of trap mahazar were conducted and seized the liquid which turned to pink colour. The learned counsel contend that even in the absence of direct evidence, the Court can take note of chain of circumstances and the same has not been rebutted by the accused during the course of cross-examination of the prosecution witnesses. The learned counsel contend that on the date of trap, even though not made any entrustment mahazar, the same cannot be a ground to acquit the accused. The very same notes given to the complainant in the earlier entrustment mahazar were used for trapping the accused and again conducting the entrustment mahazar on the date of trap is not necessary and the same is not fatal to the case of the prosecution. The learned counsel contend that there was no enmity and nothing is elicited from the mouth of witnesses to trap the accused. The learned counsel contend that the evidence of the Investigating Officer is consistent with regard to the trap is concerned and also giving of complaint. Based on the complaint, trap was conducted and there are ample material - 11 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 to come to the conclusion that there was a demand and acceptance. 14. The learned counsel in support of his arguments relied upon the judgment of the Apex Court in the case of NEERAJ DUTTA v. STATE (GOVT. OF NCT OF DELHI) reported in AIR Online 2022 SC 1160, wherein detailed discussion was made with regard to four circumstances regarding demand, particularly earlier demand and even though there was no demand, voluntarily accepting the amount and it is held that it attracts Sections 7 and 13(1)(d) read with 13(2) of the PC Act. The learned counsel referring this judgment would contend that the Trial Court has not committed any error in convicting the accused and hence it does not require interference of this Court. 15. Having heard the learned counsel for the appellant i.e., amicus curiae and the learned counsel for the respondent and also on perusal of the material available on record and considering the principles laid down in the judgments referred supra by both the learned counsel, the points that arise for the consideration of this Court are: - 12 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 (i) Whether the Trial Court committed an error in convicting the appellant, who has been arrayed as accused No.2 for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the PC Act and whether it requires interference of this Court? (ii) What order? Point No.(i): 16. Having heard the learned counsel for the respective parties and on perusal of the material on record, the evidence of P.W.1 is partly hostile and only he gave evidence against the appellant and turned hostile in respect of accused No.1. The Trial Court having assessed the evidence on record, acquitted accused No.1 and convicted this appellant having relied upon the evidence of P.W.1. P.W.1 even gone to the extent of saying that he do not know the name of the Secretary of Panchayat i.e., accused No.1, but he identifies him before the Court as Secretary and says that accused No.2 demanded bribe from him and he was not having any intention to give bribe and hence gave the complaint. He categorically says that he got the complaint written by one Laxmana, his neighbour and presented the same to the Lokayuktha police. He identified Ex.P.1 complaint and also identifies his signature. He says that he - 13 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 gave Rs.500/- to the Lokayuktha police and conducted the entrustment mahazar in terms of Ex.P.2 and it was not successful and hence went to the Lokayuktha office since both the accused were not present and he returned the amount to the Police Station. It is his evidence that on the next day once again entrustment mahazar was made in terms of Ex.P.3 and again they went to the office of the accused and on that day also both the accused were absent and hence they returned to the Lokayuktha office. Even on that day also another writing was prepared as per Ex.P.4 and he identifies his signature and the raiding party was present when he signed Ex.P.4. 17. It is also his evidence that on 13.11.2001, he went to the Lokayuktha office at 12.30 p.m. and from there the raiding party went to the Panchayat office. On that day the President of the Panchayat was present in the Panchayat office and he asked whether he had brought the money and he told him that he brought the money and gave the money. Immediately, he gave signal and the Lokayuktha Police came and conducted the trap mahazar. He says that the accused received money and kept the same in his shirt pocket and the accused was subjected for hand wash and the same turned to pink colour. He says that he has not lodged any complaint - 14 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 against accused No.1, but the police have recorded the statement. When he turned hostile, a suggestion was made that both the accused demanded bribe of Rs.500/- from him to consider his application and the same was denied. However, he admits that accused No.2 directed the clerk Ravi Kumar to write the licence and to give it to him and further admits that left hand wash of the accused which did not turn to pink colour was also collected in a bottle and sealed. He admits that when the Inspector questioned the accused he told that he has repaid the loan amount to him, which he denied and his shirt was also seized. The shirt pocket of the accused was dipped in the solution and the solution turned to pink colour. 18. P.W.1 in his further cross-examination admits that the complaint Ex.P.1 was written to his dictation and after that it was read over to him and he signed the same. He admits that Laxmana is an educated person and complaint was written in his house and he gave paper to write the complaint. He says that Laxmana did not accompany him to the Lokayuktha office, but he had lodged the complaint written by Laxmana. In the cross- examination he has gone to the extent of denying the contents of Ex.P.1 saying that he do not know the contents of Ex.P.1 and also he do not know why the name of accused No.1 was written - 15 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 in the complaint. He says that the complaint was not read over to him and he did not see accused No.1 Appayya on 08.11.2001. He did not know the contents of Exs.P.2 to 5 and nobody has read over to him the contents of Exs.P.2 to 5. The evidence of P.W.1 is nothing but denying the contents of Exs.P.2 to 5 and though he made an attempt to save accused No.1, he gone to the extent of denying the contents of Ex.P.1. In one breath he says that the contents of Ex.P.1 was read over to him and thereafter only he has signed the same and in another breath says that the same was not read over to him. When such evidence was given by P.W.1, the Trial Court ought to have taken note of the said evidence. Even when the learned counsel for accused No.2 cross-examined him he says that he do not know whether there was no confidence motion in 2001 against accused No.2 Subbaiah. But he categorically says that accused No.2 became a member of Panchayat from Congress party. He says that he do not work for BJP, but votes for BJP. He admits that he cannot say definitely where the bottles containing the hand wash were seized and he cannot say where the contents of the two covers were seized. 19. The other witness relied upon by the prosecution is P.W.2 shadow witness. P.W.2 in his chief examination says that - 16 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 he went to the Lokayuktha office on 09.11.2001 at 11.00 a.m. on the instructions of his Senior officer and he speaks about conducting of entrustment mahazar in terms of Exs.P.2, 3 and 4. He says that the accused persons were not there in the office on both the occasions and trap was conducted on 13.11.2001 and mahazar was prepared and his signature was taken. He says that the President of Panchayat was present when both of them went to the office and President talked with Vijay and Vijay told him that he has brought the amount and Vijay handed over the money to the President. The President instructed the Bill Collector to issue licence to Vijay and Vijay came out of the office and gave signal as instructed. His evidence is that the amount was collected in the presence of the Bill Collector and he has not spoken anything about the demand but only both of them talked to each other and the complainant only informed that he brought money and the same was collected. He speaks about the drawing of trap mahazar. In the cross-examination, he says that he was standing behind Vijay in the Panchayat office. He says that the accused and the complainant talked in Kannada language, but he has not spoken anything what has been transpired between both of them with regard to demand and he has not spoken about the conversation between the - 17 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 complainant and the accused and he only says that both of them talked to each other. But according to him, P.W.3 was also present who is the Bill Collector. 20. P.W.3 in his evidence says that Vijay and President went outside the Panchayat office and talked with each other and returned to the office. Having considered his evidence, nothing happened in his presence. He says that when both of them returned to the office, at that time, Lokayuktha police came and held the hands of the President. The evidence of P.W.3 is not in consonance with the evidence of P.W.2. In the cross-examination, when a suggestion was made to P.W.3 that accused received bribe amount of Rs.500/- from Vijay and kept in his shirt pocket, the same was denied. He admits that 4 or 5 months prior to the incident, there was no confidence motion in the Panchayat for removing accused No.2 from the Presidentship. 21. The other witness is P.W.9, who is the sanctioning authority who deposed before the Court that he was working as Under Secretary to the Government. In his evidence he says that the Minister of Rural Development and Panchayth Raj is the competent authority for removing the President of a Grama - 18 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 Pachayat. He says that after receiving a letter along with the investigation report of this case, after going through the report,

Decision

The appeal is allowed. ORDER (ii) The impugned judgment of conviction and sentence dated 28.06.2011 passed in Special Case No.3/2004, is hereby set aside. - 25 - NC: 2025:KHC:12325 CRL.A No. 769 of 2011 (iii) The appellant is acquitted for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the PC Act (iv) If any fine amount is deposited by the appellant, the same is ordered to be refunded in favour of the appellant, on proper identification. The Registry is directed to pay the fees of Rs.5,000/- to the amicus curiae. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 51

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