IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 18TH DAY OF NOVEMBER, 2009 BEFORE 1' THE HONBLE MR. JUSTICE L. NARAYANA SwAMYj_~ ;_. A' CRIMINAL APPEAL No. 1511_,I.:2.¢§;fc3»3EwA.T.::' _ 3 BETWEEN: AND: STATE BY POLICE INSPECTOR,--- _ B.O.I., LOKAYUKTHA, '- EELLARY. .' " « ;.V._AAA]?i'PELLANT (EY SR1: M.I3. GUN-D'AwA_D?E;. _ ;'_v-LP. JAGADISH, _ S/O'. 4PUTTAjNAII<,,' AGE. 41 YEARS, ' OCCE..1NSPECT*QR' POP . CHILD DEVELOPMENT ~ PROJECT OFFICER, '*,VKURUO0D. EELLARY RURAL, RESPONDENT
V K.L. PATIL, ADV.)
SPL.
“THIS CRL.A IS FILED UNDER SECTION 378(1) 823 (3)
CR..P.C.”‘BY THE STATE P.P. PRAYING TO GRANT LEAVE TO
_E’?.I_LE_« AN APPEAL AGAINST THE JUDGEMENT DT.
“:29/07/2002 PASSED BY THE SPL. JUDGE, BELLARY IN
CASE NO. 5/98, ACQUITTING THE RESPONDENT»
“ACCUSED FOR THE OFFENCES PUNISHABLE U /SECS. 7,
T.
13(1) (D) AND 13(2) OF THE PREVENTION OF CORRUP’I__’EON
ACT, 1988. r
THIS CRL.A IS COMING ON FOR HEARING _
THE COURT MADE THE FOLLOWING:
This appeal is filed against.’ theiorder paiss.ed,_in
Case No. 5/1998 on the Jiudge_,::Be:Ilary, dt.
29/07/2002, whereinvthie.accusedi’gotiacquitted, against
which the prosecution \_
25″ viprosecution is that, on
27 / 02:’,’Vv_199′-0?; has appeared at Bellary
Karnatal{apiiLoka}tuistai:_iPolice.–station and complained that
shepghasappliedi ‘for loan” under “Mane Belaku” about four
andumsame was recommended by the Child
A Deveplovpimeintf;Project Officer. On inquiry, Assistant Directors
()i”i3._ce of’ and Child Development in Bellary, it was
xdeposed: that loan of Rs. 10,000 / — was sanctioned and the
has taken charge of the subsidy amount of
_fas.2,5o0/- on 31/01/1997 and he is keeping with it. When
‘K
officials entered and caught the accused and he was Charged
under the sections referred above.
3. On the basis of the same, a charge framed.
against the accused and the accused
is suggested for triai, accordingly theicase wasfcnvtrustedifor”ti
trial.
4. On behalf of the:proseciiiti.oin,i.’i’iiivitnesses have been
examined as P.W.I to :’?~; the compiainant,
P.W.2 is thg recovery panch.
P.W.4 is persons in whose residence
he was [official of the accused office.
P.W.6 isthe tehghie.-gr, gt-h§’g;tve the sketch and P.W.7 is the
_ Investigating V-Officer ‘land on behalf of the prosecution,
ii -. .;1o”c:Liirrier1tsVi’h.ave ‘marked as Ex.P–1 to 11. Ex.P–1 is the
is the administration panchanama. P.W.3
is the traoipanchanama. Ex.P~-it is the statement of P.W.2.
Ex.P–5.vi__s? the statement of P.W.3. Ex.P–6 is the sketch and
is the FIR and Ex.P–l0 is FSL Report. Ex.P–8 is the
V’ explanation of accused. On behaif of the accused, none was
T
examined and documents have not been marked aI1d–.__the
prosecution has marked the properties as M.O. NO1:l:1″
M.O. No. 1 is cash of Rs.200/–, M0. N0. 2 is-‘thev ‘
M0. N0. 3 to 6 are quarter bottles- After
trial, the Trial Court has acquitted th_e'”acc’us_’ed,’_
which the appeal is preferred. 2
5. Learned counse1~~..for submitted that
there is demand on the part’ Who demanded
P.W.I of Rs.50§),=’ –th.e:fsubsidy cheque to
the Bank. offegi…iggiiadfiacceptance on behalf of the
accused» “”” it the P.W.1. The
accused}’.compiai:narit:..: been examined as P.W.1 she
supported theiproslecutivornand in her chief–examination she
.~,&_hasv_»d-igposedv that”‘”«accused asked me to come on the next
‘morninog..qtov receive the cheque, accused asked me to
bring.mone;}}”q:tolA’oVbtain the cheque, I expressed my inability to
–V pay amount, I told him that after encashment of cheque
l:ramount, ill will pay, then accused told me to bring money as
.’ Aj_.me.ich”as possible. I took R3200/– to pay the accused”.
6. Again in the next para, she has deposed that, I took
the money and Lokayuktha police briefed to hand over the
same to the person, who demanded the money”.
cross–examination she has stated that “it is true ‘
27/02/1997 I visited the Lokayu1_{.tha_4OfficeiV’ari§;1iii;1f_ther._bV
deposed that the accused has demar:.ded_”th’e bri_b’e Br
Rs.200/- and when a demanidkévas r L’
P.W.2 Indrarnrna was aiso and has
received the bribe an1ouAn..tV:i.” ‘went outside and
gave pre–determined_signalitoftrapéithefiparty; ‘:.Again she has
deposed that’_f’it was given by
way of cane chair and same
was colieicted poiice and thereafter they
have seized thcarnount under a panchanama. The learned
V. °cou”nsCe1 Yreiying onithieéievidence of P.W.2, who is a shadow
witness in her cross-examination deposed that,
“Lok_aiyuktha’:*.VpoIice washed the hand of the accused with
Hsodiuni carbonate and it turned pink and the same was
‘if;_o1I:¢c’t_ed.” On the basis of the deposition of P.W.1 and 2 the
learned counsel submitted that, though the prosecution has
proved the case of the offence punishable Under sections
referred above, the Court has disbelieved the
rejected the case of the prosecution. The learnedvcolu-n’sel_”‘_’e it
also referred the deposition of P.W.3., >w}1o&is–‘_an
witness working as a S.D.A. in State”EXc_ise’l
has deposed that he Went along police
jeep and after the completion Vof.ll{vorl{‘V..l\Aleelarnrn_a gave pres
determined signal to submitted on
behalf of the prosecution.thatthe”csaSelfivvas:p.roved beyond all
reasonable rejected by the
Court belppgwg this appeal by setting
aside the i:*:yl”‘th_e–Court below and convict the
person referred ” if
‘{‘he ullearneidl counsel for the respondent submitted
ithat;”=the¥’appeal is reduired to be dismissed for the reason
l’that,a. titef»-prosecution did not satisfy the requirement of
Section Prevention of Corruption Act. In order to
l’c,onstit1,ite_A’3~an offence there shall be an acceptance and
In the instant case, both the ingredients have not
satisfied by the parties. P.W.1, who is the complainant
l
has also turned hostile. In her chief–exarnination though
she stated that the accused has demanded the money and
asked her to come next day morning to receive the’chequ–e,
but in her cross»-exarnination she further states–*that; ~
next day she went to the residence ofi the accused:’aloing’with
another lady i.e., P.W.2, the accused sitting-.i:n thie’-haiii.j,_:
accused saw me and the anothe-«rg ladv’-and invitetfl; memtcg the
hall. Accused told me to collecti”th:e .cheque.«i_}’lccLised gave
the cheque to me, then LOitayftil.{itl:a’pit5ll¢C came there”.
8. But even in the”–chie’f~eexarnin.ation P.W.1 never
stated that’ iin;”1%espief%*:t* ofthc dethahd of bribe amount by the
complainant. ‘ Eeeej cross»-examination she has
deposed thatitheg amcuintivvhich was given to the accused
– V. g_ was ‘tihroivvngvgon the cane chair and thereafter it was collected
‘bjf’*the–vI,o}tet3;ij1i:.tha police. It is submitted that the P.W.l
though complainant, she never spoke about the
‘V acceuptariceiiof bribe amount by the accused and also the
i_’e,di’bmand.”i In internal page in the deposition she has stated
. that do not know to read and write the kannada language
it ehd I get the same written by somebody else.” in view of the
said deposition, it is submitted by the learned counselpthat,
though the complaint has not been written by the but
the scribe has not been examined on
prosecution. In respect of P.W.2,..who_is shaldotw ‘witness
has stated in her chief-examination
went inside the house of accused along with has” i
not seen the complainant ‘bribe “amount to the
accused and she also }ith’e–iiCioinversation between
the accused andthe did not seize
any money that both
P.W.1 and illegal gratification of
demand behalf of the accused and
petitioner.’ that the ingredients of Sec.
7 of_–t.he Preventioln of Corruption Act to constitute the
._,_offence ?t’hefe..pshouldlllbe an acceptance of the bribe amount.
~:.:_a_se such things have not been proved beyond
all ,__reasonai:i–l.cil. doubt. Hence, the appeal made by the
gprosecutiion is required to be dismissed.
l
10
9. In order to substantiate the submission, learned
counsel for the respondent placed reiiance on
reported in 2003 (2) KCCR 985 betweefii.
Lokayuktha Police, Mandya V. V’
has been held that-
PREVENTION 01:’ co1?{2UP?I*i’oiV Ac:.~=j”I..93;3 W.
Sections 7 and 13(1) (ci’)’e»._–T–V’i’Evidence:'”ori record
brings out the fact of the notes’ being
recovered from pocioet . and his
hands being tested positi.i2e:_ye.t’v ~ themselves
are not holxd’i’.:_th.atn:bfbthe accused
demar’ioh°.d __ gratification from the
compiainarict anti’ receibvedv the same.
in ‘Anothe’rv’vA:_juiigni’ent reported in 2006(3) KCCR
1445 betvve’en_’State ‘of Kéirnataka v. Kfi’. Hanumanthaiah,
4
‘~ has beenhelvd that-
‘EREVENTION OF CORRUPTION ACT,
. j’9é”8n:.–‘A*s.>;§ctions 7, 13(1) (d) r/w. 13(2) –. There
s£;o’u1.ci’ be independent corroboration for proving
ihescase of demand and acceptance of bribe for
‘ifinthe offence under Sections 7 and 13(1) (d) r/w
V b 13(2) ofPrevention of Corruption Act, 1 988.
i
11
11. It is submitted that in View of the earlier judgment
even if it is required from the pocket of accused
sufficient to hold that the petitioner has
accepted the bribe for the presu.inpti.on the C
Prevention of Corruption Act. in
judgment it is submittedi__V.”that there» _sh’ou1:d”‘ an”?
independent Corporation for the case of demand
and acceptance of th’C..i:i’Drib.e. }i.It””i.’s:’.:i:s:ubrr1itted that the
independent wigtnesseisfl v_ P.W.2 and 3.
P.W.2 is also a shadow Witness.
P.W.3 is ali-:~..gC.JV of them have not
suppoartedi they have turned hostile. When
such being” the the Court below rejected the
caseof prosecutiori. Hence, it is submitted to dismiss the
i C -case of 3prosecution.
C’ 12. I heard the arguments.
I.3_.7~In View of the arguments made by both the parties
«.:i”‘grV1.:;1ii”‘a’1A’T.so in the light of the parties and the judgment placed
l2
by the learned counsel for the respondent, the pointsflfor my
consideration are;
1. Whether the Court below has
error in rejecting the case, of prosecution’?-. it
2. Whether the prosecution has lprovedgtlhpe it
of the accused for llthel’l’ofi’ences. ‘punishable
Under sections’ ~~referi”ed_ ~– _
14. My..a’nst;trer §;youir:l..’be«. referrediflto in favour of the
accused, ,. V
‘4.._}ff_EASONS
15.lxThe is the complainant,’ nodoubt she
hasfignade out Cas_e__,before the prosecution that the accused
» has_Vde.rr1anded a bribe of Rs.500/- on her oral complaint, it
‘was,reVduc’ed”;:to writing by a person, who has not been
narned ascribe. However, on the basis of the complaint
r’educed'”to writing, P,W,1 was sent along with 13’.W.2 as a
shaciow witness with a predetermined suggestions to the
~-parties. As per the directions, P.W.1 to 3 along with the
14
police have recorded. When the complainant herseifturned
hostile, question of proving the case of prosecut_icnl”b:e»ylond
all reasonable doubt does not arise. Assuming
turned hostile in order to help the”‘ac.cused,_..a:tieast ‘P.§W:2, i
who is an independent witness shoui.d “have” sup,p€.)rte:d~..tl*re,V
prosecution. But she alsols.ta’ted iniherichi’ef-lexaminationl’
that there was no dernand and:iaccep_tance”and recovery
from the police. When” the question of
proving the caseof Accordingly,
court ijg-lfllldellcases referred by the
learned throw light on the
su’ojec»_:t. ireported in 200812] KCCR 985
this Court has lhreld;fhatpmffioidence on record brings out the
act of the citrrency notes. being recovered rom the ocket o
-‘ accn’se”cI..,and hlislhands being tested positive yet they
“dre_in~ot suflicient to hold that accused demanded
illegal from the complainant.” Though
l’V..,presun1,ption is there U/sec. 20 of the P.C. Act, but this
go along with the ingredient of Sec. 7, it cannot be
read and understood independently. Sec. 7 of the Prevention
1’
15
of Corruption Act has to be read along with Sec. 20 of the
PC. Act, there shall be a compliance of the ingredient-“of Sec.
7. Thereafter Sec. 20 of the Prevention of Corruption-vvfor
the purpose of presumption comes into picturefin the “1-nstai1ti’~.
case though after wash of the accused
turned pink, itself is not suff1cient’«sin’ce”ther’e no
recovery from the accused,» ._V’Second’1’y1_ when herself V V
states that, there was no ancfacceppitance and
recovery from the V importantly the
complainant he’:s_elf has thing. Under
these Court to hold in
favour of ‘ .
V’Accordingi3f”the_app’ea.1 is rejected. The order passed
by the below affiiirmed.
Sd/-
JUDGE