LegalCrystal - Indian Law Search Engine - www.legalcrystal.

com
S.M. Vijayakumar and Another Vs. The State Of Karnataka, By Police
Inspector and Another
LegalCrystal Citation : legalcrystal.com/1173182
Court : Karnataka
Decided On : Feb-19-2015
Judge : R.B. BUDIHAL
Appeal No. : Criminal Appeal Nos. 764 of 2009 & 284 of 2010
Appellant : S.M. Vijayakumar and Another
Respondent : The State Of Karnataka, By Police Inspector and Another
Judgement :
(Prayer: This Crl.A Is Filed U/S 374(2) Cr.P.C Praying To Set Aside The Judgment
And Order Of Conviction Of Sentence Imposed On The Appellant In Special Case
No.63/04 Dated 8.9.2009 On The File Of The Principal Sessions Judge, Bangalore
Rural District, Bangalore And Etc.
This Crl.A. Is Filed U/S.377 Cr.P.C Praying To Grant Leave To File An Appeal
Against The Judgement Dt.8/9/2009 Passed By The Learned Prl. S.J. Bangalore
Rural Dist., Bangalore, In Spl.Case No.63/2004 Thereby Imposing Inadequate
Sentence For The Offences P/U/S 7 R/W 13(2) Of The P.C. Act.)
1. Since these two appeals are arising out of the common judgment and since
common questions of law and facts are involved in both the appeals, they have
been taken up together to dispose of them by common judgment.
2. Crl.Appeal No.764/2009 is preferred by the appellant/accused being aggrieved
by the judgment of conviction passed by the Prl.District and Sessions Judge,
Bangalore Rural District in Spl.Case No.63/2004 dated 08.09.2009.
3. Crl.Appeal No.284/2010 is preferred by the appellant/complainant being
aggrieved by the judgment and order of inadequate sentence dated 08.09.2009
passed by the Prl.District and Sessions Judge, Bangalore Rural District in Spl.Case
No.63/2004.
4. The case of the prosecution in brief is that one Shamanna is the complainant in
this case. It is alleged that complainant is a resident of Vijayapura Village of
Devanahalli Taluk. Smt.M.Nagarathnamma is his elder sister. In Sy.No.287 of
Vijayapura, property measuring 35X35 feet (site) stands in the name of his elder
sister's husband's father viz., Chikkaveerappa. The said site is in possession of
M.Nagrathnamma, her husband had died. She sought for change of katha in the
year 2000. In this regard, an application was submitted to Tahsildar, Devanahalli.
Thereafter, a surveyor has come from the office of the Tahsildar, prepared the
sketch after inspecting the property. Then, for change of the katha, records were
sent to the Revenue Inspector, Vijaykumar i.e., the accused. But the accused has
not transferred the katha and he was postponing the same. In this regard,

complainant's elder sister has contacted the accused, even then her work was not
done. So complainant's elder sister has given the GPA in favour of complainant. So
he contacted the accused, requested to do the work of his sister. Then, the accused
has demanded Rs.5,000/- for transfer of katha. But complainant explained that
they are poor, they cannot pay Rs.5000/-. Finally, the accused has asked atleast to
pay Rs.4000/- and to pay the said amount on 01.08.2002 at the residence or at the
office of the accused and promised to change the katha. As the complainant was
not interested to pay the bribe amount to the accused, he approached the
Lokayukta Police and lodged the complaint dated 31.07.2002 as per Ex.P-1.
5. It is also the case of the prosecution that, on the basis of the said complaint, FIR
was registered as per Ex.P-10. Thereafter, the entrustment mahazar was prepared
in the office of Lokayukta as per Ex.P2. Trap was laid against the accused as per mahazar Ex.P-3. Thereafter, the
Investigating Officer, after completing the investigation, filed the charge sheet
against the accused for the offences punishable under Sections 7, 13(1)d read with
Section 13(2) of Prevention of Corruption Act, 1988.
6. Then, the Trial Court, after framing the charge, conducted the trial against the
accused and ultimately considering the oral and documentary evidence so also the
material objects, convicted the accused for the said offences and sentenced to
undergo Simple imprisonment for six months and also to pay a fine of Rs.500/-.
7. Being aggrieved by the said judgment and order of the
appellant/accused has challenged the legality and correctness
judgment; and the appellant-State in another appeal challenged
imposed on the accused that it is inadequate and hence, sought for
of sentence.

Trial Court,
of the said
the sentence
enhancement

8. The appellants in respective appeals have challenged the judgment and order of
the Trial Court on the grounds urged in their respective appeal memorandums.
9. Heard the arguments of the learned counsel appearing for appellant/accused in
Crl.A.No.764/2009, who was also the counsel for the respondent in
Crl.A.No.284/2010 so also heard the arguments of the learned Spl.P.P for the
respondentin
Crl.A.No.764/2009,
who
was
also
the
appellant
in
Crl.A.No.284/2010.
10. Learned counsel for the accused during the course of his arguments submitted
that the Police Inspector, who received the complaint has not been examined in the
case. He has also submitted that in the complaint there is no allegation that
accused demanded one acre of landed property as bribe. Prosecution has not
proved that there was demand and acceptance of bribe amount by the accused.
There is no specific mention in the complaint about the day or date on which the
demand for bribe was made. As per the materials on record, there was no
application made either by PW-1 or by PW-7 for the change of katha. He has also
submitted that no work of complainant or his sister was pending with the accused.
Therefore, the question of accused showing official favour to the complainant and
demanding and accepting the bribe amount does not arise at all. No sketch was
drawn in respect of the place where the alleged offence said to have been taken
place. Ex.P-5, the explanation of the accused, was not at all put to him during the
course of his examination under Section 313 of Cr.P.C. Hence, when there is no
acceptable evidence regarding the demand and acceptance of bribe amount,
question of raising presumption under section 20(1) of Prevention of Corruption
Act, does not arise at all. These aspects were not at all properly appreciated by the

Trial Court and the accused has been wrongly convicted. Hence, submitted to
allow the appeal and to set-aside the judgment and order of conviction.
11. In support of his contention learned counsel for the appellant/accused has
relied upon the following decisions filed along with memo dated 14.01.2015:
i. 2006 (3) KCCR 1445
ii. 2004 (2) KCCR 1233
iii. (2007) 3 SCC (Cri) 175
iv. 2002 Cri.L.J 2787
v. 1995 SCC (Cri) 509
vi. 1976 Cri.L.J 346
vii. AIR 1979 SC 1408
viii. (2009) 3 SCC 779
ix. (2011) 6 SCC 450
x. 2006 (3) KCCR 1422
xi. Crl.A.No.1339/2003
12. Per contra, the learned Spl.P.P appearing for the respondent-State, during the
course of his arguments submitted that PW-1 has clearly deposed on oath before
the Court that the accused demanded and accepted the bribe amount. The Trial
Court has properly appreciated the oral and documentary evidence and rightly
convicted the accused person. No illegality has been committed nor there is any
perverse or capricious view taken by the Trial Court. Hence, submitted to dismiss
the appeal preferred by the accused.
13. With regard to the State appeal is concerned, the learned Spl.P.P has submitted
that minimum sentence for the said offence is one year. Therefore, the Trial Court
imposed inadequate sentence as against the accused. Hence, the same is to be
enhanced by allowing the appeal preferred by the State.
14. Learned Spl.P.P for the respondent- Lokayukta, in support of his arguments
relied upon the following decisions filed along with memo dated 20.01.2015:
i. AIR 2011 SC 608
ii. Crl.A.2271/2011
iii. AIR 2012 SC 3359.
15. I have perused the oral evidence of PWs-1 to 7, documents Ex.P-1 to P-10 and
Ex.D-1 to D-1(a), Material objects M.O.s-1 to 7. I have also perused the grounds
urged in the appeal memorandum, judgment and order passed by the Trial Court
and also the decision relied upon by the learned counsel for the accused and the
learned Spl.P.P for the respondent-State.

16. One Shamanna, filed the complaint on behalf of his elder sister
Nagarathnamma. Perusing his oral evidence, who has been examined as PW-1, it is
stated that on 31.07.2002 Vijay Kumar has asked him to give one gunta of land or
to pay Rs.5000/- for change of katha into the name of his elder sister. Regarding
this demand of one gunta of land, it is for the first time that he has stated in his
deposition and looking to the complaint Ex.P-1 there is no mention about the
demand for one guntas of land. In para 2 of his deposition, PW-1 has further
deposed that on 30.07.2002 being not satisfied to pay a sum of Rs.5000/-, he took
his sister to Lokayukta office and consulted SP and other officer, produced the
record and SP said that the documents are in order and asked him to get
Rs.4000/-, which he has agreed to pay, and to come on the next day, that he will
arrange for panchas. On 31.07.2002 they went to the Lokayukta office. But
perusing the entrustment mahazar and also the oral evidence of Investigating
Officer/PW-6, on 31.07.2002 at 4.30 p.m. complainant appeared before him and
filed typed complaint. He has also produced affidavit and produced some document
along with the complaint. So it clearly shows that on 30.07.2002 PW-1 had not at
all been to the Lokayukta office, the materials show that as per entrustment
mahazar Ex.P-2 and also the evidence of PW-6 and other witnesses, PW-1 had been
to the office of the accused to enquire about the change of katha and as he
demanded the bribe amount then he went to the Lokayukta office on 31.07.2002 at
about 6.00 pm as per evidence of PW- 1. Therefore, these materials create doubt
on which day and at what time the appellant/accused demanded the bribe amount
from the complainant/PW-1. If the evidence of PW-1 is taken into consideration, the
demand was on 30.07.2002, whereas the averments in the complaint, entrustment
mahazar and the evidence of PW-6/Investigating Officer, they shows that the
demand was on 31.07.2002. Therefore, there is inconsistency and contradictory
version on the side of prosecution with regards to the date, time and place of
demand of bribe amount is concerned.
17. In his oral evidence PW-1 has deposed that thereafter they proceeded in a car,
left Bangalore by 8.00 a.m and reached Devanahalli by 9.00 a.m. Out of the two
witnesses, one was coming behind him and he does not remember his name. This
evidence shows that even the complainant was not knowing the name of the
shadow witness, who was asked to accompany the complainant to the residence or
the office of the accused person. To observe what is happening between the
complainant and accused person, witness No.1/S.C.Basavaraj was asked to
accompany the complainant to the office of the accused. The averments of the
entrustment mahazar Ex.P-2 also shows that on 31.07.2002 itself when the
complainant had been to office of Lokayukta the witness Basavaraj and
Sidrajegowda also came to office of the Lokayukta office and they were introduced
to the complainant and they have also enquired with the complainant about the
contents of the complaint. When that being the case of the prosecution as per
Ex.P2 entrustment mahazar, the evidence of PW-1 that one witness was coming
behind him and he does not remember his name, is difficult to accept.
18. With regard to demand and acceptance of bribe amount is concerned, PW-2
Basavaraju deposed in his examination in chief that on 01.08.2002 they went again
to the Lokayukta office and before they went, proceedings were recorded and he
has signed it as per Ex.P-2b. He has stated that they went to Devanahalli and he
was asked to accompany the complainant so he went along with complainant. They
were instructed to give signal after payment of money by Shamanna. He did not
accompany into the house of AGO. Shamanna alone went and came out after 5
minutes. Thereafter, he gave the signal. This witness was treated as hostile as per
the request of learned PP and when cross examined by PP it was not specifically
suggested to him that he was asked to accompany the complainant to the
residence/office of the accused to observe what is happening between the

complainant and accused and accordingly, he accompanied the complainant to the

residence of AGO. In view of this evidence of PW-2 the shadow witness so far as
demand of bribe amount is concerned, the only evidence is of PW-1/complainant. I
have already observed that even with regard to the evidence of PW- 1 there is no
consistency. Because in the evidence of PW-1 it is deposed that on 31.07.2002
accused Vijaykumar asked him to give one gunta of land to him or pay Rs.5000/- to
him.
19. Regarding the trap mahazar Ex.P-3 is concerned it is true, the evidence of PW6 the Investigating Officer shows that on 01.08.2002 they all went to Devanahalli
and reached Devanahalli by 9.00 a.m. by then the office of AGO was not yet opened
as the AGO's house is opposite to Tahasildar's office, he sent the complainant and
shadow witness to the house of AGO. After 25 minutes of such sending,
complainant, shadow witness gave signal as the one suggested. So, himself and his
staff and other panchas entered the house of AGO. He identified the accused along
with his staff, informed him about the purpose of his visit to AGO. He took
assistance of his staff and got prepared sodium carbonate solution, a sample was
segregated on both the bowls, it was sealed in two empty bottles. Thereafter, the
right and left hand wash of AGO was taken in remaining two separate blows of
sodium carbonate solution and the solution turned into pink colour. The said
solutions were separately seized, sealed and labeled. He asked the AGO as to
where is the money given by the complainant, he identified the same, which was
on the table. Second panch was directed to verify the note numbers, he verified
from entrustment mahazar and said that it tallies. The said notes were seized
separately. Thereafter, preparing one more bowl of sodium carbonate solution, the
complainant's right hand was dipped and it also changed to pink colour. So he
deposed in detail about seizure of the amount by conducting the trap mahazar at
the said place.
20. During the course of cross-examination, he deposed that prior to 31.07.2002
complainant has not come to his office. In the affidavit Nagarathnamma has said
that she is aged and she cannot move personally on account of her age. He did not
instruct the complainant to get the affidavit. He admitted it as true that for change
of katha and preparing of sketch an application has to be filed. He further admitted
as true that even before complainant reaching him the sketch was drawn. He
further deposed and admitted as true as per the deposition before the Court
complainant has said to the AGO at para 3, of bringing the money asked by the
AGO. No such statement is found in the panchanama. He has further deposed,
complainant has also not said of going into the house and bringing money from box
by the accused.
21. Looking to the document Ex.P-8 chemical examination report, that the hand
wash of the accused in the sodium carbonate solution of the right and left hand,
presence of phenolphthalein was detected. The evidence of PW-6 no doubt shows
the seizure of tainted currency notes. But perusing the evidence of prosecution
witness it has come on record that the amount was seized from the teapai another
version that amount has been seized from the box in the house of accused. The
third version is that the amount was seized, which was kept on the table in the
house of the accused. So there are three inconsistent version as per the case of the
prosecution regarding the place from where the amount is said to have been
seized. PW-1 in his evidence in examination in chief has deposed that then police
caught hold of two hands of Vijaykumar, thereafter asked to him sit at the place,
where he was sitting. Then he was asked to say about the money, where he has
kept the money. The money was kept in a box, he went and brought the money
from the box.

22. PW-2/Basavaraj, who is shadow witness according to prosecution case, deposed

in his evidence in the examination in chief that he did not accompany Shamanna to
the house of AGO. Shamanna alone went and came out after 5 minutes thereafter
he gave signal, he also gave signal. Thereafter, staff came and they went jointly.
Then Shamanna identified a person as Vijaykumar and said he has received money.
Thereafter sodium carbonate solution was prepared in 2 bowls and sample was
segregated and both the hands of AGO were dipped separately and the wash of the
AGO turned into pink colour. Thereafter, he was asked about the money and it was
lying on teapai. Money was taken by them. He has not seen of Vijaykumar keeping
the money on the teapai.
23. PW-4/Siddrajegowda in his evidence in examination in chief deposed they were
waiting near the quarters at Devanahalli, an aged man went into the quarters and
he came out and gave the signal. He was asked to follow them. Investigating
Officer and his staff entered first, so he followed them. He found the money on the
table. The said person said that there is nothing pending with him. He was asked
to take the cover and thereafter his hands were washed. The colour of the solution
changed.
24. During the course of cross examination of PW-4, PW-4 has deposed that after
the AGO removed the money, which was on the table and then gave it to the
Investigating Officer, the hands of the AGO were washed. So this material on
record, also shows that the raiding party asked the accused to take out the money
from the teapai or the table, accused took out the same, he gave it to the
Investigating Officer then the hand wash of accused was taken, which turned into
pink colour. This material on record also raises reasonable doubt as to the case of
the prosecution that the accused demanded the bribe amount and received
Rs.4,000/- bribe amount smeared with phenolphthalein powder and thereby the
prosecution proved the case that there was demand and acceptance of bribe
amount.
25. PW-5/Police Inspector deposed in his evidence that on 18.11.2002 he took up
investigation from CW-13 and on 27.11.2002 received the FSL Report of this case
as per Ex.P-8. On 18.12.2002 prepared the final report and submitted to SP for
according prosecution sanction and received the prosecution sanction as per Ex.P7. In the cross- examination he deposed that the complainant or his sister has not
filed any application for change of katha, according to the records certified by him.
26. PW-6/CPI-Lokayukta Tumkur, deposed in his evidence that on 31.07.2002 at
4.30 p.m. complainant appeared before him and filed typed complaint and
produced the affidavit and some documents along with the complaint and he
registered the case in Crime No.8/02. He has also deposed in detail about the
entrustment mahazar as per Ex.P-2 and his signature is P-2d and further deposed
as it was 7.30 by the time the entrustment mahaza was complete as the office of
AGO will be closed, asked the witnesses, complainant to come on the next day. On
01.08.2002 all of them reported at 8.00a.m. the notes in the said pocket of the
complainant were very same and they tallied with the entrustment mahazar. He
has also deposed in detail about they proceeding to Devanhalli and laying the trap
and drawing the trap mahazar as per Ex.P-3. He asked the AGO as to where is the
money given by the complainant. He identified the same, which was on the table.
He has also deposed taking the hand wash of the accused in two separate bowls of
left and right hand wash and the solution turning into pink colour, which was
secured separately, sealed and labeled. Thereafter, the notes were seized
separately and sodium carbonate solution prepared in bowl, complainant's right
hand was dipped and it also changed to pink colour.

27. In the cross examination, he deposed prior to 31.07.2002 complainant has not
come to his office. Complainant has also not said of going into the house and
brining the money from the box by the accused. After entering the house, he did
not observe whether the money was on the table or not. After entering the house
he did not questioned the complainant or shadow witness as to where the money
is?
28. Looking to the evidence of the prosecution witnesses, which is referred above,
prosecution was also not able to prove exactly from which place the tainted
currency notes were seized. In this regard evidence of prosecution witness is not
consistent and not worth believable.
29. It has come on record through the mouth of PW-5/Police Inspector, that no
application for change of katha was found in the records certified by him. Even
PW-1 during the course of cross examination also admitted as true that himself or
his elder sister has not given any application for change of katha. This evidence of
prosecution makes it clear that there was no application given by the complainant
or his sister seeking change of katha. Therefore, the accused person showing the
official favour to the complainant and receiving the bribe amount does not arise at
all.
30. Perusing the evidence of PW- 1/complainant, the examination in chief shows
that on 30.07.2002 being not satisfied to pay the sum of rs.5000 asked he brought
his sister to Lokayukta office. Whereas the Lokayukta police i.e., pw-6 clearly
deposed prior to 31.07.2002 complainant has not come to his office.
31. So according to the complainant the demand of bribe amount by the accused
was on 30.07.2002 itself, if that is so, in the document Ex.D- 1, which is admittedly
executed by Nagrathnamma in favour of the complainant on 30.07.2002 the fact of
accused demanding Rs.5000/- bribe amount could have been mentioned in Ex.D-1
affidavit. But contents of Ex.D-1 shows that as she was old aged and cannot move
and to get the kahta transferred to her name, she is executing the power of
attorney in favour of M.Shammana the complainant.
32. So the contents of the Ex.D-1 also probablises the defence of accused that he
has not demanded nor accepted the bribe amount. It is true that as per the case of
prosecution the currency notes were seized from the teapai/table and hand wash of
accused was taken in two separate bowls and the solution turns into pink colour.
Prosecution has also produced the FSL Report as per Ex.P-8, which shows that
presence of phenolphthalein was detected in the solution containing hand wash of
the accused. Mere recovery of amount is not sufficient unless there is a
satisfactory proof of demand and acceptance of bribe amount by the accused
person.
33. Looking to the materials about which I have already discussed, this aspect is
not at all proved by the prosecution beyond reasonable doubt. About the evidence
that the hand wash of accused turned into pink colour which is also supported by
the oral evidence of PW-1 and PW-6 so also Ex.P-8 but there is also the evidence
from the mouth of prosecution witnesses that the amount was on the teapai the
raiding party asked the accused take out that money and to give it to the
Investigating Officer and thereafter his hand wash was taken. In view of this
material on record, no importance can be attached to the document Ex.P-8 so also
the evidence of PW-1 and PW-6.
34. Perusing the entire materials on record and cumulative effect is appreciated it
clearly shows that prosecution failed to prove that there was a demand and

acceptance of bribe amount by the accused. The Trial Court ignored all these
materials, factual as well as the legal aspect and wrongly convicted the accused,
the judgment and order of Trial Court is illegal and not sustainable in law. I have
perused the decisions relied upon by the learned Spl.P.P appearing for respondentLokayukta. In view of my above discussion, the decisions will not come to the
assistance of respondent/complainant's case.
35. Hence, Crl.Appeal No.764/2009 is allowed. The judgment and order passed by
the Trial Court challenged in the said appeal is hereby set aside, the
appellant/accused is acquitted of the charges leveled against him and he is set at
liberty.
36. Consequently, Crl.Appeal No.284/2010 preferred by the State seeking
enhancement of sentence is hereby dismissed.
LegalCrystal - Indian Law Search Engine - www.legalcrystal.com