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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 16TH DAY OF FEBRUARY, 2022

BEFORE

THE HON’BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL APPEAL NO.200105/2015

BETWEEN:

Chandrasha S/o Madarsha Katba,

Age : 54 years, Occ : FDA in
Sub-Treasury Office at Afzalpur,
R/o H.No.7-4, Devi Bhagyawanti Complex,
Devi Nagar, Aland Road, Kalaburagi.
… Appellant

(By Sri Chaitanyakumar Chandriki, Advocate)

AND:

The State of Karnataka,

Through Lokayukta Police,
Kalaburagi,
Represented by SPP,
High Court of Karnataka,
Kalaburagi Bench.
… Respondent

(By Sri Subhash Mallapur, Spl.PP)

This Criminal Appeal is filed under Section 374(2) of

Criminal Procedure Code praying to set aside the judgment
dated 13.10.2015 passed by the learned Prl. Sessions
Judge at Kalaburagi in Special Case No.586/2010 and
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consequently be pleased to acquit the appellant for the

alleged offences.

This appeal coming on for Final Hearing this day, the

Court delivered the following:

JUDGMENT

The present appeal is by the accused challenging the

order of conviction passed in Special Case No.586/2010 on

the file of the Principal District and Sessions Judge,

Kalaburagi dated 13.10.2015 whereby the accused was

convicted for the offence punishable under Sections 7 and

13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act (hereinafter referred to as ‘P.C.Act’ for

brevity).

2. Brief facts of the case are as under :-

Subashchandra Alur, while working as a Second

Division Assistant in Mahanteshwar High School, situated

in Chinamagera Village of Afzalpur Taluk lodged a

complaint that after preparing the encashment of

surrender leave salary bill pertaining to himself and four

non teaching staff of his school by the Block Education

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Officer of the Afzalpur. On instructions of the Block

Education Officer, he submitted the bill with token to the

Sub-Treasury office, Afzalpur on 29.07.2009. It is further

contended that the accused who was working as Second

Division Assistant in the office of the Sub-Treasury Office,

Afzalpur on examination of the bill directed the

complainant to take back the bill as the same cannot be

passed. When the complainant again requested for passing

of the bill, accused demanded illegal gratification for

passing the bill which was informed by the accused and

after enquiring with the other staff, complainant told

accused that he would enquire with the other staff and

return to him. Since the complainant was not willing to

part away the illegal gratification for passing the bill, he

approached the Lokayukta police on 30.07.2009 and being

satisfied with the genuineness of the conversation between

the accused and the complainant, Lokayukta police

registered a case in Crime No.13/2009 on 05.08.2009 and

arranged for a trap on 31.07.2009.

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3. Further, the Lokayukta police secured four

currency notes of `500/- denomination from the

complainant and secured two panchas for trap. The serial

number of the currency notes were entered and the

phenolphthalein powder was smeared on the currency

notes and demonstration was made to the panch witnesses

and the complainant about the reaction of phenolphthalein

powder with the sodium carbonate colourless solution

tuning into pink and entrustment/experimental mahazar

was drafted. Thereafter, the complainant was instructed to

approach the accused and hand over the tainted money on

demand made by the accused. The shadow witness was

also directed to follow the complainant and observe the

actual demand and handing over the tainted money to the

accused.

4. Thereafter, the complainant approached the

accused on 05.08.2009 at about 12.30 p.m. in his office

and demanded about the pending bill for encashment of

the leave salary. The accused demanded the illegal

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gratification and at that juncture the complainant has

handed over the tainted currency notes to the accused

which he kept in his right side pant pocket. Designated

pre-signal was given to the raid party and immediately the

raid party came to the spot and demanded the money that

was handed over by the complainant to the accused. The

accused took out the money from his pant pocket and the

panchas were made to verify the serial numbers found in

the entrustment mahazar and the tainted currency notes

handed over by the accused to the raid party, it was

tallying. Immediately colour test was also conducted,

colour stood positive. Therefore, the head of the raid party

seized the tainted currency notes, collected the samples

and drafted the trap mahazar, arrested the accused and

produced before the special judge. Subsequently, the

Lokayukta police made a thorough investigation, laid a

charge-sheet against the accused for the aforesaid

offences.
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5. Presence of the accused was secured before

the trial court and charges were framed. Accused pleaded

not guilty and therefore trial was held.

6. In order to prove the case of the prosecution,

in all 12 witnesses were examined as PWs.1 to 12 and 30

documents were relied on which were exhibited and

marked as Exs.P.1 to P.30. 10 material objects were also

marked on behalf of the prosecution.

7. On conclusion of the prosecution evidence,

accused statement was recorded as is contemplated under

Section 313 of Cr.P.C. Accused denied the incriminatory

materials found against him. However, he furnished

written submissions on his behalf as is contemplated under

Section 313(5) of Cr.P.C.

8. Thereafter, trial Judge heard the parties in

detail and after considering the oral and documentary

evidence on record, passed an order of conviction

convicting the accused for the aforesaid offences and

passed an order of sentence as under:-

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Default
Offence Punishment Fine
sentence
Section 7 of P.C.Act Imprisonment `2,500/- Imprisonment
for six for two
months months

Section 13(1)(d) Imprisonment `5,000/- Imprisonment

punishable under for two years for six
Section 13(2) of months
P.C.Act

9. Being aggrieved by the same, accused is

before this court in this appeal.

10. In the appeal memorandum, following grounds

have been raised :-

x That the Court below has not perceptively appreciated the oral
evidence and documentary evidence on record, and erred in coming
to the conclusion that the appellant had committed an offence
punishable under section 7 and section 18(1) (d) read with section
13(2) of Prosecution of Corruption Act, 1988.

x That the learned Sessions Judge has not considered or given the
thought of the facts, which are emerged in the cross-examination of
the prosecution witnesses, which creates a reasonable doubt as to
the case of the prosecution.

x That the learned sessions judge has wrongly held that, as on the
relevant date and time, work of complainant is pending with appellant
and to do a favour in connection with that work, the appellant
demanded and accepted Rs.2,000/-, that the testimony of the PW1,
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PW4, PW5 and PW12 itself clearly indicates that, as on 5-8-2012, no

work is pending with the appellant. He attended the work on 29-7-
2009 itself. Which creates doubt regarding version of the prosecution,
same has not been properly considered by the trial court. Hence the
indulgence of this Hon'ble court is sought for.

x That the evidence on record shows that -

a) Mahanteshwar high school is an aided school.

b) Drawing of the said school is Block Education Officer, Afzalpur

(B.E.O.)

c) Treasury Tokens were issued to the B.E.0., Afzalpur, and not to

the school authorities.

x That the testimony of PW-4 and PW-5 and PW-12 (IO) is to the effect
that, the school bills are to be submitted to the treasury office by the
Block Education Officer, Afzalpur, (B.E.O.), and not by the school staff
(i.e.PW-1). Mahanteshwar school being an aided school, and B.E.O
being the officer of the said school, every bill of the school is to be
presented by the B.E.O along with Token Ex.P.20. The school staff
(i.e. PW.1) has no role to play. It is not the case of the prosecution
that asked the PW-1 to present the bills in the treasury office. To this
effect, no treasury officer is examined either by the lokayukta police or
by the prosecution, which is fatal to the prosecution case same has
not been considered by the court below. Hence the interference of this
Hon;ble court is sought for.

x In view of the evidence of PW-4 Basavaraj, PW-5 Sharanappa and

PW-12 I.O., the say of the PW-1 that on 29-9-2009, he presented the
bills became doubtful. That the testimony of PW-4 Basavaraj is to the
effect 29-7-2009, he endorsed on Ex.P-20 (Token) acknowledging
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that, on the receipt of token. The evidence of PW-4 clearly discloses

that, on 29/7/2009, the appellant has not received school bills and
token Ex.P-20 from the complainant. The court below not at all
appreciated the same, which has resulted in convicting the appellate.
On that ground alone the judgment passed by the court below is liable
to be set aside.

11. Reiterating the above grounds, Sri

Chaitanyakumar Chandriki learned counsel for the

appellant vehemently contended that in order to secure an

order of conviction, prosecution must and should establish

that as on the date of trap, some work of the complainant

must be pending with the accused so as to accused

demand the illegal gratification to show official favour in

favour of the complainant and since on 29.07.2009 itself

the accused has already completed the work of the

complainant, there was no scope for demand of the illegal

gratification nor acceptance of the same and in fact the

money was thrusted into his pant pocket by the

complainant with the ulterior motive and motivated trap

has been laid and hence sought for acquittal of the

accused.
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12. Per contra, learned counsel representing the

Lokayukta Sri Subhash Mallapur contended that the

question of demand and acceptance, colour test having

been proved and the mere fact that on 29.07.2009 the

accused passing of the bill itself would not be sufficient and

the consideration received by the accused is a deferred

consideration and sought for dismissal of the appeal.

13. In the light of the rival contentions, following

points would arise for consideration are :-

1. Whether the prosecution is successful in

establishing that accused demanded illegal
gratification in a sum of `2,000/- for processing
the encashment of surrender leave salary bill
pertaining to the complainant and his four non
teaching staff of his school and the same was
accepted by the accused for the purpose of
showing official favour and thereby accused has
committed an offence punishable under
Sections 7, 13(1)(d) read with Section 13(2) of
the Prevention of Corruption Act ?
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2. Whether the impugned judgment is suffering from

legal infirmity and perversity and thus calls for
interference?

3. If so what order?

Regarding point Nos.1 and 2 :

14. In a matter of this nature, in order to secure

an order of conviction for the offences punishable

punishable under Sections 7, 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, the

prosecution has to establish the ingredients as is held in

the case of A.Subair v. State of Kerala reported in

(2009) 6 Supreme Court Cases 587, which are as

under ;-

x Demand and acceptance of bribe money;

x Handling of tainted money by the accused on

the day of trap (colour test);

x Work of the complainant must be pending as

on the date of trap with the accused.
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15. In the light of the above legal requirement

when the material on record is analyzed, the complainant

submitted a bill of himself and four other non teaching

staff to the accused who is working as a Second Division

Assistant in the Sub-Treasury, Afzlapur. After passing of

the bill, the accused said to have demanded a sum of

`2,000/- as illegal gratification, complainant was not

interest in parting with the illegal gratification, therefore he

approached the Lokayukta police and trap was laid.

Complainant is examined as PW.1 he has supported the

case of the prosecution by reiterating the contents of the

complaint in toto and also about the contents of

experimental mahazar and trap mahazar with graphic

details.

16. Cross-examination of the complainant did not

yield much materials to disbelieve his testimony. So also,

shadow witness who is examined as PW.2 supported the

case of the prosecution in toto. He deposed about the

entrustment mahazar and trap mahazar with graphic

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details wherein the accused demanded illegal gratification

and also keeping the money in the right side pant pocket

of the accused and colour test turning out positive, stands

established.

17. The co-pancha is examined as PW.3. He also

supported the case of the prosecution. Other material

witnesses are PW.4 the Second Division Assistant of Sub-

Treasury, Afzalpur and PW.5 is the Accounts Head, Sub-

Treasury, Afzalpur. However, in their evidence, Ex.P.8

came to be marked along with annexure. On considering

Ex.P.18, a sum of `43,323/- being the bill has already

been passed on 29.07.2009 itself, as could be seen from

the endorsement made on the bills itself. These two

documents were seized by the Lokayukta police in the

presence of panchas and it is relied on by the prosecution

themselves. As could be seen from Ex.P.18 coupled with

the oral testimony of PWs.4 and 5, it is seen that as on the

date of trap i.e., 05.08.2009 there was no work pending of

the complainant with the accused inasmuch as he has

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already passed the bills on 29.07.2009. When the bills are

already been passed on 29.07.2009, question of making a

demand on 05.08.2009 and the accused accepting the

illegal gratification in a sum of `2,000/- cannot be

countenanced in law.

18. It is pertinent to note that at the time of

recording of the statement of the accused, accused has

given a written submissions which reads as under :-

“¢£ÁAPÀ 29.07.2009 gÀAzÀÄ PÉëÃvÀæ ²PÀu

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C¥sd
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¸ÀA§AzsÀ¥l
À Ö ©®è£ÀÄß £ÀªÀÄä PÀbÉÃjAiÀÄ°è ZÉPï ¸ÉPÉë£ï ¤ªÀð»¸ÀÄwÛgÀĪÀ
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¢£ÁAPÀ 29.07.2009 gÀAzÀÄ ¸À¢æ ©®è£ÀÄß ¥Á¸ï ªÀiÁr

ªÀÄAdÆgÁwUÁV CzÉà ¢£ÀªÉà ¥Àæ¨sÁj ReÁ£Á¢üPÁjAiÀiÁVzÀÝ
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CzÉà ¢ªÀ¸À ©®Äè ªÀÄAdÆgÀÄ ªÀiÁrzÁÝgÉ ºÁUÀÆ ©°è£À ªÉÄïÉ
µÀgÁ PÀÆqÁ EzÉ.

¢£ÁAPÀ 29.07.2009 gÀAzÀÄ ªÀÄÄRå ¯ÉPÁÌ¢üPÁjUÀ¼ÀÄ ¸À¢æ

©®è£ÀÄß ªÀÄAdÆgÀ ªÀiÁr ¸À¢æ ©°èUÉ C£ÀÄUÀÄtªÁV ZÉPï
 15

¹zÀÞUÉƽ¸À®Ä PÀqvÀ ÀªÀ£ÀÄß ZÉPï ¸ÉPÉì£ï £ÉÆÃrPÉƼÀÄw

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¢£ÁAPÀ 30.07.2009 gÀAzÀÄ ¸À¢æ ZÉPï «vÀgu

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C¢üPÁjAiÀĪÀgÀ ¸À» PÀÆqÀ DVzÉ, ¢£ÁAPÀ 30.07.2009 jAzÀ ¸À¢æ
ZÉPï §¸ÀªÀgÁd£À ºÀwÛgÀªÉà EzÉÀ, ¢£ÁAPÀ 05.08.2009 gÀAzÀÄ ¸À¢æ
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À Ö ©®è£ÀÄß £Á£ÀÄ
¢£ÁAPÀ 29.07.2009 gÀAzÉà ¥Á¸ï ªÀiÁr C£ÀĪÉÆÃzÀ£ÉÃUÁV
¥Àæ¨sÁj ReÁ£É C¢üPÁjAiÀiÁVzÀÝ ªÀÄÄRå ¯ÉQÌUjÀ UÉ PÀ¼ÀÄ»¹PÉÆnÖzÉÝãÉ,
¸À¢æ ©®è£ÀÄß ¥Á¸À ªÀiÁqÀĪÀÅzÀgÀ PÀÄjvÀÄ AiÀiÁªÀÅzÉà vÀgÀºÀzÀ PÉ®¸À
¢£ÁAPÀ 05.08.2009 gÀAzÀÄ £À£Àß°è EgÀ°®è.

£Á£ÀÄ AiÀiÁªÀÅzÉà vÀ¥ÀÄà ªÀiÁr®è JA¢UÀÆ £Á£ÀÄ

¦üAiÀiÁð¢UÉ ©®è£ÀÄß ¥Á¸À ªÀiÁqÀĪÀ PÀÄjvÀÄ gÀÆ.2000/- PÉý®è
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PÉÊUÀqÀªÁV ºÀt vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÝ ¸ÀĪÀiÁgÀÄ 8-10 ¢£ÀU¼
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ºÀtPÉÆqÀ®Ä MvÁ۬ĹzÁUÀ £À£ÀUÀÆ ¦üAiÀiÁð¢UÀÆ dUÀ¼ÀªÁV
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F »£À߯AÉ iÀÄ°è ¦üAiÀiÁð¢zÁgÀ£ÀÄ ¯ÉÆÃPÁAiÀÄÄPÀÛ ¥ÉưøÀgÀ

¸ÀºÁAiÀÄ¢AzÀ £À£Àß ªÉÄÃ¯É ¸ÀļÀÄî PÉøÀÄ ªÀiÁr¹zÁÝ£.É ”

19. As could be seen from the written submissions,

there is a specific stand taken by the accused that as on

the date of trap no work of the complainant was pending

with the accused and soon after the receipt of the bill, he

has passed the bill on the same day and therefore, there

was no demand of illegal gratification by accused and the

trap is a motivated trap.

20. In view of the legal principles enunciated in

A.Subair’s case (supra), since the work was not pending

before the accused as on the date of trap, the important

ingredient to attract and complete the offence punishable

under Sections 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act cannot be sustained.

Accordingly, the finding recorded by the learned trial Judge

needs to be interfered with. In view of the foregoing

discussion, point No.1 is answered in the negative and

point No.2 is answered in the affirmative.

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Regarding point No.3 :

21. In view of the finding of this court on point

Nos.1 and 2 as above, point No.3 is answered accordingly.

Hence, the following :

ORDER
Appeal is allowed.

The judgment dated 13.10.2015 passed in Special

Case No.586/2010 by the Principal Sessions Judge,

Kalaburagi is hereby set-aside.

Accused is acquitted and his bail bond stands

discharged.

Fine amount, if any, deposited is ordered to be

refunded to the accused, under due identification.

Ordered accordingly.

Sd/-
JUDGE

sn