- 1 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 898 OF 2013 BETWEEN: DR. BHARATH BHOOSHAN S/O. VEERABHADRAPPA, AGED ABOUT 48 YEARS, GYNECOLOGIST, GHOUSHIA HOSPITAL BANGALORE - 500 001 …APPELLANT (BY SRI. S G RAJENDRA REDDY, ADVOCATE) AND: STATE BY POLICE INSPECTOR, POLICE WING CITY DIVISION KARNATAKA LOKAYUKTA, BANGALORE, REPTD. BY SPL. P.P., HIGH COURT BUILDING, BANGALORE - 560001 …RESPONDENT (BY SRI. VENKATESH .S. ARABATTI, ADVOCATE) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 31.08.2013 PASSED BY THE SPL. JUDGE, BANGALORE URBAN DISTRICT, BANGALORE IN SPL.C.C.NO.148/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 7,13(1)(D) P/U/S 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 7 MONTHS AND PAY FINE OF RS.300/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 15 DAYS FOR THE OFFENCE P/U/S 7 OF P.C.ACT. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 13 MONTHS AND PAY FINE OF Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 RS.400/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 20 DAYS FOR THE OFFENCE P/U/S 13(1)(D) P/U/S 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. SUBSTANTIVE SENTENCES OF IMPRIOSNMENT SHALL RUN CONCURRENTLY. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED. THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA ORAL JUDGMENT The appellant being the accused in Special Case No.148 of 2010 on the file of the learned Special Judge, Bangalore Urban District, Bangalore City, is impugning the Judgment of conviction and order of sentence dated 31.08.2013, convicting him for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (for short, 'the P.C. Act'), sentencing to undergo rigorous imprisonment for a period of seven months and to pay fine of ₹.300/- for the offence punishable under Section 7 of the P.C. Act, and sentenced him to undergo rigorous imprisonment for a period of 13 months and to pay fine of ₹.400/- for the offence punishable under Section 13(1)(d) of the P.C. Act, with default sentences. - 3 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 2. Brief facts of the case as made out by the prosecution is that, the accused was working as a Gynaecologist in Ghoushia Hospital, Bengaluru. The complainant had admitted his wife-CW.6 for delivery to the said hospital. The accused being the Doctor who was attending the wife of the informant demanded bribe amount for Rs.4,000/- to conduct surgery/delivery. After bargain, it was scaled down to Rs.2,000/-. CW.6 gave birth to the child on 22.12.2009. At that time, the accused demanded and received Rs.1,000/- as part bribe and again demanded balance amount of Rs.1,000/-. Since the complainant was not willing to pay the illegal gratification, he filed first information as per Ex.P2. The pre-trap Mahazar was held, an amount of Rs.1,000/- was entrusted to the informant and he was asked to meet the accused along with the shadow witness-PW.2. 3. It is the further contention of the prosecution that PWs.1 and 2 have met the accused on 23.12.2009 at about 4.35 p.m in the hospital. The accused again demanded and accepted the illegal gratification of Rs.1,000/- tendered by the complainant and thereby committed the offence punishable - 4 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act. After investigation, the charge sheet came to be filed for the above said offences. The accused has appeared before the Trial Court, pleaded not guilty and claimed to be tried. 4. The prosecution has examined PWs.1 to 5, got marked Exhibits P1 to 15 and identified MOs.1 to 13 in support of its contention. The accused has denied all the incriminating materials available on record in his statement under Section 313 of Cr.P.C., but has not chosen to lead any evidence in support of his defence. However, got marked Ex.D1 during cross-examination of the prosecution witnesses. 5. The Trial Court, after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and accordingly proceeded to pass the impugned judgment of conviction and order of sentence as state above. Being aggrieved by the same, the accused is before this Court. - 5 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 6. Heard Sri. S.G.Rajendra Reddy, learned counsel for the appellant and Sri. Venkatesh S. Arabatti, learned Special Counsel for the respondent-Lokayukta. Perused the materials on record including the Trial Court records. 7. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is as under: "Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?" My answer to the above point is in the 'negative' for the following: REASONS 8. It is the contention of the prosecution that the accused was working as Gynaecologist in the Ghousia Hospital, Bengaluru. He is a public servant. This fact is not disputed by the accused. It is the further contention of the prosecution that the wife of the complainant was admitted to the hospital for delivery and it was the accused as Gynaecologist was attending - 6 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 her. This fact is also not disputed by the accused at any point of time. 9. The first contention raised by the learned counsel for the appellant is that, Ex.P7 is the explanation given by the accused at the earliest point of time where he has stated that he never demanded any amount, but the amount was paid by the complainant voluntarily. Therefore, it does not amount to bribe amount or illegal gratification and it does not constitute the offence punishable under Sections 7 and 13(1)(d) of the P.C. 10. The second contention raised by the learned counsel for the appellant is that, the wife of the complainant had delivered the child on 22.12.2009. Therefore, no work was pending with the accused as on 23.12.2009 and under such circumstances, it cannot be held that there was demand or acceptance of illegal gratification. 11. The third contention is that the shadow witness has not supported the case of the prosecution. There is inconsistency in the evidences of PWs.1 and 2. PW.3 is also not - 7 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 supported the case of the prosecution and under such circumstances, the accused is entitled for acquittal. 12. The fourth contention taken by the learned counsel for the appellant is that, the Investigating Officer had not held preliminary enquiry before registering the FIR. Therefore, the case of the prosecution cannot be believed. The Trial Court has committed an error in convicting the accused and hence the appeal is to be allowed. 13. PW.1 being the informant has deposed regarding the first information lodged by him as per Ex.P1. This witness has explained in detail in the first information itself about admission of his wife to the hospital for delivery and the accused attending her stated that an operation was to be conducted as she was experiencing severe pain. Therefore, he demanded Rs.4,000/- and after bargain, it was scaled down to Rs.2,000/-. He accepted Rs.1,000/- on 22.12.2009 - the date on which the wife of the complainant delivered the child. Even after delivery, the accused has continued his demand for the balance amount of Rs.1,000/-. Therefore, the complaint came to be filed on 23.12.2009. - 8 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 14. PW.1 explains in detail about the conduct of the accused being the Gynaecologist in demanding the amount even when the wife of the complainant was in the operation theatre and was screaming with pain. Even after delivery, the accused demanded again Rs.1,000/-. As such, he filed the complaint, which corroborates the first information Ex.P1. 15. PW.1 further stated regarding pre-trap panchanama and entrustment of cash of Rs.1,000/- to be tendered to the accused. He states that he along with PW.2-the shadow witness went and met the accused in the hospital, demand by the accused, tendering of Rs.1,000/- which the accused accepted and kept it in his pocket. The witness also speaks about the trap panchanama and recovery of the tainted amount from the pocket of the accused. Even though the witness was cross- examined at length, nothing has been elicited from him to disbelieve his version. The contention of the learned counsel for the accused that there is inconsistency or improvements in the evidence of PW.1 cannot be accepted as no such portion of the statement was got marked during cross-examination of PW.1 to - 9 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 contend that it is the contradiction to the statement or any improvement or omission while deposing before the Trial Court. 16. PW.2-the shadow witness has fully supported to the case of the prosecution regarding pre-trap panchanama and entrustment of the tainted amount, meeting the accused along with PW.1 in the hospital and payment of the amount by the complainant and acceptance of the same. This witness was also subjected to cross-examination, nothing has been elicited from him to disbelieve his version. 17. It is the contention of the learned counsel for the appellant that PW.2 has not stated about the demand made and therefore the contention of the prosecution cannot be accepted. This witness has categorically stated that when he met the accused in the hospital he was standing near the door, the complainant met the accused and both of them were talking with one another. The complainant took over the entrusted amount and the accused received the same. Strangely, learned counsel for the appellant contends that the amount paid by the complainant and accepted by the accused may be a tips paid to the Doctor for having assisted his wife in - 10 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 delivery. The learned counsel for the appellant could not have taken such strange defence when the wife of the complainant was admitted to the hospital for delivery, and was on the delivery/operation table underwent the procedure to deliver the child. It is the evidence of PW.1 that his wife was screaming out of pain, and in-spite of that the accused called the complainant to the operation theatre and again demanded money. This shows the inhuman conduct of the accused being the doctor, that too a gynaecologist. Moreover the tenor of the defence taken by the accused presupposes that the accused is not denying tendering of the tainted amount by the complainant and acceptance of the same by him. 18. Learned counsel for accused No.1 places reliance on the decision of the Hon'ble Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi)1, to contend that the offences under Section 7 and 13(1) are not proved by the prosecution. It is to be noticed that the Constitution Bench of the Hon'ble Apex Court was called upon to decide the question as to whether, in the absence of evidence of complainant-direct or primary evidence of demand of illegal gratification, is it 1 2023 (18) SCC 251 - 11 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 permissible to draw an inferential deduction of culpability/guilt of a public servant under Sections 7 and 13(1)(d) read with Section 13(2) of P.C. Act based on other evidence adduced by the prosecution. Since the Division Bench of the Hon'ble Apex Court has referred the said question for decision of the Constitution Bench, the constitution bench has decided the matter and answered the reference in Neeraj Dutta (supra) and summarized its finding in paras 88 and 90 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 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. 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 - 12 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe-giver without there being any demand from the public 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 Sections 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 Sections 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. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of - 13 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 obtainment under Sections 13(1)(d)(i) and (ii) of the Act. 88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On 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. 88.6. (f) 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 again 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- - 14 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 para 88.5 (e), above, as the former is a mandatory presumption while the latter is discretionary in nature.” 13. The referred question was answered in para 90 of the aforesaid judgment, which reads thus: “90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under: In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.” (emphasis supplied) 19. Thus, the position of law is very well settled that in the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Sections 7 and 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution. 20. After the reference was answered by the Constitution Bench, the matter was again considered by the Division Bench of the Hon'ble Apex Court in Neeraj Dutta - 15 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 (supra) by referring to the finding of the Constitution Bench to decide the appeal on merits. The Division Bench of the Hon'ble Apex Court reiterating the decision of the Constitution Bench held in paras 20 and 21 as under: ""20. In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct, oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence. 21. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct, oral or documentary evidence, but it can be by way of other evidence including - 16 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 circumstantial 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". (emphasis supplied) 21. Thus the position of law is very well settled. In view of the settle position of law, it is not the requirement of law that all the witnesses shall state in specific words about the demand and acceptance of the illegal gratification by the accused. In the present case, PW.1 has categorically stated about the demand made by the accused as bribe amount, and acceptance of the same. PW.2 has spoken about acceptance of the amount and recovery of the same under the trap mahazar. Under such circumstances, the contention taken by the learned counsel for the appellant that the complainant paid the amount - 17 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 voluntarily as a tips cannot be accepted even for a moment. The discussions held above go to show that the accused is not disputing the receipt of the amount from the complainant. The accused being the public servant that too a Gyaenacologist serving in the government hospital was not supposed to accept even the voluntary tendering of any amount either as tips or otherwise, as the law do not permit the same. Permitting the unscrupulous government servants who are accused of the offence under PC Act to take such defence would give disastrous result and it will go against the provisions of PC Act, Service rules governing the Government Servants and the departmental circulars. Such acceptance will definitely amount to misconduct on the part of the public servant. 22. Ex.P7 is the explanation given by the accused at the earliest point of time immediately after trap. Even in this explanation he had not disputed the fact that the complainant had met him, and had paid the amount which was received by him and kept it in his pocket. His only defence is that the amount paid was voluntarily by the complainant. The said defence is not available to the accused, and on proof of the said - 18 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 demand and acceptance of the amount, the accused is liable for conviction under Section 7 and 13(1)(d) of P.C. Act. 23. Learned counsel for the appellant contended that PW.3-the panch witness has not supported to the case of the prosecution. But on going through the evidence of PW.3, he has categorically supported the case of the prosecution in all particulars. Nothing is elicited in cross-examination except to ask about the exact timings of each events. Learned counsel for the appellant contended that there is inconsistency in the timings stated by PW.3 and hence his evidence cannot be believed. It is also pertinent to note that the incident had occurred on 23.12.2009. The witness PW.3 was examined on 05.04.2013 and 26.05.2013 i.e. after lapse of about 4 years. It is hard to believe that a common man can remember the exact timings of the event that had happened about 4 years back and give a parrot like version. It is to be noticed that in all material particulars, PW.3 has supported the case of the prosecution. Even though he has partially turned hostile, during cross- examination by the learned prosecutor, he admitted the - 19 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 procedure that was adopted during pre-trap panchanama and there were video clippings taken as per MOs.3 and 9. 24. PW.4 is the Sanctioning Authority who accorded sanction to prosecute the accused. According of sanction by PW.4 is never disputed by the learned counsel for the appellant. 25. PW.5-is the Investigating Officer who deposed about filing of the complaint, registration of the FIR, conducting pre- trap mahazar, entrustment of amount to PW.1, trap panchanama, recovery of the tainted amount, completion of investigation and filing of the charge sheet. Nothing has been elicited from this witness during cross-examination to disbelieve his version. 26. From both oral and documentary materials that are placed before the Court, I am of the opinion that the prosecution is successful in proving the guilt of the accused regarding demand and acceptance of the illegal gratification. Once the prosecution is successful in proving the guilt of the accused beyond reasonable doubt regarding demand and - 20 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 acceptance of the illegal gratification by the accused, presumption under Section 20 of the P.C. Act would arise. The burden shifts on the accused to rebut the presumption. But the accused has not rebutted the presumption either during cross- examination of prosecution witnesses or by stepping into the witness box. The explanation offered by the accused that the tainted amount was paid by the complainant voluntarily as a tips cannot be accepted as the demand and acceptance of the illegal gratification is proved by the prosecution. Moreover, the accused being the Government Servant is not supposed to accept such voluntary offerings as tips. It amounts to misconduct. Under such circumstances, the accused is liable for conviction for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act. 27. The contention taken by the appellant that no official work was pending with him as on the date of acceptance of the tainted amount also can not be accepted as good defence as it is not the contention of the accused that the wife of the complainant was already discharged from the Hospital. - 21 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 28. Regarding the contention that the Investigating Officer had not conducted any preliminary enquiry before registering the FIR, I may refer to the decision of the Hon'ble Apex Court in Lalitha Kumari vs State of Uttar Pradesh and Others2 where it has suggested registration of FIRs in every case when the first information discloses a cognizable offence. It has given few examples where the Investigating Officer can exercise his option to hold preliminary enquiry before proceeding to register the FIR. Ofcourse it is made clear that holding of such enquiry depends on facts and circumstance of each case. It is pertinent to note that there is no cross examination to the Investigating Officer in this regard. But such defence was taken for the first time before this court. I do not find any justification to accept such defence. 29. I have gone through the impugned judgment of conviction and order of sentence. The Trial Court has appreciated the materials on record in a proper perspective manner and proceeded to convict the accused and sentenced him as stated above. I do not find any reason to interfere with 2 2014 (1) SCC (CRI) 524 - 22 - HC-KAR NC: 2025:KHC:22440 CRL.A No. 898 of 2013 the same. Hence, I answer the above point in the 'negative' and proceed to pass the following: ORDER The appeal is dismissed. Registry to send back the original records along with copy of this judgment to the Trial Court, for information and needful action and to issue conviction warrant, if not already issued. Sd/- (M G UMA) JUDGE MKM List No.: 1 Sl No.: 13