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2023 DIGILAW 1066 (KAR)

State of Karnataka v. Channa Krishna

2023-09-07

S.RACHAIAH

body2023
JUDGMENT 1. The appellant being a CBI (Anti Corruption Branch) filed this appeal being aggrieved by the judgment and order of acquittal dtd. 18/4/2011 in Spl.CC.No.165/2010 on the file of XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru, wherein the respondents have been acquitted for the offence punishable under Sec. 120 (B) of Indian Penal Code (for short 'IPC') and also under Ss. 7, 13(1)(d) and 13(2) of Prevention of Corruption Act (for short 'P.C Act') r/w 120(B) of IPC. 2. The rank of the parties, henceforth will be referred as per their rankings in the Trial Court for convenience. Brief facts of the case: 3. It is the case of the prosecution that the accused No.1 was working as Assistant Sub-Inspector, Railway Protection Force (RPF), Maddur Outpost. He stated to have registered RPUP Crime No.1/2010 on 15/1/2010 against Chand Pasha who was doing business of old paper and scrap items. It is further stated that the shop of PW.5 / the complainant herein was situated adjacent to the shop of Chand Pasha. PW.5 was told that he would also be arraigned as accused in the same crime number. Being afraid of the said information, he approached accused No.2 who was the informer of the accused No.1. Both PWs.5 and accused No.2 said to have approached accused No.1 and it is said that the accused No.1 had demanded illegal gratification of Rs.50, 000.00 to set him free in Crime No.1 of 2010. The amount has been scaled down to a sum of Rs.30, 000.00. PW.2 having not interested in making payment of illegal gratification, approached CBIrespondent and lodged a complaint. A plan of trap has made, accordingly, PW.5 had been instructed to approach accused No.2. PW.5 approached accused No.2 and handed over Rs.30, 000.00 to him as illegal gratification. 4. The accused No.2 was apprehended at Ramanagara and on enquiry, the accused No.2 has said that the accused No.2 was in Bengaluru and the same had to be reached to him. On receiving the said information, accused No.2 was asked to sit in the car and also asked to make call to accused No.1. Accordingly, he called accused No.1 over his phone and asked the accused No.1 to come near Majestic bus stop. On receiving the said information, accused No.2 was asked to sit in the car and also asked to make call to accused No.1. Accordingly, he called accused No.1 over his phone and asked the accused No.1 to come near Majestic bus stop. It is further stated in the complaint that the accused No.1 was waiting in the Majestic bus stop for accused No.2, once the accused No.2 reached the Majestic bus stop has approached the accused No.1 and handed over the amount. Immediately, the accused No.1 was apprehended by the respondent -CBI and conducted the further proceedings and submitted the charge sheet. 5. The prosecution in order to prove the case examined in all 9 witnesses as PWs.1 to 9 and got marked 13 documents as Exs.P1 to P13 and also identified 14 material objects as MO.s.1 to 14. The Trial Court after appreciating the oral and documentary evidence placed on record acquitted the respondents herein. Being aggrieved by the said acquittal, CBI/appellant preferred this appeal. 6. Heard Sri.Nithin Gowda K.C, learned counsel appearing on behalf of Sri.P.Prasanna Kumar, learned counsel for the appellant and Sri.Chandrashekara.K, learned counsel for respondent No.1 and Sri.Rajendra Naik, learned counsel for respondent No.2. 7. Sri.Nithin Gowda K.C, learned counsel appearing on behalf of Sri.P.Prasanna Kumar, learned counsel for the appellant submits that, the judgment and order of acquittal passed by the Trial Court appears to be erroneous not only on the facts but also on the law. Therefore, the same is required to be set aside. 8. It is further submitted that merely because the respondents are exonerated from the departmental enquiry may not take away the case of the appellant. The CBI/prosecution proved the case beyond all reasonable doubt and it was established that accused No.2 had received the amount from PW.5 and PW.5 along with other officials including accused No.2 proceeded to Bengaluru and the accused No.2 instructed accused No.1 to come near Majestic bus stand. Accordingly, accused No.1 was waiting for the arrival of accused No.2. Soon after accused No.2 met accused No.1, accused No.2 handed over the amount to accused No.1. 9. It is true that the complainant/shadow witness and panch witness have consistently supported the case of the prosecution and also the prosecution proved the demand and acceptance of illegal gratification of accused Nos.1 and 2. Soon after accused No.2 met accused No.1, accused No.2 handed over the amount to accused No.1. 9. It is true that the complainant/shadow witness and panch witness have consistently supported the case of the prosecution and also the prosecution proved the demand and acceptance of illegal gratification of accused Nos.1 and 2. The Trial Court ignored in considering the evidence of all the witnesses and recorded the acquittal which is perverse, illegal and the order of acquittal is liable to be set aside. Making such submissions, learned counsel for the appellant prays to allow the appeal. 10. In order to substantiate his case, the learned counsel for the appellant relied on the judgment of Hon'ble Supreme Court 1) Neeraj Dutta v. State (Govt of NCT of Delhi), (2023) 4 SCC 731 . 2) Indra Vijay Alok v. State of MP, (2016) 1 SCC 709 . 3) Chaitanya Prakash Audichya v. CBI, (2015) 7 SCC 720 . 4) State of Gujarat v. Navinbhai Chandrakant Joshi and Ors., (2018) 9 SCC 242 . 5) Shankerbhai Laljibhai Rot v. State of Gujarat, (2004)13 SCC 487 . 6) Vinod Kumar Garg v. State, (2020) 2 SCC 88 . 7) CM Sharma v. State of AP, (2010) 15 SCC 1 . 8) Bhagwan Jagannath Markad and Ors v. State of Maharashtra, (2016) 10 SCC 537 . 9) Suresh Chandra Jana v. State of WB and Ors., (2017) 16 SCC 466 . 10) R Venkatakrishnan v. CBI, (2009) 11 SCC 737 . 11) State of NCT of Delhi v. Ajay Kumar Tyagi, (2012) 9 SCC 685 . 12) J. Rajesh Kumar v. CBI, 2021 SCC OnLine Ker 3870. 13) Rajendra Kumar Gautam v. State of MP, 2021 SCC Online MP 5843. 11. Per contra, Sri.Chandrashekara.K, learned counsel for respondent No.1 and Sri.R.Nagendra Naik, learned counsel for respondent No.2 have jointly submitted that, the view taken by the Hon'ble Supreme Court that, once the respondents are exonerated in the department enquiry, on the same set of facts and the same set of allegations, the continuation of appeal against the respondents on the same ground appears to be an abuse of process of law and it is a sheer futile exercise. 12. Both the learned counsel for the respective parties have relied on the judgment of the Hon'ble Supreme Court and also the report under which the respondents have exonerated from the departmental enquiry. 13. 12. Both the learned counsel for the respective parties have relied on the judgment of the Hon'ble Supreme Court and also the report under which the respondents have exonerated from the departmental enquiry. 13. Before adverting to the facts of the case, now it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW CBI and another, (2020) 9 SCC 636 . paragraph Nos.8, 9, 10 and 15 reproduced as under: "8. A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya v. State of Bihar, the question before the Court was posed as follows: (SCC pp. 2-3, para 3) "3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Sec. 5(2) read with Sec. 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission." 9. This Court then went on to state: (P.S. Rajya case, SCC p. 5, para 17) "17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it." 10. This being the case, the Court then held: (P.S. Rajya case, SCC p. 9, para 23) "23. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it." 10. This being the case, the Court then held: (P.S. Rajya case, SCC p. 9, para 23) "23. Even though all these facts including the report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dtd. 27/3/1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs." 15. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dtd. 22/12/2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code. 14. However, the learned counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in the case of State (NCT of Delhi) v. Ajay Kumar Tyagi stated supra, paragraph Nos.24 and 25 which reads thus: "24. Therefore, in our opinion, the High Court quashed the prosecution on total misreading of the judgment in P.S. Rajya case. In fact, there are precedents, to which we have referred to above, that speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in a department proceeding is lower than that of criminal prosecution. On principle also, this view commends us. It is well settled that the standard of proof in a department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the inquiry officer based on those evidence. 25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy." 15. The learned counsel for the appellant submitted that mere exoneration from the departmental enquiry ipso facto would not lead to acquittal in a criminal case. 16. The learned counsel for the respective parties have relied on two different judgments of the Hon'ble Supreme Court of the same strength. The latest judgment of the Hon'ble Supreme Court in the case of Ashoo Surendranath Tewari has been relied on by the learned counsel for the respondents and State (NCT of Delhi) v. Ajay Kumar Tyagi stated supra, has been relied on by learned counsel for the appellant. There is no doubt these two judgments of the Hon'ble Supreme Court are of the same strength. However, in both the cases, different views have been expressed in respect of the exoneration of the delinquent official in the departmental enquiry. 17. There is no doubt these two judgments of the Hon'ble Supreme Court are of the same strength. However, in both the cases, different views have been expressed in respect of the exoneration of the delinquent official in the departmental enquiry. 17. In the case of Ashoo Surendranath Tewari, the Hon'ble Supreme Court considering the judgment of the Hon'ble Supreme Court in the case of Radheshyam Kejriwal opined that the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceedings for prosecution is identical and the exoneration of the person in the adjudication proceedings is on merit, and the said merit is no contravention of the provision of the Act, the trial of the person would be an abuse of process of law. 18. However, in the case of State (NCT of Delhi) v. Ajay Kumar Tyagi, the Hon'ble Supreme Court of the same strength held that the exoneration in the departmental proceedings ipso facto would not lead to exoneration or acquittal in a criminal case. 19. In such circumstances, it is necessary to mention that if there are two conflicting judgments of the Hon'ble Supreme Court of Benches with equal number of judges, then the latter will prevail over the earlier. 20. Considering the present position of law, it is inferred that in a departmental enquiry or proceedings, if the delinquent officer or accused is exonerated on merit, continuing with the criminal trial certainly would be an abuse of the process of law. Therefore, the principle of the latest judgment of the Hon'ble Supreme Court on the same subject matter has to be considered. 21. In the present case, it is needless to say that the respondent is exonerated in the departmental enquiry on merit and therefore, the criminal trial has ended in acquittal. The said acquittal in view of the judgment of the Hon'ble Supreme Court is appropriate and there is no occasion for this Court to interfere with the judgment of acquittal passed by the Trial Court. Therefore, without considering the case on merit, by applying the principle of law, this appeal does not survive for consideration. 22. In the light of the observations made above, I proceed to pass the following: ORDER The criminal appeal stands dismissed