IN THE HIGH COURT OF KARNATAKA, GULBARGA …judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2002/11/28  · 1 IN THE HIGH COURT OF KARNATAKA, GULBARGA BENCH Dated this the

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IN THE HIGH COURT OF KARNATAKA, GULBARGA

BENCH

Dated this the 28th day of February, 2014

BEFORE

THE HON’BLE MR. JUSTICE B.V. PINTO

Criminal Appeal No.3617/2011

BETWEEN:

1. VENKATESHS/O BASAVARAJ MUNDARGIAGED ABOUT 36 YEARSOCC: SUPERINTENDENTSOCIAL WELFARE OFFICEYADGIR

2. ZAKEER HUSSAINS/O ABDUL MAJEEDAGED ABOUT 35 YEARSOCC: FDASOCIAL WELFARE OFFICE

YADGIR …APPELLANTS

(BY SRI BABURAO MANAGANE, ADV., )

AND:

THE STATE OF KARNATAKATHROUGH LOKAYUKTA POLICE YADGIR(REP.BY STATE ADDL. PUBLIC PROSECUTOR)

…RESPONDENT

(BY SRI. A.SYED HABEEB, SPL.PP)

THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2)OF CR.P.C. PRAYING TO ALLOW THE APPEAL AND SET ASIDETHE JUDGMENT OF CONVICTION AND ORDER OF SENTENCEDATED 28.7.2011 OF THE COURT OF DISTRICT AND SESSIONSJUDGE, YADGIRI IN SPECIAL CASE NO.01/2010 CONVICTING

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THE APPELLANTS/ACCUSED FOR THE OFFENCES P/U/S.7,13(1)(D) R/W 13(2) OF PREVENTION OF CORRUPTION ACT ANDTHE APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERTOR.I. FOR FIVE YEARS AND FINE OF RS.20,000/- IN DEFAULT HESHALL UNDERGO S.I. FOR ONE MORE YEAR FOR THEOFFENCES P/U/S.7 OF PREVENTION OF CORRUPTION ACTETC.,

THIS APPEAL COMING ON FOR DICTATING JUDGMENT,THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

JUDGMENT

This appeal is filed challenging the judgment

dated 28.7.2011 passed by the Sessions Judge and

Special Judge, Yadgiri in Spl.Case No.01/2010,

convicting appellant No.1-Venkatesh (accused No.2) of

the offences under Section 7 and Section 13(1)(d) r/w

13(2) of the Prevention of Corruption Act, 1988 [‘PC Act’

for short] and sentencing him to undergo rigorous

imprisonment for a period of 5 years and to pay fine of

Rs.20,000/- in default of fine to undergo simple

imprisonment for a period of one year for the offence

under Section 7 of PC Act and further sentencing him to

undergo R.I for a period of 7 years and to pay fine of

`20,000/- in default to undergo S.I for one year for the

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offence under Section 13(1)(d) read with13(2) of the PC

Act and further convicting appellant No.2 (accused No.3)

of the offences under Sections 7 and 13(1)(d) r/w 13(2)

of the PC Act and sentencing him to undergo rigorous

imprisonment for a period of 5 years and to pay fine of

`20,000/- in default of fine to undergo simple

imprisonment for a period of one year for the offence

under Section 7 of PC Act and further sentencing him to

undergo R.I for 7 years and to pay fine of `20,000/- in

default to undergo S.I for one year for the offence under

Section 13(1)(d) r/w Section 13(2) of the PC Act.

2. It is the case of the prosecution that accused

No.1-Pandurang (now deceased) was the Social Welfare

Officer in the office of Taluka Social Welfare Office,

Yadgiri and accused No.2-Venkatesh was the

Superintendent in the said office, accused No.3-Zakeer

Hussain was the First Division Assistant in the office of

Social Welfare Office, Yadgiri. It is the case of

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prosecution that all the accused persons on 27.2.2006

at about 12.55 p.m. in the Taluka Social Welfare Office

at Yadgiri demanded a sum of `3,000/-, `2,000/- and

`1,000/- respectively as illegal gratification in order to

do official favour to the complainant-Sri Zulfikar Ali S/o

Shairali Soudagar in order to prepare bill and make

payment of rent of the building belonging to the

complainant and accepted `2,500/-, `1,000/- and

`500/- respectively in order to do official favour to the

complainant and thereby they are charged for having

committed offences under Sections 7 and Section

13(1)(d) r/w 13(2) of the PC Act.

3. The prosecution in order to prove the case

has examined in all six witnesses and got marked

Exs.P1 to P-23 and produced MOs.1 to 18. The defence

of the accused was one of total denial. The appellants

got themselves examined as DW.1 & DW.2 respectively

and also produced the certified copy of the proceeding of

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Chief Executive Officer, Zilla Panchayat as Ex.D-1. In

the meantime accused No.1 by name Pandurang died

and therefore the case was proceeded against the

appellants and by the Judgment impugned in this case,

the learned Special Judge was pleased to convict the

appellants and sentenced them as aforesaid. It is this

Judgment of conviction and sentence, which has been

challenged by the appellants in this appeal.

4. The proceedings in this case had

commenced with the complaint filed by one Zulfikhar Ali

S/o Shairali Soudagar on 27.2.2006. In his complaint

addressed to the Police Inspector, Karnataka

Lokayuktha, Yadgir, the Complainant has stated that he

belongs to Gajarakote village and that he has got two

houses in the said village. He is residing in one house

and the other house has been given on rent to the

Gulbarga District Social Welfare Department from

15.7.2004 for running a Government Girls Hostel. He is

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receiving a sum of `3,300/- per month as rent from the

Public Works Department. The said hostel is run from

15.7.2004. However, no rent has been given by the

Department till then. In this connection, he has

approached the Taluka Social Welfare Officer and

District Social Welfare Officer and ultimately he

approached the Chief Executive Officer, Zilla

Panchayath, Gulbarga and at his request, an order was

made to pay the rent of Government Girls Hostel. The

Chief Executive Officer, Zilla Panchayath, Gulbarga

passed the said order on 4.2.2006 and according to the

said order he had directed to prepare the bill and to

write a cheque and hand it over to him by the Taluka

Social Welfare Officer, Yadgir. In this connection, on

14.2.2006, he went to the said office and contacted Sri

Zakeer Hussain. The said Zakeer Hussain instructed

him to meet the Taluka Social Welfare Officer and

accordingly he went and met the said officer. The Social

Welfare Officer instructed the Manager-Venkatesh and

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the concerned clerk - Zakeer Hussain and after

discussion among them, he has demanded a sum of

`6,000/- as illegal gratification for preparing a bill worth

`61,050/-. It is stated in the complaint that the said

amount of `6,000/- is towards `3,000/- payable to the

Taluka Social Welfare Officer, `2,000/- to the accused-

Venkatesh-Manager and `1,000/- to Zakeer Hussain.

The Complainant thereafter informed the accused that

the said amount is too much for him and requested to

reduce the same and at that time, the Taluka Social

Welfare Officer represented that a sum of `2,000/-

should be paid to him. Similarly, a sum of `1,000/- to

the Manager and `1,000/- to the clerk. In all, he

demanded a sum of `4,000/- and promised that only

after the amount is paid, he would prepare the bill.

Since the complainant did not want to give the bribe to

the accused, he approached the Inspector of Police,

Lokayuktha who registered a case in Crime No.2/2006

on the basis of the complaint of Zulfikhar Ali on

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27.2.2006. The Inspector of Lokayuktha thereafter

commenced the investigation and prepared an

entrustment mahazar as per Ex.P1. After entrustment

mahazar was prepared, the Inspector Lokayuktha along

with the Complainant and one shadow witness by name

Sri Venugopal and also PW.1-Jagadeesh went over to

the office of accused situated at Taluk office in Yadgir

District. Thereafter, the tainted money, which was

entrusted to the Complainant, was handed over to the

accused on their demand in their office at about 1 pm

on the same day i.e., on 27.2.2006. Immediately, a raid

was conducted and the incriminating notes were seized

from the office. A panchanama as per Ex.P2 was

prepared in the office of Taluka Executive Office.

During the preparation of Panchanama, the hands of

the accused was dipped into the sodium carbonate

solution and the said solution having been turned into

pink colour, all the three accused were apprehended

and after investigation charge sheet came to be filed.

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5. PW.6-Chandrakanth is the Inspector of

Police, who on receipt of the complaint from the

complainant on 27.2.2006, between 10 and 10.15 a.m.

proceeded, with the registration of the case. The

complaint is marked as Ex.P5. PW.6 after completion of

the formalities in the scene of occurrence in the office of

Block Education Officer returned to the Station and

thereafter investigation was continued. PW.5 has taken

the written statement of both the accused on the spot,

which are marked as Exs.P14 and P15. PW.6 thereafter

sent the seized notes for FSL examination, forwarded

papers to PW.5, who was the Commissioner in the

Social Welfare Department during the relevant period.

PW.5 after going through the reports and the

documents has issued sanction to prosecute the

accused.

6. PW.1-Jagadeesh, is working as a FDC in the

Block Education Office, Gulbarga. He has stated before

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the Court that he was summoned to the Lokayuktha

Office on 27.2.2006. In the said office, the Inspector

received 8 notes of `500/- denomination from the

Complainant and he applied powder to the said notes.

Thereafter, PW.1 had witnessed the preparation of the

sample and other materials for the purpose of laying a

trap on the accused. PW.1 has also identified the notes

in the presence of PW.6-Chandrakanth and thereafter

they went to the office of accused along with shadow

witness and other witnesses. PW.1 has however has not

supported the case of prosecution in full. He is

supposed to have stated that he was present with the

Inspector when the complainant reported about the

handing over the notes by him to the accused after

coming out of the office of accused. However, in the

Court he has not supported the case of prosecution that

he had heard the Complainant reporting about the

handing over of the notes to accused. He has stated that

he has not seen the complainant inside the office of

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accused when he entered the said office. He has also

stated that he has not heard as to what was spoken by

the complainant and PW.2-Venugopal with the

Inspector. The Special Public Prosecutor of Lokayuktha

had thoroughly cross-examined this PW.1 in the wake of

his becoming hostile to the case of prosecution and in

the wake of his denial to support the case of

complainant-PW.3.

7. PW.2-Venugopal is the Junior Assistant in

GESCOM., Yadgir. PW.2 has also been summoned to

the office of Lokayuktha, Yadgir. He has also stated

regarding the contents of Ex.P1-entrustment Mahazar.

He has stated before the Court that after reaching the

office where the accused were working, he waited

outside the office of accused and as soon as the

complainant came out of the office of accused, he also

went forward. However, PW.2 has turned hostile to the

case of prosecution regarding the particular facts of the

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case viz., handing over of the money to the accused by

the complainant on the demand made by the accused at

the time of acceptance of the tainted notes.

8. PW.3-Zulfikar Ali is the Complainant. He has

deposed as per the complaint and has stated before the

Court that a sum of `3,300/- was due to him by the

Social Welfare Department and when he requested the

Zilla Panchayath Chief Secretary, the latter had

immediately passed the bill and sent the same to the

office of accused for disbursement. However, since he

was not given the necessary cheque, he went to the

office of the Lokayuktha and gave a complaint as per

Ex.P5. PW.3 however has turned hostile to the case of

prosecution so far as his complaint before the police is

concerned and also regarding the claim he has in

respect of the rent payable to him by the other accused.

PW.3 being the Complainant has completely turned

hostile regarding demand and acceptance of the bribe

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amount by the accused. He has been subjected to

cross-examination by the Public Prosecutor.

9. PW.4-Subhaschandra is the Head Constable

of Karnataka Lokayuktha, Gulbarga. On 27.2.2006, he

has been to the Yadgir Police Station. It is in his

evidence that he has assisted the investigation done by

PW.6 by following him till the scene of occurrence. It is

in the evidence of PW.4 that the notes which were

tendered to the accused were tainted with

phenolphthalein powder and since the accused took the

notes in his hands, the sodium bicarbonate solution

turned into pink colour indicating therein that the

accused had accepted the bribe amount as offered by

the complainant.

10. PW.5-Yogendra Tripathi is the officer

authorised to sanction the prosecution against the

appellants and accordingly he has issued to sanction to

prosecute the accused as per Exs.P6, P7 and P8.

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11. PW.6-Chandrakanth is the Inspector of

Police, who on receipt of a typed complaint from PW.3,

registered the case and thereafter conducted the entire

investigation including preparation of entrustment

mahazar, going to the office of accused, laying a trap,

seizure of the currency notes from the accused, holding

a FSL test regarding the origin of notes. PW.6 has also

categorically stated regarding handing over of the

currency notes by PW.3 to the accused and also the

recovery of the amount from the possession of accused.

He has further stated that the resultant solution after

dipping the hands of the accused in sodium bicarbonate

solution turned into pink colour, thus, indicating that

the accused/appellants have accepted the bribe amount

as per their demand made by PW.3. PW.4 has thereafter

obtained statements from the accused in the languages

known to them. It is in the evidence of PW.6 that after

conducting the raid, he has arrested the accused and

produced them before the Court. In the cross-

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examination of PW.6, it is suggested that a false case

has been filed against the accused and that no such

incident has ever happened. It is also suggested to

PW.6 that the work of PW.3 was already over by the

time the raid was conducted and that there was no

scope for demanding the bribe amount from the

complainant. The aforesaid suggestions are denied by

PW.6.

12. It is from the above evidence that the learned

Special Judge has found the accused guilty.

13. Heard Sri Baburao Mangane, learned

Counsel for the appellants and Sri A.Syed Habeeb,

learned Special Public Prosecutor for the

Respondent/Lokayukta.

14. Sri Baburao Mangane, learned counsel for

the appellants submitted that in this case both the

complainant and the shadow witness have turned

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hostile to the case of prosecution and therefore the

prosecution has utterly failed to prove that there was a

demand and acceptance of illegal gratification.

Therefore, provisions of PC Act are not attracted in this

case. It is further submitted that the sanction order is

vitiated for non-application of mind. Under the

circumstances, it is submitted that the accused may be

acquitted.

15. Sri Baburao Mangane, learned counsel for

the appellants has relied on the following rulings:-

(i) (2010) ACR 481 in the case of Banarsi

Dass v. State of Haryana, in which, it is

stated as follows:-

“A. Prevention of Corruption

Act, 1947-Section 5(2)-Penal

Code, 1860-Section 161-Bribe-

Demand and acceptance of bribe-

Conviction and sentence-Two

witnesses including shadow

witness turned hostile-To

constitute an offence under

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Section 161 of the IPC it is

necessary for prosecution to prove

that there was demand of money

and same was voluntarily

accepted by accused-Similarly, in

terms of Section 5(1)(d) of P.C. Act

demand and acceptance of money

for doing a favour in discharge of

its official duties is sine qua non to

conviction of accused-High Court

has fallen in error in so far as it

has drawn inference of demand

and receipt of illegal gratification

from fact that money was

recovered from accused-Benefit of

doubt on technical ground

extended to accused-Appellant

acquitted-Appeal allowed.

B. Criminal Law-

Conviction-Conviction of an

accused cannot be founded on

basis of inference-Offence should

be proved against accused beyond

reasonable doubt either by direct

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evidence or even by circumstantial

evidence if each link of chain of

events is established pointing

towards guilt of accused-

Prosecution has to lead cogent

evidence in that regard so far as it

satisfies the essentials of a

complete chain duly supported by

appropriate evidence.”

(ii) (2009) ACR 956 in the case of State of

Maharashtra v. Dnyaneshwar Laxman

Rao Wankhede, in which, it is stated as

follows:-

“A. Prevention of Corruption

Act, 1988-Sections 7(1) and 20-

Criminal Procedure Code, 1973-

Section 378-Conviction for graft

charges-Acquittal by High Court-

Discrepancies in depositions of

prosecution witnesses-Version of

complainant not inspiring

confidence-Prosecution has failed

to prove its case-Even in a case

where burden is on accused,

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prosecution must prove

foundational facts-Where it is

possible to have both views, one

in favour of prosecution and

other in favour of accused, latter

should prevail-High Court has

taken into consideration legal

implication of provisions of

Section 20-Appeal dismissed.

C. Prevention of Corruption

Act, 1988-Sections 7(1) and 20-

Prosecution for demanding and

accepting illegal gratification-

Demand of illegal gratification is

a sine qua non for constitution of

an offence under provisions of

the Act-For arriving at conclusion

as to whether all ingredients of

an offence, demand, acceptance

and recovery of amount of illegal

gratification have been satisfied

or not Court must take into

consideration the facts and

circumstances brought on record

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in their entirety-Presumptive

evidence, as is laid down in

Section 20 must also be taken

into consideration-But, then in

respect thereof, standard of

burden of proof on accused vis-à-

vis standard of burden of proof

on prosecution would differ-

Before, accused is called upon to

explain as to how amount in

question was found in his

possession, foundational facts

must be established by

prosecution-Even while invoking

provisions of Section 20, Court is

required to consider the

explanation offered by accused,

only on touchstone of

preponderance of probability and

not on touchstone of proof

beyond all reasonable doubts.”

(iii) 2013) Cr.R. 96 (Kant.) in the case of State

by Lokayuktha Police, Chickmagalur v.

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C.Seenappa and others, in which, it is

stated as follows:-

“Prevention of Corruption

Act, 1988-Sections 7 and 13(1)(d)

read with Sections 13(2) and 20-

Criminal Procedure Code, 1973-

Section 378-Illegal gratification-

Acquittal-Demand of illegal

gratification is a sine qua non for

constitution of offence under

Sections 7 and 13(1)(d)-Court

must take into consideration

entire record of case-Prosecution

failed to prove foundational facts

of demand and acceptance of

bribe amount-Mere recovery of

tainted currency notes from

possession of accused is not

sufficient to hold that there was

demand and acceptance of bribe

amount by him-To shift burden

on accused and apply the

presumption under Section 20,

prosecution must prove

foundational facts-No credible

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evidence in that regard is

forthcoming-Prosecution failed to

prove its case beyond all

reasonable doubts-Appeal

dismissed.”

16. Sri A. Syed Habeeb, learned Special Public

Prosecutor, on the other hand, submits that even

though the witnesses have turned hostile, the

prosecution papers reveal a perfect case of commission

of offence by both the accused. He submits that PWs.1

and 2 who are the supporting witnesses have

categorically stated regarding the entrustment mahazar

and the trap mahazar. The tainted money has been

recovered in their presence and therefore the evidence of

PWs.1 and 2 completely corroborates the case of the

prosecution. It is his further submission that though

the complainant-PW.3 has turned hostile to the case of

the prosecution, the circumstances proved by the

prosecution clearly lead to the inference that the

accused have demanded and accepted the bribe

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amount. He also submits that PW.5-Yogendra Tripathi

has carefully scrutinized the papers before according

sanction to prosecute the appellants of the offences

levelled against them. The said sanction orders have

been marked as Exs.P6 to P8. Hence, he submits that

there is no illegality or perversity in the order of

conviction passed by the learned Sessions Judge and

submits that the order of conviction may be sustained.

It is further submitted by the learned Counsel for

Lokayuktha that in this case provisions of Section 20 of

the PC Act fairly and squarely covers the act of the

accused. Accused have not denied the fact that they

were in possession of the money. Hence, in the absence

of any suggestion or proof that the money belonged to

them both the offenders are liable to be convicted for the

offence under Section 20 of PC Act and hence he prays

for dismissal of the appeal.

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17. He has cited the ruling reported in (2001)1

Supreme Court Cases 691 in the case of M. Narsinga

Rao v. State of A.P. in which, it is stated as follows:-

“14. When the sub-section deals with

legal presumption it is to be understood as in

terrorem i.e. in tone of a command that it has

to be presumed that the accused accepted

the gratification as a motive or reward for

doing or forbearing to do any official act etc.,

if the condition envisaged in the former part

of the section is satisfied. The only condition

for drawing such a legal presumption under

Section 20 is that during trial it should be

proved that the accused has accepted or

agreed to accept any gratification. The

section does not say that the said condition

should be satisfied through direct evidence.

Its only requirement is that it must be proved

that the accused has accepted or agreed to

accept gratification. Direct evidence is one of

the modes through which a fact can be

proved. But that is not the only mode

envisaged in the Evidence Act.”

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18. PW.3 is the Complainant. It is the case of

complainant that he is the owner of a house building,

which was given on rent to the Social Welfare

Department of Gulbarga District. The rent for the

building was payable by the Taluka Social Welfare

Department of Yadgir. He has stated in his complaint,

which is marked as Ex.P5 that the said house was given

on rent to the Department from 15.7.2004 on a monthly

rental of `3,300/-. The Department was using the said

building for running a Girls Hostel. However, till the

date of complaint namely., 27.2.2006, the Department

had not paid any rent to him and hence he approached

the Taluka Social Welfare Officer and thereafter to the

District Social Welfare Officer and ultimately he

contacted the Chief Executive Officer of the Zilla

Panchayath, Gulbarga and requested for payment of

rent. The said officer has directed the payment of rent

to the Complainant-PW.3 on 14.2.2006. The

Complainant approached the Taluka Social Welfare

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Officer and at that time the concerned case Worker-

Zakeer Hussain was present. The said Zakeer Hussain

asked him to contact the Taluka Social Welfare Officer

and accordingly he met the said officer. He is accused

No.1-Pandurang. The said accused summoned accused

No.2-Venkatesh and accused No.3-Zakeer Hussain and

directed them to prepare a bill for `61,050/- and for this

work, he informed PW.3-Complainant that they should

be paid at a rate of `3,000/- for himself; `2,000/- for

the Manager and `1,000/- to Zakeer Hussain. Thus in

all a sum of `6,000/- shall be paid by the Complainant

to them and at that time, the Complainant informed the

accused that since the said amount is too much he

requested them to receive a lesser amount and

accordingly it was agreed that the accused would do the

complainant’s work for a sum of `4,000/- which is a

sum of `2,000/- for himself; `1,000/- for the Manager

and `1,000/- for the clerk. PW.3 while deposing in the

witness box has given a complete go-bye to the aforesaid

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averments in the complaint. He has stated before the

Court that since the rent has not been approved the

accused has not given the rent to him. He has further

stated that the persons in the Social Welfare

Department were moving around without giving rent to

him. He has identified his signature as Ex.P5(a) and the

complaint as Ex.P5. However, so far as his going to the

office of Lokayuktha along with a sum of `4,000/- he

has not supported his own case while deposing before

the Court. He has stated that he does not remember as

to how many notes were there among the sum of

`4,000/- which was agreed to be paid. It is further

stated by PW.3 before the Court that when he

approached the first accused-Pandurang regarding his

work, first accused refused to take the money; both

second and third accused also refused to take the

money when he attempted to pay the money to accused

Nos.2 and 3. PW.3 has further given a go-by to his case

regarding the averments in the trap mahazar. He has

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specifically stated that he is not aware as to whose hand

wash was taken, he is unable to identify the alleged

notes, which was used for trapping the accused. In the

background of these materials, the learned Public

Prosecutor of Lokayuktha has sought for treating PW.3

as hostile and the Public Prosecutor was permitted to

cross-examine PW.3. In the cross-examination

conducted by the Public Prosecutor, PW.3 has totally

denied the averments regarding the commission of

offence by the accused. He has denied the fact that the

trap was conducted on that day and that money was

recovered from the accused.

19. PW.2-Venugopal is a shadow witness.

However, in the evidence of PW.2 also though in the

chief examination, he has stated that the Inspector

conducted the hand wash of the accused, removed the

notes from the shirt pocket of accused No.1, removed

the notes from the pocket of accused No.2 and so also

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that of accused No.3, the learned Public Prosecutor has

treated this PW.3 as hostile to the case of prosecution

and in the cross-examination conducted by the learned

Public Prosecutor, PW.2 has also not supported the case

of prosecution and has denied the averments made in

the trap mahazar. He has stated that he has not gone

inside the chamber of the accused when PW.3 was

required to hand over the bribe amount and further that

he has not witnessed the handing over of the money by

the complainant to the accused.

20. From the above evidence of PWs.2 and 3, the

shadow witness and the complainant respectively, it is

seen that the case of prosecution regarding the demand

and acceptance has not been proved beyond reasonable

doubt. The case of prosecution so far as the demand is

concerned has to be spoken by the complainant himself

because it is the complainant, who has approached the

accused for getting his rent. To this aspect, the

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Complainant has turned hostile to the case of

prosecution. There is no other witness to speak and to

corroborate the version of PW.3 and the complaint-

Ex.P5 that accused had demanded the bribe amount of

`4,000/- for preparing and passing the cheque of PW.3.

21. So far as the acceptance is concerned, the

prosecution has examined PWs.2 and 3. Though it is

the case of PW.3, in his complaint that the accused

have together demanded a sum of `4,000/-, PW.3 does

not support his own case while being examined in

Court. Hence, the aspect of acceptance also has not

been proved in this case. However, the learned Special

Public Prosecutor submits that the trial Court has

convicted the accused on the basis of complaint and

other documents to hold that the accused was in

possession of money for which no account was

forthcoming. Hence, he submits that the accused is

liable to be convicted under Section 20 of the PC Act.

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22. However, so far as the charge for demand

and acceptance is concerned, there is no cogent and

clear evidence and therefore the case of prosecution that

accused Nos.2 and 3 along with accused No.1

demanded and accepted a sum of `4,000/- for

preparing and passing the bill of the complainant

towards the rent payable to him for his house is not

proved beyond reasonable doubt and hence, the

appellants are entitled for an order of acquittal for the

said charge.

23. So far as the submission of the learned

Special Public Prosecutor that the appellants deserve to

be convicted for criminal misconduct, which is

punishable under Section 7 of the PC Act on the basis

of the recovery of the amount from them; Sri Baburao

Mangane, learned Counsel for the appellants draws the

attention of this Court to the Attendance Register-

Ex.P16, which indicates that on the date of incident i.e.,

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on 14.2.2006, as against the column pertaining to

accused No.2-Venkatesh, the word ‘T’ is mentioned,

which indicates that he was on tour. However, so far as

accused No.3 is concerned, there is an indication that

he has signed on that day, but it is not the case of the

prosecution that accused No.3-Zakeer Hussain has ever

demanded and accepted the amount. The case of the

Complainant is that Pandurang-accused No.1 who is

now dead had demanded the amount on his behalf and

on behalf of other two accused. In that view of the

matter, merely because there is documentary evidence

regarding the recovery of money from the possession of

accused Nos.2 and 3, it cannot be held that the said

amount is obtained by them through illegal or corrupt

means. In this context, the evidence of PWs.2 and 3

gains relevance. It is the case of PW.2 that when the

amount was tendered, accused have not only refused to

take the money, they also avoided the money being

entrusted into their pocket. Under the circumstances,

33

it cannot be said that the accused have been committed

criminal misconduct by possessing the amount. There is

no clear evidence as to who paid the amount and what

is the amount so paid among accused Nos.2 and 3.

Under the circumstances, having regard to the fact that

they have stated immediately after raid as per Exs.14

and 15 denying the demand or acceptance of money

and further fact that they have got themselves examined

as DWs.1 and 3 and got marked Ex.D1, which is the

certified copy of proceeding of CEO, ZP, I am of the view

that the prosecution has not proved the case against the

appellants even for offence under Section 7 read with

Section 20 of PC Act.

24. From what has been discussed above, it is

clear that the prosecution has not proved the case

against the appellants beyond reasonable doubt and

therefore they are entitled for an order of acquittal.

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25. I have carefully gone through the Judgment

of conviction passed by the learned Special Judge. The

learned Special Judge has misdirected himself in

arriving at a conclusion, which is not based on the

evidence on record. The reasoning assigned by the

learned Special Judge is not in accordance with the

settled principles of law since there is no proof of

demand and acceptance of bribe amount and

necessarily the Judgment is perverse. In that view of

the matter, the Judgment of conviction and sentence

passed against the appellants is liable to be set aside.

26. In the result, the following order is passed:-

O R D E R

i) The appeal is allowed.

ii) The Judgment of conviction and order

of sentence imposed on the appellants

is hereby set aside and they are

acquitted of the offences leveled

against them.

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iii) Bail bond executed by them shall

stand discharged.

iv) Fine amount if any deposited shall be

refunded to them.

Sri A. Syed Habeeb, learned Special Public

Prosecutor submits that the Special Judge has directed

action to be taken against PWs.2 and 3 for committing

perjury. The said order of the learned Special Judge is

left undisturbed in the absence of any challenge by the

said witnesses.

Sd/-

JUDGE

cp*