Judgment:
1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE16H DAY OF NOVEMBER, 2022 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.10027 OF2022(GM – RES) BETWEEN: SRI P.MANJUNATH S/O LATE BASAVARAJAPPA AGED ABOUT40YEARS RESIDING AT NEAR NIJALINGAPPA SCHOOL VIDYANAGAR, HARANTH LAYOUT HOSADURGA CHITRADURGA DISTRICT – 577 527. ... PETITIONER (BY SRI SATISH K., ADVOCATE) AND:
1. . THE STATE BY KARNATAKA LOKAYUKTHA POLICE REPRESENTED BY INSPECTOR OF POLICE CHITRADURGA DISTRICT CHITRADURGA – 577 501. 2 . SRI D.H.GURUPRASAD S/O S.V.HANUMANTHA SHETTY AGED ABOUT52YEARS RESIDING AT SRIRAMPURA2HOSADURGA TALUK CHITRADURGA DISTRICT – 577 542. ... RESPONDENTS (BY SRI B.B.PATIL, SPL.PP FOR R1; SRI M.SHASHIDHARA, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA READ WITH SECTION482OF CR.P.C., PRAYING TO CALL FOR RECORDS FROM THE RESPONDENTS; QUASH THE IMPUGNED COMPLAINT DTD.02.03.2022 LODGED BY THE R-2 ANNEXURE-C AND THE IMPUGNED FIRST INFORMATION REPORT REGISTERED BY THE R-1 IN CRIME NO.03/2022 DTD.2.3.2022 ANNEXURE-D AND ALL FURTHER PROCEEDINGS PURSUANT THERETO. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON2909.2022, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDERThe petitioner is before this Court calling in question registration of crime in Crime No.3 of 2022 for offence punishable under Section 7(a) of the Prevention of Corruption Act, 1988 (‘the Act’ for short).
2. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:- 3 The petitioner is an employee of the Revenue Department in the wing of Stamps and Registration. The substantive post held by the petitioner was that of First Division Assistant. The post of Sub- Registrar at Hosadurga was lying vacant. The petitioner was ordered to perform the duties of Sub-Registrar on in-charge basis. When he was functioning as in-charge Sub-Registrar, the 2nd respondent/complainant had availed a mortgage loan from Sri Vasavi Multipurpose Co-operative Society Limited (‘the Society’ for short) in a sum of Rs.18,00,000/-. The Chief Executive Officer of the Society communicates to the petitioner, for registration of a mortgage deed, in terms of the loan availed by the complainant and seeks his exemption from personal appearance in terms of Section 88 of the Registration Act, 1908. In terms of the said communication, the petitioner registers the mortgage deed as presented by the complainant on 24-02-2022 and released the document on the same day i.e., 24-02-2022. After about *07 days, the 2nd respondent gives a complaint to the then Anti Corruption Bureau (‘ACB’) on 02.03.2022, alleging that the petitioner being in- charge Sub-Registrar had demanded illegal gratification of Rs.5,000/- to do official favour of registering the mortgage deed, * Corrected vide chamber order dated 21.11.2022. 4 which was presented before him on 24-02-2022. Based on the said complaint, the 1st respondent registers a crime in Crime No.3 of 2022 on 02-03-2022 for offences punishable under Section 7(a) of the Act. The petitioner is arrayed as the sole accused.
3. In furtherance of registration of the crime, it appears that a pre-trap panchanama was prepared by the ACB and a sum of Rs.4,000/- was handed over to the complainant with instructions to hand over the same to the petitioner on demand. On 02-03-2022, the ACB seeks to lay the trap as intended on the petitioner, which was unsuccessful as the petitioner was not present in the office. The trap gets postponed indefinitely. After a lapse of two months of registration of mortgage deed, an entrustment mahazar was prepared on 20.04.2022, to lay a trap against the petitioner. It is then, the trap takes place on 20.04.2022 and Rs.4,000/- was found on the table of the petitioner. The petitioner was not caught of accepting alleged illegal gratification. Based on the said trap, further proceedings are sought to be continued for offences punishable under Section 7(a) of the Act. It is challenging the said proceedings, the petitioner knocks the doors of this Court in the 5 subject petition. This Court by an order dated 26-05-2022 had only issued notice and after hearing the learned counsel for respondent No.1/then ACB had passed a detailed interim order interdicting the proceedings in terms of its order dated 02.09.2022. Therefore, further proceedings are not conducted in the case at hand.
4. Heard Sri Satish K, learned counsel appearing for the petitioner, Sri B.B. Patil, Special Public Prosecutor for respondent No.1 and Sri M.Shashidhara, learned counsel appearing for respondent No.2.
5. The learned counsel appearing for the petitioner would contend with vehemence that the petitioner cannot even be seen to be guilty of any demand or acceptance. There is neither demand nor acceptance in the case at hand. The mortgage deed which was the subject matter of registration was registered on 24-02-2022 and the document was released on the same day after which, the complainant appears to have complained that the petitioner had demanded illegal gratification. The first round of trap failed and accordingly was postponed and the second round of trap was laid that too, by placing Rs.4,000/- on the table of the petitioner. The 6 trap mahazar clearly depicts that there was no demand on the part of the petitioner and there can be no demand also as the work was over two months ago and the document was released on the same day of registration. He therefore, seeks quashment of entire proceedings.
6. On the other hand, the learned counsel appearing for the 1st respondent, the then ACB and now the Lokayukta would refute the submissions to contend that the petitioner is guilty of demand and acceptance. It is the assurance of the complainant that he would pay Rs.5,000/- as demanded for registration of mortgage deed otherwise the petitioner would not have registered the same. Therefore, the allegation is clearly made out as the amount was found on the table of the petitioner. In view of the serious allegation made under Section 7 of the Act, the petitioner will have to come out clean in a full blown trial.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 7
8. The afore-narrated facts though not in dispute need little elaboration. It is not in dispute that the petitioner was functioning as in-charge Sub-Registrar at Hosadurga, when the complainant presented the mortgage deed for registration. It is also not in dispute that the complainant availed loan by mortgaging the property to the tune of Rs.18,00,000/-. The Chief Executive Officer of the Society communicates to the petitioner seeking exemption of his personal appearance for registration of the mortgage deed and sends all necessary documents through his communication dated 19-02-2022. The said document appended to the petition reads as follows: “ «µÀAiÀÄ: ¹A¥À¯ï ªÀiÁnðUÉÃeï ªÀiÁrPÉÆqÀĪÀ §UÉÎ. ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§AzÀ ¥ÀlÖAvÉ ²æêÀÄw.UÁAiÀÄwæ¥Àæ¸Ázï r.f. PÉÆÃA r.ºÉZï.UÀÄgÀÄ¥Àæ¸Ázï, ªÁå¥ÁjUÀ¼ÀÄ, ²æÃgÁA¥ÀÄgÀ UÁæªÀÄ, ²æÃgÁA¥ÀÄgÀ ºÉÆç½, ºÉƸÀzÀÄUÀð vÁ®ÆèPÀÄ EªÀgÀÄ ªÉÄîÌAqÀ ¸ÀºÀPÁgÀ ¸ÀAWÀzÀ°è gÀÆ.18,00,000/- (ºÀ¢£ÉAlÄ ®PëÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ) ¸Á®PÉÌ ¸À°è¹zÀ CfðAiÀÄ ªÉÄÃgÉUÉ ¸ÀzÀj ¸ÀAWÀªÀÅ gÀÆ.18,00,000/- (ºÀ¢£ÉAlÄ ®PÀë gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ) ¸Á® ªÀÄAdÆgÀÄ ªÀiÁrzÀÄÝ, ¸ÀzÀj ¸Á®zÀ ¨sÀzÀævÉUÁV EªÀgÀ UÀAqÀ£ÁzÀ ²æÃ.r.ºÉZï.UÀÄgÀÄ¥Àæ¸Ázï gÀªÀgÀ ºÉ¸Àj£À°è EgÀĪÀ ºÉƸÀzÀÄUÀð vÁ®ÆèPÄÀ, ²æÃgÁA¥ÀÄgÀ ºÉÆç½, ²æÃgÁA¥ÀÄgÀ UÁæªÀÄzÀ°ègÀĪÀ 1)F - ¸ÀéwÛ£À ¸ÀASÉå.151000503300420266, SÁvÉ C¸É¸ïªÉÄAmï/ºË¸ï°¸ïÖ £ÀA:1662.
2) F-¸ÀéwÛ£À ¸ÀASÉå 151000503300420263, SÁvÉ C¸É¸ïªÉÄAmï/ºË¸ï°¸ïÖ £ÀA:495/1.
3) F ¸ÀéwÛ£À ¸ÀASÉå.151000503300420265, SÁvÉ C¸É¸ïªÉÄAmï/ºË¸ï°¸ïÖ £ÀA:495/A (UÁæ.¥À.zÁR¯ÉUÀ¼À ¥ÀæPÁgÀ)°è£À ¸ÀévÀÄÛUÀ¼À£ÀÄß F ªÉÄîÌAqÀ ¸ÀºÀPÁgÀ ¸ÀAWÀPÉÌ DzÁsgÀ ªÀiÁrPÉÆqÀ¨ÉÃPÉAzÀÄ ºÁUÆÀ F DzsÁgÀ ¥ÀæQæAiÉÄAiÀÄ£ÀÄß RÄzÀÄÝ ºÁdgÁw «£Á¬Äw ¨ÁsgÀwÃAiÀÄ £ÉÆAzÀt PÁAiÉÄÝ 1908gÀ ¸ÉPÀë£ï 88(1) gÀ CrAiÀÄ°è ªÀiÁrPÉÆqÀ¨ÉÃPÉAzÀÄ PÉýPÉƼÀÄîvÉÛêÉ. ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ, 8 ¢£ÁAPÀ:19-02-2022 ¸ÀܼÀ:ºÉƸÀzÀÄUÀð EAw vÀªÀÄä «±Áé¹ ¸À»/- ªÀÄÄRå PÁAiÀÄð¤ªÁðºÀPÀgÀÄ ²æà ªÁ¸À« ««zÉÆÃzÉÝñÀ ¸ÀºÀPÁgÀ ¸ÀAWÀ (¤) – ºÉƸÀzÀÄUÀð 577 527.” In terms of the communication, when the documents were presented by the complainant before the petitioner on 24.02.2022, the petitioner registers the same and on the very day i.e., 24-02-2022 releases the document in favour of the complainant. Therefore, the registration in terms of the communication dated 19-02-2022 takes place on 24-02-2022 and the document was delivered to the complainant on 24-02-2022 itself, without any loss of time.
9. After about a fortnight of receipt of the registered mortgage deed, the complainant approaches the ACB alleging that the petitioner had demanded Rs.5,000/- to register the document i.e., the mortgage deed. The complainant alleges that he was not willing to pay any amount and he has recorded the conversation in his mobile and seeks registration of the crime. The ACB without even verifying the dates on which the allegations are made, 9 immediately registers a crime in Crime No.3 of 2022 for offences punishable under Section 7(a) of the Act. Section 7 of the Act reads as follows: “7. OFFENCE RELATING TO PUBLIC SERVANT BEING BRIBED.—Any public servant who,— (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1.—For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.—A public servant, ‘S’ asks a person, ‘P’ to give him an amount of five thousand rupees to process his routine ration card application on time. ‘S’ is guilty of an offence under this section. Explanation 2.—For the purpose of this section,— 10 (i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.” (Emphasis supplied) The allegation against the petitioner is under Section 7(a) of the Act, which directs that a public servant obtaining or accepting or attempting to obtain from any person an undue advantage with an intention to perform or cause performance of public duty improperly or dishonestly or to forbear the performance of such duty either by himself or by any public servant would be punishable with imprisonment for a term of not less than 3 years but which may extend upto 7 years and shall also be liable to fine. Alleging the aforesaid offence, a trap is sought to be laid against the petitioner on 02-03-2022. A pre-trap panchanama was prepared and Rs.4,000/- which became the subject matter of pre-trap panchanama was given to the hands of the complainant. The ACB11then laid the trap in the office of the petitioner. The petitioner was not in the office on that day. The trap was thus rendered unsuccessful and was postponed sine die. All this is clearly gathered from pre-trap panchanama. After about two months of registration of the document, another entrustment panchanama was drawn on 20.04.2022 and the trap was sought to be laid again in the office of the petitioner and Rs.4,000/- is alleged to be found on the table of the petitioner. The petitioner was not caught red- handed while accepting bribe for the ACB to contend that there was any demand or acceptance. The panchanama drawn on 20-04- 2022, would clearly indicate that the petitioner was not caught red- handed accepting the amount of Rs.4,000/-. Rs.4,000/- was found on the table of the petitioner, which was kept by the complainant. Therefore, the trap on the first instance failed, and the trap on the second instance was a failure. Based upon the aforesaid trap, the 1st respondent sought to conduct investigation into the matter holding that the petitioner was guilty of demand and acceptance of illegal gratification. It is then the petitioner knocks the doors of this Court. 12
10. The dates in the offence would clearly indicate that there was no work pending in the office of the petitioner for him to either demand money or accept money as illegal gratification. On 19-02-2022, the mortgage deed was sent for registration by the Chief Executive Officer of the Society where the petitioner had availed loan and the remaining documents were placed before the petitioner on 24-02-2022. The petitioner registers it on the same day and released the document on the same day. Therefore, there can be no question of any work pending with the petitioner beyond the office hours of 24-02-2022. The complainant does not allege that the petitioner took bribe to release the document on 24-02-2022, as the document was released immediately. After fifteen days of the registration of the mortgage deed, the complainant seeks to register the complaint on 02-03-2022, that the petitioner had demanded bribe fifteen days ago. Based on the same, a trap was laid but the trap fails as the petitioner was not even available. After about 2 months of registration of the document, a second stint of trap is sought to be laid and Rs.4,000/- is found on the table of the petitioner. The petitioner was not caught accepting any illegal gratification. The imaginary demand 13 and acceptance is sought to be laid against the petitioner and investigation is sought to be conducted.
11. It is now germane to notice the judgments rendered by the Apex Court wherein the Apex Court clearly holds that if there is demand, there should be acceptance. Neither demand alone nor acceptance alone would not become an offence under Section 7 of the Act. The Apex Court in the case of B.JAYARAJ v. STATE OF A.P.1, has held as follows: “7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC1: (2013) 2 SCC (Cri) 89]. and C.M. Girish Babu v. CBI [(2009) 3 SCC779: (2009) 2 SCC (Cri) 1].” (Emphasis supplied) The Apex Court therein was following the judgments rendered a little earlier in time in the case of C.M. SHARMA v. STATE OF A.P. 1 (2014) 13 SCC5514 reported in (2010) 15 SCC1and C.M. GIRISH BABU v. CBI reported in (2009) 3 SCC779 wherein the Apex Court in those cases had clearly held that mere recovery of currency notes from the accused is not sufficient to constitute an offence under Section 7 of the Act. All these judgments are again followed by the Apex Court in the case of N.VIJAYAKUMAR v. STATE OF T.N.2, wherein it is held as follows: “26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC779 (2009) 2 SCC (Cri) 1]. and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC55 (2014) 5 SCC (Cri) 543]. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. 2 (2021) 3 SCC68715 27. The relevant paras 7, 8 and 9 of the judgment in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC55: (2014) 5 SCC (Cri) 543]. read as under: (SCC pp. 58-59) “7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration, reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC1: (2013) 2 SCC (Cri) 89]. and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC779: (2009) 2 SCC (Cri) 1]. .
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW9 and there is no other evidence to prove that the accused had made any demand, the evidence of PW1and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the 16 recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.” The abovesaid view taken by this Court fully supports the case of the appellant. In view of the contradictions noticed by us above in the depositions of key witnesses examined on behalf of the prosecution, we are of the view that the demand for and acceptance of bribe amount and cellphone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment [State of T.N. v. N. Vijayakumar, 2020 SCC OnLine Mad 7098]. of the High Court is fit to be set aside. Before recording conviction 17 under the provisions of the Prevention of Corruption Act, the courts have to take utmost care in scanning the evidence. Once conviction is recorded under the provisions of the Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered. At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.” (Emphasis supplied) Later, the Apex Court in the case of K.SHANTHAMMA v. STATE OF TELANGANA3, has held as follows: “10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.
11. In P. Satyanarayana Murthy v. State of A.P. [P. Satyanarayana Murthy v. State of A.P.,(2015) 10 SCC152 (2016) 1 SCC (Cri) 11]., this Court has summarised the well-settled law on the subject in para 23 which reads thus : (SCC p.
159) “23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the 3 (2022) 4 SCC57418 proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” (emphasis supplied) 12. The prosecution's case is that the appellant had kept pending the return of commercial tax filed by the said Society for the year 1996-97. The appellant had issued a notice dated 14-2-2000 to the said Society calling upon the said Society to produce the record. Accordingly, the necessary books were produced by the said Society. The case made out by PW1is that when he repeatedly visited the office of the appellant in February 2020, the demand of Rs 3000 by way of illegal gratification was made by the appellant for passing the assessment order. However, PW1 in his cross-examination, accepted that the notice dated 26-2-2000 issued by the appellant was received by the said Society on 15-3-2000 in which it was mentioned that after verification of the books of accounts of the said Society, exemption from payment of commercial tax as claimed by the said Society was allowed. PW1accepted that it was stated in the said notice that there was no necessity for the said Society to pay any commercial tax for Assessment Year 1996-97.
13. According to the case of PW1 on 23-3- 2000, he visited the appellant's office to request her to issue final assessment order. According to his case, at that time, initially, the appellant reiterated her demand of Rs 3000. But she scaled it down to Rs 2000. Admittedly, on 15-3-2000, the said Society was served with a notice informing the said Society that an exemption has been granted from payment of 19 commercial tax to the said Society. Therefore, the said Society was not liable to pay any tax for the year 1996-97. The issue of the final assessment order was only a procedural formality. Therefore, the prosecution's case about the demand of bribe made on 23-3-2000 by the appellant appears to be highly doubtful.
14. PW1described how the trap was laid. In the pre- trap mediator report, it has been recorded that LW8 Shri R. Hari Kishan, was to accompany PW1— complainant at the time of offering the bribe. PW7Shri P.V.S.S.P. Raju deposed that PW8Shri U.V.S. Raju, the Deputy Superintendent of Police, ACB, had instructed LW8to accompany PW1— complainant inside the chamber of the appellant. PW8has accepted this fact by stating in the examination-in-chief that LW8was asked to accompany PW1and observe what transpires between the appellant and PW1 PW8 in his evidence, accepted that only PW1entered the chamber of the appellant and LW8waited outside the chamber. Even PW7admitted in the cross- examination that when PW1entered the appellant's chamber, LW8remained outside in the corridor. Thus, LW8was supposed to be an independent witness accompanying PW1 In breach of the directions issued to him by PW8 he did not accompany PW1inside the chamber of the appellant, and he waited outside the chamber in the corridor. The prosecution offered no explanation why LW8did not accompany PW1inside the chamber of the appellant at the time of the trap.
15. Therefore, PW1is the only witness to the alleged demand and acceptance. According to PW1 firstly, the demand was made of Rs 3000 by the appellant on 24-2- 2000. Thereafter, continuously for three days, she reiterated the demand when he visited the appellant's office. Lastly, the appellant made the demand on 29-2-2000 and 23-3-2000. On this aspect, he was cross-examined in detail by the learned Senior Counsel appearing for the appellant. His version about the demand and acceptance is relevant which reads thus:
20. “In the vicinity of office of AO the jeep, in which we went there was stopped and I was asked to go into the office of AO and the trap party took vantage positions. Accordingly, I went inside the office of AO. I wished AO. At that time apart from AO some other person was found in the office room of AO and he was talking to the AO. AO offered me a chair. After discussion with the AO the said other person left the room of AO. I informed AO that I brought the bribe amount as demanded by her and also asked her to issue the final assessment orders. Then I took the said tainted currency notes from my shirt pocket and I was about to give the same to the AO and on which instead of taking the same amount directly by her with her hands she took out a diary from her table drawer, opened the diary and asked me to keep the said amount in the diary. Accordingly, I kept the amount in the said diary. She closed the said diary and again kept the same in her table drawer and locked the drawer and kept the keys in her hand bag which was hanging to her seat. She pressed the calling bell and a lady attender came into the room of AO, then she instructed the lady attender to call ACTO concerned to her along with the society records concerned. Accordingly, ACTO came to AO along with record. After going through the ledger and cash book, etc. AO signed on the last page of the said ledger and cash book mentioning 26-2-2000 below her signature in the said register though she signed on 27-3-2000 in my presence. AO directed her attender to affix official rubber stamp below her signature in the ledger and cash book and accordingly attender affixed the same. AO also signed on the office note of final assessment orders at that time. Thereafter, I collected the general ledger and cash book from the attender after affixing the said rubber stamp thereon and came out of the office of AO and relayed the pre- arranged signal to the trap party.” 21 (emphasis supplied) 16. Thus, PW1did not state that the appellant reiterated her demand at the time of trap. His version is that on his own, he told her that he had brought the amount. What is material is the cross-examination on this aspect. In the cross-examination, PW1accepted that his version regarding the demand made by the appellant on various dates was an improvement. The relevant part of the cross-examination of the appellant reads thus: “I did not state to ACB Inspector in Section 161 CrPC statement that on the evening of 24-2-2000 I met the AO and that she demanded the bribe. I did not mention in Ext. P-3 complaint that continuously for 3 days after 24-2-2000 I met the AO and the AO reiterated her demand. I did not mention in Ext. P-3 complaint that on 29-2-2000 I approached the AO and the AO demanded bribe of Rs 3000 and that unless I pay the said bribe amount she will not issue final assessment orders. I did not state in my Section 164 statement before the Magistrate that 13-3-2000 to 16-3-2000 I was on leave and from 1-3-2000 to 12-3-2000, I was engaged in recovering the dues of the society. It is not true to suggest that I did not meet the AO continuously 3 days i.e. on 25-2-2000, 26-2-2000 and 27-2-2000 and that 27-2-2000 is Sunday. It is not true to suggest that I did not meet the AO in the evening of 24-2-2000 and that AO did not demand any money from me. I did not state in my Section 161 CrPC statement to Inspector of ACB that before I left the office of DSP on the date of trap I made a phone call enquiring about the availability of AO and the AO was in the office and informed me that she should be available in the office from 6.00 to 7.00 p.m. on that day so also in my Section 164 CrPC. I made such a phone call from the office of the DSP, ACB. I do not remember as to from which phone number I made phone call on that day. I cannot describe office telephone number of the AO. It is not true to suggest that I did not make any such phone 22 call to AO and that she did not give any such reply to me. I did not state to ACB Inspector in my Section 161 CrPC statement or to the Magistrate in my Section 164 CrPC statement that I went inside the office of AO and I wished AO and at that time apart from AO some other person was found in the office room of AO and that he was talking to the AO and that the AO offered me a chair and that after discussion with the AO the said person left the room of AO and then I informed the AO that I brought the bribe amount. I did not state that said aspects to DSP during the post trap proceedings also.” (emphasis supplied) 17. Thus, the version of PW1in his examination-in- chief about the demand made by the appellant from time to time is an improvement. As stated earlier, LW8did not enter the appellant's chamber at the time of trap. There is no other evidence of the alleged demand. Thus, the evidence of PW1about the demand for bribe by the appellant is not at all reliable. Hence, we conclude that the demand made by the appellant has not been conclusively proved.
18. PW2 Shri B.D.V. Ramakrishna had no personal knowledge about the demand. However, he accepted that on 15-3-2000, the said Society received a communication informing that the said Society need not pay any tax for the year 1996-97. PW3Shri L. Madhusudhan was working as Godown Incharge with the said Society. He stated that on 15-3-2000, when he visited the appellant's office, ACTO served the original notice dated 26-2-2000 in which it was mentioned that the Society was not liable to pay any tax. It is his version that when he met the appellant on the same day, she enquired whether he had brought the demanded amount of Rs 3000. However, PW3did not state that the appellant demanded the said amount for granting any favour to the said society. 23
19. PW4Ahmed Moinuddin was ACTO at the relevant time. He deposed that on 27-3-2000, the appellant instructed him to prepare the final assessment order, which was kept ready in the morning. He stated that he was called at 6 p.m. to the chamber of the appellant along with books of the said Society. At that time, PW1was sitting there. He stated that the appellant subscribed her signature on a Register of the said Society and put the date as 26-2-2000 below it. He was not a witness to the alleged demand. However, in the cross-examination, he admitted that the appellant had served a memo dated 21-3-2000 to him alleging that he was careless in performing his duties.” (emphasis supplied) Considering the entire spectrum of law concerning an offence under Section 7 of the Act, the Apex Court holds that demand and acceptance are sine qua non for establishing the offence under Section 7 of the Act.
12. On a coalesce of the judgments rendered by the Apex Court, as quoted hereinabove, what would unmistakably emerge is that, demand and acceptance by the public servant of illegal gratification is sine qua non for establishing the offence under Section 7 of the Act. The Apex Court has further held that mere demand without acceptance or mere acceptance without demand would not be enough circumstance to prove the allegation against those accused under Section 7 of the Act. Though they were cases 24 which go to the Apex Court at the appellate stage, the law that is laid down would clearly become applicable to cases where the complaint would not even divulge any semblance of demand or acceptance.
13. If the facts obtaining in the case at hand are considered on the bedrock of the principles laid down by the Apex Court, what would unmistakably emerge is that, there is neither demand nor acceptance in the case at hand. The demand should be for any work to be performed and acceptance should be towards the said work. The documents produced along with the petition are so unimpeachable that they would clearly demonstrate that the work that came before the petitioner on 24-02-2022 was performed and the document was released on the same day itself. If the complainant had complained that the petitioner had demanded money for release of document that would have been a circumstance altogether different. The complaint is made after * 07 days of release of the document when no work was pending with the petitioner, the final trap is laid after two months of registration of the document and the petitioner is not even caught accepting * Corrected vide chamber order dated 21.11.2022. 25 any illegal gratification for him to have demanded so, two months ago. Section 7 of the Act would clearly hint at a pre-paid demand for performing a work and acceptance. There is no post-paid concept under Section 7 of the Act, that too, on a trap that is laid after two months after the alleged demand. The first trap fails and the second trap is a failure.
14. The contention of the learned counsel representing the 1st respondent-ACB/Lokayukta is neither here nor there as he is unable to wriggle out of the fact that the work had already been done and the alleged demand was projected after *07 days of the work and trap was laid after two months of the work completion. Reliance being placed on certain audio conversation between the petitioner and the complainant cannot even be pressed in his defence in view of unequivocal facts narrated hereinabove. Therefore, if further proceedings are permitted to continue against the petitioner, it would become an abuse of the process of law, result in miscarriage of justice, degenerate into harassment of public servant and would run foul of the judgment rendered by the Apex Court in the case of * Corrected vide chamber order dated 21.11.2022. 26 STATE OF HARYANA v. BHAJAN LAL4, wherein the Apex Court holds as follows:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer 4 1992 Supp (1) SCC33527 without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (Emphasis supplied) The Apex Court has laid down postulates of circumstances in which an FIR can be quashed. Two postulates are applicable to the case at hand. One being the first postulate, that even if the complaint is taken on its face value, prima facie would not make out a case against the petitioner. The other being inherent improbability shrouded with the complaint. Therefore, following the judgment of the Apex Court in the case of BHAJAN LAL (supra) and the unequivocal fact that there is neither demand nor acceptance as laid down by the Apex Court in the aforesaid judgment, I deem it 28 appropriate to obliterate the crime registered against the petitioner in Crime No.3 of 2022 for offences punishable under Section 7(a) of the Act.
15. For the foregoing reasons, I pass the following:
ORDER(i) The Writ Petition is allowed. (ii) First Information Report registered by the 1st respondent in Crime No.3 of 2022 dated 02-03-2022, before the Chitradurga Police Station and all further proceedings thereto stands quashed. Sd/- JUDGE nvj CT:MJ