- 1 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL NO. 781 OF 2012 (C) BETWEEN: SRI. MANJUNATHA KUTTA S/O LATE B.S. SATHYANARAYANA KUTTA AGED ABOUT 27 YEARS FIRST DIVISION ASSISTANT HEALTH AND FAMILY WELFARE DEPARTMENT BANGALORE RESIDING AT NO.229, 3RD CROSS OLD POLICE STATION ROAD THYAGARAJANAGAR BANGALORE-560 028 …APPELLANT (BY SRI. M.T. NANAIAH, SENIOR COUNSEL A/W SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE) AND: THE STATE OF KARNATAKA BY DEPUTY SUPERINTENDENT OF POLICE CITY DIVISION, KARNATAKA LOKAYUKTA BANGALORE …RESPONDENT (BY SRI. B.S. PRASAD, ADVOCATE) THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE SPECIAL JUDGE, PREVENTION OF CORRUPTION ACT, BANGALORE URBAN DISTRICT, BANGALORE CITY DATED 30.06.2012 IN SPL.C.C.NO.189/2007 - CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 7 AND 13(1)(d) P/U/S R Digitally signed by SHAKAMBARI Location: High Court of Karnataka - 2 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CAV JUDGMENT (PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) In this appeal, accused challenged the judgment of his conviction and order of sentence dated 30th June 2012 passed in Special C.C.No.189/2007 by the Special Judge, Bengaluru Urban District, Bengaluru City, convicting and sentencing accused No.1 for the offences under Section 7(3)(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (in short 'the Act'). 2. The appellant is accused no.1 before the trial Court. The accused no.2 who was arrayed before the trial Court was acquitted of the charges. No appeal is preferred by the State being aggrieved by the said acquittal, thereby, judgment of acquittal of accused no.2 has attained finality. - 3 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 Facts leading to the case: 3. Based on the complaint dated 22.1.2007 of one B.V.Ramadasegowda R/o K.G.Nagara, Nanjappa Extension, Bengaluru -19, a crime was registered against the accused alleging that, this accused no.1 working as a First Division Assistant in the office of Director of Health and Family Welfare, to do in favour of sister-in-law of the complainant demanded bribe of Rs.10,000/- and have received Rs.5,000/- towards the same and putting up the file of the said sister-in-law of the complainant Smt.Deepa directed the complainant to pay balance of Rs.5,000/- to put up the file before his superiors. According to the case of the prosecution, these accused nos.1 and 2 being the public servants, demanded a bribe of Rs.15,000/- initially and on negotiation, they reduced the same to Rs.10,000/-. Two months before filing of complaint, Rs.5,000/- was paid to accused no.1. Because of the demand made by the accused, complainant lodged a complaint and the IO prepared the pre-trap panchanama in the presence of - 4 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 panchas. Thereafter, on 22.1.2007, at 2.30 p.m. as instructed, complainant, shadow witness went to the office of accused no.1 where accused no.1 demanded to pay the balance of Rs.5,000/- as gratification other than the legal remuneration as motive or reward for putting up the file. When the complainant paid the same in the hands of accused no.2 as directed by accused no.1 and a trap was conducted. The amount was seized from the possession of accused no.2 received by way of bribe and post-trap panchanama was prepared in the presence of panchas. On completion of investigation, the IO has filed charge sheet against the accused. 4. The learned Special Court, on hearing both the side, framed charge sheet against the accused for which, accused pleaded not guilty and claimed to be tried. To prove the case of the prosecution, it examined five witnesses (PWs.1 to 5) and got marked 27 documents (Exs.P1 to P27) and 12 material objects MOs Nos. 1 to 12 and closed prosecution evidence. On closure of - 5 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 prosecution evidence, accused were questioned under Section 313 of Cr.P.C so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not choose to lead any evidence. 5. The learned Special Court, on hearing the arguments of both the side and on evaluation of the evidence, raised four points for consideration and ultimately answered point Nos.1, 2 partly in the affirmative and point No.3 in the negative and found accused No.1 guilty of aforesaid offences and accused No.2 was acquitted of the charges. The accused No.1 is sentenced as under: "It is ordered that the Accused no.1 Manjunatha Kutta, is sentenced to undergo Rigorous imprisonment for 6 (Six) months for the offence punishable under section 7 of Prevention of Corruption Act and to pay fine of Rs.2,000/- (Rupees two thousand only) in default to undergo simple imprisonment of Six months. - 6 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 Further accused No.1 is further sentenced to undergo Rigorous imprisonment for 1 (ONE) year for the offence punishable under section 13(1)(d) read with section 13(2) of Prevention of Corruption Act and to pay fine of Rs.5,000/- (Rupees five thousand only) in default to undergo simple imprisonment for six months. The substantive sentence of imprisonment shall run concurrently." 6. This is how now the appellant-accused no.1 is before this Court assailing the impugned judgment. Submission of appellant-accused: 7. Learned Sr.Counsel Sri M.P.Nanaiah, in addition to the grounds urged in the appeal memo mainly would submit that, except PW.1, the other witnesses are cross- examined by this accused No.1. No sufficient opportunity was given to accused No.1 to cross-examine the witnesses. He would submit that, based upon the self- serving evidence of PW.1 and the evidence of other witnesses who were cross-examined by the defence by - 7 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 this appellant-accused no.1, the learned Special Court has found the accused no.1 guilty which is against the principles of natural justice. Further, he would submit that, the evidence of PW.2 to 5 is not an evidence in the eyes of law that, these witnesses were not cross-examined by appellant-accused No.1. He would submit that, permission be granted to the appellant to cross-examine these witnesses, as the impugned judgment is rendered by the Special Court only based upon the incomplete evidence. 8. He would further submit that, only on surmises and conjectures, the inference was drawn by the learned Special Court that, as directed and demanded by accused No.1, the tainted money was received by accused No.2 on behalf of accused No.1. He would further submit that there is no justification in the findings of Special Judge and no logical reasons are assigned in finding the accused No.1 guilty. Thus, the ingredients of offence are not duly proved in accordance with law. Pointing out certain contradictions, omissions in the evidence adduced by the prosecution, he - 8 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 prayed to allow this appeal and set aside the impugned judgment. Further he submits that, though PWs.2 to 5 were examined, to cross-examine the said witnesses, time was prayed by the counsel. The learned Special Court rejected the prayer and proceeded to permit cross- examination by accused No.2 only, thereby, violated fundamental rights of accused no.1 by rejecting the prayer to cross-examine the said witnesses. 9. He would further submit that, in view of all these factual features especially that of invalidity of the sanction, the accused No.1 is entitled for acquittal. He would submit that, appellant - accused no.1 be permitted to cross-examine PWs.2 to 5. Therefore, he submits to allow this appeal. 10. Refuting this submission, learned Panel Counsel Sri B.S.Prasad submits that, first of all sanction is valid. A competent sanctioning authority, on evaluation of materials placed before it, has issued the sanction. There is no effective cross-examination directed to the - 9 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 sanctioning authority. Each and every material collected by the IO were brought to the notice of the sanctioning authority and after due satisfaction, as prima facie case was made out to issue sanction, and hence, sanction was issued. He would submit that, now the accused cannot question the sanction. 11. In addition to this, he would submit that, the complainant and the shadow witness specifically have spoken about the demand and the acceptance of bribe money by this accused no.1. Accordingly, there was initial payment of Rs.5,000/- and thereafter, on the date of filing complaint, as instructed on registration of the complaint and after preparation of pre-trap panchanama, complainant and shadow witness went to the office of accused no.1. He was not there in the office. When complainant called him, it was told by him that, he had gone for a lunch and asked the complainant to wait till his arrival. Both complainant and accused met at Annapurna Hotel. When complainant enquired about putting up file of - 10 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 sister-in-law Deepa, accused No.1 demanded to pay the illegal gratification and when complainant was ready to pay the amount as demanded; accused No.1 asked the complainant to give the said money in the hands of accused No.2. Accused No.2 kept the said amount in his pant pocket. Complainant gave signal to the police. On arrival of police and on enquiry accused No.2 produced the tainted money though received by him as per the say of accused No.1. Post-trap panchanama was prepared, amount was seized. He submits that, the prosecution is able to establish the guilt of the accused beyond all reasonable doubt, hence, prays to dismiss this appeal. 12. Having heard the arguments of both the side and on meticulous reading of entire evidence, the core question that is to be decided in this appeal: "Whether prosecution has placed sufficient materials to prove the demand and acceptance of alleged illegal gratification of Rs.5,000/- by accused No.1 without recording the findings with regard to the non- - 11 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 examination of witnesses by the appellant- accused No.1?" 13. The main submission of the counsel for the appellant that, except PW.1 the other witnesses are not cross-examined by this accused No.1. On perusal of the depositions of the witnesses recorded by the Special Court, it shows that, on 22.06.2011, counsel for the accused No.1 had directed the cross-examination to PW.1 so called shadow witnesses. The other witnesses PWs. 2 to 5 were examined by the prosecution. Though a prayer was made to defer the cross-examination but, accused No.1 has not cross-examined PW.2. Even there is no recording that, there is no cross-examination of accused No.1. 14. PW.3 was examined by the prosecution on 27.1.2012 and his cross-examination was deferred till next date. It was accused No.2 only cross-examined this witness. It is recorded in the deposition that, "counsel for accused No.1 absent. Accused No.1 prays time. Perused - 12 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 the order sheet and the presence of the witness. There are no grounds to grant adjournment in the case and accordingly, adjournment was refused and cross- examination of accused No.1 was taken as nil". 15. PW.4 was examined on 08.06.2012 and as the counsel for accused No.1 was absent, the Special Court has permitted accused No.2 to cross-examine PW.4. Even it is recorded that, "as the counsel for accused No.1 was absent, accused No.1 prayed time. But, the adjournment was refused. Cross-examination was taken as nil". This fact is recorded by the Special Court on 11.06.2012. PW.5 is examined on 08.06.2012 and similar observations were made by the Special Court refusing adjournment prayed by accused No.1. 16. Thus, without the cross-examination of PWs.2 to 5 by the accused No.1, the learned Special Court proceeded to pass the impugned judgment. According to the counsel for the appellant, principles of natural justice are not followed by the Special Court. The provisions of - 13 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 Cr.P.C i.e., Chapter - XVIII is very much clear with regard to trial before a Court of Sessions. Even the subsequent chapter also speaks with regard to the procedure followed for conducting the warrant trials. 17. A simple reading of the provisions of Chapter - XVIII would show that, the Sessions Judge is required to frame in writing, a charge against the accused, "when such evidence has been taken" and there is ground for presuming that, the accused has committed an offence, trial under this Chapter which such Sessions Judge to try and adequately punish. It is submitted by the counsel for the appellant that, while evaluating the evidence adduced by the prosecution, the Court is expected to read the complete evidence. In this case, there is no cross- examination of PWs.2 to 5 as rightly submitted by the counsel for the appellant. This chapter refers to evidence within the meaning of Section 3 of Indian Evidence Act, 1872. Section 3 of the Indian Evidence Act reads as under: - 14 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 "Evidence:- Evidence means and includes - i) All statements which the Court permits or requires to be made before it by witnesses in relation of matters of fact under Enquiry: Such statements are called oral evidence. ii) All documents including electronic records produced for the inspection of the court: Such documents are called documentary evidence." 18. At this stage, I may also refer to Chapter-X of the Indian Evidence Act which deals with examination of the witnesses. Section 137 appearing in this Chapter defines the expressions "examination-in-chief, 'cross' and 're-examination' while Section 138 stipulates the order of examination and it reads as under: "138. Order of examinations. Witnesses shall be first examined-in-chief then (if the advere party so desires) cross- examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. - 15 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 Direction of re-examination - The re- examination shall be directed to the explanation of the matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter." 19. It is trite that, evidence within the meaning of Evidence Act, so also within the meaning of Chapter-XVIII is, what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly the evidence only, if the documents are proved in the manner recognized and provided for, under the Indian Evidence Act, unless, of course, a statutory provision makes a document admissible as evidence without any formal proof. 20. Thus, suffice it to say that 'evidence' referred to under the Chapter of XVIII on a plain reading of the provisions for Sessions Trial, as well as warrant trial, and the provisions of Evidence Act be admissible only if the same is produced, and in case of documents proved in accordance with the procedure established under the - 16 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 Evidence Act which includes rights of the parties against whom the evidence is produced to cross-examine the witnesses is produced. 21. As per Chapter XIX-B of the Evidence Act, the evidence has to be recorded in the presence of the accused and if a right of cross-examination was not available to him, he would be no more than an idle spectator in the entire process. The whole object underlining recording of evidence in a case of present nature, so also in other criminal cases, may be of summons trial, warrant trial or sessions trial, after the accused has appeared is to ensure that, not only does the accused have the opportunity to hear the evidence adduced against him but, also to defend himself by cross- examining the witnesses with a view to show that the witness is either reliable or that a statement made by him does not have any evidentiary value or it does not incriminate him. As noticed earlier, this Chapter empowers the Sessions Judge or the Magistrate as the case may be - 17 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 with regard to warrant trial to discharge the accused if, upon taking of all the evidence referred to, he considers that, no case against the accused has been made out which may warrant his conviction. Whether or not, a case is made out against him, it is settled that, it can be decided only when the accused is allowed to cross- examine the witnesses for otherwise, he may not be in a position to demonstrate that, no case is made out against him. It is elementary that, the ultimate quest in any judicial determination is to arrive at a truth which is not possible unless the deposition of witnesses goes through the fire of cross-examination. In a criminal case, using a statement of witnesses at the trial, without affording to the accused an opportunity to cross-examine would tantamount to condemning him unheard. Life and liberty of an individual recognized as the most valuable rights cannot be jeopardized leave alone, taken away without conceding to the accused, the right to question those deposing against him from the witness box. - 18 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 22. This right of cross-examination so granted under this Chapter, if not permitted would prejudice the accused. Therefore, in the considered view of this Court as in this case, PWs.2 to 5 were not cross-examined and their cross-examination is precious so as to arrive at a proper conclusion. In a situation like this, hurriedly, prayer of accused No.1 was rejected by Special Court and proceeded to pass the impugned judgment. Therefore, in the light of the above discussion, it is held that, there is a palpable error committed by the Special Court in not permitting accused No.1 to cross-examine the aforesaid witnesses which has prejudiced his life and liberty granted under law. 23. In view of the same, the appeal deserves to be allowed and case requires a remand to the Special Court with a request to summon PWs. 2 to 5 and permit accused No.1 to cross-examine the said witnesses and then proceed to pass the considered judgment on merits. As appellant has not assigned any proper reasons, as could - 19 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 be seen from the records of this case, he opened his eyes, only when, the case against him ended in conviction and sentence. For this lapse, certain amount of costs has to be imposed on the appellant. 24. Resultantly, I pass the following: ORDER (i) The Criminal Appeal is allowed with cost of Rs.15,000/- (Rupees Fifteen Thousand only) to be paid to High Court Legal Services Committee within 15 days from today. (ii) Consequentially, the impugned judgment of conviction and order of sentence dated 30th June 2012 passed in Special C.C.No.189/2007 by the Special Judge, Bengaluru Urban District, Bengaluru City, is hereby set aside. The case is remanded to the trial Court. (iii) The said case is restored to its own file. (iv) The learned Special Court is directed to summon PWs. 2 to 5 and permit the - 20 - NC: 2025:KHC:17737 CRL.A No. 781 of 2012 appellant-accused No.1 to cross-examine them and then proceed to pass the judgment after hearing both the side afresh. All the rights of the parties are kept open. (v) The learned Special Court is requested to dispose of the case within an outer limit of two months from the date of production of certified copy of this judgment. (vi) The Registry is directed to send back the trial Court records forthwith without any delay. (vii) Send the operative portion of this judgment to the Special Court for information. (viii) Parties shall appear before the trial Court on 12.05.2025 without expecting any notice. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 1 Sl No.: 1