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Karnataka High Court · body

2025 DIGILAW 201 (KAR)

Vachappa S/o Keshappa v. State of Karnataka

2025-06-04

V.SRISHANANDA

body2025
JUDGMENT : V. SRISHANANDA, J. 1. Heard learned counsel Sri Chaitanyakumar Chandrike for the appellant and learned counsel Sri Subhash Mallapur for the respondent. 2. Accused, who has suffered an order of conviction for the offence punishable under Sections 7 , 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act , (for short ‘P.C. Act’), has preferred this appeal challenging the validity of conviction order and sentence thereof. 3. Facts in the nutshell for the disposal of the present appeal are as under: 3.1 The Lokayukta Police, Gulbarga, charge-sheeted the accused No.1 and accused No.2 for the aforesaid offences. According to the case of prosecution, as per the charge-sheet material, one Haji S/o. Abdulsab Malang carried out the work under Mahatma Gandhi National Rural Employment Guarantee Scheme (for short ‘MNREG Scheme’) and constructed a compound wall of Grama Panchayat. The said Haji S/o. Abdulsab Malang and his family members carried out the said work between the period 13.09.2013 to 19.09.2013, 22.09.2013 to 28.09.2013, 03.10.2013 to 09.10.2013 and 10.10.2013 to 16.10.2013. 3.2 One Sri Mohammad Haneef said to have supplied stone, cement, sand and other materials for the said work. Work was completed and the Nodal Officer appointed by the Grama Panchayat verified the work and approved the checklist. Thereafter, Haneef met the accused No.1 on 04.12.2013 and requested him to release the wages and material supplied amount. At that juncture, appellant said to have demanded 10% of the bill amount i.e., to the tune of Rs.28,000/-, to be paid as bribe for processing the bill. Since the complainant was not interested in parting away with the illegal gratification, he approached the Lokayukta Police, Kalaburagi. 3.3 On hearing the oral complaint, Lokayukta Police said to have given a voice recorder to the complainant and told him to record the conversation between the him and the accused so as to ascertain the veracity of the oral complaint made by the complainant. 3.4 After receiving the voice recorder, on 07.12.2013, Haneef and the complainant met accused Nos.1 and 2 and requested to release the amount. On that occasion also there was a demand of bribe, which was recorded in the voice recorder and thereafter, lodged written complaint with the Lokayukta Police. 3.5 After receipt of the complaint, Lokayukta Inspector formed a raid team by securing two independent persons to act as Panchas. On that occasion also there was a demand of bribe, which was recorded in the voice recorder and thereafter, lodged written complaint with the Lokayukta Police. 3.5 After receipt of the complaint, Lokayukta Inspector formed a raid team by securing two independent persons to act as Panchas. The contents of the complaint were read over to the Panchas, so also the conversation that took place between the complainant and the accused were revealed to the Panchas. Thereafter, the head of the raid party demonstrated the chemical reaction of phenolphthalein powder with sodium carbonate solution and took 28 currency notes of Rs.1,000/- denomination from the custody of the complainant and noted the serial numbers of those currency notes and smeared the phenolphthalein powder on those currency notes. The colour test and chemical reaction was demonstrated and an Experimental Mahazar was drawn. 3.6 Of the two panchas, one was directed to accompany the complainant at the time of handing over the illegal gratification by the complainant to the accused and to observe the activities that would be taken place at the time of handing over the currency and also to hear the conversation that would take place at the time of handing over the illegal gratification by the complainant to the accused. 3.7 Thereafter, complainant, Panch witnesses, head of the raid party and his sub-staff proceeded in a Government Jeep. Complainant contacted the accused over his mobile telephone and accused No.1 said to have told that he has already left the office and is going to his house. Complainant requested him that he is ready with the amount demanded by accused No.1 which would be handed over to him so that his bill can be processed. On hearing such conversation, accused No.1 have told complainant that they can meet in a hotel. 3.8 As such, the raid party proceeded towards Jyothi Hotel. Complainant met the accused No.1 near the said hotel and both of them went inside the Jyothi Hotel and ordered for two cups of tea. Shadow witness followed them and he also ordered for a tea. The conversation that took place between the complainant and accused No.1 at that relevant point of time was also recorded by the complainant in a voice recorder. Shadow witness followed them and he also ordered for a tea. The conversation that took place between the complainant and accused No.1 at that relevant point of time was also recorded by the complainant in a voice recorder. After demand made by accused No.1, complainant said to have handed over a sum of Rs.28,000/- (tainted currency) to accused No.1 and the accused No.1 kept the same in his bag. Soon thereafter complainant gave the predestinated signal to the head of the raid party, who were also standing secretly near the said hotel. 3.9 Immediately, head of the raid party came to the hotel and enquired the accused No.1 as to where is the currency received by him from the complainant. Accused No.1 shown his bag and the tainted currency was found in his bag, which was asked to be taken out from the bag. After the same was taken out by accused No.1, his hands were washed in the sodium carbonate solution, so also inside the bag, belonging to the accused No. 1, was cleaned with a cotton swab and colour test was conducted with a cotton swab. The colourless sodium carbonate solution turned into pink, which was seized and sealed by the head of the raid party in the presence of Panch Witnesses. 3.10 Thereafter, the seized currency notes were tallied with the serial numbers, which were recorded in the Entrustment Mahazar and both of them got tallied. Therefore, they seized the said currency notes and entered in the Mahazar. The documents which were there in the bag of accused No.1 pertaining to complainant were also seized. A detailed Mahazar was drawn including the conversation that took place at the time of handing over the tainted currency recorded in the voice recorder in the computer, which was transferred onto a Compact Disc and the same was also seized and sealed. 3.11 The explanation of the accused was obtained on the spot as per Ex.P45, which reads as under: 3.12 Accused No.1 was arrested by the head of the raid party and thereafter, he was produced before the learned Special Judge and he was in turn remanded to judicial custody. 3.13 After enquiring with the accused No.2 and conducting the further investigation including sending the seized samples to the Forensics Laboratory, the Police filed the charge-sheet against both the accused. 3.13 After enquiring with the accused No.2 and conducting the further investigation including sending the seized samples to the Forensics Laboratory, the Police filed the charge-sheet against both the accused. 3.14 Presence of the accused was secured before the learned Special Judge and charges were framed. Both the accused pleaded not guilty. Therefore, trial was held. 3.15 In order to bring home the guilt of the accused, prosecution in all is examined 13 witnesses as PWs.1 to 13 and 46 documentary evidence were relied upon by the prosecution, which were exhibited and marked as Exs.P1 to P46. 14 material documents were also marked on behalf of the prosecution. 3.16 On conclusion of recording of evidence, accused statement as is contemplated under Section 313 Cr.P.C., was recorded, wherein, accused persons have denied the incriminatory circumstances, but failed to place any oral or documentary evidence on record as defence evidence. 3.17 Thereafter, the learned Trial Judge heard the parties in detail and by impugned judgment convicted accused No.1 and sentenced him to undergo Rigorous Imprisonment for a period of 03 years for the proved offence and to pay fine of Rs.5,000 with a default sentence of Rigorous Imprisonment for 06 months. 3.18 Accused No.2 was acquitted. State did not challenge the acquittal of accused No.2 and therefore, it has become final. 4. Being aggrieved by the judgment of conviction and order of sentence, appellant has preferred the present appeal on the following grounds: “5) The impugned judgment passed by the court below is illegal, arbitrary, contrary to the law and records against the principles of natural justice. 6) That it is submitted that the prosecution has led the evidence of PW 1 and he claims to be the complainant on the basis of information given by him case was registered. In his examination in chief, he has stated that he has given 28000 rupees of twenty eight 1000 rupees denomination notes to the accused and accused i.e. appellant took that amount kept in his bag it was on table. Thereafter the complainant signaled to the IO and PW3 rushed to the sot and raided by recovering the amount. Thereafter the amount was wiped by cotton and same was dipped in the carbonate hydrogen solution which was mixed with phenolphthalein powder and color was turned to pink. Thereafter hands of the accused was dipped in the phenolphthalein powder and color was changed. Thereafter the amount was wiped by cotton and same was dipped in the carbonate hydrogen solution which was mixed with phenolphthalein powder and color was turned to pink. Thereafter hands of the accused was dipped in the phenolphthalein powder and color was changed. But in the cross examination of the complainant, complainant specifically stated that when the appellant/accused went outside the hotel to wash his face by keeping his bag on the hotel table by the time complainant kept money and file in the appellant's bag which shows amount was not received by the accused and same was forcibly kept in bag. The court below failed to consider the same which resulted in convicting the accused/appellant. 7) That the PW-1 being the complainant has specifically stated that nothing in voice recorder regarding percentage money even he was not heard the recorder by the Lokayukta Police. Even complainant admitted that job card is compulsory for doing work in "Udyog Khatri Yojana". So complainant did not have job card hence the question of doing work over there does not arise. Thereafter he agreed that PDO or Gram Panchayat Chairman will not give job card or amount. So the question of demanding the money does not arise. The complainant stated in the complaint that in the said hotel benches are heighted, therefore the person who sits on the another table will not be seen. Hence shadow witness i.e. PW-2 evidence cannot be believed. 8) That the PW-1 in his cross examination specifically admitted that even dongal was not come then also they forced to do payment to the PDO and President but they refused because unless and until dongal has not come, the payment will not be done. Hence complainant and PW-5 went to Lokayukta Police Station. There Lokayukta Police took signature on white paper. Even he was not known what was written on the white paper. This obviously shows that PW-1 being the complainant has specifically stated that he has not given the complaint, but, lokayukta police took signature on white paper. This shows he has not lodged the written complaint but the respondent police registered the case on the basis of written complaint filed by the PW-1. The evidence of him is fatal to the case of the prosecution. On that ground alone the judgment passed by the court below is liable to be set aside. This shows he has not lodged the written complaint but the respondent police registered the case on the basis of written complaint filed by the PW-1. The evidence of him is fatal to the case of the prosecution. On that ground alone the judgment passed by the court below is liable to be set aside. 9) That, PW-2 is a shadow witness. He has stated in his evidence that in the said hotel tables were heighted and no person can be seen if he sits on another bench but in his statement he specifically stated that he had not heard the discussion of the complainant and accused. This casts the doubt and genuinity of his presence in the hotel. The court below convicted the appellant without properly appreciating the evidence placed on record. On this ground alone the judgment passed by the court below is liable to be set aside. 10) That, the prosecution has led evidence of PW-3 who is a panch witness. His evidence creates doubt with regard to his presence in the trap, as he has narrated the fact claiming to be present as he has stated that once he states he left from Lokayukta Poice Station at 1 PM and again states 2.30 pm even he was unable to tell height of the table which were in the hotel and he stated that the conversion was held with and between which persons is not written in the panchanama. Therefore, the judgment passed by the court below is liable to be set aside. 11) That, PW-4, PW-5 & PW-6 have not supported the prosecution case. 12) That, it is relevant to submit that PW-7 was heard voice recorded to identify the accused voice when he could not identify, Lokayukta police forcibly said that it is accused voice. Therefore, the judgment passed by the court below is liable to be set aside. 13) That, the prosecution has led the evidence of PW-9. He stated that Lokayukta Police told it is accused voice, then he was heard voice recorder. This shows the bad intention of the respondent. 14) That, prosecution has led the evidence of PW-10. He states that according to Lokayukta Police only he drawn the sketch map. This is also shows bad intention of the respondent. He stated that Lokayukta Police told it is accused voice, then he was heard voice recorder. This shows the bad intention of the respondent. 14) That, prosecution has led the evidence of PW-10. He states that according to Lokayukta Police only he drawn the sketch map. This is also shows bad intention of the respondent. 15) That, the court below passed the judgment on the assumption and presumption which has resulted in conviction of the appellant.” 5. Sri Chaitanyakumar Chandriki, learned counsel representing the appellant, reiterating the grounds urged in the appeal memorandum, vehemently contended that learned Trial Judge has misdirected himself in convicting accused No.1/appellant for the offence under Section 7 read with Section 13(1)(d) of the P.C. Act inasmuch as there was no demand made by the accused about the bribe amount. 6. Further, he emphasized that there is a clear admission in the cross-examination of PW1-(complainant) that when accused No.1 after taking tea had gone outside the hotel for washing his face, complainant has kept the money in his bag. Therefore, there is no material evidence on record, whereby the acceptance of illegal gratification has been established by the prosecution which is sine-qua-non for establishing the offence under Section 13(1)(d) of the P.C. Act and thus, prayed for allowing the appeal. 7. Sri Chaitanyakumar Chandriki would also contend that the material evidence on record clearly shows that the prosecution witnesses, namely PW5 to PW8 turned hostile, among them, Haneef, who said to have supplied the cement and other materials for the alleged construction of the compound wall, has also turned hostile. Therefore, there was no question of processing the bill of the complainant and as such, there could not have any demand of illegal gratification, which has been ignored by the learned Trial Judge while passing the impugned judgment and sought for allowing the appeal. 8. He would also contend that the material evidence placed on record by the prosecution, especially the oral testimony of PW1 in his cross-examination and the contra-statement made by the PWs.2 and 3 would expose hollowness in the case of the prosecution, which has been ignored by the learned Trial Judge while passing the impugned judgment, resulting in miscarriage of justice and sought for allowing the appeal. 9. Per contra, Sri Subhash Mallapur, learned counsel representing the respondent-Lokayukta, supports the impugned judgment. 9. Per contra, Sri Subhash Mallapur, learned counsel representing the respondent-Lokayukta, supports the impugned judgment. He would invite the attention of the Court to the contents of Trap Mahazar and also the oral testimony of shadow witness and the supplier of the hotel who was examined PW4, which would make it clear that it is the accused, who received the bribe amount of Rs.28,000/- in the hotel and thereafter kept the same in his bag. Therefore, colour test has turned positive not only in the hand wash, but also with the cotton swab that was used to swipe inside the office bag of the accused. 10. He would further point out that, admittedly, the work which was entrusted to the complainant was completed by the complainant and his family members under MNREG Scheme and as per the inspection report and counter signing of the Nodal Officer also the entrusted work was completed. Thereafter, the bill came to be lodged with the Gram Panchayat Office and it is accused No.1, who being the P.D.O. had to process the bill of the complainant, which was admittedly kept pending for want of payment of bribe money. Therefore, all ingredients to attract the offence under Section 13(1)(d) of the P.C. Act has been successfully established by the prosecution as is held by the learned Trial Judge in the impugned judgment and hence, he sought for dismissal of the appeal. 11. Having heard the arguments of both sides, this Court perused the material on record meticulously. On such perusal of the material on record, following points would arise for consideration: 1) Whether the prosecution is successful in establishing all ingredients to attract the offences under Sections 7 and 13(1)(d of the P.C. Act? 2) Whether the impugned judgment is suffering from legal infirmity or perversity? 3) Whether the sentence is excessive? 4) What order? Regarding point Nos.1 and 2 - 12. In the case on hand, complainant, shadow witness, circumstantial witnesses, Investigating Officer and co-pancha have supported the case of the prosecution in toto. 13. The complainant deposed before the Court in line with the complaint averments, Entrustment Mahazar and the Trap Mahazar. He identified accused No.1 and the seized currency in his examination-in-chief. 14. In the case on hand, complainant, shadow witness, circumstantial witnesses, Investigating Officer and co-pancha have supported the case of the prosecution in toto. 13. The complainant deposed before the Court in line with the complaint averments, Entrustment Mahazar and the Trap Mahazar. He identified accused No.1 and the seized currency in his examination-in-chief. 14. In his cross-examination, no doubt, it is elicited that when accused No.1 had gone out of the hotel for washing his face and hands after taking tea, it is the complainant, who has put the tainted currency in the bag of the accused. 15. What is important to be inferred from the oral testimony of the PW1 is that there was a demand of 10% of the bill amount to the tune of Rs.28,000/- for processing the pending bill of the complainant for having carried out the construction of compound wall of the Grama Panchayat Office under MNREG Scheme. Said illegal gratification has reached accused No.1 on the day of trap. 16. PW2 being the shadow witness, deposed in line with the examination-in-chief of complainant and specifically deposed that he had followed the complainant to Jyothi Hotel and he occupied another table, which was by the side of the complainant and was observing the activities that took place when complainant and accused No.1 were having the conversation. 17. He has specifically stated that he has seen the complainant handing over cash of Rs.28,000/-, comprising of Rs.1000/- denomination’s 28 currency notes and accused No.1 took the same and kept in his bag. Color test of the hand wash of accused No.1 stood positive soon after the trap. So also the cotton swab which was used to swipe inside portion of the bag of accused No.1 was also subjected to colour test and it stood positive. 18. Admittedly, the bag of accused No.1 contained the documents pertaining to the complainant for processing his bill. No explanation whatsoever was offered by accused No.1 soon after the trap for the handling of the tainted currency. But on the contrary as per Ex.P45, accused No.1 admitted that there was a demand of bribe amount. No doubt, such an admission of accused No.1 cannot be made as the basis for upholding the conviction as it amounts to confession. 19. But on the contrary as per Ex.P45, accused No.1 admitted that there was a demand of bribe amount. No doubt, such an admission of accused No.1 cannot be made as the basis for upholding the conviction as it amounts to confession. 19. Further, PW3 the Co-Pancha also supported the case of prosecution while deposing about the Entrustment Mahazar and tallying the serial numbers of the currency notes seized under trap mahazar and colour test. 20. PW4, who is supplier in the hotel also supported the case of the prosecution. He is a chance witness. Admittedly, PWs.2 to 4 did not nurture any previous enmity or animosity as against accused No.1. In fact, appellant is stranger to them and they have seen the appellant only at the time of trap. Further, PWs.2 to 4 have not yielded to the searching cross-examination on behalf of the accused. 21. Investigating Officer had also taken necessary precaution before registering the complaint itself to find out the veracity of the statements made by the complainant. In that regard, he had directed the complainant to visit the accused persons again and record the conversation that would take place between the accused persons and the complainant. As such, the complainant visited the accused persons and recorded the conversation that took place between himself and the accused persons, which was made to be heard by the punch witnesses before the entrustment mahazar was recorded. After convincing himself that there was a demand for illegal gratification to process the pending bill of the complainant, the Inspector of the Lokayukta registered the complaint given by the complainant. 22. It is also to be noted that at the time of handing over the tainted currency in the Jyoti hotel, there was a conversation between the complainant and the first accused. Said conversation is also recorded and transferred into a compact disk and the transcription of such conversation is included in the trap mahazar. Said conversation would make it clear that the complainant is repeatedly requesting the accused that his papers to be processed immediately as he has borrowed the money for completing the work and including payment of illegal gratification. 23. At that juncture, first accused has assured the complainant that his bills would be processed very next day in the evening and if the work is not done as against Rs.28,000/-, she would be paying the complainant Rs.48,000/-. 24. 23. At that juncture, first accused has assured the complainant that his bills would be processed very next day in the evening and if the work is not done as against Rs.28,000/-, she would be paying the complainant Rs.48,000/-. 24. Said conversation coupled with the oral testimony of the complainant, PW.2 - shadow witness and seizure of the tainted currency from the bag of the accused after the trap, would be sufficient enough to establish all ingredients of demand and acceptance of illegal gratification for processing the pending bill of the complainant. 25. It is also pertinent to note that PW.9 has recognized the voice of the accused in the conversation that got recorded at the time of trap. PW.9 is again a witness who did not nurture any enmity or animosity as against the accused. 26. These aspects of the matter have been rightly appreciated by the learned trial judge while convicting the accused for the aforesaid offences. 27. The grounds urged in the appeal memorandum are hardly insufficient to annul the well reasoned judgment of the Trial Court nor there is any material available on record to term the impugned judgment as perverse or suffering from legal infirmity. 28. Minor contradictions elicited in the cross- examination of prosecution witnesses would only establish that their testimony is natural and not tutored. Further, none of the witnesses nurtured any previous enmity or animosity against appellant to falsely implicate him in the case. 29. Demand and acceptance of bribe money is established by prosecution. Said demand is for procuring the pending bill of complainant. 30. Thus, in view of the foregoing discussion, point No. 1 is answered in the affirmative and point No.2 in the negative. Regarding point No.3 – 31. It is noticed that learned trial judge has awarded 3 years rigorous imprisonment for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act and imposed fine of Rs.5,000/- with default sentence. 32. Regarding point No.3 – 31. It is noticed that learned trial judge has awarded 3 years rigorous imprisonment for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act and imposed fine of Rs.5,000/- with default sentence. 32. Following the dictum of the Hon'ble Apex Court in the case of Neeraj Dutta vs. State (Government of N.C.T. of Delhi) reported in 2023 LiveLaw (SC) 211, the ingredients for attracting the offence under Section 7 and 13(1)(d) of the P.C.Act are little different and when there is no demand and acceptance alone is proved, Section 7 of the P.C.Act would come into play and when there is a demand and acceptance, it is the case of obtainment, punishable under Section 13(1)(d) of P.C. Act. 33. In the case on hand, since the demand and acceptance have been established by the prosecution, offence punishable under Section 7 of P.C.Act would get into insignificance and therefore, separate punishment for the offence under Section 7 of the P.C.Act would act as a surplusage. Therefore, the punishment of imprisonment and fine of Rs.5,000/- for the offence under Section 7 of the P.C.Act needs to be modified as it merges with the offence under Section 13(1)(d) of the Act. 34. Further, it is submitted on behalf of the appellant/accused that accused is now retired from the service on account of superannuation and is old age person and therefore, leniency may be shown insofar as sentence is concerned. 35. Learned counsel for the respondent Sri Subhash Mallapur opposes said submission with vehemence. 36. Taking note of the old age of the appellant/accused, the sentence of imprisonment for the offence under Section 13(1)(d) of the P.C. Act is modified from rigorous imprisonment to simple imprisonment for a period of 2 years instead of 3 years. Accordingly, point No. 3 is answered partly in the affirmative. Regarding point No.4 – 37. In view of the finding of this Court on point Nos.1 to 4 as above, following: ORDER a) Criminal appeal is allowed in part. b) While maintaining the conviction of the accused/appellant for the offences punishable under Sections 7 and 13(1)(d) of the P.C. Act, separate punishment ordered by the learned Trial Judge for the offence under Section 7 of the P.C. Act and imposition of the fine is hereby modified. b) While maintaining the conviction of the accused/appellant for the offences punishable under Sections 7 and 13(1)(d) of the P.C. Act, separate punishment ordered by the learned Trial Judge for the offence under Section 7 of the P.C. Act and imposition of the fine is hereby modified. c) The appellant shall undergo Simple Imprisonment for a period of 2 years as against Rigorous Imprisonment for a period of 3 years by enhancing the fine amount in a sum of Rs.25,000/-, payable on or before 10.07.2024. d) Failure to pay the enhanced fine amount would automatically result in restoration of the sentence of imprisonment ordered by the learned Trial Judge. e) Time is granted for the accused/appellant to surrender before the Trial Court till 10.07.2025 for serving the remaining part of sentence. Office is directed to return the Trial Court records with copy of this judgment forthwith for issue of modified conviction warrant.