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2023 DIGILAW 766 (KAR)

Jnanoba v. State of Karnataka

2023-06-14

HEMANT CHANDANGOUDAR

body2023
JUDGMENT 1. This appeal under Sec. 374(2) of Cr.PC is filed challenging the judgment of conviction and order of sentence dtd. 5/7/2016 passed by the learned Principal Sessions Judge, Kalaburagi, by which, the accused herein was convicted for the offences punishable under Ss. 7 and 13(1)(d) read with Sec. 13(2) of Prevention of Corruption Act, 1988 (for short 'PC Act') and sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs.20, 000.00 for the offence punishable under Sec. 7 of the PC Act and to undergo imprisonment for a period of two years and to pay a fine of Rs.5, 000.00 for the offence under Sec. 13(1)(d) punishable under Sec. 13(2) of the PC Act. 2. The case of the prosecution in brief is as follows: The accused when working as Principal in the Government P.U. College at Nelogi, had demanded a sum of Rs.5, 000.00 to continue PW1 as guest lecturer. Since the complainant was not desirous of paying the gratification amount, he lodged the FIR with the Lokayukta Police. The Lokayukta police registered the FIR in Crime No.10/2009 under Ss. 7 and 13(1)(d) read with Sec. 13(2) of the PC Act. 3. The Lokayukta Police prepared a pre-trap (entrustment mahazar). Thereafter, the Lokayukta conducted a trap, and the appellant was found to have received a sum of Rs.3, 000.00 as gratification amount from PW1 in the presence of shadow witness - PW2, who was the witness to the trap panchanama, and seized the tainted money. The learned Sessions Judge framed the charge against the accused for the aforesaid offences, and the same was read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried. 4. The prosecution to prove its case examined PWs.1 to 11 and exhibited the documents at Ex.P1 to 35 and the material objects at MOs.1 to 10. 5. After the evidence of prosecution was concluded, the incriminating circumstances found in the evidence of prosecution witnesses were put to the accused as contemplated under Sec. 313(1)(b) of Cr.PC. The accused denied the said incriminating circumstances as false, and stated that he has been falsely implicated for having not released one month salary to the complainant. 5. After the evidence of prosecution was concluded, the incriminating circumstances found in the evidence of prosecution witnesses were put to the accused as contemplated under Sec. 313(1)(b) of Cr.PC. The accused denied the said incriminating circumstances as false, and stated that he has been falsely implicated for having not released one month salary to the complainant. The learned Sessions Judge, after examining the material evidence on record, and also the arguments advanced by the learned counsel for the parties, framed the points for consideration, and recorded the finding that, the prosecution has established the guilt of the accused beyond all reasonable doubt, and passed the impugned judgment of conviction and order of sentence. 6. The learned counsel for the appellant would submit that, in the absence of demand, which is sine quo non for constituting the offence punishable under the provisions of the PC Act, the impugned judgment of conviction and order of sentence is not sustainable in law. In support, he places reliance on the following decisions: 1) Digamber Vaishnav and another -vs- State of Chattisgarh (2019) 4 SCC 522 (para-14). 2) Mukthiar Singh -vs- State of Punjab (2017) 8 SCC 136 (paras-12, 13, 14 and 26). 3) Mr.S Arundath -vs- Karnataka Lokayuktha Police (2020 SCC OnLine Kar 3213 (para-9, 26 and 27). 4) K Shanthamma -vs- State of Telengana (2022) 4 SCC 574 (paras-10 and 11). 5) P Satyanarayana Murthy -vs- District Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152 (paras-19 to 23, 25 to 27). 6) N vijaykumar -vs- State of Tamil Nadu (2021) 3 SCC 687 (paras-26, 27). 7) B Jayaraj -vs- State of Andhra Pradesh (2014) 13 SCC 55 (paras-7 to 10). 8) Arjun Pandit Rao Khotkar -vs- Kailash Kushanrao Gorantyal and others (2020) 7 SCC 1 (paras-24, 25, 33, 34, 61, 73, 72.2, 82 and 84). 7. On the other hand, the learned counsel for the respondent - Lokayukta submits that, the evidence on record clearly establishes that, demand was made by the accused, and the tainted money was recovered from the accused. Hence, he submits that, the finding recorded by the learned Sessions Judge does not warrant any interference. 8. Considered the submissions of the learned counsel for the parties. 9. Hence, he submits that, the finding recorded by the learned Sessions Judge does not warrant any interference. 8. Considered the submissions of the learned counsel for the parties. 9. PW1 is the complainant and before registration of the FIR, the conversation is alleged to have been recorded between him and the accused, in which, the accused is alleged to have demanded the gratification amount of Rs.3, 000.00 for continuing him as guest lecturer. 10. After registering the FIR, a trap was laid, and in the said trap, PW1 handed over a cover containing Rs.3, 000.00, and the same was received by the accused from his left hand, and then transferred to the right hand, and was kept in a plastic cover containing the tiffin box, and Prajavani newspaper. Thereafter, both the hands of the accused were dipped in sodium carbonate solution, which turned into light pink colour, the solution was collected at MOs.3 and 4, and tainted notes tallied with the numbers already noted by the police. 11. PW1 - complainant in his cross-examination admitted that no conversation was recorded between him and the accused prior to registering of the FIR. He further admitted that, he has been working as guest lecturer in two colleges. On 10/7/2009, the accused issued a memo withholding one month salary. He further admitted that, he cannot recognize the voice of the accused in the conversation recorded in the phone. 12. PW2 - panch witness to the trap panchanama admitted that, he is not aware of the conversation recorded in the mobile, and large number of people had gathered in the hotel, and he has not heard the accused demanding the gratification from PW1. 13. PW7 has deposed on oath that, he does not know in whose mobile, the conversation between the complainant and the accused was recorded. 14. PW11 - Investigating Officer has stated that, the conversation between PW1 and the accused was recorded in CD at Ex.P24, and he has obtained CDR to prove the demand. He further admitted that, both the phone numbers belonged to different persons, and not to the complainant-PW1 and the accused. 15. In Ex.P.34 - FSL report, it is opined that, the presence of phenolphthalein is detected in both the right and left hand finger washes of the AGO. However, the presence of only phenolphthalein is detected on the articles bearing Nos. 15. In Ex.P.34 - FSL report, it is opined that, the presence of phenolphthalein is detected in both the right and left hand finger washes of the AGO. However, the presence of only phenolphthalein is detected on the articles bearing Nos. 5 and 7 i.e., a cover with currency notes and cover with plastic cover with newspaper. 16. PW.5, who was working as Deputy Director of PreUniversity and Degree College, Department of Education, Kalaburagi, in his examination, has stated that, he can recognize the voice of the accused, since they frequently interacted with regard to work. He has supported the case of the prosecution stating that, in the recorded conversation, the accused demanded Rs.3, 000.00 as gratification amount. 17. On perusal of the above documents and the statements, the following is made out: 18. The material witnesses PW.1 and PW.2 have not established that, there was a demand made by the accused. The prosecution to prove the commission of the offences under the PC Act has to satisfy the essential ingredients which are as under: "Demand and acceptance of bribe money; Handling of tainted money by the accused on the day of trap (colour test); Work of the complainant must be pending as on the date of trap with the accused." 19. The allegation of demand and acceptance made by a public servant must be established beyond reasonable doubt. The constitution bench of the Hon'ble Supreme Court in the case of Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731 has summarized the issues regarding proving the demand and acceptance made by a public servant and when presumption can be made for having demanded the illegal gratification at paragraph 88 and is as follows: "88. What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Ss. 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Sec. 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Ss. 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Sec. 7 or Ss. 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Sec. 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Ss. 13(1)(d)(i) and (ii) of the Act. XXX" 20. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Ss. 13(1)(d)(i) and (ii) of the Act. XXX" 20. The Hon'ble Supreme Court has observed that to constitute the offence under Sec. 7 of the P C Act relating to public servant taking bribe, requires a demand of illegal gratification and the acceptance thereof and the proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Sec. 7 of the P C Act. 21. The conversation at Ex.P.24 is not supported by the certificate issued under Sec. 65(B) of the Indian Evidence Act. The Hon'ble Supreme Court of India in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [ (2020) 7 SCC 1 ] has held that a certificate under Sec. 65B(4) is mandatory to admit electronic evidence unless the original electronic document is produced in evidence through the document/device owner's personal authentication as a witness. 22. The author of FSL report has not been examined during the trial. The Hon'ble apex court in the case of State of Karnataka v. J. Jayalalitha, (2017) 6 SCC 263 has observed that the probability of the expert evidence to reach at a conclusion requires the expert to possess special skills and give his reasoned opinion and be examined and cross examined and defaulting it would become unsafe to its admissibility in the courts. In other words the expert giving his opinion must be examined. The following fortifies this observation: "Probative worth of expert evidence 254. XXXX Referring to Sec. 45 of the Evidence Act, 1872, which makes the opinion of an expert admissible, it has been underlined that not only an expert must possess necessary special skill and experience in his discipline, his opinion must be backed by reason and has to be examined and cross-examined to ascertain the probative worth thereof. That it would be unsafe to convict the person charged on the basis of expert opinion without any independent corroboration has also been indicated. It has been held that the evidentiary value of the opinion of an expert depends on the facts upon which it is based and also the validity of the process by which the conclusion has been reached. XXX" 23. It has been held that the evidentiary value of the opinion of an expert depends on the facts upon which it is based and also the validity of the process by which the conclusion has been reached. XXX" 23. The accused in the statement recorded under Sec. 313 of Cr.P.C, has categorically stated that, he has been falsely implicated for having issued the memo withholding one month salary of the complainant, and the same is reiterated in the defence statement of the accused at Ex.P15 wherein he has stated that the complainant had called the accused for a cup of tea, and after having tea, he handed over the cover and thereafter kept the cover on the table. The withholding of one month salary of the complainant resulted in lodging of a false complaint to take revenge. 24. The complainant PW1 and the shadow witness PW2 have categorically stated that there was no demand made by the complainant in the recordings of the conversation, except the statement of PW5 who has stated that he can recognize the voice of the accused and the statement of PW11-IO that the conversation between PW1 and the accused is recorded and has produced CDRs to that effect, however, it is not supported by a 65B certificate which is mandatory for production of non original electronic data. 25. After appreciating the evidence on record, I am of the considered opinion that, the prosecution has failed to establish the guilty of the accused beyond all reasonable doubt. The learned Sessions Judge, in the absence of demand made by the accused, has passed the impugned judgment of conviction and same is not sustainable in law. Hence, I pass the following; ORDER i. The Criminal appeal is allowed. ii. The judgment of conviction and order of sentence dtd. 5/7/2016 passed by the Prl. Sessions Judge, at Kalabuuragi, is hereby set-aside. iii. The appellant - accused is hereby acquitted of the offences punishable under Ss. 7 and 13 (1) (d) read with Sec. 13(2) of Prevention of Corruption Act, 1988. iv. The learned Sessions Judge is hereby directed to release the fine amount, if any, deposited by the appellant. The bail bonds executed, if any, stand canceled.