- 1 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 1074 OF 2011 (C) BETWEEN: K. BHOJARAJA ACHAR 58 YEARS S/O LATE. LOKAYYA ACHAR CHIEF OFFICER, TOWN PANCHAYAT SALIGRAMA, UDUPI TALUK, UDUPI. …APPELLANT (BY SRI. H. JAYANTH POOJARY, ADVOCATE) AND: THE STATE BY P.I. LOKAYUKTHA, UDUPI UDUPI DISTRICT. …RESPONDENT (BY SRI. B. LETHIF, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 29.09.2011 PASSED BY THE SESSIONS/SPL. JUDGE, UDUPI IN SPL.C.NO.50/08- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 7, 13(1)(D) READ WITH SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988; AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 OF THE PREVENTION OF CORRUPTION ACT, 1988 AND HE SHALL PAY A Digitally signed by NANDINI B G Location: high court of karnataka - 2 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 FINE OF RS.400/-; AND THE APPELLANT/ACCUSED IS FURTHER SENTENCED TO UNDERGO IMPRISONMENT FOR A PERIOD OF ONE YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 13(1)(D) READ WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988 AND HE SHALL PAY A FINE OF RS.400/-; THUS, THE ACCUSED TOTALLY TO PAY A FINE OF RS.800/-; IN DEFAULT TO PAY THE FINE, HE SHALL FURTHER UNDERGO IMPRISONMENT FOR A PERIOD OF 2 WEEKS. SENTENCE WITH REGARD TO IMPRISONMENT SHALL RUN CONCURRENTLY. THIS CRIMINAL APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri H Jayanth Poojary, and Sri B Lethif, learned counsel for the parties. 2. Accused who has been convicted for the offence under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short 'the PC Act') and ordered to undergo sentence of imprisonment of six months for the offence under Section 7 of PC Act and one year for the offence under Section 13(1)(d) read with Section 13(2) of PC - 3 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 Act, apart from payment of fine amount of Rs.400/- for each of the offences, is the appellant. 3. Facts in brief which are utmost necessary for disposal of the appeal are as under: A complaint came to be lodged with Lokayukta Police, Udupi, contending that the complainant was doing the business in the name and style of 'Mythri Service Centre' since 9 years in shop bearing No.1-2(3), which is situated in Saligrama Pattana Panchayath Building on the monthly rent of Rs.270/-. On 22.07.2006, there was an auction held for the subsequent year and monthly rent was re-fixed in a sum of Rs.2,475/- as against Rs.270/- that was paid earlier. Since the complainant was interested in the shop, he also participated in the auction and he was a successful bidder. Likewise, for the shop bearing No1-2(1), there was an auction in March 2006 and one Venkataramana Nyari, was the successful bidder and monthly rent was fixed in a sum of Rs.1,750/-. Since the monthly rent was enhanced almost 10 times than what was being paid, Venkataramana Nyari surrendered the shop to Pattana Panchayat, Saligrama and re-auction of the said shop was held on 18.02.2006. In the re-auction, wife of the said - 4 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 Venkatramana Nyari, by name, Smt.Shanta Nyari participated and she was a successful bidder and monthly rent was fixed at Rs.450/-. When complainant came to know about the same, he also approached Sri Bhojaraja Achar (accused) and requested that similar benefit be given to him also. At that juncture, Bhojaraja Achar said to have told the complainant that he had to withdraw the case filed against the Pattana Panchayat pending before the Court and also demanded Rs.10,000/- as illegal gratification for showing such similar favour to him. Since the complainant was unable to meet the said demand of the accused, he negotiated with accused and the illegal gratification amount was modified to a sum of Rs.8,000/-. Complainant being not willing to part away with even Rs.8,000/- as illegal gratification, he approached the Lokayukta police and gave the complaint against the accused. 4. On receipt of the complaint, the Lokayukta Inspector secured two independent Government Servants as intended panchas to participate in the raid. After securing them, he explained the contents of the complaint to them. Further, Lokayukta Inspector demonstrated the chemical - 5 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 reaction of phenolphthalein powder white in colour with colourless sodium carbonate solution. 5. Lokayukta Inspector took the intended currency of Rs.2,000/- from the hands of the complainant and directed one of the panchas to note down the serial numbers of those currency notes and thereafter, smeared the phenolphthalein powder on the intended bribe amount. 6. The colour wash was conducted thereafter and samples and the chemical reacted solutions were separately seized and sealed. The complainant was directed to handover the bribe amount only on demand by the accused and one of the panchas was directed to act as shadow witness by accompanying the complainant and observe the proceedings that would take place while demand by the accused and payment by the complainant takes place. 7. All these proceedings were reduced into writing in the form of entrustment mahazar. 8. Thereafter, on 01.02.2007, entire raid party proceeded to the office of the accused. - 6 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 9. Thereafter, complainant and shadow witness (PW1) proceeded to the chamber of the accused. None else were present other than the accused at that point of time. The complainant enquired about the pending work and accused demanded the bribe amount and the complainant handed over the same to the accused, which comprised of bribe amount of Rs.2,000/- comprising of three currency notes of Rs.500/- denominations and five currency notes of Rs.100/- denominations. PW1 also accompanied the complainant, but he stood little away from the complainant. 10. Subsequently, the complainant gave the pre- designated signal to the rest of the members of raid party. Immediately, all of them came to the chamber of the accused. The head of the raid party enquired the accused about the tainted currency. Colour test was conducted in two separate bowls, where sodium carbonate solution was kept. Fingers of both the hands were separately washed. The colourless solution turned into pink, same was seized after sealing them in separate bottles. 11. On further enquiry, the tainted currency was recovered from the chamber of the accused, which was kept on - 7 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 his table. Pending work of the complainant was also enquired and necessary documents were seized. Thereafter, the accused was arrested and the proceedings have been reduced into writing in the form of draft mahazar. Subsequently, the accused came to be produced before the Special Magistrate and after thorough investigation, the Lokayukta filed the charge sheet against the accused for the aforesaid offences. 12. Learned Special Judge upon receiving the charge sheet, took cognizance of the aforesaid offences and secured the presence of the accused who was on bail and after compliance of Section 207 of Cr.P.C., framed the charges for the aforesaid offences. 13. Accused pleaded not guilty, therefore trial was held. In order to bring home the guilt of the accused, the prosecution in all examined 12 witnesses as PWs.1 to 12 comprising of the complainant, shadow witness, co-panchas, head of the raid party, FSL Officer, planning Director, sanctioning authority and sub-staffs of the Lokayukta. 14. Prosecution placed on record as many as 31 documents which were exhibited and marked as Exs.P1 to 31 comprising of entrustment mahazar, trap mahazar, - 8 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 photographs, voluntary statement of accused, attendant register, application for not pressing the shop occupied by the complainant, copy of the proceedings, court order, FSL report and contradictions elicited in the evidence of PWs.2, 4 and 5 and spot sketch and as many as 9 material documents were also marked as MOs.1 to 9 comprising of recovered tainted currency. 15. 15. On conclusion of recording of prosecution evidence, learned Trial Judge recorded the accused statement as is contemplated under Section 313 of Cr.P.C. Accused has denied all the incriminating circumstances found against him in the case of the prosecution and did not choose to lead any defence evidence. He also failed to furnish written submissions, but for question No.39, he has answered as under: "39. ¤ÃªÀÅ ªÀÄvÉÛãÁzÀgÀÆ ºÉüÀĪÀÅzÀÄ EzÉAiÀiÁ? GvÀÛgÀ:- £Á£ÀÄ ¤dªÁUÀ®Æ D ¢£À Pˤ찣À M¦àUÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ CAUÀrAiÀÄ£ÀÄß K®A ªÀiÁrzÉÝãÉ. D J®A £À°è ¨sÁUÀªÀ»¹zÀ ©qïzÁgÀgÀ°è PÉ ¦ ±ÉÃRgÀ CªÀgÀÄ CvÀå¢üPÀ ©qï ªÉƧ®UÀÄ gÀÆ.2475-00PÉÌ ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ. D K®AUÉ C£ÀÄUÀÄtªÁV ±ÀvÀð ªÀÄvÀÄÛ ¤§AzsÀ£ÉUÀ¼À£ÀÄß ¥Àj¥Á°¸À¨ÉÃPÀÄ CAzÀgÉ 8 ¸Á«gÀ qÉ¥Áfmï ªÀÄvÀÄÛ bÁ¥Á PÁUÀzÀ ¥ÀvÀæzÀ°è CªÀgÀÄ §gÉzÀÄPÉÆqÀ¨ÉÃPÁVvÀÄÛ. CzÀ£ÀÄß G®èAX¹ fOÁè £ÁåAiÀiÁ®AiÀÄPÉÌ zÁªÉ ºÁQzÀgÀÄ. £À£ÀUÉ ªÀQîgÀ ªÀÄÆ®PÀ £ÉÆÃnøÀÄ PÉÆlÖgÀÄ. F «ZÁgÀªÀ£ÀÄß PˤìOï CªÀgÀ UÀªÀÄ£ÀPÉÌ vÀAzÉ. D ¸ÀAzÀ¨sÀð PˤìOï CªÀgÀÄ PÉ ¦ ±ÉÃRgÀ EªÀgÀÄ C«±Áé¸ÀªÁV £ÀqÉzÀÄPÉÆArzÁÝgÉ JAzÀÄ CªÀgÀ «gÀÄzÀÞ - 9 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 PÉÆÃnð£À°è ªÀåªÀºÀj¸À®Ä NJ¸ï £ÀA.141/2006 PÉÌ ¸ÀA§A¢ü¹zÀAvÉ £À£ÀUÉ CxÉÆÃgÉÊeɱÀ£ï PÉÆlÖgÀÄ. CzÀÄ JA.J.£ÀA.7/2006 gÀ°è £ÀªÀÄä ¥ÀgÀªÁV wêÀiÁð£ÀªÁVzÉ. F ªÀÄzsÀåzÀ°è £Á£ÀÄ PÀ£ÁðlPÀ ¥À©èPï ¦æªÉÄʸÀ¸ï DåPÀÖ 1974 £À°è ¦ügÁå¢zÁgÀjUÉ 45 ¢£ÀUÀ¼À vÉgÀªÀÅ £ÉÆÃnøÀÄ PÉÆnÖzÉÝ. vÉgÀªÀÅ ¢£ÁAPÀªÀÅ 02-02-2007 DVvÀÄÛ. CµÀÖgÀ°è ¢: 01-02-2007 PÉÌ £À£Àß ªÉÄÃOÉ F PÉøÀ£ÀÄß ªÀiÁrzÁÝgÉ. £À£Àß ªÉÄÃOÉ ¸ÀļÀÄî DgÉÆÃ¥À ºÉÆj¹zÁÝgÉ." 16. Thereafter, the learned Trial Judge heard the parties in-detail and on cumulative consideration of the oral and documentary evidence placed on record, convicted the appellant and sentenced him as referred to supra. 17. Being aggrieved by the same, the appellant is before the Court. 18. Sri Jayanth Poojary, learned counsel for the appellant re-iterating the grounds as urged in the appeal memorandum, vehemently contended that a false case has been foisted against the appellant herein as a revenge for successfully protecting the interest of Saligrama Pattana Panchayat. 19. He further contented that the very fact of the complainant having suffered an adverse order in MA No.7 of 2006 would fortify the contentions and the defence taken on behalf of the accused, which has been totally lost sight of by - 10 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 the learned Trial Judge, while appreciating the material evidence on record and thus sought for allowing the appeal. 20. He would further contend that the appellant did not handle the tainted currency at all and the colour test conducted by the raid team was with an oblique motive inasmuch as before the appellant could wash his hands, appellant had pushed the bundle of notes, which was forcibly kept on the table. Therefore, possibility of phenolphthalein powder coming into contact with the hands of the appellant is an acceptable and plausible defence, which has not been properly appreciated by the learned Trial Judge. Therefore, recording an order of conviction has resulted in miscarriage of justice and thus sought for allowing of the appeal. 21. He would further contend that material on record would indicate that there was no necessity for the appellant to demand for the bribe inasmuch as Pattana Panchayat has successfully fought the civil litigation filed by the complainant and obtained a favourable order, which has been ignored by the learned Trial Judge, though the same is specifically answered while answering question No.39 at the time - 11 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 of recording the accused statement and thus sought for allowing the appeal. 22. Per contra, Sri B Lethif, learned counsel for the Lokayukta, while supporting the impugned judgment vehemently contended that in the case on hand, demand and acceptance, handling of the tainted currency by successfully conducting the colour test, necessary documents have been seized by the Lokayukta Police to establish that there was a work pending of the complainant as on the date of trap, have all been established by placing cogent and convincing evidence on record, which has been rightly appreciated by the learned Trial Judge while passing the impugned judgment and thus sought for dismissal of the appeal. 23. He would further contend that the theory put forward by the appellant that he has only pushed the currency notes kept on the table, it would not have been with both the hands and colour test has turned positive with respect of both the hands, which pre-supposes the handling of the tainted currency by the appellant. 24. He would further contend that PW1 being the shadow witness, who is totally a stranger to the appellant, has - 12 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 supported the case of the prosecution in specifically answering the question in the cross-examination that the complainant took out the tainted currency from the shirt pocket on demand made by the accused and handed over the same to the appellant. Therefore, shadow witness having supported the case of the prosecution and the testimony of the complainant and shadow witness being practically similar, the self-serving testimony of the appellant and the explanation offered by the appellant which is marked vide Ex.P9 has been rightly appreciated by the learned Trial Judge while by passing the impugned judgement and sought for dismissal of the appeal. 25. He would also contend that the explanation offered by the accused while answering question No.39 belies the contents of Ex.P23 marked though PW6 who is none other than the planning officer. 26. Therefore, viewed from any angle, there is no legal infirmity in the judgment that has been passed by the learned Trial Judge convicting the appellant for the aforesaid offences and sentencing him as referred to supra and sought for dismissal of the appeal. - 13 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 27. Having heard the arguments of both sides, this Court perused the materials on record meticulously. 28. On such perusal of materials on record, following points would arise for consideration: 1. Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellant for the offences under Section 7, 13(1)(d) read with section 13(2) of the PC Act? 2. Whether the appellant makes out a case of legal infirmity or perversity in the impugned judgment? 3. Whether the sentence needs modification? 4. What order? 29. Regarding point Nos.1 and 2: In the case on hand, accused-appellant being the public servant is not in dispute. Admittedly, he was the whole and sole in respect of the affairs of Pattana Panchayati Saligrama. Admitted facts also reveal that the complainant was a tenant in one of the shops of Pattana Panchayat Building, Saligrama. His shop No is 1-2(3). He had been occupying said premises on a monthly rent of - 14 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 Rs.270/- for a period of 9 years. However, when the fresh auction was conducted on 22.07.2006, the rent was fixed in a sum of Rs.2,475/- and complainant had to agree for the said condition and continued in the shop premises. 30. It is found from records that in respect of shop No.1-2(1), the re-auction was conducted and the monthly rent was fixed in a sum of Rs.1,750/- for a period of 01.04.2006 to 31.03.2009 by the very same accused – appellant. Successful bidder in respect of the said shop is Venkataramana Nyari. However, since there was a heavy rent that was fixed, Venkataramana Nyari said to have surrendered the shop with a requisition. Appellant said to have put a proper note in that regard and the rental agreement between Venkataramana Nyari and Pattana Panchayat, Saligrama came to an end. Materials would also reveal that after termination of the rental agreement between Venkataramana Nyari and Pattana Panchayat, Saligrama, the same shop was re-auctioned and allotted in favour of wife of Venkataramana Nyari namely Smt.Shanta Nyari, by fixing the monthly rent in a sum of Rs.450/-. Having come to know about the surrendering and getting it in the name of kith and kin of the original tenant, - 15 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 complainant also approached the appellant for the similar favour. 31. It is at that juncture, appellant said to have demanded Rs.10,000/- as illegal gratification and also imposed a condition to withdraw the pending civil suit. The bribe amount was negotiated and it was re-fixed in a sum of Rs.8,000/-. The complainant being not willing to pay illegal gratification in a sum of Rs.8,000/- to the appellant, approached the Lokayukta Police with the complaint. 32. Insofar as actual trap is concerned, which occurred on 01.02.2007, PW1 was directed to act as shadow witness who accompanied the complainant, who is examined as PW2. Both of them unequivocally deposed before the Court with graphic details as to what transpired at the time of trap. 33. In fact, in the cross examination of PW1, there is a specific question as to when the complainant handed over the tainted currency was it in a folded manner, for which, PW1 has specifically answered that he has seen PW2 taking out the tainted currency from his shirt pocket and handed over the same to the appellant. By putting such suggestion and getting an answer in the cross examination, that there was actual - 16 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 payment of tainted currency by the complainant to the hands of the accused, the handing over of the tainted currency into the hands of the accused stands established. 34. This answer would also fortify the case of the prosecution with regard to the colour test turning out positive where the hand wash of the appellant has taken place. 35. Explanation in this regard by the appellant is that the tainted currency was kept on his table and when the same was refused and pushed by the appellant, he came into contact with the phenolphthalein powder. Appellant failed to establish the said fact by placing any material on record, except Ex.P9. In Ex.P9 in the explanation offered by the appellant on the day of trap itself, wherein, he has stated that he had no necessity to demand the illegal gratification and he would discharge his work honestly. At that juncture, the complainant said to have kept a bundle of white papers and he smeared something on his hand, and he immediately cautioned his sub staffs by ringing the bell. On hearing the bell, one Praveen, who is a daily wager working in his office and one Raghavendra Holla, who is one of the Contractors (PW4) came inside and they picked up the tainted currency. If Raghavendra Holla and - 17 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 Praveen are the persons who handled the tainted currency, there was no possibility of the hand wash of appellant being turning into positive. 36. The explanation offered vide Ex.P9 and the answer given by the appellant for question No.39 and the contents of Ex.P23 are all on loggerheads. 37. Further Ex.P23 is the note that has been forwarded by PW6, who is the Planning Officer of Pattana Panchayat, Saligrama would go to show that the appellant had no power to re-auction the shop belonging to Pattana Panchayat, Saligrama and if any request is made, the same should be placed before the counsel and after approval of counsel of Pattana Panchayat, Saligrama, necessary orders have to be passed by the concerned officials including the appellant. In the case of Venkatarama Nyari, the appellant did not do so which shows that he was in the habit of taking illegal gratification and getting the favours in favour of the tenants of the building of Pattana Panchayat, Saligrama and similar attempt was tried by the appellant with regard to the requisition made by the complainant and ultimately got trapped into it. - 18 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 38. Therefore, neither the explanation given by the appellant on Ex.P9 nor the answer given by him to question No.39 would be sufficient enough to hold that the appellant did not misuse his official position for showing favour to the complainant or similarly placed tenants. 39. The fact remains that there is no explanation to the processing of the application given by the wife of Venkataramana Nyari i.e., Smt Shantha Nyari. No material is forthcoming on record placed by the appellant either examining himself or any witness that he has followed necessary procedure before getting the shop re-auctioned and allotting it to the name of Smt Shanta Nyari for a rent of Rs.450/- per month as against the original rent of Rs.1,750/-, for which, the Venkataramana Nyari became the successful bidder. 40. Thus from the totality of the circumstances, it is crystal clear that there was a successful trap wherein the tainted currency has been seized from the custody of the appellant. In the case on hand, the tainted currency was found on the table. According to the appellant, if he did not handle the tainted currency at all, there was no possibility of the colour test turning positive in respect of both the hands of the - 19 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 appellant is concerned. Therefore, from the totality of the circumstances, in the absence of any previous enmity or animosity nurtured either by PWs.1, 4 and 5 and in fact as per Ex.P9, it is after ringing the bell by the appellant, PWs.4 and 5 have entered the chambers. 41. Therefore, the oral testimony of PWs.1, 4 and 5 would fortify the complaint of appellant demanding the illegal gratification for processing his application marked as Ex.P13. 42. Therefore, from the above discussions, it is crystal clear that the prosecution is successful in establishing all the ingredients to attract the offence under Section 13(1)(d) read with Section 13(2) of PC Act. 43. Learned Trial judge while passing the impugned judgment has taken into consideration several aspects of the matter and by cumulative analysis, recorded a finding of the guilt. 44. Even after re-appreciation of the materials on record, this Court does not find any legal infirmity or perversity especially in the light of the grounds urged in the appeal memorandum. - 20 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 45. Therefore, invariable conclusion that this Court can reach is to hold that the prosecution is successful in establishing the guilt of the accused by placing cogent and convincing evidence on record. In view of the foregoing discussions, point Nos.1 and 2 are answered in the affirmative and negative respectively. 46. Regarding point No.3: Sri Jayanth Poojari contended that the appellant is now aged 72 years and bed- ridden and therefore, sentence needs to be modified. On perusal of the punishment prescribed for the offence under Section 7 and 13(1)(d) before the Act came to be amended, minimum of six months is the punishment for Section 7 of PC Act and minimum of one year for the offence under Section 13(1)(d) of PC Act (before amendment). The same is the punishment that has been imposed by the learned Trial Judge in the impugned judgment. 47. When the statute prescribes the minimum punishment without any discretionary power vested in the Court to award a lesser punishment other than the minimum punishment by supplying necessary reasons, Courts are bound to award minimum punishment prescribed by the statute. - 21 - NC: 2025:KHC:6673 CRL.A No. 1074 of 2011 48. Therefore, the contention urged on behalf of the appellant taking note of the health condition of the appellant, sentence of imprisonment needs to be modified, cannot be countenance in law. Hence, point No.3 is answered in the Negative. 49. Regarding point No.4 : In view of the findings of this Court on point Nos.1 to 3, the following order is passed: ORDER The appeal grounds are merit-less and is hereby dismissed. Appellant is granted time till 31.03.2025 to surrender before the Trial Court. Sd/- (V SRISHANANDA) JUDGE *bgn/- CT:VS List No.: 1 Sl No.: 22