ABDUL RAHIM v. THE STATE OF KARNATAKA

Judgment

#1. This appeal is filed being aggrieved by the judgment of conviction dated 28.08.2023 and order on sentence dated

30.08.2023 in Special case (P.C) No.11/2012 on the file of Special Judge and Principal Sessions Judge, Bidar, wherein, the Trial Court recorded the conviction for the offences punishable under Section 7, 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (for short ‘P.C. Act’).

The ranks of the parties henceforth will be referred to as per their rankings in the Trial Court, for convenience. Factual matrix of the case :

#3. The case of the prosecution is that, P.W.4 is the first informant owned land in Sy.No.25 of Ujalam Village, Basavakalayan Taluk. For unification of Records of Rights, he had moved an application about one year before the Tahasildar Office, Basavakalayan Taluk for the purpose of getting his land for survey. - 3 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR

#4. Notices were issued to P.W.4 and also to the owners of adjoining land and it was proposed to conduct survey on

10.09.2009. The survey was not conducted as on that day. Again, P.W.4 approached the accused and requested to conduct survey to his land at the earliest. However, the accused demanded a sum of Rs.1,500/- as illegal gratification for the purpose of conducting the survey. It is further stated that, P.W.4 stated to have paid the amount of Rs.1,500/- as illegal gratification in the presence of P.W.1. The said amount was seized and the accused was arrested. After conducting the investigation, submitted the charge sheet.

#5. To prove the case of the prosecution, the prosecutor examined 09 witnesses as P.W.1 to P.W.9 and got marked 27 documents as Ex.P1 to P27 and also identified 13 material objects as M.O.1 to M.O.13. On the other hand, the accused got marked 02 documents as Ex.D1 and D2. The Trial Court after appreciating the oral and documentary evidence on record, recorded the conviction of the appellant for the offences stated supra. Being aggrieved by the same, the appellant has approached this - 4 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR Court seeking to set aside the judgment of conviction and order on sentence passed by the Trial Court.

#6. Heard Sri. Avinash A. Uploankar, learned counsel for the appellant and Sri. Subhash Mallapur, learned Special Public Prosecutor for the respondent - Lokayukta.

#7. It is the submission of the learned counsel for the appellant that the judgment of conviction and order on sentence passed by the Trial Court is contrary to the evidence on record. Therefore, the same is liable to be set aside.

#8. It is further submitted that the demand of illegal gratification by the accused is sine-qua-non to convict the accused for the offence punishable under Section 7 of the P.C. Act,1988. In the absence of specific demand of illegal gratification, it cannot be construed that the ingredients of the above said provision would be attracted.

#9. It is further submitted that the Trial Court has failed to appreciate the evidence properly. Consequently, the impugned judgment is passed. Even though P.W.4, who - 5 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR is the complainant has turned hostile, recording the conviction by appreciating the evidence of other witnesses, appears to be erroneous and not proper.

#10. It is further submitted that, P.W.1 who is the shadow witness, stated that she accompanied P.W.4, to hand over the sum of Rs.1,500/-. However, she stated in her evidence that she was standing 2 to 3 feet away from the place of the alleged conversation taken place between P.W.4 and the accused. Therefore, her evidence in respect of the demand of illegal gratification ought not to have been considered.

#11. It is further submitted that the prosecution has not proved the case in respect of the pendency of work. Such being the fact, it is not appropriate to record the conviction on the basis of other circumstances. Therefore, the findings of the Trial Court in recording the conviction has to be set aside for the reason that the demand of illegal gratification by the accused has not been proved. Making such submissions, the learned counsel for the appellant prays to allow the appeal. - 6 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR

#12. Per Contra, the learned Special Public Prosecutor for the respondent – Lokayukta vehemently justified judgment of conviction and he further submitted that, even though the complainant turned hostile, the Court can form the basis on considering the attending facts and circumstances of the case.

#13. It is further submitted that the amount of Rs.1,500/- was seized in the presence of independent panch witnesses. The FSL report with regard to the solution of which the hands were washed would indicate that the accused had received the tainted amount. Receiving the amount as illegal gratification for the purpose of discharging his official duty for the purpose of conducting survey of the land of P.W.4 has been established by the prosecution. Therefore, the Trial Court has rightly recorded the conviction. Hence, interference with the said findings may not be necessary. Making such submissions, the learned Special Public Prosecutor for the respondent prays to reject the appeal. - 7 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR

#14. Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court in recording the conviction, it is appropriate to appreciate the evidence of relevant witnesses for the purpose of ascertaining as to whether or not any infirmity in the findings of the Trial Court.

#15. Before adverting to the merit of the case, it is relevant to refer the dictum of the Hon’ble Supreme Court in the Case of N. VIJAYKUMAR Vs. STATE OF TAMILNADU1, paragraph No.27 reads as under: “27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj read as under: (SCC pp. 58-59) “7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the 1 (2021) 3 SCC 687 - 8 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI.

#8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P- 11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. 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 - 9 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR 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.

#9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.” The abovesaid view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us above in the - 10 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment [State of T.N. v. N. Vijayakumar, 2020 SCC OnLine Mad 7098] of the High Court is fit to be set aside. Before recording conviction under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction recorded under provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

#16. On careful reading of the dictum of the Hon’ble Supreme Court, it is stated that to prove a case of the prosecution in respect of demand of illegal gratification “Demand” is sine-qua-non to constitute the said offence. In the - 11 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR absence of such demand, it cannot be held that the demand of illegal gratification is proved.

#17. In the present case, P.W.1 is stated to be the shadow witness, did not support the case in respect of demand of illegal gratification by the accused.

#18. P.W.4 being the complainant stated in his evidence that, he has not given any amount to the accused in respect of conducting the survey of his land as illegal gratification.

#19. On reading of the evidence of these two witnesses, it can be inferred that the prosecution has failed to establish the demand of illegal gratification. In the absence of evidence in respect of the said demand, it is not appropriate to record the conviction. However, the Trial Court recorded the conviction based on the evidence of other witnesses, which appears to be erroneous and not proper. Hence, it is liable to be set aside.

#20. In the light of the observations made above, I proceed to pass the following: - 12 - NC: 2025:KHC-K:3173 CRL.A No. 200273 of 2023 HC-KAR i) ii) ORDER The Criminal appeal is allowed. The judgment of conviction dated 28.08.2023 and order on sentence dated 30.08.2023 passed in Special Case (P.C) No.11/2012 by the Special Judge and Principal Sessions Judge, Bidar, is set aside. iii) The accused is acquitted for the offences punishable under Section 7, 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 iv) Bail bonds executed if any, stands cancelled. SD/- (S RACHAIAH) JUDGE NM List No.: 19 Sl No.: 1