TMI Blog2023 (7) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... of illegal gratification. The trial Court has not considered the effect of no work of complainant pending as on the date of filing complaint or on the date of trap, further there being no any concrete evidence to prove demand for illegal gratification erroneously proceeded to convict the accused which cannot be legally sustained. Therefore, interference of this Court is required. Judgment of the trial Court on the file of IV Additional District and Sessions Judge and Special Judge (PCA) Belagavi, in special Case No. 132/2011 dated 02.02.2013 hereby set-aside - The accused is acquitted and his bail bond stands discharged. Appeal filed by the appellant/accused is hereby allowed. - Anil B. Katti, J. For the Appellant : S.B. Deyannavar, Advocate. For the Respondents : Anil Kale, Advocate. JUDGMENT ANIL B. KATTI, J. 1. Appellant/accused feeling aggrieved by judgment of trial Court on the file of IV Additional District and Sessions Judge and Special Judge (PCA), Belgaum, in special Case No. 132/2011 dated 02.02.2013, preferred this appeal. 2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Accused pleaded not guilty and claimed to be tried. Prosecution in order to prove the allegations made against accused relied on the evidence of PWs. 1 to 11 and documents Exs.P.1 to 41, so also got identified M.O. Nos. 1 to 13. 5. On closure of the prosecution evidence, statement of accused under Section 313 of Cr.P.C, came to be recorded. Accused denied all the incriminating material evidence appearing against him and claimed that false case is filed. Trial Court after appreciating the evidence on record convicted the accused for the aforesaid offences and imposed sentence as per order of sentence. 6. Appellant/accused challenged the said judgment of conviction and order of sentence passed by the trial Court contending that there is a delay in filing the complaint and sending FIR to the Court which has not been satisfactorily explained by prosecution. The trial Court has failed to appreciate the defence of accused that the complainant has only returned the borrowed money from him which he has accepted, the accused has never demanded any illegal gratification of Rs. 9,000/- for issuing cheque. Therefore, the recovery of money from the accused is not illegal gratification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the accused. Therefore, prosecution out of the above referred evidence on record has proved that accused is public servant within the meaning of Section 2(C) of the Act. 11. The direct witness to speak on demand of illegal gratification by accused is P.W.2-complainant, who filed complaint-Ex.P.4 and produced the conversation between him and accused, wherein accused demanded illegal gratification and said conversation is converted in the form of C.D-M.O. No. 4. The prosecution relies on the evidence on shadow witness-P.W.3 and Co-pancha-P.W.4 to prove the entrustment panchanama Ex.P.5 and trap panchanama Ex.P.25. The voice of conversation between accused and complainant has been recognized by P.W.5, who is working as Assistant C.D.P.O in the same office. Investigating officer-P.W.11 is witness for processing entrustment panchanama-Ex.P.5 and conducting of trap-Ex.P.25. 12. On careful perusal of the evidence of P.Ws.2, 3, 4 and 11, it would go to show that they have spoken about complainant is President of Shabari Rural Development Society which has provided to two hands to C.D.P.O. office at Ramdurg, including complainant for operating the computers provided under Prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o C.D.P.O office at Ramdurg. Complainant and P.W.3 shadow witness were duly instructed and sent them to the office of accused. The shadow witness was waiting near the door of the office and another panch witness P.W.4 along with Lokayukta officials were waiting at some distance from the office. The complainant asked accused to reduce the money, since employees may not sign the vouchers, but the accused demanded Rs. 9,000/- and complainant paid the said amount. Accused accepted illegal gratification from his right hand and told that in connection with some other transactions Rs. 500/- is required to be paid to Shivareddy Pandappa Jagapur and returned Rs. 500/- note to complainant. Accused kept remaining amount of Rs. 8,500/- in back side paint pocket. Therefore, complainant on coming out of the office gave signal to the Lokayukta officials as instructed. 16. On arrival of the Lokayukta staff, complainant showed accused and stated that he has demanded and accepted illegal gratification. The accused produced an amount of Rs. 8,500/- from back pocket of the paint. On enquiry about shortage of Rs. 500/- , the complainant has produced Rs. 500/- note, since accused has returned the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution Bench judgment held that demand and recovery both must be proved to sustain conviction under the prevention of corruption Act. Conviction was set-aside as demand was not proved. The Hon'ble Apex court in the earlier judgment in K.SHANTHAMMA VS. THE STATE OF TELANGANA 2022 LIVE LAW (SC) PAGE No.192 wherein it has been observed and held that: Prevention of Corruption Act Section 7 and 13. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the P.C. Act. The failure of the prosecution to prove the demand of illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction there under. The reference was also made of earlier judgment in P. SATYANARAYANA MURTHY VS. INSPECTOR OF POLICE STATE OF A.P. (2015) 10 SCC 152. Therefore, in view of the principles enunciated in the afore mentioned judgment of the Hon'ble Apex Court, the proof of demand and acceptance of illegal gratification by public servant is sine quo non for establishing the offence under Section 7 of the P.C. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 who is the investigating officer from registering the case till the conclusion of trap panchanama did never speak anything that accused has used the mobile of P.W.5 to contact complainant over phone to make demand of illegal gratification. 21. It is pertinent to note that complainant P.W.2 makes no allegation between 06.08.2010 from the date of realizing cheque till 12.08.2010 that accused has demanded illegal gratification of Rs. 9,000/- even after delivering the cheque to complainant P.W.2, so as to connect the claim of complainant P.W.2 that accused demanded illegal gratification. However, P.W.2 during the course of evidence for the first time deposed to the effect that even after realization of cheque, accused persistently calling complainant over phone and demanded illegal gratification. However, the said evidence does not find place in the complaint filed by P.W.2 as per Ex.P.4. The call details of P.W.5-Vittal Dasar Ex.P.34 and call details of accused Ex.P.39 are collected only from 12.08.2010 and 13.08.2010, as per Ex.P.34 call details of P.W.5 only for the day on 11.08.2010 is collected. The evidence of P.W.9 and 11 is silent on this aspect of the matter. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E COURT CASE 507, wherein it has been observed and held that in order to secure an order of conviction for the offences punishable under Section 7, 13(1)(d) R/w Section 13(2) of prevention of corruption Act the prosecution has to establish the following ingredients: 1. Demand and acceptance of bribe money. 2. Handling of tainted money by the accused on the day of trap (colour test). 3. Work of the complainant must be pending as on the date of trap with the accused. The Co-ordinate Bench judgment of this Court in CHANDRESHA S/O MADARSHA KATBA VS. STATE OF KARNATAKA LOKAYUKTA POLICE KALBURGI IN CRIMINAL APPEAL No.200105/2015 DATED 16.02.2022 by relying on the aforesaid judgment of the Hon'ble Apex Court has held that when the work of complainant is not pending before accused as on the date of trap, the important ingredient to attract and complete the offence punishable under Section 7, 13(1)(d) R/w Section 13(2) of the Prevention of Corruption Act cannot be sustained. The another Co-ordinate Bench judgment of this Court in State of KARNATAKA VS. NARAYANSWAMY IN CRIMINAL APPEAL No.2506/2012 DATED 29.09.2021 has taken similar view that when work is not pending the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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