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2024. KHC:24606 CRL.A No.648 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE28H DAY OF JUNE, 2024 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL No.648 OF2011(C) BETWEEN: RANGARAMAIAH S/O LATE MADAIAH AGED ABOUT36YEARS SECOND DIVISION SURVEYOR SURVEY DEPARTMENT, K.R NAGAR DISTRICT-MYSORE …APPELLANT (BY SRI. M. KRISHNAPPA, ADVOCATE (PH)) AND: THE STATE OF KARNATAKA BY LOKAYUKTA POLICE MYSORE …RESPONDENT (BY SRI. VENKATESH S. ARABATTI, SPL.PP) THIS CRL.A. IS FILED UNDER SECTION3742) OF CR.P.C PRAYING TO SET ASIDE THE
ORDERDT:14.6.11 PASSED BY THE III ADDL.SESSIONS AND SPL.JUDGE, MYSORE IN SPL.C.NO.54/09 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S7AND SEC.13(1)(d) R/W SEC.13(2) OF PREVENTION OF CORRUPTION ACT, 1988. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON2006.2024, POSTED FOR PRONOUNCEMENT OF
JUDGMENTTHIS DAY, THE COURT PRONOUNCED THE FOLLOWING: - 2 - NC:
2024. KHC:24606 CRL.A No.648 of 2011
JUDGMENTAppellant-accused has assailed the judgment of his conviction and order of sentence dated 14th June 2011 passed in Spl.Case No.54/2009 by the III Addl. Sessions and Spl.Judge, Mysuru.
2. Parties to this appeal are referred to as per their rank before the trial Court for convenience.
3. Brief facts leading upto this appeal are as under: That, accused was charge-sheeted by the Circle Inspector of Police, Lokayukta, Mysuru alleging commission of offences punishable under Section 7 and 13(1)(d) read with Sec.13(2) of Prevention of Corruption Act, 1988 (for short `the Act') on the ground that accused at the relevant time was working as a II Division Surveyor in Survey Department at K.R.Nagara, Mysore District. To the said survey department, complainant Raghuram and his brother arrayed in the charge sheet as CW.7 by name - 3 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 Thyagaraju submitted an application to survey their land situated at Senabinakuppa Village, Saligrama Hobli, K.R.Nagara Taluka and requested to fix the boundaries and also make phodies of the land. It is stated that, it was accused who received the said application. When complainant CW.1 by approaching the accused requested him to conduct the survey and phodi work, but, accused went on postponing the same. Often, complainant visited the office of the accused. Even complainant has deposited the survey charges as required. It is alleged by the complainant, that it was accused who demanded to pay Rs.1,500/- for conducting survey and phodi work as requested in the application. As complainant was not inclined to pay the bribe amount, therefore, on 15.5.2007, he approached Lokayukta Police of Mysore and submitted written complaint about demanding of bribe by the accused.-. 4 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 4. It was CW.18 who received the complaint and registered the crime against the accused and submitted the FIR to the concerned Court. He secured two panchas by name B.N.Thammanne Gowda and P.Somanayaka. In their presence, he prepared entrustment Mahazar and also collected bait money and sprinkled the currency notes with phenolphthalene powder. He handed over the said amount tainted with the said powder to the complainant with instructions to hand over the same to the accused, if accused demands.
5. It is alleged that, on the same day itself, the IO with complainant, witnesses with other police went near survey office at K.R.Nagara. The IO sent the complainant and P.Somanayaka (a witness) to the office of the accused to observe the happenings. Somanayaka was the shadow witness. It is alleged that, when complainant went to the accused and made enquiry about survey work, accused demanded for money. Accordingly, complainant handed the bait tainted money to the accused. Accused received - 5 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 the same and kept in his pocket. It is alleged that, complainant came out of the survey office and as agreed made signal about handing over the money to the accused. It is alleged that immediately IO along with B.N.Thammannegowda with other Police Officials rushed inside the office of accused. Complainant showed the accused to the IO stating that it was accused who received the money. Immediately, IO and his staff apprehended the accused. Prepared Sodium Carbonate solution and made the accused to dip his hands in the said solution which turned into pink colour. The said solution was seized.
6. It was further stated in the complaint that, when the accused was questioned about possessing of money received from the complainant, he took out the said money from his pocket and gave it to the IO. The serial numbers of the currency notes and the serial nos. noted by the Lokayukta Police Station were tallied and they resembled with each other. It is stated that accused gave written explanation about receiving of money. The - 6 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 file pertaining to the complainant was also seized. On the spot itself, the IO has prepared the seizure mahazar in the presence of Panchas. After completion of the investigation, a charge-sheet came to be filed against the accused for the aforesaid offences.
7. Before the learned Spl.Court, to prove the case of the prosecution, in all examined 7 witnesses from PWs.1 to 7 and got marked 15 documents with 9 Material Objects marked as Ex.P1 to P15 and MO Nos. 1 to 9 respectively.
8. During the course of Section 313 Cr.PC statement, accused denied his complicity in the crime and in support of his defence, produced 8 documents.
9. The learned trial Court, on hearing the arguments, and on perusal of the materials placed on record, "found the accused guilty of offences under Section 7 and Section 13(1)(d) of the Act read with Section 13(2) of the Act and sentenced him to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.10,000/- with default sentence". This is how now the - 7 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 appellant is before this Court challenging the aforesaid judgment of his conviction and order of sentence.
10. The learned Senior Counsel for the appellant-Sri C.H.Jadhav, in addition to narrating the facts of the case, and by going through the evidence, with all force submits that, though the prosecution has examined seven witnesses but, the very ingredients of the offence so alleged against the accused are not proved. There was no voluntary demand by the accused. It was Police who caught hold the hands of the accused and made him to give money. According to his submission, it is a cooked up case. When survey was proposed to be conducted, the file pertaining to the same was with Mahadeva P.W.5 and not with the accused. It is his submission that, from the evidence spoken to by the shadow witness he was standing outside the office of accused. There is a delay of four days in filing the complaint. The alleged demand is not proved in accordance with law. For this four days delay, there is no proper explanation offered by the - 8 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 complainant. The file was received by one Ramegowda. Procedure followed is spoken to by PW.3 and 4. It was not the duty of the accused to survey the land. It was his duty to receive the application, process it and submit the same for further action to his Superior Officers. There were eight surveyors in the office and out of them, 50% of the Surveyors were deputed to other offices. Whenever survey is to be conducted, based upon the seniority of the applications for survey, his superior officer used to take steps for surveying the lands within the jurisdiction of K.R.Nagara Survey Office.
11. Learned Sr.Counsel submits that, in view of all these factual features, the report of the FSL pales into significance as the accused was just a supervisor. The complainant was in great hurry to get survey his landed properly. By reading the statements of witnesses and the evidence, the learned Sr.Counsel submits that, there is lot of improvement, embellishment in the evidence which falsifies the case of the prosecution. Relaying upon other - 9 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 factual features and citing various judgments, it is submitted to allow the appeal and set aside the impugned judgment.
12. As against this submission, learned panel counsel Sri Venkatesh Arabatti, supported the reasons assigned by the trial Court in finding the accused guilty. According to him, ingredients of demand and acceptance of the bribe is duly proved by the evidence of the complainant and other witnesses. He submits how the system in Survey Department works is to be ascertained. Ex.P7 so relied upon is self-explanatory. Accused himself says that, he has received the money. The alleged contradictions, discrepancies would not go to the root of the case. The amount so possessed by the complainant was travelled from complainant to the accused. To that effect, the witnesses have given specific answers in their respective cross-examination. Thus, it is prayed to dismiss the appeal.-. 10 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 13. I have given my careful and anxious consideration to the rival submissions of both the side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgment of conviction and order of sentence.
14. In view of the rival submissions, the following point arises for consideration:
"Whether the impugned judgment of conviction and order of sentence passed by the trial Court suffers from legal and factual infirmity and hence, it requires interference by this Court ?.
15. At the outset, the legal position which emerges regarding appreciation of evidence in a trap case, can be summarized as under: i) To succeed in such a case, the prosecution is obliged to prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money. ii) The demand can be proved by testimony of the complainant as well as from the complaint made by him and other witnesses - 11 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 if proved, in accordance with law and if it is corroborated in material particulars. iii) The presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused which presumption of course, is rebuttable under Section 20 of the Act. iv) If the accused give some defence, that can be scrutinized by the test of preponderance of probability, while the prosecution must prove its case beyond all reasonable doubt.
16. The genesis of a trap lies in the previous demand of bribe made by the accused from the complainant which becomes the basis of laying a trap by the Investigating Agency. Then, it is for the prosecution to again prove the demand at the time when the trap was laid and thereafter, the question of acceptance and recovery of bribe money also is required to be proved beyond all reasonable doubt.-. 12 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 17. Thus, to prove the said offence, demand and acceptance/obtain or acceptance undue advantage as reward or motive, proof of demand is sine-qua-non for an offence to be established under Section 7 and 13(d) of the Act. Phenolphethelene - Sodium Carbonate test is to be proved and even if it is proved, now because of advance technology that, there is electronic transfer of money. Thus, the prosecution is under obligation to prove the aforesaid ingredients.
18. Now let me examine the evidence placed on record by the prosecution to prove its case in the manner alleged.
19. In this case, the appellant at the relevant time was working as a 2nd Division Surveyor in Survey Department at K.R.Nagara Taluk is not in dispute. According to the case of the prosecution, based on the application filed by the complainant and his brother, a request was made to conduct survey of landed property of - 13 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 complainant and his brother situated at Senabinakuppe village, Saligrama Hobli, K.R.Nagara Taluk to fix the boundaries and make phodies. It is stated that accused having received the application initially went on postponing the survey and when there was persistent demand by the complainant to survey the land, accused demanded to pay Rs.1,500/- to conduct the survey. As the complainant was not inclined to pay the said money, he went to the office Lokayukta Police, Mysore on 15.5.2007 and lodged complaint against the accused. It was IO who secured panchas by registering the crime and conducted the raid on the accused when accused received Rs.1,500/- from the complainant. Thus, the case of the prosecution mainly rests on the evidence of the defacto complainant PW. 1, and the evidence of official witnesses who have said to have been witnessed the trap proceedings.
20. Ex.P1 is the complaint filed by the complainant- Raghuram, S/o.Chandra Murthy stating that, himself and his brother Thyagaraju are owning landed property - 14 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 measuring 34 guntas in Sy.No.3/2 at Senabinakoppa village, Saligrama Hobli, K.R.Nagara taluk. For the purpose of phodi and conducting survey, it was complainant who submitted an application to the Survey Authorities by paying the survey charges of Rs.75/- and had obtained receipt to that effect. After one month of submitting the application, he contacted the accused and requested him to survey his land, but, accused went on postponing the same. On 11.5.2007, he again contacted the accused and stated that he has submitted an application about 6 months back to survey his land but, no survey is done. At that time, accused told to give him Rs.1,500/- for the purpose of survey otherwise, it is not possible. It is stated that as complainant was not ready to pay the bribe of Rs.1,500/-, therefore, he decided to file a complaint before the Lokayukta Police and accordingly he filed a complaint on 15.5.2007 i.e. after four days from 11.5.2007.
21. On the day of filing the complaint to the Lokayukta Police as per the procedure, the IO prepared - 15 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 the entrustment Mahazar in the presence of two panchas by name B.N.Thammannegowda and Somanaika as per Ex.P2. The fact of filing a complaint, preparation of the Panchanama as per Ex.P2 is not disputed by the defence.
22. It is the case of the prosecution that, based upon the said complaint and panchanama Ex.P2, on 15.5.2007 itself, as crime was already registered, they conducted the raid in the forenoon session in the presence of panchas and complainant. As instructed to the complainant, complainant and pancha being the shadow witness were sent to the chambers of accused at 1.10 p.m. and this IO deputed his staff to important places. The IO was waiting outside awaiting for signal from the complainant. Accordingly, at 1.20 p.m. complainant made signal by coming outside. Immediately, IO along with panchas went to the place of accused with staff. IO enquired the complainant. At that time, the complainant showed the accused who was sitting on his chair and told, forcibly accused has taken money from him. On enquiry, - 16 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 accused told his name and address as well designation. On confirmation, accused was apprehended and arrested by getting information from the superior officer by name A. Ramegowda. It was confirmed that, accused had received on demand Rs.1,500/- from the complainant. Accordingly, accused took out Rs.1,500/- from his pant pocket and gave it to the IO. As per the procedure, the said amount was seized and the hands of the accused were dipped into a solution which turned into pink colour as Phenolphethelene powder was tainted to the currency notes were seized so also sodium carbonate solution was seized, panchanama was prepared as per Ex.P3 in the presence of panchas.
23. On the said day itself, IO recorded the further statement of the complainant as per Ex.P4. But, PW.1 complainant states that he has not stated as per Ex.P4 before the IO. Ex.P5 is the notice of survey dated 30.7.2007 issued by the survey authorities. Ex.P6 is the particulars with denomination of the currency notes. Ex.P7 - 17 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 is the statement of the accused submitted to the IO on 15.5.2007 itself stating, that on 15.5.2007, complainant without the knowledge of the accused and without informing him, came to his office and put Rs.1,500/- on his table. The accused was dealing with compilation of receiving the applications from the public and also issuing receipts regarding survey therefore, on the impression that, money was kept with regard to survey, he has put the said amount in his pocket. He has further stated that, with regard to the said amount or the person, he has no knowledge and he has not committed any offence. He never demanded any money by way of bribe, gratification from the complainant. The said complainant previously had come to his office, requested to furnish the survey records. Accordingly, immediately, he has complied with his request. This Ex.P7 document as per the case of the prosecution proves about the receipt of the amount by the accused. It was a voluntary statement of the accused about the same.-. 18 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 24. Ex.P8 is the application filed by the complainant to survey his land dated 6.9.2006 containing RTC and mutation. The fact of submitting an application is not in dispute. Ex.P9 is an FIR submitted to the Court. Ex.P10 is the receipt for having deposited Rs.75/- towards. Ex.P11 is the RTC extract. Ex.P13 is the letter dated 26.5.2007 addressed to the FSL for conducting scientific examination of the articles seized under Ex.P2 and P3. Ex.P14 is the sketch to show the place where there was a trap conducted by the IO. Ex.P15 is the sanction order to prosecute the accused issued by the sanctioning authority i.e. Commissioner, Land Records.
25. These are all the documents relied upon by the prosecution to prove the guilt of the accused, whereas, the accused has also relied upon Ex.D1 to D8. These documents were maintained in the office based upon the application filed by the complainant to survey his land. This includes the register containing the particulars of similar applications seeking survey.-. 19 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 26. So far as oral evidence spoken to by PW. 1 Raghuram is concerned, he corroborates the contents of the complaint in his evidence on oath with so much of improvements and exaggerations. According to him, he submitted an application on 6.9.2006 for conducting survey and met the accused on 11.5.2007 requesting him to conduct the survey. At that time, according to the complainant, PW.1 accused demanded to pay Rs.1,500/- as bribe. As the complainant was not interested to pay the same, he filed a written complaint to Lokayuka as per Ex.P1 on 15.5.2007. That means, as per the submission of the appellant, there is delay of 4 days in filing the complaint. It is submitted that, either in the complaint or in the evidence, this delay of 4 days is not explained by PW.1.
27. In the examination-in-chief, it is elicited that on filing the complaint, they started from Mysore to K.R.Nagara at 11.45 a.m. and reached the Land Records office at 1.00 p.m. The jeep was parked at a distance.-. 20 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 Complainant and Somanaika were asked to get down from the jeep. They were asked to enquire the accused about payment of money and if accused demands money by giving sign to the Police, the IO will be called. Accordingly, both went to the accused. He was sitting in his separate chamber. Both requested the accused to conduct the survey and at that time, accused demanded money. For that, PW.1 told that he has brought the money. Accordingly, he gave the tainted currency notes to the accused and he received the same from his right hand and kept the same in his hind pant pocket. Complainant went outside and gave signal to the Police. The Police rushed to the spot, questioned the accused, took the money from him and followed the procedure of dipping his hand in the Sodium Carbonate water which turned into pink colour. Accused was apprehended. Panchanama was conducted.
28. It has come in the evidence of PW.1 that, when IO enquired about the survey documents, it was told by him that the said survey documents are with Mahadeva.-. 21 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 The IO called the said Mahadeva and the documents, seized them. When IO enquired the accused about the money, it was told by him that, the said amount was thrown on his table. At that time, complainant told that, he himself has given the said amount to the accused. This evidence spoken to by PW.1 is altogether a different evidence with regard to the giving of money to the accused. This evidence is quite contrary to the contents of the complaint. It has come in the evidence of PW. 1 that, when the complainant left the office of Lokayukta and he was given a tape recorder and it was kept in his pocket. When the said tape recorder was put on, it was recorded with conversation of complainant and accused. He identifies the panchanama as per Ex.P3. Pocket containing money as MO No.1.
29. This PW.1 was thoroughly cross-examined by the defence. It is stated by him that, except the aforesaid land, the complainant was not owning any other land at Sanabinakuppe village. It is elicited that this accused was - 22 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 working in a Phodi Department of Survey office. This PW. 1 is ignorant about the work entrusted to the accused. It has come in the evidence of PW.1 that, there shall be an order to conduct the survey of the land and after passing the orders to conduct the survey it was to be given to the surveyor. The complainant was under the impression that it was accused who had to pass the order to conduct the survey. But, it was given to Mahadevu and Mahadevu has to physically conduct the survey. It is further elicited that surveyors attached to the office of accused had to conduct the survey but, PW.1 was not having knowledge as to who has to conduct the survey. According to him, the officers of the Lokayukta took the documents regarding survey from office of Ramegowda and those documents were not shown to the complainant. According to him, before submitting his complaint he had not received any notice of survey but, he has received the notice as per Ex.D1. According to him, he has understood that the accused had to conduct the survey but, it was not according to the procedure. He has not spoken to Thammannegowda and - 23 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 Somanaiaka in the office of Lokayukta after reading the complaint filed by him. It is further stated that, previously similar complaint was filed before the Revenue Officer and at that time, the Police Officer told him to take the acknowledgement for having lodged the complaint. As the work was done, therefore, he did not visit the Lokayukta office. When he filed a complaint before the Lokayukta, he was made known that how such complaints are filed.
30. It is further elicited in the cross-examination that, when PW.1 entered the chambers of accused, by that time, Ramegowda was in his chambers. When he enquired the accused about the documents pertaining to survey of his land, he has told that, the said documents are given to some other person but, he did not enquire to whom he has given. It is further stated by him that, when he was in the chambers of accused, at that time, the shadow witness Somanaika was standing near the door. He did not speak to Somanaik or Somanaika did not speak to him. After he gave signal, police came inside and were enquiring - 24 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 Somanaiaka about the happening of events. But, he does not know that what Somanaiaka told to the police. For the first time, he says before the Court that when such incident took place, he suffered giddiness as he had not taken food therefore, he sat outside the chambers of accused. He sat there at 1.30 p.m. or 2.00 p.m. After completion of all formalities, he suffered giddiness.
31. According to him, when he gave signal to police, Thammanegowda was standing with the police staff. He does not know the powder brought by the police when the incident took place. Surveyor Mahadeva was present. He put on the tape recorder at 1.20 p.m. when he entered the chambers of the accused and put it off at 2.10 p.m. But, the said tape recorder is not produced before the Court. He has denied all the suggestions. It is further elicited that as complainant is not in possession of land therefore, it is not possible to survey.
32. On scrupulous reading of evidence of PW.1, we find exaggeration, embellishment in his evidence. As per - 25 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 the submission of learned Senior Counsel, there is no demand and acceptance of the money as alleged by the prosecution.
33. PW.2 Thammannegowda is the Pancha to the Ex.P2 and P3, so also he has identified MO No.1. He corroborates the evidence of PW.1 with regard to the procedure followed by the IO both pre-trap and post trap. It is stated by him that, when IO questioned the accused about the documents regarding survey of land belonging to the complainant, it was told that the said documents are with Mahadeva and Mahadeva gave the same to the IO. This PW.2 is also thoroughly cross-examined by the defence. It is stated by him that, when trap was conducted, no documents belonging to the complaint were with the accused. He has put the signature to the documents furnished by Mahadeva. The personal search of the complainant had not taken place at that time. The evidence of PW.2 can be believed to the extent that he - 26 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 was present along with IO and he was signatory to Ex.P2 and P3.
34. PW.3 Somanaika, FDA in the office of Asst.Director's office has come before the trial Court and deposed that, his Superior Officer has deputed him on 15.5.2007 to attend the office of the Lokayukta, Mysore. Accordingly, he went to the Lokayukta office at 10.45 a.m. on that day and met the Police Inspector. There he noticed the presence of Raghurama and Thammannegowda. The Police Officers introduced the said persons to him. Thereafter, the Police Officers gave the complaint filed by Raghurama and asked him to read. On reading the said complaint, he came to know that, the surveyor concerned has demanded money for the purpose conducting survey. Himself and PW.2 asked the said Raghuram complainant. At that time, complainant told that surveyor is demanding money i.e. bribe. It is further stated by him that, the Police Officers collected the amount from the complainant having denomination of Rs.500/- each. In all six notes - 27 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 were taken from the complainant. He put his signature on the paper at Ex.P6. Thereafter, the said amount by applaying the phenolphylene powder was kept in the shirt pocket of complainant. The procedure with regard to the dipping of the fingers of PW.2 was followed which was converted into pink colour. The said water was filled in a bottle and was kept. He further states that before the Police itself pre-trap panchanama was prepared as per Ex.P2.
35. Thereafter, the complainant was asked by the Police Officers to go to the accused and request him to conduct the survey. When complainant went to the office of the accused, there were other officials working in the said survey office. When the complainant asked him to get the survey done, the accused told that he will get it done but, not at present. At that time, complainant told that he is ready to give money if he wants. For this, the accused told that yes, he will get it done. Thereafter, complainant gave the amount to the accused. Accused took the said - 28 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 amount and kept in his pant pocket. Thereafter, complainant came out of the office and gave signal to the police officers. Then, Police Officers as well as Thammannegowda entered the office of the accused. They asked the complainant, who has taken the money. Complainant showed the accused. Thereafter, police officer went to the accused and introduced himself as Lokayukta Officer. He also conveyed that complainant has filed a complaint against him. The Police officers brought the glass of water and asked the accused to put his fingers. On dipping the fingers, the said water was turned into pink colour. The said coloured water was put in a bottle and it was seized. Thereafter, the IO has asked to compare the denomination and currency No.seized from the possession of the accused and they were tallied. The police prepared the panchanama as per Ex.P3.
36. On reading the aforesaid evidence of PW.3 in examination-in-chief, there is no evidence spoken to by the PW.3 that, there was demand made by the accused to - 29 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 the complainant to pay money. When complainant asked to survey his land at that time, accused told him that, he will get it done but not at present. At that time, complainant told if he wants money, he is ready to pay. The accused told yes, he will get it done. Thus, there was no demand as rightly submitted by the counsel for the accused by the accused in the manner stated in the charge sheet.
37. This PW.3 has been thoroughly cross-examined by the counsel for the accused. It is brought on record in the cross-examination that, accused took out the records from the Almirah. He has not given any records of other employees. The IO has not conducted investigation with regard to the availability of the records pertaining to the complainant's application. The police officers did not examine the superior officer of the accused at that time in the presence of witnesses. At that time, superior or immediate officer was very much present in the office. It was elicited in Page-6 of the cross-examination that, when - 30 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 the accused received money from the complainant, it was not counted. When complainant gave money to the accused, it was told that, it is Rs.1,500/-. At that time, accused told that why he is giving money. For this complainant told to get the survey done. Even there was no demand by the accused to pay the quantum of the amount as bribe. Even it is stated by the PW.3 that, he did not hear the conversation between the accused and the complaint about demand being made by the accused. This evidence spoken to by PW.3 in the cross-examination supports the defence of accused and falsifies the case of the prosecution that, there was actual demand made by the accused to pay the bribe for surveying the landed property of the complainant. It is further elicited that, after taking money from the complainant, accused told that he will get the work done. Even he has not told what was the stage of the said application submitted by the complainant. He has not seen the time of the said seizure of the amount from the possession of the accused. He has denied all other suggestions.-. 31 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 38. Thus, on reading the entire evidence spoken to by this PW.3, he never states that, there was a demand made by the accused to pay the bribe for the purpose of conducting survey of the landed property of the complainant.
39. PW.4 A.Ramegowda, is the Inspector of Survey Settlement and Land Records working in K.R.Nagar at the relevant time. It is his evidence that, at that time, accused was working as a Surveyor in the Phodi section. According to him, on 15.5.2007 when he was in the office, Lokayukta Police came to the Phodi section of his office and conducted a trap on the accused on the ground that, he has taken money from the complainant. The police prepared Panchanama and took his signature and prepared the statement also. He has put his signature to Ex.P3 on that day. According to him, the Police seized the documents from Mahadeva.
40. This PW.4 has been thoroughly cross-examined by the defence. It is elicited from the mouth of this - 32 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 witness that, he was working in the said office from 1.7.2005. Accused was working in Phodi section. According to him, phodi Surveyor and field Surveyor are different. Further, he states that, phodi surveyors work in the office and field Surveyor works in the field to survey the landed property. Accused was not entrusted to survey the landed property by visiting the field. It is elicited that, in the said K.R.Nagara Survey Office, there were eight surveyors. Out of them, two were deputed to Maddur Taluk of Mandya District, 6 surveyors were working in the Registry of the said office, so also another person was working in phodi section. The other four surveyors were deputed to field surveying.
41. According to him, as on 15.5.2007, 4560 similar applications were pending in the office for the purpose of phodi. Even the Government of Karnataka had issued the Circular and merged the survey department in a taluka office. Even the other similar application from the Revenue Office are transferred to the Survey Department. That - 33 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 means, survey work is based upon the seniority of the applications for conducting the survey. It is further elicited that, when the trap was conducted in the Lokayukta office, accused was not possessing the file with regard to the surveying land of the complainant. The docket of the document is sent for field survey. That means the accused was not in possession of any documents pertaining to the survey of the landed property of the complainant. It is further stated by him that, the monthly chart is prepared for the purpose of conducting survey by the field surveyors. The supervisor is not giving any direction to survey the land.
42. On reading the evidence of PW.4, it reveals that, this accused as on the date of trap was not in possession of the application submitted by the complainant to survey his land. The docket was already transmitted to the field survey Department or Section. That means nothing was remaining with the accused as on the date of conducting the raid as per the evidence of - 34 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 PW.4 who is the superior officer of the accused. This fact is not disputed by the prosecution. Even no argument is advanced by the prosecution that whatever the evidence spoken by this PW.4 is untrue.
43. PW.5 Mahadeva Chikkabommegowda is the Phodi Surveyor. According to his evidence, he came to know that, on 15.5.2007, the Lokayukta police conducted trap on the accused. The Police officers asked him to furnish the documents pertaining to Survey No.3/2 Bannikuppe village belonging to Raghuram and Thyagaraj. Accordingly, he furnished the entire docket to the Lokayukta police. Police have seized them. According to him, on 2.5.2007 itself, the entire docket has come to him. But, the raid was conducted on 15.5.2007, that means, the accused was no way concerned for the purpose of conducting survey of the landed property on 15.5.2007 as already file was sent to the Phodi Department for the purpose of conducting survey. Even he states that, he does not remember what was the date - 35 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 fixed for the purpose of conducting survey in the land of the complainant. He identifies Ex.P8 as the docket containing the records with regard to the survey of the property of the complainant. The application was filed on 6.9.2006. The police officers have enquired him. But this witness was partly turned as hostile witness by the prosecution but, nothing worth is elicited from his mouth.
44. This PW.5 was severely cross-examined by the defence counsel. He is consistent that along with Ex.P8 he has received in all 15 other similar dockets for the purpose of conducting survey. According to him, in a month, they have to conduct survey of 18 lands and they have to attend all the rectifications. He states that, in addition to attending 18 such dockets, they have to attend the rectification of five dockets. Further, according to him, accused was not at all conducting Field Survey by visiting the landed properties. His work was to receive the applications, collect the charges for survey and thereafter send the file to the Surveyor for the purpose of conducting - 36 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 survey. This evidence spoken to by PW.4 goes against the case of the prosecution. As if the accused was the responsible officer who has to conduct the survey, the trap was conducted by the Lokayukta Police. Even it is stated by this PW.4 that, it was the office superintendent who has to decide about who has to conduct field survey and not the accused. This PW.4 used to conducts the field survey. Further, it is stated that, in the office at that time, there were 4 to 5 thousand applications pending. Therefore, there was a delay to consider the complainants request to survey his land. As per the records, as shown in Ex.D6, the field survey work of the complainant was fixed on 19.5.2007. Ex.D7 is the statement of the complainant. He admits that, near the chambers of accused, there exists a big hall. Officials of survey department used to works in the said hall.
45. On reading the evidence of PW.4 in its entirety, it goes to establish though, the trap was conducted on 15.5.2007, but, much prior to that, on 2.5.2007 it was this - 37 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 PW.5 received the entire file regarding conducting survey of the land of the complainant. That means on 15.5.2007, there was no work pending with the accused with regard to the conducting of survey. As spoken to by the other witnesses, there was no demand by the accused to pay the money. Then what made the complainant to ask the accused to survey his land at an earliest point of time by receiving the money is not explained by the complainant in his evidence.
46. As per the evidence brought on record, it was the impression of complainant that, it was accused who was responsible for issuing orders and conducting survey of his landed property. But, as per the evidence brought on record, being the official witnesses of the Survey Department, this accused was entrusted to receive the applications for survey who was working in the phodi Section so also, he was entrusted to collect the fees for conducting survey and forward such applications to the concerned Section or Department. Thus, accused was no - 38 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 way concerned about field survey and fixing of date for the same.
47. PW.6 D.Jayaram, the Police Inspector has stated with regard to the receipt of the complaint from the complainant PW.1, as well as preparation of pre-trial panchanama and post trap panchanama, seizure of the amount from the accused etc., He has also compared the currency notes collected from the accused and identifies all the MOs so seized in this case. He has filed the charge-sheet against the accused after concluding the investigation.
48. In the cross-examination, he states that based upon the complaint, it came to his knowledge that the accused has to conduct the phodi, survey the land of the complainant. He further states that, he has not asked the concerned Tahsildar for passing of a resolution with regard to the conducting the survey of the land of the complainant. He states that, when he conducted the trap - 39 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 on the accused, he was not possessing any of the documents with him pertaining to the complainant's landed property. At that time, he noticed the presence of a register maintained by the accused regarding receipt of the applications. He was possessing the document for having transferred or transmitted the docket of the complaint to PW.5. He states that, when trap was conducted, no work was remaining with the accused.
49. It is argued by the counsel for accused that, if that is so, is it fair on the part of Investigation Officer to say that, accused has received the money as bribe from the complainant?.. It is an imagination of the complainant that accused has committed such an offence.
50. It is further stated by him that, it was Mahadeva PW.5 who brought the records from the staff room and gave it to the Police Officers. He has not done any proceedings in the staff room. Thus, the evidence of PW.6 goes against the case of the prosecution.-. 40 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 51. PW.7 Rajiv Chowla was the Sanctioning Authority at the relevant time and he has issued the sanction as per Ex.P.15. With regard to the issuing sanction to prosecute the accused, there is no serious dispute as such. But, however, this PW.7 states that, this Ex.P15 is silent with regard to the name of the Disciplinary Authority and Appointing Authority with regard to the Surveyors etc., Though lengthy cross-examination is directed but, he is consistent about his competency to issue sanction to prosecute. Therefore, it cannot be stated that, the sanction so issued by PW.7 is invalid.
52. The learned trial Court has discussed about the sanction in the course of the judgment and has come to the conclusion that, Ex.P15 the sanction is valid. No prejudice is caused to the accused because of issuing sanction. I do not find any factual or legal error in such a finding of trial Court with regard to contents of Ex.P15 and its validity.-. 41 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 53. Thus, on reading the evidence of all these witnesses, according to PW.1, he gave the tainted money to the accused in front of PW.2 Thammanne Gowda so also, states that PW.3 Somanaik was also present. But, Somanaik was standing near the door. It is stated by PW.1 and 2 that, accused has received the money from the complainant and, at that time, this complainant went outside and made signal by touching his face by both the hands. But, the evidence of the IO the trap laying officer runs contrary to evidence of the PW.1, inasmuch as, according to this IO, the pre-arranged signal as advised was given by PW.1. The IO rushed immediately and conducted the further trap proceedings.
54. Further, though as per the evidence of this PW.1 and 2, the alleged bribe amount was received by the accused, but, in the statement of the accused, he specifically states that, there was some money thrown on his table and, he being the official receiving the applications and survey charges, he thought that, the - 42 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 amount must have been kept for the purpose of survey therefore, he kept the said amount in his pocket. Though Ex.P3 mahazar shows about seizure of the said amount, so also, the chemical analysis report etc., but, the vary evidence by the witness like pancha witnesses and eye witnesses etc., is not helpful to the case of the prosecution. It was mentioned that, the place of bribe money was in the chambers of the accused i.e., between 1.10 p.m. to 2.30 p.m. Sketch is prepared by the IO i.e., trap laying officer. The place of occurrence is not properly mentioned in the said sketch. Therefore, this Court finds that, the place of alleged acceptance of money on alleged date is not proved by the prosecution. Further it is the evidence of the witness as discussed in this case about the trap, when trap laying officer caught hold of the hands of accused and asked him to dip his hands in the sodium corroborate water which was kept in a glass, accused was normal. He was not perturbed. That means, the conduct of the accused i.e., appellant at that time and after the - 43 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 trap is also to be taken into consideration i.e, he was keeping quite without being perturbed.
55. These material contradictions would show that, the trap was dubious in nature and that the trap was not conducted as alleged by the prosecution. This accused was not having any authority over the survey of the land of the complainant. Further, the said file was already entrusted to Mahadeva on 02.05.2007 itself. When accused was not having any authority and it was Mahadeva to whom the said work was entrusted and date was fixed as 19.05.2007. Then story set up by the complainant that, accused demanded the money and he paid the money cannot be accepted. Further, the witnesses so examined in this case never deposed that, the accused agreed to recommend to the officer concerned for conducting survey. No such evidence is brought on record from the mouth of any of the witnesses. Admittedly, the accused can only receive the applications for survey, collect the fees for the same and forward the - 44 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 said application to the concerned Field Survey Department. It was the Office Superintendent who has to allot or depute the concerned field surveyor to conduct the survey of the land. Therefore, the alleged demand of bribe by the accused for conducting the survey appears to be a cooked-up story by this PW.1 and the prosecution as well.
56. Further, the appellant accused at the time of questioning under Section 313 of Cr.P.C with regard to presence of witnesses, he denied the presence of the witnesses and stated that, no such trap has been conducted. The demand was four days prior to the alleged incident. But, this PW.1 did not tell the accused, that he would bring the bribe amount on 15.05.2007. As per the prosecution, the other witnesses are unknown persons to the accused. On the date of occurrence, when PW.2 and PW.3 entered into the office of the accused, the accused did not enquire about the said witnesses. Therefore, in the presence of the third persons, the accused has received the money is unacceptable.-. 45 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 57. Evidently, though there were other official witnesses at the time of trap proceedings, i.e, in the office of the accused, none of them had been summoned and examined as prosecution witnesses examined to corroborate the evidence of this PW.1 who is defacto complainant an interested witness. Therefore, the evidence of PW.1 does not corroborate with other evidence of other witnesses.
58. Apart from that, when no independent witnesses to support case the prosecution, the presence of the PWs.2 and 3 shadow and official witness is highly doubtful. There is no mention in the other records that, how these two witnesses are secured. No doubt, they are Government officials. But, their evidence is full of contradictions and omissions. This piece of contrary evidence creates doubt and suspicion with regard to the case of the prosecution regarding summoning the official witnesses. On the other hand, it probabalises the fact that this PWs.2 and 3 and other of official witnesses were - 46 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 tutored witnesses and they were present along with the IO to participate in the already decided trap, after deliberations. This possibility cannot be ruled out.
59. Yet, another glaring factor which proves that, the trap proceedings is concocted, though the complainant gave a complaint as per Ex.P1, the first information was submitted to the concerned Court, no explanation has been given by the prosecution that what was the deliberation between the accused and complainant on 11.05.2007.
60. It is just profitable to refer some of the judgments of the various Courts.
61. In Panalal Damodar Rathi v. State of Maharashtra, reported in AIR1979SC1191 the Hon'ble Apex Court had held that:
"…..in the absence of corroboration of evidence of the complainant regarding the demand for money, his evidence alone cannot be accepted and that it is unsafe to base the conviction on the sole testimony the pancha witness".-. 47 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 62. In Jaswant Singh v. State of Punjab reported in AIR1973SC707 the question was whether, in a bribery case, the evidence of the complainant should be accepted. The Hon'ble Apex Court held that:
"if he was an interested witness and the evidence must be considered with great caution and can be accepted only when it is corroborated in material particulars". The co-ordinate Bench of this Court as well as other High Courts have reiterated the legal position that, 'the demand of illegal gratification is sina qua non for the offence and mere recovery of tainted money divorce from the circumstances under which it is paid is not sufficient to convict the accused where the substantial evidence of prosecution is not reliable'.
63. In State of Kerala and another v. C.P.Rao, reported in (2011) 6 SCC450the above said view, that mere recovery of tainted money diverse from the circumstances and which it is paid, is not sufficient to convict the accused was reiterated.
64. Law with regard to the demand of illegal gratification is well settled in a judgment of the Hon'ble - 48 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 Apex Court in State of Punjab v. Madan Mohan Lal Verma, reported in (2013) 14 SCC153 In Para.11, it is held that:
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person".-. 49 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 65. As per Section 7 of the Prevention of Corruption Act, 1988, only if it is proved that an accused person has accepted or obtained or as agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtained that gratification or that valuable thing, as the case may be, as a motive or reward such as, is mentioned in Section 7 or as a case may be, without consideration or for a consideration which he knows to be inadequate.
66. Thus, it is well settled law that, if the prosecution is successful in proving the recovery of tainted money from the possession of the accused, then a legal presumption arises that the accused had accepted or obtained the illegal gratification. Of course, this presumption is rebuttable. It is however not necessary that required presumption is to be rebutted by the - 50 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 accused with the same standard of proof as is accepted of the prosecution for recording a finding of conviction against the accused. The accused can validly rebut the above presumption by preponderance of probabilities and other circumstances appearing in the prosecution evidence itself.
67. It has come in the evidence of the witnesses that, the said file or the docket with regard to the survey of the landed property of the complainant was already transmitted to Mahadeva on 02.05.2007 itself. The trap was conducted on 15.05.2007. There is exorbitant a delay in filing complaint. It is the defence of the accused that, as he was entrusted to receive the applications and collect the fees, he noticed the falling of the money on his table. He was under the impression that somebody must have kept the money there towards the fees. Therefore he kept the same in his pocket. It is his defence that, this money was thrown on his table. He has given his explanation to the IO. That was not considered by the IO in proper - 51 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 prospective. The evidence of the witnesses goes against the prosecution. Therefore, as held by the Hon'ble Apex Court in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, reported in (2009) 3 SCC779 the accused can rebut charge either through cross-examination of the prosecution witnesses or by adducing reliable evidence. The burden of proof on accused under Section 20 of the Act is not the same as burden placed on the prosecution to prove its case beyond all reasonable doubt. In this judgment, it is further held that, mere recovery of tainted money diverse from the circumstance, under which it is paid is not sufficient to convict the accused, when the substantial evidence is not reliable.
68. It is repeatedly held by the Hon'ble Apex Court in catena of judgments that, the reiteration of the golden principle which runs through the web of administration of justice in criminal cases in Sujit Biswas v. State of Assam [(2013) 12 SCC406: (2014) 1 SCC (Cri) 677]. had held that suspicion, however grave, cannot take the place - 52 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
69. If the material placed on record, when judged on the touch stone of the legal principles adumbrated herein above leave no manner of doubt that, the prosecution in the instance case, has failed to prove unequivocally, the demand of illegal gratifications. Thus, I am constrained to hold that, it would be wholly unsafe to sustain the conviction of the appellant-accused under Section 13(1)(d) read with Section 13(2) of Act as well. Therefore, the appeal filed with the appellant succeeds. Accordingly the aforesaid point so raised is answered against the prosecution and in favour of the appellant.-. 53 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 70. In view of the above infirmities and inherent improbabilities, this Court has necessarily come to the conclusion that, the entire trap proceeding was bristled with the suspicious circumstances and doubts, as the prosecution, before raising the presumption under Section 20 of the Prevention of Corruption Act, 1988, has miserably failed to establish the foundational facts regarding guilt of the accused by cogent evidence. Whereas, the appellant-accused has rebutted such presumption by preponderance of probabilities and thereby, the appellant is entitled to be acquitted. Therefore, appeal succeeds. Resultantly, I pass the following:
ORDER(i) The Criminal Appeal is allowed. (ii) The judgment of conviction and order of sentence dated 14.06.2011 passed by the III Additional Sessions and Spl.Judge, Mysore in Spl. Case No.54/2009 is hereby set-aside.-. 54 - NC:
2024. KHC:24606 CRL.A No.648 of 2011 (iii) The appellant is acquitted of the charges levelled against him. (iv) His bail bonds if any executed by him shall stand cancelled and fine amount be refunded to him digitally. (v) Send back trial Court records along with copy of this judgment forthwith. Sd/- JUDGE SK List No.:
1. Sl No.: 1