IN THE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT DHARWAD

DATED THIS THE 24th

DAY OF JULY 2012

BEFORE

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

CRIMINAL APPEAL No.2667/2006

BETWEEN:

Kadappa S/o Bhimappa Chalawadi,

Age: About 65 Years, Occ: Head Drattsman,

Office of the Joint Director of Town Planning

Dharwad. …. APPELLANT.

(By Sri A.G.Mulawadmath, Advocate)

AND:

The State of Karnataka

By Police Inspector,

Police Wing, Karnataka Lokayukta

Dharwad. …RESPONDENT

(By Sri M.B.Gundawade, Advocate)

This appeal is filed under Section 374 of the Code of

Criminal Procedure, 1973 by the advocate for the appellant

against the judgment dt.28.11.06 passed by the Prl.SJ., &

Spl.Judge, Dharwadi n SPEL (SVC) C.C.No. 12/98 and

convicting the appellant/accused for the offence p/u/s.7 &

13(1)(d) r/w. Sec.13(2) of the Prevention of Corruption

Act,1988. And sentencing him to undergo R.I. for 2 years & to

pay a fine of Rs.5,000/- I.D., to undergo S.I. for 3 months for

the offence p/u/s.7 of Prevention of Corruption Act,1988. And

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further sentencing him to undergo R.I for 3 years & to pay a

fine of Rs.10,000/- I.D., to undergo S.I. for 6 months for the

offence p/u/s.13(1)(d) p/u/s.13(2) of the Prevention of

Corruption Act,1988. Both the substantive sentences shall run

concurrently.

This appeal having been heard and reserved and coming

on for ‘Pronouncement of Judgement’ this day, the court

delivered the following:

JUDGMENT

This appeal is filed by the accused against the judgment

of conviction for 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 the ‘PC Act’,

for brevity).

2. The facts are as follows:

The complainant one Thimmappa Mushappa Waddar

was a permanent resident of Kilubanur village, Ramadurg

Taluk, Belgaum District. He was the owner of agricultural

land bearing Survey No.84/2 of Kilubanur measuring about 1

acre 11 guntas. On 22.5.1997, he had made an application to

the Assistant Commissioner, Bailhongal for conversion of

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land use, to use his land for non-agricutlural purposes. His

application was forwarded to the Assistant Director of Town

Planning, Belgaum, who had, in turn, conducted a spot

inspection and had forwarded the file to the Joint Director of

Town Planning, Dharwad. When the file was with the office of

the Joint Director, the complainant had approached the present

appellant, who was holding the post of Head Draftsman and

inquired with him about the progress of his file, at which time,

the appellant is said to have demanded a bribe or illegal

gratification of Rs.10,000/-. When the complainant expressed

his inability to pay that amount of money, the accused had then

demanded Rs.8,000/-. The complainant finally agreed to pay

an advance of Rs.3,000/-and to pay the balance later. The

accused is then said to have inspected his land and when there

was no further progress, the complainant had approached him

again, at which time, the accused- appellant is said to have

demanded the remaining amount of Rs.5,000/- as illegal

gratification.

4

Since he was not willing to pay the bribe, he had lodged a

complaint with the Inspector of Police, Lokayuktha, who in

turn, registered a case in Crime No.15/1997 and forwarded the

complaint to the jurisdictional court and obtained the assistance

of two officials from the Minor Irrigation Department and the

Hubli-Dharwad Municipal Corporation, respectively, to act as

witnesses in trap proceedings. Accordingly, those witnesses,

on their reporting, had been introduced to the complainant

and the manner in which a trap could be effected was

explained to them. The currency notes that were to be handed

over to the appellant as bribe were then treated with

phenolphthalein powder and it was demonstrated to the

witnesses that if once the notes are handled and if the hands

are washed in Sodium Carbonate solution, the solution would

turn pink in colour.

After such demonstration, the entrustment mahazar was

drawn up and the party including the complainant, the

witnesses and other officials of the Lokayukta had proceeded

to the office of the accused on foot, since it was very close to

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the office of the Lokayukta. The complainant and one witness

were thereafter further instructed as to the manner in which the

amount would be paid and also instructed the complainant as

regards the pre-arranged signal, after payment of the bribe

amount, which would be the cue for the officials to apprehend

the accused. Accordingly, the complainant had gone into the

office and came out with the accused and proceeded to a

canteen nearby and the trap party had followed them and

waited outside the canteen. After having refreshments, the

complainant and the accused had come out and went towards

the office of the accused. On the way, they stopped and the

complainant had given a pre-arranged signal, at which point,

the investigating officer, the other panch witnesses and other

Lokayukta staff rushed towards them and the complainant had

thereafter pointed towards the accused and indicated that he had

demanded and accepted the bribe of Rs.5,000/- and that he had

received the money counted with his right hand and it was kept

in his right hand side pant pocket.

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The Lokayukta Inspector introduced himself and took

the accused to his office to conduct further proceedings. The

hands of the accused were washed with Sodium Carbonate

solution, and it turned pink in colour, which was in turn sealed

and marked. Thereafter, the tainted currency notes were

demanded from the accused, who in turn, handed over the same

and the currency notes were verified and compared with the

numbers that were previously noted down and were found to

tally. Further evidence was gathered, in the pocket portion of

the pant of the accused also having been washed with Sodium

Carbonate solution, to establish that the money had been kept

in that pocket which was, in turn, sealed and marked. The

accused was thereupon asked to produce the file pertaining to

the complainant which was also copied and marked and the

Attendance Register of the office of the accused was also

obtained to establish that he had been present in the office on

the said day. The accused was asked if he wanted to make any

statement and his statement was recorded. On the basis of other

material and the statements that were duly recorded, a final

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report was prepared after the completion of the investigation

and the file was forwarded for obtaining sanction from the

competent authority to prosecute the accused. Thereafter, a

charge-sheet was prepared and submitted to the court.

On summons, the accused had appeared through

counsel. He pleaded not guilty and after recording his plea,

the matter went to trial. The prosecution examined six

witnesses and marked 51 documents as Exhibits P.1 to P.51

apart from Material Objects - Mos. 1 to 18. Thereafter, the

statement of the accused under Section 313 of the Code of

Criminal Procedure, 1973 (Hereinafter referred to as the

‘Cr.P.C.’, for brevity) was also recorded.

It was his defence that one Yallappa Hanumantappa

Munavalli, who was an acquaintance, had taken a hand loan of

Rs.2,000/- and he had failed to repay the amount, on account of

which there was ill will between the accused and Munavalli.

On the date of the alleged incident, Munavalli, the complainant

along with one Doddamani had met him at his office and they

had all proceeded for refreshments in a nearby canteen and

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while coming back to the office, Munavalli had thrust the

money at the accused and since he was in a hurry to attend to

his work, he had received the money, without counting the

same and kept it in his pocket. It is at that point of time that

the accused was taken into custody and it was alleged that he

had demanded and received bribe.

The court below, on the basis of the above, framed the

following points for its consideration :-

“1. Whether the Sanction Order as per

Dex.P.28 is legal and valid?

2. Whether the prosecution proves beyond

reasonable doubt that the accused being a

public servant working as Head Draftsman in

the office of the Joint Director of Town

Planning, Dharwad, on 24.7.1997 At about

3.00p.m. demanded and accepted Rs.5,000/-

from the complainant Thimmanna Mushappa

Waddar as bribe, for doing an official favour

viz., in the matter of getting no objection from

the Joint Director of Town Planning for

conversion of the land of the complainant to

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non-agricultural land, and thereby committed

the offences punishable under Section 7 and

13(1)(d) read with section 13(2) of the

Prevention of Corruption Act, 1988?”

The court below has answered points 1 and 2 in the

affirmative and after taking note of the fact that the accused was

no longer in service as on the date of the judgment, as he had

attained the age of superannuation, proceeded to sentence him

to undergo rigorous imprisonment for two years and to pay a

fine of Rs.5,000/- for an offence punishable under Section 7

of the PC Act, and to undergo three years rigorous

imprisonment and to pay a fine of Rs.10,000/- for offences

under Section 13(1)(d) and read with Section 13(2) of the PC

Act. Both the sentences were to run concurrently.

It is that which is under challenge in the present appeal.

3. The learned Counsel for the appellant would submit

that PW.1, the complainant has completely retracted the

allegations in the complaint and has endorsed the circumstance

that at the time of the trap, there were two others along with

10

him namely, Yellappa Hanumanthappa Munavalli and

Doddamani, who were also owning lands and who were also

seeking conversion of their lands for non-agricultural purposes

and that Munavalli was the one who had instigated him to

complain against the accused and to see that a trap was set

against him and further that it was Munavalli, who had paid an

amount of Rs.5,000/- to the accused. PWs - 2 and 4 who were

the shadow witnesses have also resiled from their statements,

and were treated as hostile witnesses and were cross-

examined. It is evident therefore, from the material on record

that there is no indication of the demand and acceptance of

bribe by the appellant, which is an essential ingredient, to

establish the commission of offences alleged.

The learned Counsel would submit that the court below

after taking note of the evidence of PWs 1,2 and 4, which did

not support the case of the prosecution, however, has proceeded

to hold that when viewed with the evidence of the officials of

the Lokayukta, the inconsistency in the statements of the said

witnesses, to the effect that though the accused in his statement

11

at Exhibit P.114, had indicated that the complainant had

handed over the amount stating that Munavalli had given him

the amount, while making his statement during his cross-

examination under Section 313 Cr.P.C, he has consistently

stated that it was Munavalli who had handed over the currency

notes to him. And the court has proceeded further and has

taken exception to the further circumstance that it was the case

of the accused that he had lent Rs.2,000/- to Munavalli and it

was inexplicable that he had received Rs.5,000/- in turn, which

was recovered from his pocket. Therefore, the court below has

opined that the appellant had apparently won over the

complainant and other witnesses and there was enough material

on hand, especially, the admission by the appellant himself that

he had received the money, which was found treated with

Phenolphthalein powder and therefore, raised a presumption

that he had, in fact, demanded and accepted an illegal

gratification, which was sufficient to prove beyond all

reasonable doubt that the accused – appellant had committed an

offence, is a reasoning, which according to the learned counsel

12

for the appellant, is opposed to the established principles of

law. The learned Counsel would place reliance on the following

decisions:-

1. Subash Parbat Sonvane vs. State of Gujarat, 2002(5)SCC

86,

2. C.M.Girish Babu vs. CBI, (2009)3 SCC 779,

3. Union of India vs. Purnandu Biswas, 2005(12) SCC 576

4. On the other hand, the learned counsel for the

respondent, while seeking to justify the judgment of the trial

court, places reliance on the following decisions:

1. M.Narsinga Rao vs. State of A.P., (2001)1 SCC 691,

2. Krishna Ram vs. State of Rajasthan, (2010)1 SCC (Crl)147.

5. In the light of the above, it is evident that there is no

direct evidence of the demand and acceptance pursuant to such

a demand of any gratification. What is established and is not in

dispute is that the currency notes, which were treated with

phenolphthalein powder and which were utilised for the

purpose of trapping the accused red-handed, while demanding

13

and receiving such illegal gratification, were admitted to have

been received by the appellant, but with a rider that he had

received it not from the complainant, but from one Munavalli,

to whom he had lent money earlier and was receiving the

money under the impression that such amount was being

returned to him. This has been endorsed by the complainant

and by Munavalli himself or rather the sequence of the said

currency notes having been handed over by Munavalli and

having been received by the appellant is established. The

question then that would require to be addressed by this court

is, whether the trial court was justified in drawing a

presumption that the accused accepted the gratification as a

motive or reward for doing or forbearing to do any official act.

The case of Narsing Rao, supra, relied upon by the

learned counsel for the respondent, can be usefully referred in

addressing this question. The facts of that case were that the

appellant therein was a manager of a Milk Chilling Centre of a

Co-operative Federation. It was alleged that he had received

bribe from the milk transporting contractor. He was caught

14

red-handed in a trap arranged by the officials of the Anti

Corruption Bureau. He was charge-sheeted for offences under

Sections 7 and 13(2) read with Section 13(1) of the PC Act.

After a trial, he was convicted and sentenced to undergo

rigorous imprisonment for two years and fine under each of

the above accounts. In an appeal to the High Court, the

conviction was confirmed, but the sentence of imprisonment

was reduced. The appellant was in appeal before the apex

court. The apex Court found that the complainant and the

panch witness made a volte-face in the trial court and denied

having paid any bribe to the appellant and also denied that he

had demanded the bribe. They were declared as hostile

witnesses by the Public Prosecutor and they were cross-

examined. The appellant was then called upon to answer the

questions put to him under Section 313 of the Cr.PC. he

claimed that one Dr.Rao, who bore a grudge against him had

orchestrated a false case by implicating PWs.1 and 2 and that

the currency notes were forcibly thrust into his pocket. He

examined two witnesses on the defence side. The Trial court

15

and the High Court had debelieved the evidence in toto. It was

urged before the apex court, on behalf of the appellant, firstly

that the presumption under Section 20 of the PC Act, could be

drawn only when the prosecution succeeded in establishing

the direct evidence that the delinquent public servant accepted

or obtained the gratification. That premise cannot depend on an

inference for affording the foundation for the legal presumption

envisaged in Section 20 of the Act. Secondly, it was contended

that it was not enough that some currency notes were handed

over to the public servant, to make it acceptance of

gratification. The prosecution had further to prove that what

was paid amounted to gratification.

In answering the above, the apex Court framed for itself

the following question:

“Can a legal presumption be based on a factual

presumption?. The latter is discretionary whereas the

former is compulsory.”

The apex court answered the contentions while pointing

out that the expressions ‘ may presume’ and ‘shall presume’ are

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defined in Section 4 of the Evidence Act. The presumptions

falling under the former category are compendiously known as

‘factual presumptions’ or ‘discretionary presumptions’ and

those falling under the latter as ‘legal presumptions’ or

‘compulsory presumptions’. When the expression ‘shall be

presumed’ is employed in Section 20(1) of the Act, it would

have the same import of compulsion.

It was held that a legal presumption is to be understood

as in terrorem, that is, in tone of a command that it has to be

presumed that the accused accepted the gratification as a motive

or reward for doing or forbearing to do any official act etc., if

the condition envisaged in the former part of the section is

satisfied. The only contention for drawing such a legal

presumption under Section 20 is that during trial, it should be

proved that the accused had accepted or agreed to accept any

gratification. The section does not say that the said condition

should be satisfied through direct evidence. The only

requirement is that it must be proved that the accused has

accepted or agreed to accept gratification. The direct evidence

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is one of the modes, through which, a fact can be proved, but

that is not the only mode envisaged under the Evidence Act.

The word ‘proof’ need be understood in the sense in which it

is defined in the Evidence Act, because, proof depends upon the

admissibility of evidence. A fact is said to be proved when

after considering the matters before it, the court either believes

it to exist, or considers its existence so probable that a prudent

man ought, under the circumstances of the particular case, to act

upon the supposition that it exists. This is the definition given

for the word “proved” in the Evidence Act. What is required is

production of such materials, on which the court can reasonably

act to reach the supposition that a fact exists. Proof of the fact

depends upon the degree of probability of its having existed.

The court has cited with approval the observation in

Hawkins vs. Powells Tillery Steam Coal Co.Ltd. , (1911_1 KB

988, which reads thus:

“Proof does not mean proof to rigid

mathematical demonstration, because that is impossible;

it must mean such evidence as would induce a

reasonable man to come to a particular conclusion.”

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It is held by the apex court that in reaching the

conclusion, the court can use the process of inferences to be

drawn from facts produced or proved. Such inferences are

akin to presumptions in law. Law gives absolute discretion to

the court to presume the existence of any fact which it thinks

likely to have happened. In that process, the court may have

regard to common course of natural events, human conduct,

public or private business vis-à-vis the facts of the particular

case. The discretion is clearly envisaged in Section 114 of the

Evidence Act. The presumption is an inference of a certain fact

drawn from other proved facts. While inferring the existence

of a fact from another, the court is only applying a process of

intelligent reasoning which the mind of a prudent man would

do under similar circumstances. Presumption is not the final

conclusion to be drawn from other facts. But it could as well be

final if it remains undisturbed later. Presumption in law of

evidence is a rule indicating the stage of shifting the burden of

proof. From a certain fact or facts, the court can draw an

inference and that would remain until such inference is either

19

disproved or dispelled. For the purpose of reaching one

conclusion, the court can rely on a factual presumption. Unless

the presumption is disproved or dispelled or rebutted, the court

can treat the presumption as tantamounting to proof. However,

prudence would demand that it may be unsafe to use that

presumption to draw yet another discretionary presumption

unless there is a statutory compulsion. The apex Court has

cited the observation of the apex Court in Suresh Budharmal

Kalani vs. State of Maharashtra, (1998)7 SCC 337, to the

following effect:

“A presumption can be drawn only from facts –

and not from other presumptions – by a process of

probable and logical reasoning.”

The court has then referred to illustration (a) to Section

114 of the Evidence Act namely, that a court may presume that

a man who is in possession of stolen goods soon after the theft

is either the thief or has received the goods knowing them to

be stolen, unless he can account for his possession and has

pressed the same into service in a context and has held that

20

when the prosecution had brought reliable material to indicate

that the appellant’s pocket contained phenolphthalein smeared

currency notes when he was searched by the Anti-Corruption

Bureau, that by itself may not or need not necessarily lead to a

presumption that he accepted that amount from somebody else

because, there is a possibility of somebody else either stuffing

those currency notes into his pocket or stealthily inserting the

same therein, but coupled with other circumstances, which had

been proved and those preceding and succeeding the searching

out of the tainted currency notes, are relevant and useful to help

the court to draw a factual presumption that the appellant had

willingly received the currency notes. It is in this manner that

the apex court had concluded that both the trial court and the

High Court were justified in their findings as those findings

were supported on sound and formidable reasoning.

Krishna Ram vs. State of Rajasthan, supra, on which

reliance is placed by the counsel for the respondent, was a case

where the evidence of the complainant or the investigating

21

officers remained unimpeached. The defence sought to be set

up by the appellant – accused was negated.

However, the decision relied upon by the learned

Counsel for the appellant in the case of Banshi Lal Yadav,

supra, which was a case decided under the Prevention of

Corruption Act, 1947 and Section 4 of the said Act, in the

context of the contentions raised by the appellant that certain

tainted currency notes which was recovered from him were

thrust into his pocket, whether presumption under Section 4

could be invoked, the apex court has held that before a

presumption could be raised, the burden is on the prosecution to

prove that the accused has accepted or obtained or agreed to

accept or attempted to obtain for himself any gratification other

than legal remuneration . In his statement under Section 313 of

the Cr.PC, the accused having stated that the currency notes

were thrust into his pocket and that statement alone without

anything more was not sufficient to satisfy the necessary

ingredients of Section 4(1) that he had accepted or obtained

22

gratification other than legal remuneration so as to be able to

raise the presumption.

In Subash Parbat Sonvane, supra, the Supreme Court

had held that mere acceptance of money without there being

any other evidence, would not be sufficient for convicting the

accused under Section 13(1)(d)(i) and pointed out that in

Sections 7 and 13(1)(a) and (b) of the PC Act, the Legislature

has specifically used the words ‘accepts’ or ‘obtains’. As

against this, there is departure in the language used in clause

(1)(d) of Section 13 and it has omitted the word ‘accepts’ and

has emphasized the word ‘obtains’. Therefore, in order to

convict a person under Section 13(1)(d) ,there must be

evidence on record that the accused ‘obtained’ for himself or

for any other person any valuable thing or pecuniary advantage

by either corrupt or illegal means or by abusing his position as a

public or he obtained for any person any valuable thing or

pecuniary advantage without any public interest.

The Supreme Court drew attention to the observations of

the apex Court in the case of Ram Krishan vs. The State of

23

Delhi, (1956) SCR 183, wherein the apex court had observed

that the word ‘obtains’ connotes also an element of effort on

the part of the receiver.

In this regard, it was held that the statutory presumption

under Section 20 of the Act, though available for an offence

punishable under Section 7 or Section 11 or clause (a) and (b)

of sub-section (1) of Section 13, it is not so available for clause

(d) of Sub-section (1) of Section 13.

In the case of V.Venkata Subbarao, supra, it was

reiterated that in the absence of proof of a demand, the

question of raising a presumption would not arise. Section 20

provides for raising of presumption only if a demand is proved

and further, the burden on the accused does not have to meet

the same standard of proof as is required to be met by the

prosecution. It was reiterated while noticing the observation in

the case of Union of India vs. Purnandu Biswas, (2005)12

SCC 576), that Section 20 of the Act is not attracted as the

respondent had been charged for commission of offences under

Section 13(1)(d) read with Section 13(2) of the PC Act.

24

In the case of Girish Babu, supra, the accused has

raised a similar defence as in the present case on hand and it

was also found therein that mere recovery of money by itself

did not prove the charge of the prosecution against the accused.

In the light of the above case-law if the facts of the

present case are addressed, it is evident that the allegations

against the accused were of commission of offences punishable

under Sections 7 and 13(1)(d) and 13(2) of the PC Act. In the

case of Narsing Rao, supra, it was held that the presumption

under Section 20 could be drawn in respect of offences

punishable under Section 7 or Section 11 or clause (a) or

clause (b) of Sub-Section (1) of Section 13. It could not be in

respect of an offence punishable under Section 13(1)(d) as has

been noticed in more than one judgment of the apex court.

In that view of the matter, the burden was on the

prosecution to have established that there was a demand of

illegal gratification by the appellant, pursuant to which, he had

accepted the same. Admittedly, there is no evidence

25

forthcoming, either of the complainant or the panch witness of

any such demand having been made. Secondly, the tainted

money was given into the hands of the appellant not by the

complainant, but by one Munavalli. It was the defence of the

accused while admitting the receipt of the money that there was

a loan transaction between Munavalli and himself and he had

received the money from Munavalli in the belief that the said

money was being returned. Though the court below has

observed that the alleged loan transaction was only in respect of

Rs.2,000/- whereas what was recovered from the accused –

appellant was Rs.5,000/-, is explained by the accused to the

effect that since he was in a hurry to get back to work, he had

simply received the money and had thrust into his pocket

without counting the same. This explanation is a plausible

explanation and in consonance with human conduct, or rather,

it is not uncommon or unusual. Therefore, even if a larger

amount had been recovered, that by itself, has not established

the case of the prosecution that there was demand and

acceptance of illegal gratification. In that view of the matter,

26

in the facts and circumstances of the case, the court below

having drawn presumptions on the basis of the circumstances of

the case, indeed has resulted in a miscarriage of justice. In the

opinion of this court, the prosecution had failed to prove its

case beyond all reasonable doubt.

Accordingly, the appeal is allowed. The accused is

acquitted of offences punishable under Sections 7 and 13(1)(d)

read with Section 13(2) of the PC Act.

Sd/-

JUDGE

nv