Karnataka High Court
C N Krishnamurthy vs State Of Karnataka on 18 December, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 249 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 249 OF 2013
BETWEEN:
C N KRISHNAMURTHY
S/O NINGAPPA
AGED ABOUT 32 YEARS
SECOND DIVISION ASSISTANT
CRIME DIVISION, DISTRICT POLICE
OFFICE, TUMKUR NATIVE OF
CHINGAVARA, SIRA TALUK
Digitally signed by
TUMKUR DISTRICT - 572 132.
LAKSHMINARAYANA
MURTHY RAJASHRI
...APPELLANT
Location: HIGH (BY SRI H PAVANA CHANDRA SHETTY, ADVOCATE)
COURT OF
KARNATAKA
AND:
STATE OF KARNATAKA
BY LOKAYUKTHA POLICE
TUMKUR - 572 101.
...RESPONDENT
(BY SRI B S PRASAD, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 374(2) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 21.02.2013 PASSED BY THE II
ADDITIONAL DISTRICT & S.J., TUMKUR IN SPECIAL CASE
No.182/2009 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 7, 13(1)(d) R/W 13(2)
OF PREVENTION OF CORRUPTION ACT, 1988 AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 249 of 2013
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the sole accused praying to
set aside the judgment of conviction and order on
sentence dated 21.02.2013 passed in Spl.C.No.182/2009
by the II Additional District and Sessions Judge,
Tumkuru, whereunder the appellant -accused has been
convicted for the offences punishable under Sections 7
and 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as “P.C. Act”
for brevity) and sentenced to undergo rigorous
imprisonment for a period of 01 year and to pay fine of
Rs.5,000/- for offence punishable under Section 7 of the
P.C. Act and sentenced to undergo rigorous imprisonment
for a period of 03 years and to pay fine of Rs.5,000/- for
offence punishable under Section 13(1)(d) read with
Section 13(2) of the P.C. Act.
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2. The factual matrix of the prosecution case is
that the appellant -accused was working as Second
Division Assistant in the office of the Superintendent of
Police Tumakuru and complainant -Vivek Vallabh Gujjar
(P.W.4) was working as Investigator for M/s United India
Insurance Company and used to get information
regarding accidents form the appellant -accused. It is
further alleged that the appellant -accused used to
demand and receive bribe of Rs.25/- in respect of
information furnished for each case and receiving the said
amount in the form of cheque in the name of A.N.
Manjunath and in this way he has received Rs.21,650/-
through cheque and Rs.3,500/- in cash for the period of
September -2002 to August -2007. Even though the case
of prosecution is that for the information furnished
during the month of September-2007 he had received
cheque No.575039 for Rs.3,825/-, but the same was
dishonoured for want of sufficient funds and when
complainant told the accused that he would stop getting
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the information, accused demanded payment of
Rs.5,075/- i.e. 3825/- being the cheque amount and
balance of Rs.1,250/- towards the information collected
up to 23.10.2007 and on 24.10.2007 in the office cum
residence of complainant he received bribe of Rs.5,075/-
in the presence of shadow witness and committed
offences. Charge sheet has been filed against the
appellant -accused for the said offence punishable under
Sections 7 and 13(1)(d) read with Section 13(2) of the
P.C. Act.
3. The Special Court has framed charges for the
said offences. In order to prove charges, the prosecution
has examined 07 witnesses as P.W.1 to 07, got marked
documents as Ex.P1 to 13 and material objects as M.O.1
to 11. The statement of accused person came to be
recorded under Section 313 of Cr.P.C. Learned Special
Judge after hearing arguments on both sides has
formulated points for consideration and passed impugned
judgment convicting the appellant -accused for offences
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punishable under Sections 7 and 13(1)(d) read with
Section 13(2) of the P.C. Act which is challenged in this
appeal.
4. Heard learned counsel for appellant -accused
and learned counsel for the respondent.
5. Learned counsel for the appellant -accused
would contend that the prosecution has not proved that
the alleged demand of bribe by the appellant -accused.
There are no materials on record to establish the demand
of bribe by the appellant -accused. P.W.4 -complainant
has not stated in his evidence regarding demand of bribe
at the time of trap. The cross examination of P.W.1 –
Shadow Pancha indicate that he was not present in the
room in which P.W.4 -complainant and accused were
present and he was in the other room. Therefore, he has
not seen and heard any conversation between P.W.4 –
complainant and appellant -accused. The prosecution has
not produced any material to indicate that work of the
complainant was pending with the appellant -accused.
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The alleged cheque amount withdrawn in the name of
one A.N Manjunath who was employee of P.W.4 –
complainant and it is created to implicate the appellant –
accused. The said M.O.10(a) -cheque has not been
seized from possession of the appellant -accused.
M.O.10 -documents are secured form P.W.3 who was
working in the office of the Superintendent of Police,
Tumkuru. The original cheque -M.O.10(a) has not been
produced even though it is stated in Ex.P2 -trap mahazar
that it is found with the appellant -accused at the time of
trap and seized under trap mahazar. The presumption
under Section 20 of the P.C. Act is not attracted since the
alleged demand of bribe has not been established.
Learned counsel for the appellant in support of his
contention has placed reliance on the following decisions
1) M.R.Purushotham Vs State of Karnataka1
2) B.Jayaraj Vs State of Andra Pradesh2
1
Reported in (2015) 3 SCC 247
2
Reported in (2014) 13 SCC 55
3
Reported in 2015 AIR SCW 2828
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4)State of Karnataka Vs Anand Gururao
Deshpande4
5)V.Venkata Subbarao Vs. State rept.by
Inspector of Police A.P5
6) Banarsi Dass Vs. State of Haryana6
7)Ganapathi Sanya Naik Vs. State of
Karnataka7
8)Meena (Smt) W/o Balwant Hemke Vs. State
of Maharashtra8
9) State of H.P Vs. Sukhdev Singh Rana9
10)Suraj Mal Vs. The State (Delhi
Administration)10
11)Suresh Kumar Vs. State by Karnataka
Lokayukta Police11
12) State of Karnatka Vs. K T Hanumanthaiah12
13)T Siddaiah Vs. State of Karnataka by
Lokayukta Police13
On these grounds he prays to allow the appeal and
acquit the appellant accused for offences punishable
4
Reported in ILR 2010 KAR 1983
5
Reported in (2006) 13 SCC 305
6
Reported in (2010) 4 SCC 450
7
Reported in 2007 AIR SCW 5824 SC
8
Reported in (2000) 5 SCC 21
9
Reported in 2005 CRI.L.J. 1136
10
Reported in AIR 1979 SC 1408
11
Reported in Crl.A.No.975/2014
12
Reported in Laws (KAR) 2006 3 129
13
Reported in Cr.A.No.843/2015
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under Sections 7 and 13(1)(d) read with Section 13(2) of
the P.C. Act.
6. Learned counsel for the respondent would
contend that the bribe amount was found with the
appellant -accused and P.W.4 -complainant has stated in
his evidence that he has handed over the said bribe
amount to the accused person. As bribe amount was
found in the possession of the appellant -accused
therefore, the presumption arises under Section 20 of the
P.C. Act. It is for the appellant -accused to rebut the said
presumption and that has not been done. The appellant –
accused coming to the home office of the complainant
itself indicate that he has came there for collecting the
bribe amount. The appellant -accused in his explanation
-Ex.P10 has not disputed his visit to the home office of
complainant and receiving the money from him. The hand
wash of the appellant -accused was turned pink and FSL
report indicate that the test has resulted in positive as it
contains phenolphthalein. The contents of Ex.P10 –
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statement of the appellant -accused is not probable. The
appellant -accused has not given any explanation at the
time of recording his statement under Section 313 of
Cr.P.C. Learned counsel for the respondent has placed
reliance on the following decisions.
1) Neeraj Dutta Vs. State (Govt. of N.C.T. of
Delhi)14
2) Phula Singh Vs. State of Himachal
Pradesh15
3) M Narsinga Rao Vs. State of A.P16
4) State of A.P Vs. C.Uma Maheswara Rao
and another17
5) C.M. Sharma Vs. State of A.P.TH.IP18
6) C.I. Emden Vs. State of U.P19
7) Dhanvantrai Balwantrai Desai Vs. State of
Maharashtra20
8) V.D.Jhingan Vs. State of U.P21
14
Reported in AIR 2023 SCC 330
15
Reported in AIR 2014 SCC 1256
16
Reported in 2001 SC 318
17
Reported in AIR 2004 SCC 2042
18
Reported in AIR 2011 SCC 608
19
Reported in AIR 1960 SCC 548
20
Reported in AIR 1964 SC 575
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On these grounds he prays for dismissal of the
appeal.
7. Having heard learned counsels, perusing the
impugned judgment, trial Court records and considering
the grounds urged, the following point arises for my
consideration:
Whether the Trial Court has erred
in convicting the appellant -accused for
the offences punishable under Sections
7 and 13(1)(d) read with Section 13(2)
of the P.C. Act?
My answer to the above point is in Affirmative for
the following reasons
P.W.4 is the complainant and he has filed complaint
which is at Ex.P4. P.W.4 -complainant used to make an
application for getting information in Superintendent of
Police Office, Tumkuru and it is stated that this appellant
-accused used to furnish information and for furnishing
information he used to demand bribe of Rs.25/- per
21
Reported in AIR 1966 SC 1762
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accident information. In Ex.P4 -complaint it is stated
that the bribe amount paid to the appellant -accused by
way of open cheque in the name of A. N. Manjunath and
the said cheques were given by P.W.4 -complainant. In
Ex.P4 -complaint it is stated that the appellant -accused
collected bribe of Rs.3,500/- in cash and Rs.21,650/- in
open cheque drawn in the name of A.N.Manjunath from
the savings bank account of P.W.4 -complainant. The
statement of bank account of P.W.4 -complainant has not
been collected and produced to show that cheques in the
name of A.N. Manjunath have been en-cashed to the
extent of Rs.21,650/-. It is also alleged in Ex.P4 –
complaint that cheque for Rs.3,825/- has been issued in
the name of A.N Manjunath and it is given to the
appellant -accused and it came to be dishonoured for
want of sufficient fund in the account of complainant and
therefore, the appellant -accused demanded the said
amount by cash. To establish that there was no sufficient
funds in the account of P.W.4 to en-cash the said cheque
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drawn for Rs.3,825/- bank account statement has not
been produced.
8. P.W.4 -complainant has stated in his evidence
that as the appellant -accused demanded bribe of
Rs.5,075/- and he has filed complaint as per Ex.P4. The
conversation between P.W.4 -complainant and the
appellant -accused has not been placed on record even
though conversation between them is over phone. P.W.4
in his evidence has stated that the appellant -accused
came to his home office at 2.45p.m. and he asked him to
return the cheque and accused returned the said cheque
and thereafter, he gave money to him and he kept that
money in his pant pocket. P.W.4 has not stated that the
appellant -accused has demanded bribe at the time of
trap. As per evidence of P.W.4, the cheque for Rs.3,825/-
has been received by him from the appellant -accused
but as per evidence of P.W.7 -Investigating Officer, the
said cheque was found with the appellant -accused and it
is seized under trap mahazar along with other documents
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which were with the appellant -accused. If the said
cheque was returned by the appellant -accused to P.W.4
then P.W.4 was having possession of the said cheque. It
is not case of P.W.4 that he has handed over the said
cheque to P.W.7 -Investigating Officer.
9. P.W.1 is Shadow Pancha and in his evidence
he has stated that he was taken to the house of P.W.4
and accused came there at 2.00p.m. and accused
received money given by P.W.4 -complainant and he has
kept that money in his pant pocket. P.W.1 -Shadow
Pancha has not stated any demand of bribe by the
appellant -accused. The sketch of scene of offence is at
Ex.P5. Ex.P5 has been drawn by P.W.6 -Junior Engineer
as shown by the Shadow Pancha -P.W.1. The room
which is shown as place of occurrence has been marked as
Ex.P5(b), living room is marked as Ex.P5(a) and another
room adjacent to the place of occurrence is marked
as Ex.P5(c). On seeing Ex.P5 -sketch, P.W.1 –
Shadow Pancha has stated that he was sitting in living
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room which is marked as Ex.P5(a). He further stated
that by sitting in that room what was happening in the
room which is shown as place of occurrence Ex.P5(b) was
not visible and also he admitted that what happened in
room i.e. Ex.P5(b) and for how much time that happened
he is not aware. P.W.4 has also admitted that there is
computer in living room in which he was sitting and he
was playing computer game in that computer.
Considering the said admissions given by P.W.1 in his
cross examination, it is clear that what happened in the
room i.e., place of occurrence has not been seen by him.
P.W.2 -another pancha in his cross examination has
stated that he and Inspector were in room which is
marked as Ex.P5(b) and he also admitted that P.W.1 was in
the room which is marked as Ex.P5(a). As per Ex.P5
P.W.1, P.W.4 and the appellant -accused were in the
room which is showed in place of occurrence which is marked
as Ex.P5(b) but in the evidence of P.W.1 and 4 is
contrary to what is shown in Ex.P5 -sketch. Considering
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the cross examination of P.W.1 and 2 they have not seen
what happened in the room which is shown as place of
occurrence at the time of trap. P.W.4 -complainant has
also not stated that at time of trap the appellant –
accused has demanded the bribe and thereafter, he gave
money to him.
10. The appellant -accused gave his statement in
writing which is at Ex.P10. The appellant -accused has
admitted his visit to the home office of P.W.4 –
complainant and as per the said explanation P.W.4 –
complainant gave cash of Rs.5,075/- to him to give the
same as salary to employees of P.W.4 as he is going out
of station. In absence of proof of demand of bribe, the
said explanation as per Ex.P10 given by the appellant –
accused appears to be probable.
11. P.W.3 -Assistant Administrative Officer
working in the Superintendent of Police Office, Tumakuru
has produced relevant documents to the Investigating
Officer and they are marked as M.O.10. M.O.10 also
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contains copy of cheque for Rs.3,825/- which is marked
as M.O.10(a). Considering the evidence of P.W.7, the
copy of cheque has been seized from possession of
P.W.3. M.O.10(a) is copy of the said cheque. The
original of M.O.10(a) -cheque has not been placed on
record.
12. The full bench of Hon’ble Apex Court in the
case of Neeraj Dutta Vs State (Govt. of N.C.T of
Delhi)22 has held that the demand of bribe can be
proved by circumstantial evidence. The Hon’ble Apex
Court in the case of M. Narsinga Rao Vs State of A.P
(Supra) has held that on proof of receiving gratification a
legal presumption that such gratification was accepted as
reward for doing public duty has to be drawn. The
Hon’ble Apex Court in the case of State of A.P. Vs Uma
Maheshwara Rao and another(Supra) has held that
for drawing presumption under Section 20 of the P.C. Act
proof of “acceptance or agreed to accept” any
22
Reported in 2023 SCC OnLine SC 280
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gratification is condition precedent for drawing
presumption. The Hon’ble Apex Court in the case of
C.M.Sharma Vs State of A.P.TH.I.P(Supra) has held
that mere recovery of currency notes itself does not
constitute offence under P.C. Act, unless it is proved
beyond all reasonable doubt that the accused voluntarily
accepted money knowing it to be bribe. The Hon’ble
Apex Court in the case of Dhanvantrai Balwantrai
Desai Vs State of Maharastra (Supra) has held that if
the accused shown to have accepted money which was
not legal remuneration -Presumption can be raised. The
Hon’ble Apex Court in the case of V.D. Jhingam Vs
State of U.P(Supra) has held that when it is shown that
the accused has received a certain sum of money which
was not his legal remuneration, the condition prescribed
by the section is satisfied and the presumption must be
raised. In the case of Sita Ram Vs The State of
Rajasthan23 relied upon by the learned counsel for the
23
Reported in (1975) 2 SC 227
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appellant, the Hon’ble Apex Court has held that if the
prosecution has failed to prove that the appellant had
demanded any gratification from the complainant, if the
charge was for accepting gratification, the presumption
cannot be pressed into service.
13. The Hon’ble Apex Court in the case of Neeraj
Dutta (Supra) has held as under
“18. The allegation of demand of gratification
and acceptance made by a public servant has
to be established beyond a reasonable doubt.
The decision of the Constitution Bench does not
dilute this elementary requirement of proof
beyond a reasonable doubt. The Constitution
Bench was dealing with the issue of the modes
by which the demand can be proved. The
Constitution Bench has laid down that the
proof need not be only by direct oral or
documentary evidence, but it can be by way of
other evidence including circumstantial
evidence. When reliance is placed on
circumstantial evidence to prove the demand
for gratification, the prosecution must establish
each and every circumstance from which the
prosecution wants the Court to draw a
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must be consistent with only one hypothesis
that there was a demand made for gratification
by the accused. Therefore, in this case, we will
have to examine whether there is any direct
evidence of demand. If we come to a
conclusion that there is no direct evidence of
demand, this Court will have to consider
whether there is any circumstantial evidence to
prove the demand.
23. There is one more important factual
aspect to be noted which creates serious doubt
about the prosecution’s case. In the complaint
filed by the deceased complainant on 17th April
2000, in the form of his statement recorded by
the Anti-Corruption Bureau, he has stated that
pursuant to the application dated 6th May
1996, a meter was installed in his shop and
after a few months, he found that the meter
was removed. However, the Special Court has
observed in paragraph 19 of the impugned
judgment that a complaint regarding a stolen
electricity meter was registered at the instance
of the complainant on 25th April 2000. Thus,
the grievance regarding stolen meter was
made by the complainant 8 days after the
alleged demand for bribe. In fact, PW-7
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a copy of the application made by him for
providing electricity meter. PW-7 further stated
that the complainant did not clearly tell him
that he had given such application. In absence
of proof of making such application, the
prosecution’s case regarding demand of bribe
for installing new electricity meter becomes
doubtful. Moreover, till 24th April 2000, the
complainant did not register a complaint
regarding commission of offence. This makes
the prosecution’s case regarding the demand of
gratification on 17th April 2000 for installing a
new electricity meter extremely doubtful.
24. In the present case, there are no
circumstances brought on record which will
prove the demand for gratification. Therefore,
the ingredients of the offence under Section 7
of the PC Act were not established and
consequently, the offence under Section
13(1)(d) will not be attracted.”
14. The Hon’ble Apex Court in the case of
Indrakunwar Vs State of Chhattisgarh24 has held as
under
24
Reported in AIR 2023 SC 5221
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“34. A perusal of various judgments
rendered by this Court reveals the following
principles, as evolved over time when
considering such statements.
34.1 The object, evident from the Section
itself, is to enable the accused to themselves
explain any circumstances appearing in the
evidence against them.
34.2 The intent is to establish a dialogue
between the Court and the accused. This
process benefits the accused and aids the
Court in arriving at the final verdict.
34.3 The process enshrined is not a matter
of procedural formality but is based on the
cardinal principle of natural justice, i.e., audi
alterum partem.
34.4 The ultimate test when concerned
with the compliance of the Section is to
enquire and ensure whether the accused got
the opportunity to say his piece.
34.5 In such a statement, the accused
may or may not admit involvement or any
incriminating circumstance or may even offer
an alternative version of events or
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interpretation. The accused may not be put to
prejudice by any omission or inadequate
questioning.
34.6 The right to remain silent or any
answer to a question which may be false shall
not be used to his detriment, being the sole
reason.
34.7 This statement cannot form the sole
basis of conviction and is neither a
substantive nor a substitute piece of
evidence. It does not discharge but reduces
the prosecution’s burden of leading evidence to
prove its case. They are to be used to
examine the veracity of the prosecution’s case.
34.8 This statement is to be read as a
whole. One part cannot be read in isolation.
34.9 Such a statement, as not on oath,
does not qualify as a piece of evidence
under Section 3 of the Indian Evidence Act,
1872; however, the inculpatory aspect as
may be borne from the statement may be
used to lend credence to the case of the
prosecution.
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34.10 The circumstances not put to the
accused while rendering his statement under
the Section are to be excluded from
consideration as no opportunity has been
afforded to him to explain them.
34.11 The Court is obligated to put, in the
form of questions, all incriminating
circumstances to the accused so as to give
him an opportunity to articulate his defence.
The defence so articulated must be carefully
scrutinized and considered.
34.12 Non-compliance with the Section
may cause prejudice to the accused and may
impede the process of arriving at a fair
decision.”
15. Considering the evidence on record in the
present case the prosecution has not established the
demand of bribe by the appellant -accused. P.W.4 –
complainant has not stated in his evidence that at the
time of trap the appellant -accused has demanded bribe
and thereafter, he gave money to him. In the absence of
proof of demand of bribe by the appellant -accused, the
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explanation given in Ex.P10 -statement that the said
money is given by P.W.4 to him for making payment of
salary to employees of P.W.4 as he is going out of station
appears to be probable. Merely because the appellant –
accused visited the home office of P.W.4, the
presumption cannot be drawn that he went there for
collecting bribe amount.
16. The Hon’ble Apex Court in the case of
B.Jayraj Vs State of Andra Pradesh(Supra) has held
that
”9. In so far 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
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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.”
17. The proof of demand of bribe by the appellant –
accused is lacking in the present case that the
prosecution has not established primary facts of demand
of bribe and acceptance of bribe. Considering all these
aspects, learned Special Judge has erred in convicting the
appellant -accused for offences punishable under
Sections 7 and 13(1)(d) read with Section 13(2) of the
P.C Act.
18. The appellant -accused has made out grounds
for setting aside the impugned judgment of conviction
and order on sentence. In the result, the following
ORDER
i) The appeal is allowed.
ii) The judgment of conviction and order on
sentence dated 21.02.2013 passed in
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CRL.A No. 249 of 2013
Spl.C.No.182/2009 by the II Additional District
and Sessions Judge, Tumkuru is set aside and
the appellant -accused is acquitted for
offences punishable under Sections 7 and
13(1)(d) read with Section 13(2) of the P.C.
Act.
iii) The fine if any paid by the appellant -accused
is ordered to be returned to the appellant –
accused.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
List No.: 1 Sl No.: 6