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TMI Blog2023 (7) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to pay honorarium salary of Rs. 1,000/- and Rs. 3,000/- and the salary was enhanced to the tune of Rs. 2,000/- to messenger and Rs. 5,000/- to computer operators, this order was given effect with April 2010, but the notification was issued on 10.06.2010. The honorarium for the month of July 2010 to the tune of Rs. 7,000/- and arrears of honorarium for the month of April, May and June 2010 to the tune of Rs. 9,000/- was to be received by complainant as the President of Shabari Rural Development Society. The complainant used to receive the said amount and disburse to the concerned computer operator after realizing the cheque in favour of Shabari Rural Development Society. The accused was working as C.D.P.O in Ramdurg being public servant on 05.08.2010 has demanded illegal gratification of Rs. 9,000/- from complainant and he assured that the said amount will be paid after getting cheque encashed and accordingly complainant got encashed cheque. Thereafter, the accused again insisted for payment of illegal gratification of Rs. 9,000/-. On 16.08.2010 at about 11:00 a.m. on the strength of complaint filed by complainant trap was conducted in C.D.P.O. office at Ramdurg. Accused demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 9. On careful perusal of material evidence placed on record by prosecution, it would go to show that complainant is working as President of Shabari Rural Development Society and accused was working as C.D.P.O at Ramdurg. The said Shabari Rural Development Society has lent two hands to C.D.P.O. office at Ramdurg including the complainant and computer operator under Protection of Women from Domestic Violence Act, 2005. The prosecution alleges that accused has demanded illegal gratification of Rs. 9,000/- for release of honorarium for the month of July 2010, and the arrears of honorarium for the month of April, May and June 2010 to the tune of Rs. 9,000/-. On the basis of complaint filed by P.W.2 trap was conducted in the C.D.P.O office at Ramdurg. Accused demanded and accepted the illegal gratification of Rs. 9,000/-. The prosecution to prove the allegation of accused having demanded and accepted illegal gratification of Rs. 9,000/- for release of honorarium mainly relies on the evidence of complainant-P.W.2, shadow witness-P.W.3 and P.W.4-Co-panch witness to the entrustment and trap panchanama Exs.P.5 and 25 respectively. The said evidence is sought to be corroborated by the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and he assured that money will paid after getting cheques enchased. On 05.08.2010 itself complainant encashed two cheques for Rs. 9,000/- and Rs. 7,000/-. Thereafter, accused insisted to pay illegal gratification and demanded illegal gratification. Further threatened that in case illegal gratification as demanded is not given, outsourcing with Shabari Rural Development Society will be cancelled. The complainant being not willing to pay illegal gratification, filed complaint before Lokayukta-Ex.P.4 on 13.08.2010 and produced mobile containing conversation between him and accused which came to be converted in the form of C.D-M.O. No. 4. 14. Complainant has produced 7 currency notes of Rs. 1,000 denomination and 4 currency notes of Rs. 500 denomination totally amounting to Rs. 9,000/-. The said currency notes were smeared with phenolphthalein powder. The currency notes were counted by P.W.4 and P.W.3 has noted down the number. Thereafter, the currency notes were kept in the pocket and instructed to give the same, if accused demand the illegal gratification. Complainant was further instructed to give signal by wiping face with hand kerchief on payment of illegal gratification. Compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, who is colleague of accused working as Assistant C.D.P.O. in the same office, identified the voice of accused and complainant. The trap panchanama was prepared Ex.P.25 and entire process of trap was photographed Exs.P.19 to 24. On the other hand, it is the defence of accused that he has some financial transaction with complainant and in this regard he has received the said money from complainant as he repaid the loan amount. Whether the said tainted money recovered from the possession of accused is illegal gratification accepted by accused or accepted the money being repayment of loan is to be now decided. 17. The latest constitution Bench judgment of Hon'ble Apex Court in NEERAJ DUTTA VS. STATE (GOVT. OF N.C.T. OF DEHLI) summarized the legal position to prove demand and acceptance of illegal gratification as under: "(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d) (i) and (ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of ille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event of complaint turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the presumption can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used to take money from him as loan. The accused has given money and thinking that he is giving back loan amount accepted the same, but receipt of said money is not illegal gratification demanded by him. If at all the accused has accepted illegal gratification then it was open for him to make defence to suit the purpose to substantiate his claim. However, the accused without having any second thought made plain statement as per Ex.P.29. 20. In the present case, it is the evidence of P.W.2 that on 12.08.2010 at 10.30 a.m. received phone call from accused and demanded illegal gratification of Rs. 9,000/- at any cost and he has recorded the same in his mobile. The mobile number of P.W.2 is 9886993653 and mobile number of accused is 9448406990. In view of the above evidence of P.W.2, he claims that accused has called him over phone and demanded illegal gratification of Rs. 9,000/- at any cost. The evidence of P.W.9 would go to show that he has collected the call details of mobile used by accused Ex.P.34. P.W.9 claims that accused through the mobile of Vittal Dasar called the complainant over phone and demanded illegal gratification. This statement of P.W.9 runs contrary to the evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his evidence before the Court. Therefore call details as per Ex.P.34 cannot be relied to hold that accused by using the mobile of P.W.5 demanded illegal gratification from complainant even after realizing the cheque Exs.P.16 and 17. 23. Learned counsel for accused has argued that no work of complainant P.W.2 was pending as on the date of trap on 16.08.2010. The accused has already issued the cheque to complainant on 05.08.2010 itself and both cheques have been realized on 06.08.2010. Therefore, the mere possession of tainted money and recovery of same under trap pachanama-Ex.P.25 cannot be ground to hold that accused has demanded and accepted illegal gratification. It is specific case of the prosecution that accused has demanded illegal gratification of Rs. 9,000/- and complainant assured that he will pay the amount after realizing the cheque amount. The issuance of the cheque by accused is alleged to be on condition to pay illegal gratification on realization of the cheque. P.W.7 who is the colleague of complainant does not speak anything that accused has demanded illegal gratification for issuing cheque Exs.P.16 and 17, nor complainant having informed to P.W.7 about accused dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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