TaxTMI 
TaxTMI 
2023 (7) TMI 1356
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....me, the complainant-Shivamurthy, who was examined as PW.2 in this case and other beneficiaries have applied for loan in the said scheme at Dr. B.R.Ambedkar Development Corporation. The appellant/accused being Executive Officer of Taluk Panchayat had to send recommendation to the said development corporation for sanctioning the loan under the said scheme. In this regard, PW.2-the complainant, PW.4-Ningaraju and CW.8-Nagaraju approached the appellant/accused on 27.11.2007 in Taluk Panchayat office at Yelandur and requested the appellant/accused to see that they were selected as the beneficiaries under the said scheme and they are to be recommended by the Authority. The accused/appellant agreed to comply with their request subject to the condition that they should pay bribe of Rs. 2,500/-each, totalling to Rs. 10,000/-for doing the said official act. When they said that they are unable to pay that much of amount, the accused agreed to accept Rs. 4500/-in total and told that he would do the work, only if the said amount of Rs. 4500/-is paid to him on 28.11.2007, otherwise, he will not do the work and thereby, demanded the illegal gratification. Therefore, the complainant i.e., PW.2 and....
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....al Court so also after hearing both the counsels for the accused and the Lokayukta, the learned Special Judge held that the prosecution proved the guilt of the accused for the offences punishable under Sections 7 and 13(1)d r/w section 13(2) of the Act and thereby, passed the impugned judgment by convicting the accused for the aforesaid offences as stated supra. The said judgment is challenged in this appeal. 7. I have heard Sri. Arun Shyam, learned Senior counsel for the appellant so also Sri. Venkatesh Arabhatti, learned counsel for the respondent-Lokayukta. 8. Learned Senior counsel for the appellant, vehemently, contended that the judgment under this appeal suffers from perversity and illegality and the learned Special Judge passed the impugned judgment without appreciating the evidence available on record so also the documents produced by the prosecution. He would further contend that the learned Special Judge convicted the appellant based on assumption and presumption, without appreciating the evidence available on record. He would further contend that though the prosecution totally failed to prove the demand and acceptance of the bribe by the appellant by leading cogent ev....
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.... the prosecution that the accused paid the amount for the purpose that he had applied for loan to Dr. Ambedkar Development Corporation and the accused, being the Executive Officer in Taluk Panchayat, had to send recommendation to the said Development Corporation for sanctioning the loan under the said scheme for which, the accused demanded bribe. But the Investigation Officer failed to seize any such documents in the office of the accused. The Investigation Officer also categorically admitted that at the time of the alleged trap, the accused was not in possession of documents pertaining to the complainant-PW.2 and the other beneficiaries. Further, he admitted that there is a committee headed by the accused to select the beneficiaries. All the documents pertaining to the beneficiaries were with one Subbanna, who was Yelandur Taluk Development Officer and Smt. Rukmini i.e., District Manager of Dr. Ambedkar Development Corporation, Chamarajanagar and Investigation Officer seized the registers pertaining to Gundlupet and Yelandur Taluk beneficiaries' applications for loan from the said Smt. Rukmini. She was maintaining the said registers. In such circumstance, there is no reason ei....
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....ainst him. Learned counsel would further contend that though the complainant-PW.2 in this case turned hostile before the Court by disowning his statement, that itself does not take away the case of the prosecution as per the settled law by the Hon'ble Apex Court in the case of Neeraj Dutta's case rendered by the Constitution Bench, wherein the Hon'ble Apex Court summarized in paragraph 88.6. (f) that in the event the complainant 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 against let in evidence, either orally or by documentary evidence or the prosecution 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. As such, in the absence of evidence of the complainant, it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) r/w Section 13(2) of the Act based on the other evidence adduced by the prosecution. 12. It is further contended by the learned counsel for the respond....
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.... Investigation Officer categorically admitted that there were some pending works in the office of the accused relating to PW.2. As such, the presumption under Section 20 of the Act can be drawn in this case since the accused being the Executive Officer of the Taluk Panchayath, he is the officer who has to send the recommendation of the complainant to the Development Corporation for sanctioning of the loan under Dr. B.R. Ambedkar Self-Employment Scheme and as such, the accused demanded the bribe amount. The learned counsel would submit that the defence of the accused by way of Ex.P4-Explanation that the said amount was kept in his drawer by the Police Officials is not in a probable defence for the reason that the accused totally failed to lead any evidence to that effect. PW.1 and PW.3 categorically stated that the explanation given by the accused as per Ex.P4 is false. Since the accused failed to prove such defence, the same cannot be believed and the same is not a probable defence. In such circumstances, the learned counsel for the respondent-Lokayukta prays to dismiss the appeal and to confirm the judgment passed by the trial Court. 14. On behalf of his arguments, the learned co....
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....fied the notes. Then on the instruction of Police Inspector, he kept the said currency notes in the shirt pocket of Shivamurthy. Then it is informed to the complainant that if the accused demanded, he has to give a signal by wiping his face with hands and a voice recorder was also given to PW.2. Then, his both hands were dipped in Sodium Carbonate solution and the said solution turned into pink colour. Then they all left the Lokayukta Office at about 5.00 p.m., and they reached Yelandur by 5.20 p.m., and thereafter, the Police sent CW.1 and CW.3 to the office of the accused. Then they were all outside the office. Within 10 minutes, the complainant came out of the office and gave a signal by wiping the face, then himself and the Police went inside the office of the accused. The Inspector enquired the complainant and told that the accused has asked the bribe and he has paid the bribe and the accused, after receiving the bribe, has kept the bribe amount in the table drawer. On enquiry, the accused told when he went for urinals, the bribe amount was kept in the drawer by the complainant. Then the Police held the hands of the accused and dipped both the hands separately in some solution....
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....owever, he deposed before the Court that the accused has not demanded any money from him to do his work and he has given Rs. 4,500/-to the Lokayukta Police on their request. Hence, the said witness treated as hostile to the prosecution case. Though the learned Public Prosecutor cross examined the said witness in length, nothing has been elicited from the mouth of the said witness. (iii) PW.3-Lingaraju, who was working as FDA, is a shadow witness of the trap. He reiterated the version of PW.1. As far as the alleged raid is concerned, he deposed that on the said date, at about 5.00 p.m., himself and PW.1 and other Police Officers went in a car to the office of the accused and PW.2 brought a bicycle and then himself and PW.2 went in the bicycle to the office of the accused and the accused was alone in his chamber and he watching the same through the window from outside of the accused chamber. PW.2 i.e., the complainant went inside the accused chamber and the accused spoke to PW.2 and thereafter, he received the money (bribe) and the accused, after receiving the bribe amount, verified the same and kept in the right side table drawer and told that he will do his job and asked him to g....
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....y a bribe of Rs. 2,500/-each totalling to Rs. 10,000/-and thereafter, they agreed to pay Rs. 4,500/-in total. On that aspect of the matter, he demanded the illegal gratification. To prove the said aspect, the prosecution relied the evidence of PW.1 i.e., mahazar witness, PW.3 i.e., shadow witness, PW.5 i.e., Investigation Officer. PW.2-the complainant in this case, turned hostile to the prosecution case. PW.2, who lodged the complaint as per Ex.P13, disowned the contents of complaint i.e., Ex.P13 and stated that the accused did not demanded any illegal gratification from him nor he paid the same. Further, he deposed that on the request of Lokayukta Police, he gave Rs. 4,500/-to them on the date of incident. Though this witness admitted his signature on complaint i.e., Ex.P13, he denied the contents of the said complaint. As such, for the demand and acceptance of the illegal gratification by the appellant, the prosecution has to prove its case by the evidence of PW.1 and PW.3. 19. By careful perusal of the evidence of PW.1 and PW.3, PW.1, who is the panch witness, though deposed in the chief examination that himself, PW.2 and PW.3 went to the office of the accused and the accused d....
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.... acceptance of the bribe and stated that they were all outside the chamber of the accused. Hence, even according to PW.3 also, PW.2-the complainant informed him about the demand and acceptance of the bribe amount by the accused. Hence, version of PW.3 also cannot be relied to prove the guilt of the accused for the reason that as far as the demand and acceptance of bribe amount is concerned, PW.2 i.e., the complainant who informed PW.1 and PW.3 that the accused demanded and received the bribe amount. Moreover, the voice recorder was not so clear and it was not in an audible condition. Hence, the evidence in respect of demand of bribe amount is concerned, there is no cogent evidence and the prosecution failed to prove the same by leading cogent evidence. 21. As far as acceptance of the bribe amount is concerned, though the witnesses i.e., PW.1 and PW.3 stated that the amount was recovered in the drawer of the accused, but the defence of the accused that the amount was kept in his table by the Officials appears to be probable one, for the reason that PW.3 in his evidence categorically deposed that when he was standing by the side of the window of the accused chamber along with the co....
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....n the nature of oral evidence or documentary evidence, or, (2) by circumstantial evidence in the absence of direct and oral documentary evidence. The Hon'ble Apex Court, in paragraph 88, held as under:- "88. What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the Section is a sine quo 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. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the followi....
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....gainst let in evidence, either orally or by documentary evidence or the prosecution 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. 88.7. (g) Insofar 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 the 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 Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature. " Hence, the Hon'ble Apex Court laid the dictum that the 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 acc....
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....ial 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 conclusion of guilt. The facts so established 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." 26. It is settled position of law laid down by the Hon'ble Apex Court in the above said judgment that the prosecution must establish each and every circumstances from which the prosecution wants the Court to draw a conclusion of the guilt. Moreover, the Hon'ble Apex Court in the case of P.Sathyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152 held that, the proof of demand cannot be proved by the evidence of other witnesses, in such eventuality though such recovery proved, the benefit of doubt ....
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..... If the accused failed to explain such circumstances, then adverse inference can be drawn against he accused. But the Hon'ble Apex Court in the case of V.Sejappa vs. State by Police Inspector Lokayukta, Chitradurga (2016) 12 SCC 150 held that mere recovery of tainted money is not sufficient to convict the accused. The presumption under Section 20 is concerned, the Court is required to consider explanation offered by the accused, if any, only on touchstone of preponderance of probability and not on touchstone of proof beyond all reasonable doubt. However, before accused is called upon to explain as to how the amount in question was found in his possession, foundational facts must be established by prosecution. 30. In the case on hand, the accused offered the explanation that the amount was kept in his drawer by PW.5 while he gone for urinals. Even PW.3 stated in his evidence that, along with PW.2, another person known to PW.2 accompanied to the chamber of the accused. Further, PW.2 and another person were went inside the chamber of accused and also he admitted in his cross examination that "it is true to suggest that after removing the cash from the hands of accused from his t....
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....ney by the accused, presumption under Section 114 of Indian Evidence Act and Section 4(1) of the Act can be raised against accused, however, the said dictum laid down by the Hon'ble Apex Court has been diluted by the subsequent judgments rendered by the Hon'ble Apex Court in the case of Jayaraj vs. State of Andhra Pradesh, P.Sathyanarayan Murthy vs. District Inspector of Police, State of Andhra Pradesh, V.Sejappa vs. State by Police Inspector Lokayukta, Chitradurga and N.Vijaykumar vs. State of Tamilnadu as discussed Supra. 35. The Hon'ble Apex Court in catena of judgments held in respect of burden of proof and doctrine of innocence. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle form the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The Courts must be on guard to see that merely on the application of the presumption, the same may not lead any injustice or mistaken conviction. My view is fortified by the judgment rendered by the Hon....