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2024 DIGILAW 78 (KAR)

Chigahalli Basavaraj Ramesh v. State of Karnataka

2024-01-24

S.VISHWAJITH SHETTY

body2024
JUDGMENT 1. This appeal under Sec. 374(2) of Cr.PC is filed assailing the judgment and order of conviction and sentence passed by the Court of the District and Sessions Judge, Belagavi in Special Case No.39/2010 dtd. 21/11/2013, wherein the appellant herein has been convicted for the offences punishable under Ss. 7 and 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, 1988 (for short, 'PC Act') and has been sentenced to undergo rigorous imprisonment for a period of 3 years for the offence punishable under Sec. 7 of the PC Act and undergo rigorous imprisonment for a period of 3 1/2 year for the offence punishable under Sec. 13(1)(d) read with Sec. 13(2) of the PC Act and he is also sentenced to pay fine of Rs.10, 000.00 each for the aforesaid offences. 2. Heard the learned counsel for the parties. 3. It is the case of the prosecution that the appellant herein who is a Licenced Surveyor, had demanded a sum of Rs.2, 600.00 as illegal gratification from the complainant (PW2) for the purpose of surveying his land bearing Sy.Nos.56/2 and 58/2 measuring 12 acres situated at Jakkur village, Bagalkot. According to the prosecution, PW2 had approached the appellant on 24/2/2007 with a request to survey his land and a demand was made for payment of Rs.2, 600.00 as illegal gratification and since the complainant-PW2 did not intend to pay the bribe amount, he had lodged a complaint before the Lokayukta Police, Bagalkot on 20/4/2007, based on which, FIR in Crime No.4/2007 was registered against the appellant. 4. In the trap that was held on 20/4/2007, the appellant was caught red-handed while receiving the bribe amount of Rs.2, 600.00 from the complainant-PW2. The bribe amount recovered was subjected to mahazar-Ex.P2 and the hands of the appellant was subjected to chemical examination. Investigation in the case was completed and charge sheet was filed. Appellant pleaded not guilty and claimed to be tried before the trial Court and therefore, in order to prove its case, the prosecution had examined 14 witnesses as PWs.1 to 14 and had got marked 43 documents marked as Exs.P1 to P43. In support of his defence, appellant had produced 1 document as Ex.D1. 9 material objects were marked as MOs.1 to 9. In support of his defence, appellant had produced 1 document as Ex.D1. 9 material objects were marked as MOs.1 to 9. The trial Court after hearing the arguments addressed on both sides, had passed the impugned judgment and order of conviction and sentence against the appellant and being aggrieved by the same, the appellant is before this Court. 5. Learned counsel for the appellant submits that demand and acceptance of bribe amount has not been proved by the prosecution against the appellant. He submits that as on the date of the complaint, no work was pending with the appellant and therefore the trial Court was not justified in convicting him. He submits that the evidence of PW2 is not corroborated by any independent witness. Application for survey and the complaint were filed by the complainant on the same day. The material on record would go to show that prescribed fee was not paid on the application and therefore issuance of work order to the appellant becomes very doubtful. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mukhtiar Singh Vs. State of Punjab reported in (2017) 8 SCC 136 , Neeraj Dutta Vs State (Govt. of N.C.T. of Delhi) reported in 2023 SCC Online SC 280 and in the case of Chandrasha S/o. Madarsha Katba vs. The State of Karnataka, Criminal Appeal No.200105/2015 disposed of on 16/2/2022 by a Coordinate Bench of this Court. 6. Per contra, learned counsel appearing for the respondent argued in support of the impugned judgment and order of conviction. He submits that the prosecution has proved the demand and acceptance of illegal gratification and therefore, there is presumption against the appellant/accused which is not rebutted by him. The complainant has fully supported the case of the prosecution and nothing has been elicited from his mouth during his cross-examination by the defence. No proper explanation was offered by the appellant in respect of the bribe amount that was recovered from him. PWs.3 and 4 have stated that the work of survey of the complainant's property was allotted to the appellant. Therefore, the trial Court was justified in convicting and sentencing the appellant/accused. He accordingly prays to dismiss the appeal. 7. No proper explanation was offered by the appellant in respect of the bribe amount that was recovered from him. PWs.3 and 4 have stated that the work of survey of the complainant's property was allotted to the appellant. Therefore, the trial Court was justified in convicting and sentencing the appellant/accused. He accordingly prays to dismiss the appeal. 7. The allegations against the appellant is that he had demanded a sum of Rs.2, 600.00 from the complainant (PW2) on 24/2/2007 as illegal gratification for the purpose of surveying the property bearing Sy.Nos.56/2 and 58/2 totally measuring 12 acres situated at Jakkur village, Bagalkot taluk. On the said date, no application was filed by the complainant before the competent authority for the purpose of surveying the aforesaid land belonging to him. According to the prosecution, on 23/2/2007, appellant had collected signature of the complainant in the application for the purpose of survey. Undisputedly the said application is filed before the competent authority only on 24/2/2007. The complaint was also filed by PW2 before the Lokayukta Police on the very same day. Trap was laid by the Lokayukta Police and the appellant allegedly was successfully trapped while receiving bribe amount of Rs.2600.00 from PW2 on the very same day. According to the prosecution, the application was filed on behalf of PW2 on 24/2/2007 and the same was scrutinized by PW3 and work order was issued to the appellant on the very same date for surveying the land of PW2. 8. The prosecution in order to prove the guilt of accused is required to establish beyond reasonable doubt that there was a demand and acceptance of illegal gratification by the appellant, as a reward to show official favour to effect partition by surveying lands bearing R.S. Nos.56/2 and 58/2. The prosecution is also required to prove beyond reasonable doubt that as on the date of demand, the work of surveying the aforesaid lands bearing R.S.Nos.56/2 and 58/2 was pending before the appellant/accused. In order to establish its case, the prosecution has examined 14 witnesses as PWs.1 to 14. 9. PW1 is a shadow witness, who was working as a First Divisional Assistant in the Department of Karnataka Water Supply and Sewerage Board. In order to establish its case, the prosecution has examined 14 witnesses as PWs.1 to 14. 9. PW1 is a shadow witness, who was working as a First Divisional Assistant in the Department of Karnataka Water Supply and Sewerage Board. During the course of his examination-in-chief, he has stated that he was instructed by the investigating officer to accompany the complainant to the Office of the appellant and accordingly, he had accompanied the complainant to the Office of the appellant on 24/2/2007. He further deposed that appellant had taken the complainant-PW2 along with him to a nearby canteen but he has not stated that he had accompanied the complainant and the appellant to the canteen. He has also not stated that he had seen or heard the appellant demanding bribe amount nor has he stated he had seen the complainant paying the bribe amount to the appellant. He has stated that after the complainant and the appellant went near the canteen, he saw the complainant giving signal by tying towel on his head. Immediately the police came to the spot and enquired with the complainant as to what had happened. The complainant had thereafter narrated before the investigating officer that the appellant had demanded bribe amount and accordingly he had paid bribe amount which was laced with phenolphthalein powder to the appellant and the said amount was taken and kept inside the right side pant pocket of the appellant. When the investigating officer had asked PW1 as to what had happened, he had reiterated what was said by the complainant-PW2. Therefore, a serious doubt arises whether PW1 who is a shadow witness was present near the canteen when the appellant allegedly had made a demand for payment of bribe amount and had received the same from the complainant. Since the defence had not cross-examined PW1 inspite of opportunity being given, the evidence of other witnesses was recorded on behalf of the prosecution. Subsequently, an application was filed by the defence seeking permission of the Court to cross-examine PW1 and the same was allowed. Since PW1 expired before he could be cross-examined by the defence, cross-examination of PW1 was not done by the defence. 10. PW2 is the complainant in the present case. Subsequently, an application was filed by the defence seeking permission of the Court to cross-examine PW1 and the same was allowed. Since PW1 expired before he could be cross-examined by the defence, cross-examination of PW1 was not done by the defence. 10. PW2 is the complainant in the present case. He has stated before the Court that on 23/2/2007 he had met the complainant with a request to survey his property and on the same day demand was made for payment of bribe amount of Rs.2600.00. He also has stated that application for survey was signed by him on the same date as instructed by the appellant. He has further stated that since he did not intend to pay bribe amount, he had lodged a complaint on 24/2/2007 and subsequent to registration of FIR, entrustment mahazar was prepared and two panchas were summoned by the police Inspector. He has spoken about the raid conducted on 24/2/2007 and he has deposed that demand was made by the appellant near the canteen for payment of Rs.2600.00 as illegal gratification and accordingly he had handed over phenolphthalein powder laced Rs.500.00 denomination 5 notes and Rs.100.00 denomination 1 note to the appellant. He also has stated that after he gave a signal to the police, they immediately came to the spot and apprehended the appellant. 11. Evidence of the complainant is not corroborated with any independent witness. The Hon'ble Supreme Court in the case of Mukhtiar Singh Vs. State of Punjab reported in (2017) 8 SCC 136 has held that bald allegation of complainant regarding demand and acceptance of illegal gratification by the accused which has remained uncorroborated by any other independent witness, is not sufficient to prove the charges leveled against the accused beyond reasonable doubt. 12. PW3 is the surveyor who has been examined by the prosecution to demonstrate that work order for survey of the complainant's land was issued to the appellant. During the course of cross-examination of this witness, he has admitted that before the police he had not stated that the work of measuring the complainant's land was entrusted to the appellant. He has also stated that the applicant was required to deposit a fee of Rs.300.00 along with application for the purpose of scrutinizing the application and preparing 11-E sketch and the said amount was not deposited on 24/2/2007 along with the complainant's application. He has also stated that the applicant was required to deposit a fee of Rs.300.00 along with application for the purpose of scrutinizing the application and preparing 11-E sketch and the said amount was not deposited on 24/2/2007 along with the complainant's application. He has further stated that as on 24/2/2007, there were 4 Licenced Surveyors working in his Office. He also admitted that along with the application and documents, which were allegedly handed over to the appellant under Ex.P14(a), copies of PT and Akarband were not furnished to the appellant. He has further admitted that application of the complainant was the only application received and entered in Ex.P12, which is the application receipt register. He has further stated that entrustment of work to the Licenced Surveyor will be entered in Ex.P13. 13. PW4 is a retired Tahasildar of Mudhol, who worked for the period from 1/6/2005 to 1/5/2007. During his cross-examination, he has admitted that as per Ex.P9-Circular, there is direction to entrust the application received till the evening of the day to the Licenced Surveyor on the next day at 10.00 a.m. He also has stated that in Ex.P9, there is direction to furnish copies of Mulatippani, Hissatippani and Akarband to the Licenced Surveyor. Said copies were not furnished to the appellant. He also admitted that without these documents it is not possible for the surveyor to measure the lands and prepare the sketch. 14. From the evidence of PW.3 and PW.4, a serious doubt arises as to whether the work of surveying the complainant's land was entrusted to the appellant. Admittedly, the prescribed fee of Rs.300.00 was not paid along with the application on 24/2/2007. It would be highly doubtful that the application that was not accompanied with prescribed fee was scrutinized on the very same day and work of survey was entrusted to the appellant. Evidence on record would go to show that along with the application and the document, which was allegedly handed over to the appellant, necessary document like Mulatippani, Hissatippani and Akarband etc., were not handed over to the appellant and PW4 the Tahasildar has categorically stated that in the absence of such documents being furnished to the appellant, it would be, not possible for him to measure the lands and prepare the sketch. Therefore, a serious doubt arises as to whether the work of survey of complainant's land was pending before the appellant as on the date of the complaint. 15. The Hon'ble supreme court in the case of A. Subair Vs. State of Kerala, (2009)6 SCC 587 has observed that the following ingredients are required to be established for convicting the accused for the offences punishable under Ss. 7, 13(1)(d) read with Sec. 13(2) of the PC Act: i. Demand and acceptance of bribe money; ii. Handling of tainted money by the accused on the day of trap (colour test); iii. Work of the complainant must be pending as on the date of trap with the accused. 16. In the event, prosecution is not in a position to prove any one of the aforesaid ingredients satisfactorily, conviction of accused for the aforesaid offences gets vitiated. 17. PWs.5 and 6 are the independent witnesses who have been examined by the prosecution to prove demand and acceptance of bribe amount but these witnesses have not supported the case of the prosecution. 18. PW7 is the Second Divisional Assistant who was then working in the Office of Tahasildar. He was examined by the prosecution for the purpose of proving entrustment of work of survey to the appellant on 24/2/2007. Even this witness has turned hostile to the case of the prosecution. The other witnesses are all official witnesses and re-appreciation of their evidence would not be necessary as they are not examined by the prosecution either to prove the demand and acceptance of the illegal gratification by the appellant or to prove that the survey work was entrusted to the appellant and the same was pending before him as on the date of complaint. 19. It is trite that demand and acceptance of the illegal gratification must be proved by the prosecution beyond reasonable doubt to sustain the order of conviction under the provisions of the PC Act. The Hon'ble Supreme Court in the case of Jagtar Singh's (supra) and also in the case of Neeraj Dutta (supra) has reiterated the aforesaid principle and has set aside the order of conviction. Mere existence of receipt of illegal gratification would not make it an offence under Sec. 7 or Sec. 13(1)(d)(i) and (ii) of the PC Act and therefore, non explanation of the same by the accused cannot be a ground to convict him. 20. Mere existence of receipt of illegal gratification would not make it an offence under Sec. 7 or Sec. 13(1)(d)(i) and (ii) of the PC Act and therefore, non explanation of the same by the accused cannot be a ground to convict him. 20. A presumption under Sec. 20 of the Act of 1988 is available, if only the prosecution has prima facie proved the demand and acceptance of the illegal gratification by the accused. Mere recovery of tainted money from the accused is not sufficient to convict him for the offence punishable under Ss. 7 and 13(1)(d)(i) and (ii) of the PC Act and burden is on the prosecution to prove beyond reasonable doubt that accused had voluntarily accepted the tainted money knowing it to be a bribe. 21. In the present case, the prosecution has not satisfactorily proved the demand made by the appellant/accused for payment of illegal gratification. Evidence of P.W.2-complainant has remained un- corroborated. P.W.1 the shadow witness could not be cross-examined by the accused since he had expired. The evidence of this witness regarding demand and acceptance is also doubtful. The prosecution has not examined the second pancha witness to the trap mahazar Ex.P.2. In addition to the same, the prosecution has utterly failed to prove that work of survey of the complainant's land was entrusted to the appellant and the same was pending before him as on the date of complaint. The date of application for survey, the date of complaint, the date of entrustment of work and date of trap are the same in the present case. According to the prosecution, demand for illegal gratification was made a day prior to the complaint. 22. P.W.4 has stated that there were four licenced Surveyors working in his office. If that is so, it cannot be said that the survey work would be entrusted only to the appellant and therefore the allegation of demand for payment of illegal gratification made by him, even prior to the day of filing of application for survey becomes highly doubtful. Under the circumstances, I am of the considered opinion that the Trial court was not justified in convicting the appellant for the alleged offences. Under the circumstances, I am of the considered opinion that the Trial court was not justified in convicting the appellant for the alleged offences. The Judgment of the Hon'ble Supreme Court in the case of Vinod Kumar Garg vs. State (Government of National Capital Territory of Delhi), Criminal Appeal No.1781/2009, disposed off on 27/11/2019, on which reliance is placed by the learned counsel for the respondent would not be applicable to the facts and circumstances of the present case. It is trite that Judgments can be relied as precedents only in the event the same is applicable to the facts and circumstances of the case. Since the prosecution has failed to prove the case beyond reasonable doubt that demand was made by the appellant for payment of illegal gratification and the work of survey was entrusted to him and same was pending before him as on the date of complaint, I am of the considered opinion that the Trial Court was not justified in convicting him for the offences alleged against him. Therefore, the impugned Judgment and order of conviction and sentence cannot be sustained. Accordingly, the following : ORDER (i) Appeal is allowed. (ii) The Judgment and order of conviction and sentence dtd. 21/11/2013 passed in Special Case No.39/2010 by the District and Sessions Judge, Bagalkot is set aside. (iii) Accused is acquitted for the offences alleged against him. His bail bond, if any stands cancelled. Fine amount, if deposited by appellant shall be refunded to him.