Full Judgment
1 Crl.A.No.200146/2017 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 30TH DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR CRL.A.NO.200146 OF 2017 (374 ) BETWEEN MURTUJASAB S/O MUKTUMSAB MOMIN, AGE: 54 YEARS, OCC: GRADE-1 SURVEYOR IN TAHASILDAR OFFICE, JEWARGI, R/O KUNCHANOOR ROAD, VIJAY NAGAR, JAMKHANDI, DIST. BAGALKOT-587101. ...APPELLANT (BY SRI BABURAO MANGANE, ADVOCATE) AND THE STATE OF KARNATAKA THROUGH THE LOKAYUKTA POLICE STATION, KALABURAGI-585102. …RESPONDENT (BY SRI SUBHASH MALLAPUR, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 12.10.2017, PASSED BY THE COURT OF THE PRINCIPAL SESSIONS JUDGE, KALABURAGI, IN SPL.CASE NO.4/2015 2 Crl.A.No.200146/2017 CONVICTING HIM OF THE OFFENCES PUNISHABLE UNDER SECTIONS 7 AND SEC.13(1)(D) OF THE P.C. ACT AND SENTENCING HIM AS AFORESAID AND TO ACQUIT HIM. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.01.2024, COMING ON FOR ‘PRONOUNCEMENT
OF JUDGMENT’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the accused challenging the
judgment of conviction and order of sentence passed by the
Special Judge (Lokayukta) and Principal Sessions Judge, Kalaburagi in Special Case No.4/2015 dated 12.10.2017, whereby the learned Special Judge has convicted the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the PC Act, 1988’) and imposed sentence of imprisonment as well as fine.
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2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are as under: That the complainant is the owner of the land bearing
Sy.No.66/1 of Ambarkhed village. On 25.05.2012, he has filed an application for survey of the land bearing Sy.No.66/1 before the Taluka Survey Office and also deposited relevant fee of Rs.210 in this regard. Thereafter, he approached the office of surveyor on several occasions, but he did not found any response. However, later, the staff of the survey office instructed the complainant to approach the accused for conducting the survey of his land and accordingly, the complainant approached him and he demanded Rs.10,000/- for conducting the survey of the land. When the complainant has expressed his inability to pay Rs.10,000/-, the accused insisted for the same and later on, the complainant paid amount of Rs.10,000/- to the accused in a room situated
4 Crl.A.No.200146/2017 near Sajjan Kalyan Mantap. Thereafter, a notice was issued for conducting the land survey and accordingly, the accused
conducted the land survey on 03.08.2013. When on 06.08.2013, the complainant contacted the accused over phone and requested him to issue a survey report, then the accused has demanded further bribe of Rs.30,000/- and refused to issue the survey report to him unless the bribe amount is paid. The complainant was not wiling to pay the bribe amount and he recorded the conversion in the mobile
and then, after arranging the bribe amount of Rs.20,000/- approached the Lokayukta office and lodged a complaint in writing on 14.08.2013. On the basis of the complaint, the case was registered in Crime No.10/2013 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act, 1988. The investigating officer summoned two pancha witnesses and in the police station, the mobile conversion was played and reduced into writing and thereafter, the complainant has produced Rs.20,000/- consisting of 20 notes of one thousand denomination. They 5 Crl.A.No.200146/2017 were smeared with phenolphthalein powder and then a demonstration was made by drawing an entrustment mahazar and the serial numbers of the currency notes were also recorded.
4. Thereafter, the trap was laid down. When the
complainant enquired with the accused on phone, the accused asked the complainant to come near Chigaralli cross and the complainant went there along with the shadow pancha witnesses and Lokayukta officials at about 8-30 p.m. The accused came in the bus and alighted in Cheegaralli cross. The complainant met him along with C.W.3 and they went near a bakery for drinking tea and there after, ten minutes, the accused demanded and accepted bribe amount. Thereafter, the complainant has passed pre-instructed signal and Lokayukta officials raided the spot and apprehended the
accused there. There itself the hand wash of the accused was taken and then, the tainted amount was also recovered. Thereafter, they went to Jewargi inspection bungalow and there by making alternative arrangement for the pant of the 6 Crl.A.No.200146/2017 accused, his pant was taken and pocket wash was taken, which has also shown positive to phenolphthalein test. The statement of the accused was also recorded and trap mahazar was drawn and trap was successful. Then they returned to Lokayukta police along with the accused and then, the statements of the witnesses and other proceedings have taken place. Subsequently, the investigating officer after completing the investigation and after obtaining sanction, submitted the charge-sheet against the accused. Meanwhile, the accused was produced before the learned Special Judge and subsequently, he was enlarged on bail.
5. After submission of the charge-sheet, as there are sufficient grounds to proceed against the accused, the cognizance of the alleged offences were taken. The
prosecution papers were furnished to the accused as contemplated under Section 207 of Cr.P.C. and charge was framed against the accused for the offences under Sections 7 and 13(1)d read with Section 13(2) of the PC Act. The accused pleaded not guilty and claimed to be tried. 7 Crl.A.No.200146/2017
6. To prove the guilt of the accused, the prosecution
has examined in all 8 witnesses and has also placed reliance on 39 documents marked at Exs.P.1 to P.39 and 15 material objects. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. However, the accused denied the incriminating evidence and submitted a written say asserting that he had acquaintance with the complainant and for his financial assistance, he received a sum of Rs.20,000/- from the complainant and it is not a bribe amount.
7. After hearing the arguments and after
appreciating the oral and documentary evidence, the learned Special Judge has convicted the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act and sentenced him to undergo imprisonment for a period of 3 years and 4 years 8 Crl.A.No.200146/2017 respectively with fine of Rs.10,000/- and Rs.5,000/- respectively for both the offences.
8. Being aggrieved by this judgment of conviction and order of sentence, the accused is before this Court by way of this appeal.
9. Heard the arguments advanced by the learned counsel for the appellant/accused and the learned counsel for the respondent/State. Perused the records.
10. The learned counsel for the appellant/accused
would contend that there is no dispute of the fact that the accused was a surveyor and in all there were 15 surveyors in the department and the survey work would be allotted by the Tahsildar. He would also contend that the accused was entrusted by the Tahsildar and after issuing notice, he conducted survey on 03.08.2013 and submitted survey report on 06.08.2013 itself which was approved by the Tahsildar on the same day. Hence, it is argued that no work was pending with the accused and even he was not
9 Crl.A.No.200146/2017 possessing the file and this fact is evident from the
admissions given by the Tahsildar. He would contend that the explanation offered by the accused is the more plausible and to convict the accused for the offence, demand and acceptance is condition precedent and the evidence disclose that there is no demand and no work was pending. He would also assert that the accused has no authority to keep the records and hence, he would assert that the learned Special Judge has failed to appreciate the oral and documentary evidence in proper perspective and only on the basis of recovery of the amount, without appreciating the defence of the accused, proceeded to convict the accused which has resulted in miscarriage of justice. Hence, he would seek for allowing the appeal by acquitting the accused.
11. Per contra, the Special Public Prosecutor for the Lokayukta would support the judgment of conviction and
order of sentence passed by the Special Court. He would
contend that the complainant and the shadow witnesses have supported the case of the prosecution and the recovery 10 Crl.A.No.200146/2017
itself is proved. He would also assert that by the evidence of independent witnesses also, recovery is established and the accused has failed to substantiate his defence and mere explanation does not rebut the presumption and when the accused has failed to show that the recovered amount is not a bribe amount, the question of acquitting him does not arise at all. He would also assert that though no work was pending with the accused, but that was not within the knowledge of the complainant and the conduct of the accused itself clearly establish his intention and hence, he would contend that the learned Special Judge has properly appreciated the oral and documentary evidence and has rightly convicted the accused. He would also assert that a reasonable sentence was also imposed and hence, it does not call for any interference. As such, he would seek for dismissal of the appeal.
12. Having heard the arguments and after perusing the oral and documentary evidence, now the following point would arise for my consideration: 11 Crl.A.No.200146/2017 “Whether the judgment of conviction and
order of sentence passed by the learned Special
Judge (Lokayukta) and Principal Sessions Judge, Kalaburagi in Special Case 4/2015 dated 12.10.2017 is perverse, arbitrary and erroneous so as to call for any interference by this Court?”
13. At the outset it is an undisputed fact that the
accused is a public servant working as a surveyor. It is further an undisputed fact that the complainant has moved an application on 25.05.2012 for surveying his land by
depositing fee of Rs.210/-. It is further evident that the matter was entrusted to the accused and the accused has surveyed the land on 03.08.2013. It is further an undisputed fact that he submitted a report on 06.08.2013. However, it is important to note here that though the survey was applied on 25.05.2012, the survey was held on 03.08.2013. There is inordinate delay in hold the survey. It is not the case of the accused that the file was entrusted to him at a belated stage.
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14. According to the prosecution, the accused for
surveying the land initially demanded Rs.10,000/- and when an amount was paid, the survey date was fixed and after survey, he again demanded Rs.30,000/- and agreed for Rs.20,000/- initially. The complaint was lodged on 14.08.2013.
15. P.W.1 is the complainant and P.W.2 is a shadow
witness. P.W.1 in his evidence deposed that his family was owning Sy.No.66/1 totally measuring 5 acres 31 guntas in Ambarkhed village and on 25.05.2012 he has applied for survey of his land, but the same was not undertaken and when he approached the accused, there was a demand of Rs.10,000/-and he paid Rs.10,000/- initially. His evidence further disclose that after issuing notice, the accused has conducted survey on 03.08.2013 and that on 06.08.2013, when he contacted the accused on phone, the accused demanded additional bribe of Rs.30,000/- and later on
settled it for Rs.20,000/- for the time being. He further deposed that he has recorded the said conversion in his 13 Crl.A.No.200146/2017 mobile and then, lodged a complaint on 14.08.2013. He also
deposed that he has produced 20 currency notes of Rs.1,000/- denomination and police have summoned two mahazar witnesses and an entrustment mahazar was drawn and the amount was smeared with phenolphthalein power and demonstrated how it reacts to sodium carbonate liquid and an entrustment mahazar was drawn as per Ex.P.18.
16. P.W.2 is a shadow witness, who has accompanied the complainant and he has also deposed regarding he being summoned to Lokayukta office on 14.08.2013 and entrustment mahazar was being done as per Ex.P.18.
17. Both P.W.1 and P.W.2 further deposed that after
entrustment mahazar, the complainant contacted the accused over the phone and he informed the complainant to come near Wadagera village and he along with pancha witnesses and Lokayukta staffs went to Ijeri village at 04-40 p.m., and again he contacted the accused over phone. He instructed him to come to Chigarali cross. They also deposed 14 Crl.A.No.200146/2017 that they went near Chigaralli cross and waited for the accused and night at 8-30 p.m., the accused came in a bus
and alighted at Chigaralli cross and thereafter, the complainant and P.W.2 met him and the accused took them to bakery for drinking tea. There he demanded and accepted the bribe amount. Both these witnesses consistently deposed regarding demand and acceptance and further deposed that after the complainant passing the signal, the police raiding the spot, apprehending the accused and his both hands were dipped in sodium carbonate solution which turned into pink which was seized as per M.O.2 to 5. They also deposed that thereafter, the amount was found in the pant watch pocket of the accused and same was seized and when the serial numbers were compared, they tally with the serial numbers referred in the entrustment panchanama and they were
seized and then they returned to Jewargi inspection bungalow, wherein other pant was arranged for the accused and there the watch pocket wash of the pant of the accused in sodium carbonate was taken which was also shown 15 Crl.A.No.200146/2017 positive and same was also seized. Both these witnesses further deposed that all along in all these proceedings, photographs were taken and the accused has also given his statement and then, trap mahazar was drawn as per the Ex.P.29 which is signed by both of them. Their evidence further disclose that complainant has also recorded the conversation in the recorder provided by the Lokayukta to him and the same was played and same was identified by C.W.7, who was summoned by the Lokayukta office.
18. These witnesses were cross-examined at length, but nothing was elicited so as to discredit their evidence. They consistently and categorically deposed regarding the
accused demanding and accepting the bribe. At the same time, it is also an admitted fact that the receipt of the amount of Rs.20,000/- was categorically admitted by the accused in his defence statement as per Ex.P.30. But it is alleged that it was a personal financial transaction, but to substantiate the same, nothing was elicited so as to rebut the presumption available in favour of the prosecution under 16 Crl.A.No.200146/2017 Section 20 of the PC Act. The accused is required to rebut the presumption on the basis of the preponderance of probability and mere explanation does not amount to rebuttal of the presumption.
19. The evidence of P.W.3 Saibanna, the retired
Survey Supervisor discloses that on 14.08.2013 at 09-00 p.m. he along with C.W.8 went to inspection bungalow, Jewargi as per the directions of the Lokayukta officials by arranging a pant for the accused and in their presence, the pant pocket wash pertaining to the pant of the accused was taken which was shown positive to phenolphthalein test.
20. Further the evidence of P.W.3 discloses that the
tape record conversion was got heard and he has identified the voice of the accused and C.W.8 produced the file pertaining to the complainant before the Lokayukta.
21. The evidence of P.W.4 discloses that he was the then working as a Tahsildar and he given the service 17 Crl.A.No.200146/2017 particulars of the accused to the Lokayukta office as per the Ex.P.33.
22. P.W.5 is another independent witness who is the
owner of the bakery wherein the trap was held. He deposed that on 14.08.2013, two persons came to his bakery shop and purchased the milk for drinking and later on 4-5 persons came there claiming to be the Lokayukta police and apprehended the accused and his hands were dipped in sodium carbonate solution there itself which has turned to light pink colour and same was seized. He has also deposed that at the instance of the accused, currency notes were also seized and sealed.
23. P.W.6 Basavaraj is another independent witness and he has also deposed regarding hand wash of the accused being taken.
24. The evidence of P.W.7 discloses that he was the Tahsildar working in Jewargi and the complainant has applied for survey of his land on 25.05.2013 and on 02.07.2013, he 18 Crl.A.No.200146/2017 handed over the case to the accused and on 03.08.2013, the accused conducted survey and on 07.08.2013, he approved the report.
25. P.W.8 is the investigating officer and he has deposed regarding the investigation done by him.
26. The main contention of the accused is that there
is no material evidence regarding demand of bribe and mere recovery does not amount to proving the ingredient of the offence under Section 7 of the PC Act. However, it is worth to note here that under Section 20 of the PC Act, there is a presumption in favour of the prosecution and in the decision reported in 2001 SC 318 in the case of M. Narsinga Rao Vs. State of Andhra Pradesh., the Hon’ble Apex Court has considered the relevancy of presumption under Section 20 of PC Act, wherein it is held that the prosecution is required to prove that the accused had accepted gratification and even it can be proved by indirect way.
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27. Apart from that, in the decisions reported in AIR
1960 SC 548 in the case of C.I. Emden Vs. State of U.P., and AIR 1964 SC 575 in the case of Dhanvantrai Balwantrai Desai Vs. State of Maharashtra, it is held by the Apex Court that if it is shown that the tainted amount is recovered from the accused and when the accused has failed to give possible explanation, how he had received that amount, then the presumption under Section 4 of the PC Act (old Act), is required to be drawn and the accused is required to rebut the said presumption, but not by mere explanation. Admittedly, the accused has admitted recovery of the tainted amount of Rs.20,000/- from him and his defence is that he has received the said amount for his financial requirement.
However, the accused has not established that the complainant is having close acquaintance with him so as to demand an amount of Rs.20,000/- from him. Further, for what purpose, he received this amount is not explained. Since he being the public servant, he is not supposed to receive the loan without prior sanction. What was his urgent
20 Crl.A.No.200146/2017 requirement is not stated by the accused. A vague defence was set up which cannot be accepted.
28. When the tainted amount was admittedly
recovered from the custody of the accused and when the accused has failed to give proper explanation for possessing this amount and when he failed to prove his defence, the presumption under Section 20 of the PC Act is not rebutted. No doubt, the presumption is available so far as it relates to Section 7 of the PC Act. But the demand, acceptance and
receipt of illegal gratification are established by the prosecution. Further, using corrupt or illegal means or abusing the position as a public servant to obtain valuable things or pecuniary advantage covered under Sections 7 and 13 of the PC Act. The acceptance of the illegal gratification is established by the prosecution, as the accused by abusing his position as a public servant demanded and accepted illegal gratification. Though no work was pending with the accused, but that was not within the knowledge of the complainant and the accused could have intimated the
21 Crl.A.No.200146/2017 complainant when the complainant called him to apply for certified copy and get the copy of the report, as he has
already submitted his report, but that was not done. Why the complainant is having animosity against the accused is not at all forthcoming and hence, it is evident that the accused has failed to rebut the presumption available in favour of the prosecution. The prosecution by leading cogent evidence including independent witnesses has proved that the accused has demanded and accepted illegal gratification by illegal means by abusing his position as a public servant in order to have an unlawful gain. Hence, the prosecution is successful in proving the guilt of the accused for the offences under Sections 7 and 13 of the PC Act.
29. The learned Special Judge has considered all
these aspects in proper perspective and has rightly convicted the accused for the above said offences. Further, he has also imposed the reasonable sentence and no grounds are forthcoming for interfering with the sentence portion. Looking to all these facts and circumstances, the judgment of 22 Crl.A.No.200146/2017
conviction and order of sentence cannot be said to be perverse or arbitrary so as to call for any interference by this Court. As such, the point under consideration is answered in the Negative. Hence, the appeal being devoid of any merits, does not survive for consideration and accordingly, I proceed to pass the following:
ORDER
The appeal stands dismissed. Send back the Trial Court records to the learned Sessions Judge along with copy of this judgment with a direction to the Trial Court to secure the presence of the accused for serving the sentence. Sd/- JUDGE RSP