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2009 Supreme(Kar) 703
High Court of Karnataka (Circuit Bench At Gulbarga)
THE HONOURABLE MR. JUSTICE SUBHASH B. ADI
State of Karnataka
Versus
Anand Gururao Deshpande
Criminal Appeal No.639 of 2003
Decided on : 09-10-2009
For the Petitioners:A. Vijay Kumar, Advocate.
For the Respondent:K. Apparao & Hema L Kulkarni, Advocates.
Headnote:PREVENTION OF CORRUPTION ACT, 1988 - Section 20: [Subhash B. Adi, J] Presumption under - Held, There has to be an evidence establishing the demand and acceptance of the gratification. It is only on such evidence invoking of Section 20 for drawing presumption against the accused arises. The factum of acceptance of amount, if it is not proved by the prosecution then drawing a presumption under Section 20 may not arise. On facts held, To support whether there was a demand and acceptance, the only witness, who can speak is PW-3 and PW-3 says that he was not present when the alleged amount was paid. In the absence of evidence as regard to acceptance of amount, whether it could be held that there was a demand and acceptance by the accused. The prosecution in this case has relied on Ex. P11, statement given by the accused. However, accused in the cross-examination of PW-9 has suggested that such a statement was not given by him. In 313 statement, the accused has stated that he has not given any statement before Investigation Officer. In the absence of any other evidence, only on the basis of Ex.P11 alleged to be the statement given by accused to police, it is very difficult to hold that the accused has received the amount. The prosecution initially required to prove the demand and acceptance before drawing up presumption under Section 20 of the Act. Judgment of acquittal is justified.
Subhash B. Adi, J.
Appeal is by the State through Police Inspector, Bureau of Investigation, Lokayuktha, Bijapur, against the Judgment of Acquittal in a Special Case No.3/2000 dated 5-12-2002 on the file of Special Judge at Bijapur.
2. Respondent-accused was charge sheeted by the Lokayuktha Police for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988(‘Act’ for short.)
3. Case of the prosecution is that accused was working as in charge Deputy Electrical Inspector, Karnataka Electricity Board, Sub-Division Office, situated at Sangolli Rayanna Colony, Bijapur. On 1-6-1999, PW 1-Complainant-License Contractor approached the accused to make a local inspection and for issue of completion report regarding installation of electric poles and T.C. in the newly formed layout belonging to one A.H.Peerzade in Sy.No.338/B of Navabagh, Bijapur. To make the local inspection and to issue the completion certificate, accused had demanded Rs. 4,000/-and in this regard he had received Rs. 1,000/-as advance. On 3-6-1999 and 8-6-1999, when the complainant had again approached for the said work accused insisted for payment of Rs. 3,000/-. In this regard, PW-1 filed a complaint before the Lokayuktha police. Lokayuktha police registering the case, took up the investigation and arranged for trap. Accordingly, PW-1 went along with PW-3 to the office of the accused and tender the money demanded by the accused. Accused on receipt, PW-1 gave a signal to the Lokayuktha police, who went and trapped the accused by conducting the test. PW-4 is another panch witness, who is examined by the prosecution in support of its case.
4. Before the Trial Court, prosecution examined PW-1 Complainant; Pw-2, who wrote the complaint on behalf of PW-1; PW-3 is the panch witness, who went along with PW1; PW-4 is another panch witness; PW-5 & PW-6 are the members of the staff in the accused office; PW-7 who prepared the sketch; PW-8 who produced the sanction and PW-9 is the Inspector, who investigated the matter. The prosecution apart from examining PW-1 to PW-9, also marked Ex. P1 to P13 and produced MO-1 to MO-8.
5. Before the Trial Court, except PW-1 and PW-9, no other witness supported the case of the prosecution, PW-3, who is the shadow witness is treated as hostile and was cross-examined by the prosecution, PW-4, who is another independent panch witness, also turned hostile and he was also cross examined by the prosecution. PW-5 & PW-6 who were the staff in the office of accused, were also treated as hostile and they did not support the case of the prosecution.
6. Trial Court considering the evidence of PW-1, PW-3, PW-4, PW-9, held that the prosecution has failed to prove the demand and acceptance of the alleged amount and held that the prosecution failed to prove the charge, Trial and acquitted the accused. The said judgment of acquittal is called in question in this appeal.
7. Sri A. Vijaya Kumar, Learned Counsel for the appellant submitted that PW-1 is a Complainant, PW-1 along with PW-3 went to the office of accused. PW-1 paid the amount in connection with securing the favour from accused. Immediately, thereafter PW-9 along with panch witnesses went and conducted the test to find out the receipt of the amount. PW-1 has categorically stated that he paid the money and money was found in possession of the accused. The same is also stated by PW-9, the investigating officer. Though shadow witness has not supported the prosecution case, there is nothing to discard the evidence of PW-1and PW-9. If there is a demand and acceptance of the amount, presumption arises against the accused under Section 20 of the Act and if the accused fail to discharge his burden by producing acceptable evidence/explanation, in view of Section 20 of the Act, the accused is deemed to be guilty of the offence alleged. He further submitted that the prosecution has proved the case of accused possessing the bribe amount given by the C
