- 1 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 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. 729 OF 2013 BETWEEN: THIPPESH NAIKA S/O RAMA NAIK AGED ABOUT 49 YEARS 2ND GRANDE LAND MEASURE SURVEYOR LAND MEASURE DEPARTMENT KUNDAPURA-576 201 UDUPI DISTRICT …APPELLANT (BY SRI. YADUNANDAN N, ADVOCATE) AND: THE STATE BY POLICE INSPECTOR LOKAYUKTHA UDUPI-576 101 …RESPONDENT (BY SRI. KUMAR, H.D ADVOCATE FOR SRI. VENKATESH S. ARABATTI, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 06.07.2013 PASSED BY THE SPECIAL/SESSIONS JUDGE, UDUPI IN SPECIAL CASE NO.33/2010 - 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. 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 Digitally signed by SHAKAMBARI Location: High Court of Karnataka - 2 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 CAV JUDGMENT (PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) The appellant - accused has assailed the judgment of his conviction and order of sentence dated 06.07.2013 passed in Special Case No.33/2010 by the Sessions/Special Judge, Udupi District, Udupi, by preferring this appeal. 2. The facts leading to the case of the appellant are as under: That accused was charge sheeted by police inspector, the Karnataka lokayukta, Udupi for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988, based upon a complaint filed by PW.1 Devdas Bhandarkar, the resident of Shankaranarayan village alleging, that his brother owned a property bearing survey No.336/3 measuring one acre and survey No.407/5P3 measuring 1.42 acres at Amparu village. It is stated that, this complainant was the GPA holder of his younger brother by name Panduranga - 3 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 Bhandarkar. He used to take care of all the landed properties of his brother as his GPA. It is stated in that capacity; he submitted an application to the Survey Department, Kundapura on 9.6.2008 for survey of the said lands and accordingly deposited Rs.140/- towards the same. Despite several visits of the complainant, accused being the clerk of the concerned branch, went on postponing the work which was sought for. On 19.05.2009, when the complainant enquired the accused, he demanded Rs.1000/- as illegal gratification to get the work done. It is alleged that, as the complainant was not interested to pay the bribe amount, therefore, he filed a complaint as per Ex.P1 before PW.9 - K.U.Belliyappa, the then Police Inspector. The same was registered in Crime No.6/2009 for the aforesaid offences. He also had produced the copy of the application before police as per Ex.P2 and receipt for having paid the amount as per Ex.P3. - 4 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 3. It is the case of the prosecution that, PW.9 the Police Inspector collected two official panchas by name Sharaththaraj and Ramesh, examined as PW.3 and PW.7 and in the office of the lokayukta, he introduced the complainant to the said panchas and informed about the filing of the complaint filed by PW.1. Both these panchas agreed to act as panchas. The complainant handed over Rs.1000/- currency note, containing of Rs.500/- denomination and this police inspector after verifying the same, noted the currency notes numbers as stated in Ex.P12. The said currency notes were smeared with phenolphthalein powder on both the sides and were kept in the pocket of the complainant. The pre-trap procedure was conducted by preparing sodium carbonate solution and fingers of both the hands of PW.9 were dipped into the said solution which turned into pink color. The said solution was seized by pouring the said in the bottle. PW.9 handed over a voice recorder to the complainant to record the conversation of the voice of complainant and accused, when the demand is to be made by the accused. - 5 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 So also to give signal after accepting the bribe amount by the accused. Ex.P5 the entrustment panchanama was prepared in the office of lokayukta and thereafter all of them along with trap laying party went to the office of the accused on the same day itself at 1.35 p.m. PW.9 and his staff along with another pancha stood outside waiting for the signal. Complainant and shadow witness (Sharathraj) went inside the office of the accused and enquired about the work so sought by him to the accused. As the accused demanded the bribe amount, he gave the said amount to the accused, recorded voice of the accused and himself. Gave signal to PW.9 and immediately the trap laying party appeared in the office of the accused and it was complainant informed about receipt of money by the accused on demand. The said amount was collected from the accused and post-trap procedure was conducted. Both the hands of the accused were washed in the 'sodium carbonate' solution which turned into pink color. When enquired, accused admitted about receipt of the said bribe amount and of keeping the same beneath the files, in the - 6 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 cupboard. The said amount was seized. The panchanama was prepared at the spot itself. The voice conversation tape recorders were also seized along with attendance register, statement of the accused. At the spot Ex.P6 as stated above, (pachanama) was prepared signed by the panchas. Accused was apprehended and arrested and was subsequently produced before the Court. Thereafter, he was enlarged on bail. 4. On completion of investigation, PW.9 - the IO filed charge-sheet against the accused for the aforesaid offences. 5. Charges were framed by the Special Court after hearing both the side, read over the same to the accused, for which accused pleaded not guilty. 6. To prove the guilt of the accused, prosecution in all examined 9 witnesses (PW.1 to PW.9 ) and got marked 24 documents at Exs.P1 to P24 along with MO Nos.1 to 9 and closed its evidence. Thereafter, accused was - 7 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 questioned under Section 313 of Cr.P.C so as to enable him to answer the incriminating circumstances appearing in the evidence of prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence on his behalf. 7. The learned Special Court on hearing the arguments and on assessment of the evidence, raised 2 points for consideration and answered both points in the affirmative and ultimately accused was convicted and sentenced as under: The accused is sentenced to undergo S.I for a period of 1 year and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo S.I for a further period of 1 month for the offence punishable u/s 7 of Prevention of Corruption Act, 1988. He is also sentenced to undergo S.I for a period of 2 years and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo S.I for a further period of 3 months for the offence punishable u/s. 13(1)(d), r/w 13(2) of Prevention of Corruption Act, 1988. Both sentences shall run concurrently." - 8 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 8. This is how, now the accused is before this Court challenging the said judgment. 9. Sri. Yadunandan N, learned counsel for the appellant placing reliance on the evidence placed on record pointed out that, there are material contradictions, omissions and discrepancies in the evidence adduced by the prosecution. He would submit that, with a grudge as per the evidence of PW.1, a complaint is filed. He would submit that, accused was not the authority but it was his Superior Officer who had to comply the request of the complainant. He was just a case worker. He had put up file before his Superior Officer. Therefore there was no occasion for the accused to make demand of illegal gratification from the complainant. According to him, grounds so urged in the appeal memo and the material evidence favouring the defence brought in the cross- examination do establish that, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, he would submit that, there are no - 9 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 grounds made out by the prosecution but the Special Court has wrongly passed the impugned judgment which requires interference. Hence, he submits to allow the appeal. 10. Per contra, learned counsel for the respondent Sri. Kumar H.D holding brief of Sri. Venkatesh Arabatti would submit that, in view of the evidence brought on record through the complainant and other witnesses, do establish the material evidence adduced to prove the guilt of the accused. Therefore, the learned Trial Court has convicted the accused and sentenced him. He would submit that, though there are certain contradictions and omissions, they will not shake the basic evidence of the witnesses. He would submit that, the grounds urged in the appeal memo never prove the innocence of the accused. Therefore, he would submit that, there is no merit in this appeal and prays to dismiss the same. 11. I have given my anxious consideration to the argument of both sides. Perused the trial Court records as - 10 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 well as considered grounds urged in the appeal memo, so also considered the submissions of both the side. 12. In view of these rival submission of both sides, the points that would arise for consideration is: "Whether the prosecution has produced sufficient evidence to prove the guilt of the accused or otherwise?" 13. To ascertain the same, it is just and proper to read the evidence placed on record by the prosecution both oral and documentary. As the offence under Sections 7 and 13 of the Prevention of Corruption Act, 1988 are alleged against the accused, it is just and proper to incorporate the provision of the said Section as stated in the Act. Section 7 reads as under: "7. Offence relating to public servant being bribed. [Substituted by Act No. 16 of 2018, dated 26.7.2018.] Any public servant who,- (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty - 11 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration. - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section. - 12 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 Explanation 2. - For the purpose of this section,- (i)the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii)it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party." 14. Thus, the ingredients of aforesaid offences have to be proved in accordance with law. To constitute the offence, demand of illegal gratification is sine quo non and the prosecution is under obligation to prove the same. Mere recovery of currency notes itself does not constitute the offence unless, it is proved beyond all reasonable doubt that, accused voluntarily accepted the money knowing it to be bribe. - 13 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 15. PW.1 the complainant reiterates the contents of his complaint Ex.P1 and preparation of the pre-trap panchanama as per Ex.P5 in the office of the Lokayukta in the presence of pancha and entrustment of tape recorder to record the conversation. Even he speaks with regard to the post - trap panchanama as per Ex.P6 and he putting his signature on the same along with other panchas. He also speaks about seizure of tainted currency notes from the possession of the accused. He identified the same. 16. According to him, because of a demand of bribe money by the accused, he lodged a complaint as he was not willing to pay the same. This PW.1 complainant was cross-examined by defence intensively. It is stated by this PW.1 that, one Kendaganapa had to survey the survey No.336/3, 407/5P3. Thus, the survey work was not done by the accused. He stated that, often he used to visit the Survey Department and enquire with regard to his request of survey. It is stated that, one day prior to he filing complaint Survey Department has completed the work and - 14 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 stated, that, accused told him that, his work was completed on 20.05.2009. He stated in para-1 of his cross-examination as under: "¢:20-05-2009 gÀAzÀÄ DgÉÆæ w¥ÉàñÀ PÉ®¸À CVzÉ JAzÀÄ ºÉýzÀgÀÄ. F ¥ÁæAiÀÄPÉÌ £À£ÀUÉ ªÁgÀzÀ°è 3 ¢£À PÀZÉÃjUÉ §gÀ°PÉÌ ¸ÀvÁ¬Ä¹zÀÝjAzÀ, ¹nÖ¤AzÀ £Á£ÀÄ CªÀgÀ «gÀÄzÀÝ ¦ügÁåzÀ£ÀÄß PÉÆnÖzÉÝÃ£É JAzÀgÉ ¸Àj." 17. Thus, he is specifically stated that, as accused asked this old man to visit his office, therefore being enraged by the same he lodged a complaint. It is questioned to PW.1 that, accused has not demanded any money but the answer was that is it possible to pay the same without demand. He stated that, prior to 20.05.2009, there was a demand made by the accused. One fact is admitted by this PW.1 that, being enraged by the words of the accused to visit his office three days in a week, he had filed the complaint. The evidence of this PW.1 is silent about the demand made by the accused to pay the money. This PW.1 had studied upto 9th standard and his examination-in-chief is silent about real handing - 15 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 over money on demand by the accused. No doubt, there is a recovery of the money from the possession of the accused. As stated supra, mere recovery of the money from the accused is not sufficient. In a case of present nature, the status of complainant is like an accomplice. Therefore, his evidence has to be appreciated in the light of the other evidence placed on record. 18. PW.3 Sharathraja K.N. was the shadow witness and he deposed in line with the contents of entrustment mahazar, as well as trap mahazar marked at Exs.P5 and P6 respectively. He has stated in his examination-in-chief that, when both went to office of the accused, he was in the office. Complainant gave money to him and he received the same, counted and kept in a cupboard. Thus, the chief-examination shows that, there was a simple handing over of money to the accused by the complainant and there was no demand at all. This PW3 is cross- examined at length. According to him, he accompanied complainant and stated about preparation of - 16 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 panchanamas, taking photographs etc., It had come in the cross-examination that, when IO entered the office of Survey Department, accused was in the election branch. Further, he improved and stated that, accused was sitting in his office. He denied other suggestions. The chief- examination of PW.3 itself falsifies the ingredient of demand of the illegal gratification by the accused, which is very much missing in the evidence of PW.3. Therefore, if such evidence is brought on record, it really requires corroboration. In view of this evidence of PW.3, so stated and the self serving evidence of PW.1, it cannot be stated that, these two witnesses have spoken truth before the Court. PW.1 has clearly expressed his grudge against the accused that, the accused made him to visit his office three days in a week, therefore, he lodged a complaint. There is no evidence that, accused had demanded illegal gratification and there was a just payment of the money by the complainant. If such evidence is placed on record, it cannot be accepted that, prosecution is able to establish the ingredients of the offence against the accused. - 17 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 19. PW.4 - Ravikumar N., the then Tahasildar of Bramhavara had come before the Special Court to speak that, there was a display of the conversation record in the tape recorder but he was unable to identify the voice so recorded as that belongs to the accused. According to his evidence, at 12 noon on that day, the Inspector of Lokayukta came to his Chamber and informed about trap on the accused. Therefore, to the extent of getting information with regard to the trap, his evidence is to be believed. 20. PW.5 - G. Kalpana was the commissioner of land records. According to her, she had issued the sanction as per Ex.P18 on going through the records like complaint, FIR, both panchanamas, FSL, report, sketch of scene of offence, statements of the witnesses and application filed by the complainant for the purpose of survey and to provide sketch. No effective cross- examination is directed to this PW.5 by the defence, so as to disbelieve the contents of Ex.P18. Under Section 19 of - 18 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 the Act, sanction is necessary. After obtaining the sanction, the accused was prosecuted. To the extent of validity of the sanction, the evidence of this witness (Sanctioning Authority) is to be accepted. 21. PW.2 - M.M. Sulochana was the Superintendent in Deputy Commissioner's Office at the relevant time. According to her evidence, on 20.05.2009, she got the information of trap on the person of the accused and went to the office of the accused and arrested the accused and deposed that, she put her signature as per Ex.P6. To that extent, evidence of this witness is to be believed. 22. PW.6 - Udayakumar was the Assistant Engineer, PWD. He prepared the sketch of scene of offence as per the instruction of the IO as marked in Ex.P19. This sketch shows, the place of the offence and where the accused and shadow witness were standing before conducting the trap. To the extent of contents of Ex.P19, his evidence is to be believed. - 19 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 23. PW.7 - K. Ramesh was the forest guard and acted as pancha to the pre-trap panchanama. The fact that, he was very much present when the pre-trap panchanama was prepared, there is no dispute. He is not an eyewitness to the demand and acceptance of the alleged illegal gratification by the accused. Therefore, to the extent of preparing pre-trap panchanama, his evidence is accepted. 24. PW.8 B.P. Dinesh Kumar was the charge sheeting officer after collecting all the documents. He has heard the conversation according to him. Therefore, to the extent of filing the charge sheet, his evidence is to be accepted. 25. The very vital witness is Investigating Officer i.e. PW.9 one K.U.Belliyappa, who was the police inspector at the relevant time. Having received the complaint of the complainant on 20.05.2009, he called the panchas, witnesses, prepared the pre-trap panchanama. Went to the office of the accused. Waited outside the office of the - 20 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 accused and after receiving the signal from the complainant and thereafter laid trap on the accused, recovered the tainted money from him, recorded the statement of the witnesses and handed over investigation to his Superior Officer. In all criminal cases Investigating Officers are the supervisors of the investigation. Unless there is corroborative evidence; their evidence become formal in nature. Therefore, in the absence of evidence of PW.1 and PW.3, with regard to the demand and acceptance of the illegal gratification by the accused, the evidence of these IO's and charge sheeting officer would not help the case of the prosecution. 26. Whereas, in this case, the defence also examined 3 witnesses, by name Shankayya Billava, L.H. Valekar and Ganesh P. These 3 witnesses consistently speak about presence of the police in the office of the accused and they came to know about the trap, from the person of the accused. DW.2 states that, accused was brought by the police from the office of election branch. - 21 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 So also DW.3 speaks about raid. There evidence is silent that, there was a demand and acceptance of illegal gratification by the accused. Though, there is recovery of the amount as rightly submits by the learned counsel for the appellant but, the very ingredient of demand and acceptance of the amount by the accused is not sufficient. 27. In view of the law laid down by the Hon'ble Apex in Panalal Damodar Rathi v. State of Maharashtra, reported in AIR 1979 SCC 1191, when demand and acceptance of the illegal gratification is not proved, it can very well be stated that, the prosecution has failed to prove its case with legal evidence. When complainant with grudge has filed the complaint as discussed above, this itself falsifies the case of the prosecution. The evidence so placed on record by the prosecution goes against the case of prosecution. The probability that, accused has been falsely implicated in view of the evidence of PW.1 cannot be ruled out. The burden of proof on the accused under Section 20 of the - 22 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 Act is not the same burden, so placed on the prosecution to prove its case beyond all reasonable doubt. Mere recovery of tainted money diverse from the circumstance, under which it is paid, is not sufficient to convict the accused, when a substantial evidence is not reliable. In the administration of criminal justice, as held by the Apex Court in various judgments, suspicion however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true, but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It is held that, the Court must ensure that, miscarriage of justice is avoided. If, in the facts and circumstances, two views are possible, and then the benefit of doubt must be given to the accused. 28. If the materials placed on record, when judged on the touchstone of the legal principles discussed above, leave no manner of doubt that, the prosecution in the instant case, has failed to prove unequivocally, the - 23 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 demand of illegal gratification. The learned Trial Court has failed to appreciate the evidence in proper perspective and evidence of PW.1 itself falsifies the case of the prosecution. Thus, the learned Trial Court committed palpable and grave error in finding the accused guilty in the absence of demand and acceptance. Therefore, I am of the considered view that, it would be wholly unsafe to sustain the conviction of the appellant-accused for the aforesaid offences and the appeal so filed succeeds. In view of the infirmities and inherent probabilities, the entire trial proceedings were bristled with suspicious circumstances and doubts and grudge as stated by PW.1. Therefore, the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, the accused is entitled for acquittal by giving benefit of doubt. Accordingly, point raised supra is answered in favour of the appellant and against the prosecution. - 24 - NC: 2025:KHC:17750 CRL.A No. 729 of 2013 29. Resultantly, I pass the following: ORDER (i) The Criminal Appeal is allowed. (ii) Impugned judgment of conviction and order of sentence dated 06.07.2013 passed in Special Case No.33/2010 by the Sessions/Special Judge, Udupi District, Udupi, is hereby set aside. (iii) Consequentially, the accused is acquitted of the charges punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. (iv) His bail bonds stand cancelled. He is set at liberty. (v) Communicate the operative portion of this judgment to the trial Court by e-mail. (vi) Send back the trial Court records along with copy of this judgment forthwith. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 1 Sl No.: 3