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2013 DIGILAW 951 (KAR)

STATE OF KARNATAKA v. GOPAL

2013-08-20

ANAND BYRAREDDY

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JUDGMENT ANAND BYRAREDDY, J.-Heard the learned Counsel for the appellant and the learned Counsel for the respondent. 2. The appellant is the State and is aggrieved by the acquittal of the respondent for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'P.C. Act', for brevity). 3. The facts are as follows: The respondent, who was the accused was a public servant who was working as an Assistant Executive Engineer in the office of the Karnataka Electricity Board, Yellapur. It transpires that, on 19.02.1997, it was alleged that he had received Rs. 500/- as illegal gratification from the complainant which was not legal remuneration, as motive for performing an official act of providing electricity connection to the irrigation pump set in the land of the complainant. It was hence alleged that the criminal misconduct of the respondent in accepting such illegal gratification of Rs. 500/- from the complainant was an offence punishable as aforesaid. It transpires that there was a trap executed successfully against the accused, in that, though the bribe amount was not recovered from his person, the currency notes have been tainted with phenolphthalein powder and therefore, there was evidence of the respondent having handled the money and the currency notes itself were recovered from the waste paper basket next to the desk of the respondent. It is in that background that the charge was brought against the respondent for offences punishable as aforesaid. The respondent having pleaded not guilty and having claimed to be tried before the Court below, the appellant-State had examined PWs. 1 to 10 and marked Exhibits P1 to P27, apart form material objects M.Os. 1 to 14. The respondent had marked Exhibit D1. The statement of the accused-respondent was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity). On the basis of the evidence tendered and the rival contentions, the Court below had framed the following points for consideration: (i) Does the prosecution prove that the accused has committed an offence punishable under Section 7 of the Prevention of Corruption Act of 1988 by demanding and received gratification of Rs. 500/- from the complainant on 19-2-1997 other than the legal remuneration to do the official act? 500/- from the complainant on 19-2-1997 other than the legal remuneration to do the official act? (ii) Does the prosecution prove that the accused has committed an offence punishable under Section 13(2) of Prevention of Corruption Act of 1988 by receiving Rs. 500/- from the complainant on 19-2-1997 as illegal means other than the legal remuneration for giving connection to the irrigation pump set? (iii) What Order? The Court below held points No. 1 and 2 in the negative and acquitted the accused-respondent. It is that which is under challenge in the present appeal. 4. The learned counsel appearing for the State-Lokayukta Police would take this Court through the record, while seeking to contend that the Court below was not justified in holding that the State has not established the case beyond all reasonable doubt, when the shadow witness-PW9 had in his evidence before the Court stated that, he had not heard as to what transpired between the respondent and the complainant at the time the bribe amount is said to have been handed over to the respondent. It is on this finding that the Court below has acquitted the accused. Further the learned Counsel would submit that there was material evidence to demonstrate that the respondent had handled the tainted currency notes, as his hands when washed with sodium carbonate solution, had turned pink which would indicate the respondent having handled the currency notes. This would certainly enable the prosecution to press into service Section 20 of the P.C. Act, which provides for a presumption in this regard. Therefore, he would submit that the Court below was not justified in holding that, notwithstanding the above circumstances, merely because the shadow witness had resiled from on his earlier statement to the effect that there was demand and acceptance of the bribe amount, did enable the Court below to acquit the accused. 5. It is this aspect, which is sought to be highlighted by the learned Counsel for the appellant while urging other grounds related to the very circumstance in contending that the Court below was not justified in holding that, the complaint and trap mahazer do not corroborate with each other insofar as the demand and acceptance of the bribe amount when the testimony of the complainant and shadow witness are not consistent. The evidence of the prosecution witness is being full of inconsistencies and contradictions and so on and so forth, the crux of the argument on behalf of the State is that, the finding as to there being no demand and acceptance, merely on the ground that the shadow witness has not corroborated the statement of the complainant is being fatal to the case of the prosecution is incorrect and that the circumstance of the currency notes having been recovered from the waste paper basket next to the table of the accused-respondent and the fact that his hands were found to have handled the tainted currency notes was inadequate to press into service Section 20 of the P.C. Act. 6. However, the law is well settled that even if such bribe amount was recovered from the person of the accused, it would not be sufficient to bring him to the charge, if the demand and acceptance was not established. It is reiterated after following the catena of decision of this Court in State by Lokayuktha, Mandya vs. K.M. Gangadhar, 2008(2) KCCR 985 , to emphasis the preposition that once the demand is not said to be proved and the complainant and shadow witness failed to support the prosecution case, it cannot be said on the basis of mere recovery of the currency notes from the pocket of the accused that the prosecution has proved its case beyond all reasonable doubt. 7. On the other hand, in the present case, no such currency notes were recovered from the person of the accused and it was only recovered from the vicinity of the presence of the accused. Therefore, the present respondent would stand on better footing given the state of law and accordingly, there is no merit in this appeal and the same stands dismissed.