Karnataka High Court
Nagaraju D M vs The State Of Karnataka on 13 July, 2026
1 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.1696 OF 2022
c/w
CRIMINAL APPEAL NO.1737 OF 2022
IN CRL.APPEAL NO.1696/2022
BETWEEN:
NAGARAJU D M
S/O LATE MAHALINGAPPA
AGED ABOUT 38 YEARS
WORKING AS
PANCHAYAT DEVELOPMENT OFFICER
CHINNENAHALLI GRAMA PANCHAYATH,
SIRA TALUK.
PERMANENT RESIDENT OF
BANAGERE VILLAGE, HOLALKERE TALUK,
CHITRADURGA DISTRICT.
...APPELLANT
(BY SRI. SHARATH S. GOWDA, ADV.)
AND:
THE STATE OF KARNATAKA
BY ANTI-CORRUPTION BUREAU
TUMAKURU,
REPRESENTED BY:
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
...RESPONDENT
(BY SRI. B. B. PATIL, ADV.)
2 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
THIS CRL.A IS FILED U/S 374(2) CR.PC PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED
20.09.2022 PASSED BY THE VII ADDITIONAL SESSIONS AND
SPL. JUDGE, TUMAKURU IN SPL.CASE NO.332/2019,
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE
P/U/S 7(a) OF P.C ACT.
IN CRL.APPEAL NO.1737/2022
BETWEEN:
SRI. SHIVANNA
S/O VENKATAPPA
AGED ABOUT 44 YEARS,
BILL COLLECTOR,
CHINNENAHALLI GRAMA PANCHAYAT,
SIRA TALUK, TUMAKURU
R/AT DASARAHALLI VILLAGE,
KALLAMBELLA HOBLI,
SIRA TALUK - 572125
TUMAKURU DISTRICT.
...APPELLANT
(BY SRI. NISHIT KUMAR SHETTY, ADV.)
AND:
STATE OF KARNATAKA
REP. BY POLICE INSPECTOR,
ANTI CORRUPTION BUREAU POLICE
TUMAKURU DISTRICT.
...RESPONDENT
(BY SRI. B B PATIL, ADV.)
THIS CRL.A IS FILED U/S 374(2) CR.PC PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED
20.09.2022 PASSED BY THE VII ADDITIONAL SESSIONS AND
SPECIAL JUDGE, TUMAKURU IN SPL.CASE NO.332/2019 AND
3 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
THE APPELLANT/ACCUSED NO.2 IS CONVICTED FOR THE
OFFENCE P/U/S 7(a), 7A AND 12 OF P.C ACT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.06.2026 AND COMING ON FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE
COURT,DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
The Criminal Appeal No.1696 of 2022 preferred by accused
No.1; and the Criminal Appeal No.1737 of 2022 preferred by
accused No.2, challenging the Judgment of conviction and order
on sentence dated 28th September, 2022 passed in Special Case
No.332 of 2019 by the VII Additional District & Sessions Judge
and Special Court for Trial of cases relating to Prevention of
Corruption Act, Tumakuru (for short hereinafter referred to as
“the trial Court”).
2. For the sake of convenience, the parties herein
are referred to as per their status and rank before the trial
Court.
4 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
FACTS OF THE CASE
3. The prosecution case, in brief, is that the Police
Inspector, Anti-Corruption Bureau, Tumakuru, filed a charge-
sheet against Accused 1 and 2 for the offences punishable under
Sections 7(a) of the Prevention of Corruption Act, 1988, as
amended by Act 16 of 2018 (for short “the PC Act“). At the
relevant point of time, accused No.1 was serving as the
Panchayat Development Officer and accused No.2 as the Bill
Collector of Chinnahalli Grama Panchayat, Sira Taluk, both being
public servants. According to the prosecution, CW1-Narasimha
Murthy N., had submitted an application seeking issuance of a
No Objection Certificate (NOC) for establishing a poultry farm in
Survey No.23 of Kalenahalli Village, belonging to his aunt (CW4).
It is alleged that on 20th September, 2018, when CW1
approached accused No.2 regarding the said application, accused
No.2 demanded illegal gratification of ₹10,000/- on behalf of
accused No.1. Since CW1 expressed his inability to pay the
amount demanded, he allegedly met accused No.1, who reduced
5 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
the demand to ₹5,000/- and directed him to pay ₹2,000/- as
advance to accused No.2 and the balance amount subsequently.
4. It is further alleged that CW1 paid ₹2,000/- to
accused No.2 as instructed, and that accused No.2 also
demanded a portion of the bribe for himself. Thereafter, on 01st
October, 2018, pursuant to a trap arranged by the Anti-
Corruption Bureau, it is alleged that accused No.1 instructed
CW1 to pay the balance amount of ₹3,000/- to accused No.2,
who received the said amount knowing it to be illegal
gratification. On completion of the investigation, a charge-sheet
came to be filed against both the accused. Upon receipt of the
charge-sheet, the learned Special Judge took cognizance of the
offences under Sections 7(a), 7A and 12 of PC Act on the ground
that the allegations also make out offences under Section 7A and
Section 12 of PC Act. Presence of accused was secured, who
were enlarged on bail. After hearing the learned Public
Prosecutor and the learned counsel for the accused, charges
were framed against accused No.1 for the offence punishable
under Section 7(a) of PC Act and against Accused No.2 for the
6 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
offences punishable under Sections 7(a), 7A and 12 of the said
Act. The substance of the accusation was read over and
explained to the accused, who pleaded not guilty and claimed to
be tried. In support of its case, the prosecution examined 25
witnesses as PW1 to PW25, marked 28 documents as Exhibits P1
to P28, and identified 15 Material Objects as MOs.1 to 15. After
closure of the prosecution side evidence, the statements of the
accused were recorded under Section 313 of the Code of
Criminal Procedure, 1973, wherein the accused denied all the
incriminating circumstances appearing against them. In defence,
the accused examined DW-1 and produced Exhibits D1 to D11.
5. Upon appreciation of the oral and documentary
evidence, the learned Special Judge, by the impugned Judgment,
convicted accused No.1 for the offence punishable under Section
7(a) of the PC Act and sentenced him to undergo rigorous
imprisonment for four years and to pay a fine of ₹30,000/-, with
a default sentence of simple imprisonment for six months.
6. Accused No.2 was convicted for the offences
punishable under Sections 7(a), 7A and 12 of the PC Act and
7 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
sentenced to undergo rigorous imprisonment for four years for
each of the said offences, together with a fine of ₹10,000/- for
each offence, with a default sentence of simple imprisonment for
six months.
7. Aggrieved by the Judgment of conviction and
the consequential order on sentence, the accused have preferred
the present appeals.
Submission on behalf of Accused No.1/appellant in
Criminal Appeal No.1696 of 2022
8. Sri Sharath S. Gowda, learned counsel
appearing for the appellant/Accused No.1 in Criminal Appeal
No.1696 of 2022, submitted that the impugned Judgment of
conviction and order of sentence suffers from serious legal and
factual infirmities and are contrary to the settled principles
governing prosecutions under the PC Act. It was contended that
the learned Special Judge failed to appreciate the evidence in its
proper perspective and ignored the material irregularities and
infirmities in the prosecution case. The appreciation of evidence
is stated to be mechanical, without due consideration of the
8 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
material contradictions and discrepancies emerging from the
testimony of the prosecution witnesses.
9. Learned counsel submitted that PW-
1/complainant admitted to having recorded the alleged demand
for illegal gratification on a mobile phone prior to the trap
proceedings. However, the Trial Court itself discarded the said
recording on account of several deficiencies. Once the electronic
recording allegedly evidencing the prior demand stood discarded,
the prosecution failed to establish the foundational fact of
demand of illegal gratification prior to the registration of the
complaint.
10. It was further contended that, notwithstanding
the rejection of the aforesaid recording, the Trial Court
erroneously relied upon the electronic recordings relating to the
complaint and the trap proceedings. The electronic evidence was
neither collected nor produced before the Court in accordance
with the mandatory provisions governing admissibility of
electronic records. Consequently, the alleged demand of illegal
gratification prior to the complaint remained unproved.
9 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
11. Learned counsel further submitted that though
the prosecution obtained an opinion from the Forensic Science
Laboratory, there is no material on record to establish that PW4,
who tendered the expert opinion, was a recognised Examiner of
Electronic Evidence within the meaning of Section 45A of the
Indian Evidence Act, 1872 read with Section 79A of the
Information Technology Act, 2000. In the absence of any
notification or material demonstrating such recognition, the
opinion of PW4 and the DVD (MO.15) relied upon by the
prosecution could not have been treated as admissible expert
evidence.
12. It was next contended that, in the absence of
legally admissible evidence establishing the prior demand for
illegal gratification, the prosecution case rests solely upon the
testimony of the complainant. The evidence of the complainant,
being that of an interested and partisan witness, requires careful
scrutiny and cannot, in the facts of the present case, form the
sole basis for conviction without independent corroboration.
10 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
13. With regard to the alleged acceptance and
recovery of the tainted currency notes (MO7), learned counsel
submitted that the burden initially lies upon the prosecution to
establish beyond reasonable doubt the demand and acceptance
of illegal gratification. Only upon discharge of such burden does
the statutory presumption arise. In the present case, no tainted
amount was recovered from the possession of accused No.1.
Therefore, the prosecution was required to establish, by cogent
and reliable evidence, that the amount recovered from accused
No.2 was received on behalf of accused No.1. Such nexus has
not been established.
14. It was further submitted that the learned
Special Judge failed to appreciate that the absence of recovery
of tainted currency from the possession of accused No.1
materially weakens the prosecution case. It is well settled that
the demand of illegal gratification must be proved by clear,
cogent and convincing evidence and that acceptance of illegal
gratification must be established like any other fact in a criminal
11 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
trial. Where the evidence lacks credibility and does not inspire
confidence, conviction cannot be sustained.
15. Learned counsel further submitted that the
evidence adduced by the prosecution does not inspire confidence
and falls short of the standard of proof required in a criminal
prosecution. It is a settled principle of criminal jurisprudence
that where two views are reasonably possible on the evidence,
the view favourable to the accused must prevail. The prosecution
has failed to prove beyond reasonable doubt the demand,
acceptance and recovery of illegal gratification, as well as the
pendency of any official work before accused No.1. The
prosecution has also failed to establish that accused No.1 had
intentionally delayed the complainant’s work so as to demand
illegal gratification. Consequently, the impugned Judgment
warrants interference and accused No.1 is entitled to an order of
acquittal.
16. Learned counsel further submitted that accused
No.2 had offered a satisfactory explanation for receiving the
tainted currency at the time of the alleged trap. It was
12 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
contended that accused No.1 had also produced documentary
evidence to demonstrate that a sum of ₹2,000/- was payable to
the Grama Panchayat towards the prescribed fee for issuance of
the NOC. The defence case is that the complainant paid the said
amount as the requisite fee and immediately gave the pre-
arranged signal to the trap team before accused No.2 could issue
the official receipt.
17. It was further submitted that, despite the above
explanation and the supporting documentary evidence, the
learned Special Judge rejected the defence without assigning
cogent reasons. The Trial Court also failed to appreciate the
vague, inconsistent and unreliable testimony of the prosecution
witnesses, who made repeated attempts to improve and tailor
the prosecution case.
18. Learned counsel further submitted that PW-2,
the shadow/panch witness, was expected to act as an
independent, impartial and vigilant witness to the trap
proceedings. However, during cross-examination, PW2
expressed inability to recollect several material aspects of the
13 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
incident and gave evasive answers. In contrast, the
examination-in-chief contained a detailed narration suggestive of
a tutored or rehearsed version of events. The marked
inconsistency between the examination-in-chief and the cross-
examination seriously affects the credibility of the witness.
19. It was further contended that the evidence of
PW2 and PW3 clearly indicates that signatures were affixed on
the mahazars and other documents prepared by the
investigating agency without verifying their contents or
witnessing the entire procedure. Such evidence demonstrates
that the panch witnesses did not independently observe the
proceedings as required under law. The mechanical association
of the panch witnesses with the trap proceedings has, according
to the defence, vitiated the fairness of the investigation and
rendered the prosecution case unreliable.
20. Learned counsel further submitted that the
Investigating Officer (PW-1) failed to conduct any preliminary
enquiry before registration of the First Information Report. The
records disclose that the complaint was received at 3.15 pm on
14 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
27th September, 2018, the First Information Report was
registered immediately thereafter, by 3.45 pm the FIR had
already been despatched to the jurisdictional Court. The
sequence of events, according to the defence, clearly establishes
that no preliminary verification or enquiry was undertaken prior
to registration of the case, despite the legal requirement
governing corruption cases.
21. It was contended that the omission to conduct
a preliminary enquiry caused serious prejudice to the accused
and resulted in an investigation directed solely towards
substantiating the allegations contained in the complaint. The
learned Special Judge, it was argued, proceeded to record the
conviction on assumptions and presumptions rather than on
legally admissible and reliable evidence. Learned counsel finally
submitted that there is no cogent evidence on record to establish
the essential ingredients of the offences alleged against Accused
No.1. The prosecution has failed to prove the demand,
acceptance and recovery of illegal gratification beyond
reasonable doubt. Consequently, the impugned Judgment of
15 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
conviction and order of sentence are liable to be set aside. On
all these grounds he submitted that the appeal deserves to be
allowed.
22. In support of his arguments, learned counsel for
accused No.1, relied upon the following decisions:
1. P. SATHYANARAYA MURTHY v. DISTRICT
INSPECTOR OF POLICE, STATE OF ANDHRA
PRADESH AND ANOTHER – (2015)10 SCC 152;
(2014)13 SCC 55;
3. STATE OF LOKAYUKTA POLICE, DAVANAGERE v.
C.B. NAGARAJ – 2025 INSC 736;
4. STATE OF KARNATAKA v. SIDARAI LAKSHMAN
CHOUGALA AND OTHERS – CRIMINAL APPEAL
NO.1006 OF 2010 AND CONNECTED APPEAL
DECIDED ON 06.08.2019;
5. VED PRAKASH MAURYA v. STATE OF DELHI
2025:DHC:11149;
6. STATE THROUGH CBI v. DR. ANUP KUMAR
SRIVASTAVA – (2017)15 SCC 560;
7. DASHRATH SINGH CHAUHAN v. CBI – (2019)17
SCC 509;
8. R.M. MALKANI v. STATE OF MAHARASHTRA –
(1973)1 SCC 471;
9. NILESH DINKAR PARADKAR v. STATE OF
MAHARASHTRA – (2011)4 SCC 143.
16 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
Submission on behalf of Accused No.2/appellant in
Criminal Appeal No.1737 of 2022:
23. The learned counsel would submit that there is
absolutely no cogent and reliable evidence to establish the
essential ingredient of demand of illegal gratification. In the
absence of proof of demand, mere recovery of tainted money,
even if assumed, would not be sufficient to sustain the
conviction. The Trial Court, without there being legally
acceptable evidence, has erroneously presumed the demand and
acceptance, which is impermissible in law. The learned counsel
has also argued that the prosecution has failed to examine
several material witnesses. Out of the seventeen witnesses cited
in the charge sheet, as many as twelve witnesses have not been
examined including CW4, who is a crucial witness to the alleged
transaction. Non-examination of such material witnesses has
caused serious prejudice to the defence and has resulted in
suppression of best available evidence. This omission goes to the
root of the prosecution case and renders the entire case
doubtful.
17 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
24. It was further contended that Section 12 of the
PC Act creates a separate and substantive offence of abetment,
distinct from the offence under Section 7A of the said Act. Since
the ingredients of the two offences are materially different,
sanction for prosecution under Section 7A of the Act cannot, by
implication, be treated as sanction for prosecution under Section
12 of the PC Act. In the absence of a specific sanction and
evidence establishing the essential ingredients of abetment
under Section 12 of the Act, the Trial Court committed a
jurisdictional error in adding the charge and recording a
conviction for the said offence. In the absence of a valid
sanction as contemplated under the Prevention of Corruption Act
is a failure of justice, the very prosecution is vitiated, and
consequently, the conviction recorded by the Trial Court is liable
to be set aside.
25. With regard to the role attributed to accused
No.2, it is contended that he is only a subordinate employee
working as a Bill Collector and there is no independent evidence
to show that he had made any demand for bribe. The
18 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022prosecution has failed to establish any intention or motive on the
part of accused No.2 to commit the alleged offence. In the
absence of proof of demand by accused No.2, the question of
abetment under the provisions of the Prevention of Corruption
Act does not arise. The Trial Court has erroneously fastened
liability on accused No.2 without there being any legal evidence
to support such finding. To substantiate his arguments, he has
relied on the following decisions:
1. STATE OF KARNATAKA v. AMEERJAN – (2007)11
SCC 273;
2. CENTRAL BUREAU OF INVESTIGATION v. ASHOK
KUMAR AGGARWAL – (2014)14 SCC 295;
3. WRIT PETITION NO.38871 OF 2016 DECIDED ON
05.09.2023 IN K. NARASIMHA MURTHY v.
SONDEKOPPA GRAMA PANCHAYAT AND
ANOTHER;
Submission on behalf of counsel appearing for Lokayukta:
26. On 23rd February, 2026, the respondent
Lokayukta has filed written arguments. Learned Counsel for
respondent appearing for Lokayukta has reiterated the contents
of written arguments and would further submit that the trial
19 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022Court has properly appreciated the evidence in accordance with
law and facts and absolutely, there are no grounds to interfere
with Judgment of conviction and order on sentence passed
against accused 1 & 2. He would submit that once the
prosecution proves the acceptance of illegal gratification, the
statutory presumption under Section 20 of PC Act, arises.
27. In the present case, recovery of tainted
currency notes (MO.7) from the possession of accused No.2, and
the positive chemical test, the said presumption operates against
the accused. Accused have failed to place any convincing
material. For rebuttal of statutory presumption. The defence
taken by the accused that the amount paid by complainant is for
the payment of fee to the Grama Panchayat is wholly improbable
and unsupported by any reliable evidence which is Exhibit D8-
Resolution of the Gram Panchayat dated 16th March, 2017
prescribing the fee of ₹2,000/- for issuance of a No Objection
Certificate for establishing a poultry farm. This document
probabilises the defence that an official fee was payable to the
Gram Panchayat. The existence of such a statutory fee renders
20 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
the defence explanation that the amount was received towards
official dues reasonably probable and cannot be ignored while
appreciating the evidence. The documents relied upon by the
defence do not establish that the amount recovered during the
trap was towards any lawful payment. Absolutely, there are no
materials to interfere with impugned Judgment of conviction and
sentence passed by the trial Court. Accordingly, he sought for
dismissal of appeals. In support of his contentions, he has relied
on the following decisions:
1. DASHARATH v. STATE OF MAHARASTRA – 2025
SCC ONLINE SC 1054;
2. SITA SOREN v. UNION OF INDIA – (2024)5 SCC
629;
3. AMAN BHATIA v. STATE NCT OF DELHI – 2025
SCC Online SC 1013;
4. NEERAJ DUTTA v. STATE (GOVERNMENT OF NCT
OF DELHI) – (2023)4 SCC 731;
(2009)15 SCC 72;
6. BABARALI MAMADALI SAYED v. STATE OF
GUJARAT – 1988 SCC ONLINE GUJ 66;
7. STATE THROUGH INSPECTOR OF POLICE, AP v.
K. NARASIMHA CHARI – (2005)8 SCC 364;
21 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
28. Having heard the arguments on both sides and
on perusal of materials placed before Court, the following points
would arise for my consideration:
1. Whether the impugned judgment of conviction
and order on sentence passed by the trial Court
suffers from perversity or material illegality, so
as to warrant interference by the Court?
2. What order?
29. My answer to the above points are:
Point No.1: in the affirmative;
Point No.2: as per final order
Regarding Point No.1:
30. Before appreciating the evidence on record in a
Lokayukta trap cases, it is well known that a trap case involves a
systematic evaluation of all relevant factors to establish the
offences under the Prevention of Corruption Act, 1988. The first
pillar is initial demand, where evidence must clearly show that
the public servant demanded a bribe before the trap, which can
22 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
be established through oral testimony, often corroborated by a
shadow witness, or by electronic recordings; the second pillar is
acceptance, requiring proof that the accused voluntarily received
the bribe, typically demonstrated by the phenolphthalein test,
which detects handling of the bait money; the third pillar is
recovery, where the tainted currency must be recovered from
the possession of the accused, supported by a properly drawn
and signed mahazar documenting the seizure; and the fourth
pillar is, the consideration of procedural and corroborative
integrity, which requires that the evidence, including witness
testimonies, mahazars, photographs, and chemical tests be
consistent, contemporaneous, and procedurally sound, ensuring
minor contradictions do not undermine the case of the
prosecution. Taken together, these four elements form the
foundation for proving demand, acceptance, and recovery of
illegal gratification beyond reasonable doubt. Keeping in mind
the above mentioned principles, I have meticulously gone
through the impugned judgment and entire prosecution papers.
Before appreciating the facts thrown through evidence and the
23 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
law, I have to analyze in the background of presumption under
Section 20 of the PC Act. The same is extracted below:
“Sec. 20: Presumption where public servant
accepts any undue advantage-
Where, in any trial of an offence punishable under
Section 7 or under Section 11, it is proved that a public
servant accused of an offence has accepted or obtained or
attempted to obtain for himself, or for any other person,
any undue advantage from any person, it shall be
presumed, unless the contrary is proved, that he
accepted or obtained or attempted to obtain that undue
advantage, as a motive or reward under Section 7 for
performing or to cause performance of a public duty
improperly or dishonestly either by himself or by another
public servant or, as the case may be, any undue
advantage without consideration or for a consideration
which he knows to be inadequate under Section 11.”
Regarding validity of sanction-Exhibit P13:
31. On perusal of order sheet of the trial Court
dated 12th February, 2021, it is seen that the trial Court has
passed the order as under:
“A.1 and A.2 present. CW.5 examined as PW.3 and
Ex.P.12 marked and fully cross-examined and Ex.D.7 to 9
24 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022marked. Sri V.B.N. for A.1 and Sri H.V.M. for A.2 submits
that the prosecution sanction order against A.1 and A.2
can be marked by consent subject to keeping open the
question of competency and application of mind by
sanctioning authority to be determined on the basis of
recitals of sanction orders. The said submission is placed
on record and accordingly the sanction order
dated.09.04.2019 passed by CEO, Zilla Panchayath
against A.1 and A.2 is now marked as Ex.P.13 by consent
subject to keeping open the question of competency and
application of mind by sanctioning authority to be
determined on the basis of recitals of sanction orders.Issue summons to additional witness-Chandrika of FSL,
Bengaluru for recording her evidence through VC who is
the Scientific Officer who has issued voice analysis report
and since her evidence is relevant, although not cited in
charge sheet, she is considered as additional witness
Under Section 311 of Cr.P.C. Call on.04.03.202112/02/2021
VII Addl. District and Sessions Judge,
Tumakuru.”
32. In paragraphs 26 to 33 of the Judgment, trial
Court has discussed as to the validity of sanction order and held
that the prosecution has proved beyond reasonable doubt that
25 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
the accused are public servants as on the date of trap and the
sanction is obtained by the competent authority.
33. On perusal of the above observation, it is clear
that accused have objected the sanction order at Exhibit P13
said to have been obtained by the competent authority. The
aforesaid order dated 12th February, 2021 passed by the trial
Court, clearly discloses that the accused have not given consent
for dispensation of proof of the documents, however, they have
given consent only for marking the document. It is settled
principle of law that mere marking of document does not
dispense the proof. The Supreme Court, way back in the year
1971 itself, laid down the well-settled principle that mere
marking of an exhibit does not dispense with its proof. (SAIT
TARAJEE KHIMCHAND AND OTHERS v. YELAMARTI SATYAM AND
OTHERS reported in AIR 1971 SC 1865).
34. The accused have seriously disputed as to the
alleged sanction that the sanctioning authority has not applied
its mind before giving sanction. Same is also noted by the trial
26 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
Court in the order dated 12th February, 2021. However, the trial
Court has not properly appreciated the evidence on record.
35. The finding recorded by the Trial Court
regarding the validity of sanction under Section 19 of PC Act is
legally unsustainable and suffers from serious errors in
appreciation of both facts and law. The Trial Court has proceeded
on the assumption that mere production and marking of the
sanction order-Exhibit P13 by consent, is sufficient to hold that a
valid sanction has been obtained. This proposition is well-settled
by the Supreme Court in the following decisions.
36. In the case of MOHD. IQBAL AHMED v. STATE
OF ANDHRA PRADESH reported in (1979)4 SCC 172, the Hon’ble
Supreme Court has observed that sanction for prosecution is not
an idle formality; the prosecution must prove that the
sanctioning authority considered the relevant materials and
applied its independent mind. The Court held that sanction is a
weapon to protect honest public servants. The prosecution must
prove that the sanctioning authority considered the relevant
material and applied its independent mind.
27 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
37. In the case of STATE OF KARNATAKA v.
AMEERJAN reported in (2007)11 SCC 273, the Supreme Court
held that the sanctioning authority must apply its mind to the
facts of the case and the materials placed before it. A mechanical
sanction without due consideration is invalid.
38. In the case of CENTRAL BUREAU OF
INVESTIGATION v. ASHOK KUMAR AGGARWAL reported in
(2014)14 SCC 295, the Hon’ble Supreme Court reiterated that
the sanction order should reflect conscious application of mind,
and the authority must examine the entire record before
granting sanction.
39. In the case of NANJAPPA v. STATE OF
KARNATAKA reported in (2015)14 SCC 186, the Hon’ble
Supreme Court held that cognizance taken on the basis of an
invalid sanction is unsustainable. A valid sanction is a condition
precedent for taking cognizance under Section 19 of the
Prevention of Corruption Act, though a fresh prosecution on a
valid sanction may be permissible where the defect is curable.
28 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
40. In the case on hand, the evidence of the
sanctioning authority does not disclose that the entire
investigation records were placed before it or that an
independent opinion was formed after due application of mind.
The sanction order is conspicuously silent regarding the material
considered and thus bears the characteristics of a mechanical
approval. In view of the law laid down by the Hon’ble Supreme
Court in the case of MOHD. IQBAL AHMED; AMEERJAN; ASHOK
KUMAR AGGARWAL; and NANJAPPA (supra), the prosecution is
vitiated for want of a valid sanction. The approach of the trial
Court is contrary to the settled legal position that sanction is a
jurisdictional fact which must be affirmatively proved by the
prosecution by establishing competency of the authority and due
application of mind.
41. In the present case, the prosecution has not
examined the sanctioning authority, viz. the Chief Executive
Officer of the Zilla Panchayat. In the absence of such
examination, there is no evidence on record to show as to what
materials were placed before the authority, whether the
29 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
authority had considered the entire record, and whether there
was independent application of mind before granting sanction.
The non-examination of the sanctioning authority has caused
serious prejudice to the defence, as it was deprived of the
opportunity to test the validity of the sanction through cross-
examination. The Trial Court has failed to appreciate that this
omission goes to the root of the prosecution case.
42. The defence had specifically raised a contention
that the sanction order refers to statements of witnesses dated
03rd October, 2018, which were not produced before the Court.
This discrepancy raises a serious doubt as to whether the
sanctioning authority had relied upon materials which were
either not part of the charge sheet or not properly verified.
Instead of examining this issue in depth, the Trial Court has
brushed aside the discrepancy as a mere clerical error. Such an
approach is erroneous, as reference to non-existent or unproved
material in the sanction order is a clear indication of non-
application of mind. The Trial Court has further erred in holding
that since the sanction order was marked by consent, the
30 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
defence is precluded from challenging its validity at a later stage.
It is well-settled that admission of a document in evidence does
not dispense with the requirement of proving its legality and
validity. The defence is entitled to contend that the sanction
suffers from non-application of mind or is otherwise invalid, even
if the document is exhibited without consent. The reasoning of
the Trial Court in this regard, is therefore, legally flawed.
43. The Investigating Officer has not placed all the
materials before the sanctioning Authority. In this regard, it is
appropriate to extract Exhibit P13. The same reads as under:
“vÀĪÀÄPÀÆgÀÄf¯Áè ¥ÀAZÁAiÀÄvïPÁAiÀiÁð®AiÀÄzÀ £ÀqÀªÀ½UÀ¼ÀÄ
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ªÀĺÀ°AUÀ¥Àà ©.ºÉZï, ¦.r.N, a£ÉßãÀºÀ½î UÁæªÀÄ ¥ÀAZÁAiÀÄw, ²gÁ vÁ®ÆèPÀÄ,
vÀĪÀÄPÀÆgÀÄf¯Éè ªÀÄvÀÄÛDgÉÆæ-2 ²æà ²ªÀtÚ, ©¯ï PÀ¯ÉPÀÖgï, a£ÉßãÀºÀ½î UÁæªÀÄ
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¥ÀæPÀgÀtzÀ°èC©üAiÉÆÃd£Á ªÀÄAdÆgÁwDzÉñÀ ºÉÆgÀr¸ÀĪÀ §UÉÎ.G¯ÉèÃR: 1. C¥ÀgÀ ¥ÉÇ°Ã¸ï ªÀĺÁ ¤zÉÃð±ÀPÀgÀPÀbÉÃj ¥ÀvÀæ ¸ÀASÉå: J¹©/
PÉÃA.PÀ/vÀĪÀÄPÀÆgÀÄ/ªÉÆ.¸ÀA/14/2018 ¢£ÁAPÀ: 13-02-2019.
2. ¨sÀµÁÖÖZÁgÀ ¤UÀæºÀ zÀ¼À, vÀĪÀÄPÀÆgÀÄ ¥ÉǰøïoÁuÉ, ªÉÆ.¸ÀA.14/2018,
PÀ®A.7(J) ¨sÀæ.¥Àæ.PÁAiÉÄÝ 1988 ¢£ÁAPÀ: 27-09-2018.
3. ¥ÉÇ°Ã¸ï ¤jÃPÀëPÀgÀÄ, ¨sÀæµÁÖZÁgÀ ¤UÀæºÀ zÀ¼À, vÀĪÀÄPÀÆgÀÄgÀªÀgÀ ¥ÀvÀæ
¸ÀASÉå:J¹©/n.PÉ.Dgï/¹.Dgï/14/2018, ¢£ÁAPÀ: 03-01-2019.
4. ¥ÉǰøïC¢üÃPÀëPÀgÀÄ, ¨sÀæµÁÖZÁgÀ ¤UÀæºÀ zÀ¼À, PÉÃAzÀæ ªÀ®AiÀÄ,
¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀPÀbÉÃj ¥ÀvÀæ ¸ÀASÉå:52/C¥ÀgÁzsÀ/J¹©.PÉÃA.ªÀ/2018,
¢£ÁAPÀ: 30-01-2019.
31 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
5. ¸ÀPÁðgÀzÀDzÉñÀ ¸ÀASÉå: ¹D¸ÀÄE 2 «¦J¸ï 2017 ¢£ÁAPÀ: 23-03-
2017.
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C¥Á¢vÀgÀ «gÀÄzÀÞ ¨sÀæµÁÖZÁgÀ¥Àæw§AzsÀPÀ PÁAiÉÄÝ-1988 (wzÀÄÝ¥Àr 2018) gÀ PÀ®A
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PÀ®A 19(1) (¹)gÀ£ÀéAiÀÄ ªÀÄAdÆgÁwUÁV F ¥Áæ¢üPÁgÀªÀ£ÀÄßPÉÆÃjgÀÄvÁÛgÉ.¸ÀPÀëªÀÄ ¥Áæ¢üPÁjAiÀiÁzÀ ±ÀĨsÁPÀ¯Áåuï, ªÀÄÄRåPÁAiÀÄð¤ªÁðºÀPÀC¢üPÁj, f¯Áè
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PÀ¼ÀÄ»¹PÉÆlÖ F PɼÀPÀAqÀ zÁR¯ÁwUÀ¼À£ÀÄß ¥Àj²Ã°¹zÉÝãÉ.
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ºÉÆç½, ²gÁ vÁ®ÆèPÀÄgÀªÀgÀ ¦AiÀiÁ𢠢£ÁAPÀ: 27-09-2018.
2. ¥ÀæxÀªÀÄ ªÀvÀðªÀiÁ£À ªÀgÀ¢ vÀĪÀÄPÀÆgÀÄ ¨sÀæµÁÖZÁgÀ ¤UÀæºÀzÀ¼À ¥ÉǰøïoÁuÉ
C¥ÀgÁzsÀ ¸ÀASÉå: 14/2018.
3. ¥ÁæAiÉÆÃVPÀ ¥ÀAZÀ£ÁªÉÄ ¢£ÁAPÀ: 27-09-2018 ºÁUÀÆ 28-09-2018.
4. ¸ÁQëUÀ¼À ºÉýPÉUÀ¼ÀÄ.
a) ¥ÀAZÀ¸ÁQë ²æà gÁºÀįïgÀªÀgÀ ºÉýPÉ ¢£ÁAPÀ: 03-10-2018.
b) ¦AiÀiÁ𢠲æà £ÀgÀ¹AºÀªÀÄÆwð gÀªÀgÀ ªÀÄgÀÄ ºÉýPÉAiÀÄ ¥ÀæwUÀ¼ÀÄ
¢£ÁAPÀ: 03-10-2018,
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d) ²æà r.¥ÀzÀä£Á¨sÀ ¹¦¹ EªÀgÀ ºÉýPÉ ¥Àæw ¢£ÁAPÀ: 03-10-2018.
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i) ²æà ªÀĺÉñïPÀĪÀiÁgï « EªÀgÀ ºÉýPÉ ¥Àæw ¢£ÁAPÀ: 03-10-2018,
32 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
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¢£ÁAPÀ: 09-04-2019DgÉÆævÀgÀ «gÀÄzÀÞ ²¸ÀÄÛ PÀæªÀÄdgÀÄV¸À®ÄPÀæªÀĪÀ»¸ÀĪÀ C¢üPÁgÀªÀżÀî ¸ÀPÀëªÀÄ
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¥ÀAZÁAiÀÄvï, vÀĪÀÄPÀÆgÀÄDzÀ £Á£ÀÄ ¨sÀæµÁÖZÁgÀ ¥Àæw §AzsÀPÀ PÁAiÉÄÝ-1988gÀ PÀ®A 19(1)
(¹) gÀ ¥ÀæPÁgÀ ²æà £ÁUÀgÁdÄr.JA., ¥ÀAZÁAiÀÄvïC©üªÀÈ¢ÞC¢üPÁj ºÁUÀÆ ²æà ²ªÀtÚ,
©¯ïPÀ¯ÉPÀÖgï, a£ÉßãÀºÀ½î UÁæªÀÄ ¥ÀAZÁAiÀÄvï, ²gÁ vÁ®ÆèPÀÄgÀªÀgÀÄ ¨sÀæµÁÖZÁgÀ
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C©üAiÉÆÃUÀUÉƽ¸À®Ä F ªÀÄÆ®PÀ ªÀÄAdÆgÁwAiÀÄ£ÀÄß ¤ÃqÀÄwÛzÉÝãÉ.
F DzÉñÀªÀ£ÀÄß £À£Àß ¸À» ªÀÄvÀÄÛPÀbÉÃjAiÀÄ ªÉƺÀj£ÀCrAiÀÄ°è ¢£ÁAPÀ: 09-04-2019
gÀAzÀÄ ºÉÆgÀr¹zÉ.
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(±ÀĨsÀPÀ¯Áåuï)
ªÀÄÄRåPÁAiÀÄð¤ªÁðºÀPÀ C¢üPÁjUÀ¼ÀÄ
f¯Áè ¥ÀAZÁAiÀÄvï, vÀĪÀÄPÀÆgÀÄ.”
44. Learned counsel appearing for the
appellant/Accused No.1 contended that the trap mahazar dated
01st October, 2018 and the explanation furnished by the accused
at the time of the trap were not placed before the sanctioning
authority while seeking sanction for prosecution. Upon careful
34 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
examination of Exhibit P13, this Court finds considerable force in
the said submission.
45. A perusal of the sanction order discloses that
neither the trap mahazar nor the explanation offered by the
accused formed part of the material placed before the
sanctioning authority. There is also no evidence on record to
indicate that these documents were subsequently forwarded or
considered before according sanction. The Investigating Officer
has not offered any explanation for withholding these material
documents from the sanctioning authority. Consequently, the
sanction appears to have been accorded without consideration of
all the relevant materials, thereby casting serious doubt on the
validity of the sanction and the application of mind by the
competent authority.
46. The Trial Court has also misapplied the principle
contained in Section 19(3) of the PC Act by holding that any
irregularity in sanction would not vitiate the trial, unless failure
of justice is shown. The said principle applies only to minor
irregularities, and not to cases where the sanction itself is
35 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
fundamentally defective due to lack of application of mind.
Where the sanction is granted mechanically or without proper
consideration of relevant materials, it amounts to no sanction in
the eye of law, and the question of proving failure of justice does
not arise separately. Further, there is absolutely no material on
record to show that all relevant documents such as the
complaint, pre-trap mahazar, trap proceedings, statements of
witnesses, and other evidence collected during investigation
were placed before the sanctioning authority. In the absence of
such foundational evidence, it cannot be presumed that the
authority had arrived at a conscious and informed decision. The
trial Court has erred in presuming due application of mind
without any supporting evidence. The reliance placed by the trial
Court on general observations regarding the need to curb
corruption and avoid technical objections is misplaced. While it is
true that corruption is a serious offence, the statutory safeguard
of prior sanction cannot be diluted on such considerations. The
requirement of sanction is intended to protect public servants
from frivolous prosecution, and therefore, strict compliance with
the mandate of Section 19 of PC Act is essential. In the
36 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
circumstances, it is evident that the prosecution has failed to
establish that a valid and legal sanction was obtained prior to
taking cognizance of the offence. The sanction order at Exhibit
P13 is vitiated by non-application of mind and lack of proper
proof. Consequently, the cognizance taken by the Trial Court is
rendered invalid, and the conviction based on such defective
sanction is liable to be set aside.
FAILURE OF THE PROSECUTION TO PROVE DEMAND,
PENDENCY OF OFFICIAL WORK AND AUTHORITY OF THE
ACCUSED:
47. After meticulously going through the impugned
judgment and also the prosecution papers, I have independently
re-appreciated the entire oral and documentary evidence
available on record in the light of the settled principles governing
prosecutions under the Prevention of Corruption Act, 1988. The
prosecution is required to establish, beyond reasonable doubt,
the foundational facts of demand, acceptance and obtaining of
illegal gratification. Only upon proof of these foundational facts,
does the statutory presumption under Section 20 of the PC Act
would arise.
37 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
48. The prosecution case regarding the initial
demand rests substantially on the testimony of PW1-
Complainant. According to PW1, an amount of ₹2,000/- was
allegedly paid on an earlier occasion and the remaining sum of
₹3,000/- was paid during the trap. However, the alleged earlier
demand and payment are not supported by any independent
witness or other legally admissible evidence. The electronic
recording, on which considerable reliance was originally placed
by the prosecution, has not been proved in accordance with law.
In the absence of compliance with the mandatory requirements
governing admissibility of electronic evidence, the alleged
recording cannot be relied upon to corroborate the version of
PW1 regarding the pre-trap demand.
49. Once the electronic evidence is excluded from
consideration, the prosecution case regarding the earlier demand
rests solely upon the testimony of the complainant. Though
conviction can, in an appropriate case, be based on the
testimony of the complainant, such evidence must inspire
complete confidence and ordinarily requires careful scrutiny
38 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
where it forms the sole foundation for establishing the demand
of illegal gratification. In the present case, no independent
material has been produced to establish either the alleged
payment of ₹2,000/- or the circumstances under which such
payment was allegedly made.
50. Equally significant is the evidence relating to
the trap proceedings. The evidence of PW1 and PW2 indicates
that it was the complainant who initiated the conversation by
informing the accused that the “balance amount” had been
brought and by enquiring as to whom it should be handed over.
The prosecution has not produced convincing evidence to
establish that either accused No.1 or accused No.2 reiterated or
made any fresh demand for illegal gratification at the time of the
trap. On the contrary, the evidence of the Investigating Officer
also indicates that the complainant had been instructed to hand
over the tainted currency only if a demand was made. In the
absence of such demand, the mere passing of currency notes
(MO.7) from the complainant to accused No.2 cannot, by itself,
establish voluntary acceptance of illegal gratification.
39 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
51. Much emphasis has been placed by the
prosecution on the expression “balance amount” occurring in
the evidence of PW1. In the considered opinion of this Court, the
said expression, by itself, is incapable of proving either the
existence of an earlier demand or an earlier payment of illegal
gratification. The prosecution cannot substitute proof of demand
with an inference drawn from the use of a particular expression.
The foundational fact of demand must be proved by substantive
and reliable evidence and not by conjecture or semantic
interpretation.
52. The prosecution has also relied upon the
recovery of tainted currency from accused No.2 and the positive
phenolphthalein test. These circumstances undoubtedly establish
recovery. However, recovery by itself is not synonymous with
proof of illegal gratification. The defence has consistently
maintained, from the earliest point of time, including in the
explanations furnished immediately after the trap, that the
amount represented payment towards house-tax arrears and
NOC fee. Whether such explanation ultimately succeeds or fails,
40 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
it nevertheless constitutes a defence which requires examination
on the touchstone of preponderance of probabilities and cannot
be rejected merely because the prosecution has established
recovery.
53. The written explanations furnished immediately
after the trap (Exhibits P16 and P17) assume significance, as
they constitute the earliest version of the defence. The
explanation that the amount represented statutory dues has
remained substantially consistent throughout the proceedings.
The prosecution has not produced any material demonstrating
that the explanation was inherently impossible or wholly
incompatible with the surrounding circumstances. The burden
cast upon the accused to rebut the statutory presumption is not
one of proving the defence beyond reasonable doubt, but merely
of establishing a probable explanation.
54. Another important circumstance which merits
consideration is, the evidence relating to the alleged official
work. The prosecution was required to establish not merely
demand and acceptance, but also, the alleged gratification was
41 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
demanded in relation to an official act capable of being
performed by the accused. The evidence on record raises
substantial doubt regarding the authority of the Gram Panchayat
to issue an NOC in respect of the land in question. The evidence
of DW1 indicates that the Panchayat ordinarily exercises
jurisdiction only in respect of Gramathana properties. If the
Panchayat itself lacked authority over the proposed activity, the
prosecution was required to establish, by cogent evidence, the
precise nature of the official work alleged to be pending before
the accused. Such evidence is conspicuously absent.
55. Equally, the alleged application for issuance of
NOC (Exhibit P1) does not bear any inward seal,
acknowledgment, office endorsement or other contemporaneous
record indicating that it had been officially received or processed
by the Gram Panchayat. No register or official record evidencing
pendency of the application has been produced. The absence of
such primary records assumes significance when the prosecution
case itself is founded upon the allegation that illegal gratification
was demanded for processing the application.
42 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
56. The prosecution has also failed to establish, by
satisfactory evidence, the precise role of accused No.1 in relation
to the alleged official work. Admittedly, no tainted currency was
recovered from accused No.1. Apart from the testimony of PW1
regarding the earlier demand, there is no independent evidence
establishing that accused No.2 received the amount on behalf of
accused No.1 pursuant to any prior arrangement. The necessary
link connecting the alleged recovery from accused No.2 with the
culpability of accused No.1 has therefore not been established
beyond reasonable doubt.
57. The legal position governing such cases is well-
settled. The Hon’ble Supreme Court in the decisions of B.
JAYARAJ v. STATE OF ANDHRA PRADESH reported in (2014)13
SCC 55, and in the case of P. SATYANARAYANA MURTHY v.
DISTRICT INSPECTOR OF POLICE reported in (2015)10 SCC 152,
has categorically held that proof of demand of illegal gratification
is the sine qua non for conviction under the Prevention of
Corruption Act and that mere recovery of tainted currency
cannot sustain a conviction in the absence of proof of demand.
43 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
Likewise, in KRISHAN CHANDER v. STATE OF DELHI reported in
(2016)3 SCC 108, it has been held that the presumption under
Section 20 of the PC Act arises only after the prosecution
establishes the foundational facts and that the accused may
rebut such presumption on the standard of preponderance of
probabilities.
58. Applying the aforesaid principles to the evidence
on record, this Court is of the considered opinion that the
prosecution has failed to establish, beyond reasonable doubt, the
foundational facts of prior demand and voluntary acceptance of
illegal gratification. The evidence regarding the alleged earlier
demand remains uncorroborated, the demand at the time of the
trap has not been satisfactorily proved, the pendency of official
work and the authority of the accused have not been established
by reliable documentary evidence, and the defence explanation
cannot be said to be wholly improbable. Consequently, the
statutory presumption under Section 20 PC of the Prevention of
Corruption Act could not have been invoked. The conviction
founded upon such evidence, therefore, cannot be sustained.
44 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
59. The Investigating Officer has submitted the
charge sheet against the accused 1 and 2 for commission of
offence under section 7(a) of PC Act. Without assigning any
reasons trial Court took cognizance for commission of offence
under Sections 7(a), 7A and 12 of PC Act. In this regard, the
trial Court has passed order on 09th August, 2019 as under:
“Perused the records. At this stage, there are
sufficient allegations that, accused No.1 being PDO and
accused No.2 being Bill Collector and thereby both being
public servants, when CW1 approached them seeking
NOC for setting up poultry farm, initially accused No.21
demanded bribe of Rs.10,000/- on behalf of accused No.1
while accused No.1 demanded bribe of Rs.5,000/- and on
the date of trap on 01.10.2018, on the direct in of
accused No.1, accused No.2 received the tainted amount
of Rs.3,000/- from CW1 towards bribe. Along with charge
sheet, the prosecution sanction order against accused
No.1 and 2 in respect of offence under Section 7(a) of PC
Act is produced.
Although charge sheet is filed only for offence
under Section 7(a) of PC Act, the allegations also make
out offences under Section 7-A and Section 12 of PC Act.
Be it noted that, no sanction is required to take
45 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022cognizance in respect of said offences since Section 7A
and 12 do not find mention in Section 19 of PC Act.
Hence, cognizance is taken of the offences under
Section 7(a), 7-A and 12 of Prevention of Corruption act,
1988.
Register as Special Case.
Issue summons to the Accused No.1 and 2
returnable by 30.08.2019.”
60. Before framing of charge, on behalf of accused
No.1 Interlocutory Application was filed for discharge, same was
rejected by the trial Court on 31st December, 2019. The trial
Court has framed the charges against the accused 1 and 2 for
commission of offence under Section 7(a) of PC Act and further,
the trial Court has framed the charges against accused No.2 for
commission of offence under Section 7-A and Section 12 of PC
Act. The prosecution has not obtained sanction for the
commission of offence under Section 7-A and Section 12 of PC
Act. The trial Court has not assigned any reasons for framing of
charges for the commission of offence under Section 7-A and
Section 12 of PC Act, though the said offences are not shown in
46 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022the charge sheet. Since the prosecution has not obtained
sanction for prosecuting the accused under Section 7-A and
Section 12 of PC Act against accused No.2, the charges framed
against No.2 for offence under Sections 7-A and 12 of PC Act is
not sustainable under law. Additionally, the prosecution has not
placed any cogent, clinching and convincing evidence to convict
the accused for the offence under Sections 7-A and 12 of PC Act.
Hence, the conviction passed against accused No.2 is also not
sustainable under law.
61. The prosecution evidence is riddled with
material inconsistencies regarding the dates of submission of the
application, alleged prior payments, and the role of accused
No.2. The non-examination of material witness CW4 and other
crucial witnesses, amounts to suppression of best evidence,
thereby causing serious prejudice to the defence. The Trial Court
failed to draw the adverse inference arising from these omissions
and erroneously relied upon unreliable evidence to record the
conviction.
47 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
62. It is, therefore, manifest that the Trial Court
erred in presuming demand and acceptance in the absence of
legally admissible proof, and in affixing criminal liability on
accused No.2 without appreciating the role of a subordinate in
the context of the allegations. In light of the above, the
conviction and sentence imposed upon accused No.2 cannot be
sustained.
63. In the present trap case, the conviction
recorded by the trial Court is legally unsustainable as it proceeds
on conjectures rather than on proof of the essential ingredients
of the offence, viz. demand and voluntary acceptance of illegal
gratification. It is a settled principle of law that “demand is sine
qua non” for constituting an offence under the Prevention of
Corruption Act, and in the absence of clear and cogent evidence
of demand, mere recovery of tainted money is wholly insufficient
to sustain conviction. This principle flows from the fundamental
maxim “Actus non facitreum nisi mens sit rea” — the act alone
does not make a person guilty unless accompanied by a guilty
mind. In the present case, the prosecution has utterly failed to
48 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022establish the guilty intention behind the alleged receipt of
money, and the trial Court has erroneously inferred demand
merely from the use of the expression “balance amount,” which
is nothing but a speculative inference unsupported by legally
admissible evidence. In the present case, the prosecution heavily
relies on the expression “balance amount” to infer prior payment
of bribe. However, such an inference is legally impermissible. In
rural administration, the term “balance” is equally consistent
with part payment of legitimate dues such as taxes or fees.
Where two views are possible, the one favourable to the accused
must be adopted (“in dubio pro reo”). The burden on the
accused under Section 20 of the Prevention of Corruption Act is
only to offer a probable explanation on the touchstone of
preponderance of probabilities, as reiterated in N. RAJA
KANTHAM v. STATE reported in 2011(1) SCC (Criminal) 1045
and in the case of T. SUBRAMANIAN v. STATE OF TAMIL NADU
reported in 2006(1) SCC 401. Once the accused offers a
plausible explanation that the amount was received towards
official dues, the statutory presumption stands rebutted.
49 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
64. Further, the prosecution has not established
that any official work was pending with the accused, nor that the
accused was in a position to extend any official favour. In trap
cases, the existence of pending work is a vital circumstance to
probabilise the allegation of demand. In its absence, the
prosecution story becomes inherently doubtful. The trial Court
has failed to appreciate this foundational defect and has instead
shifted the burden onto the accused, which is impermissible in
criminal law. The settled maxim “Eiincumbitprobatio qui dicit,
non qui negat” squarely applies — the burden lies on the person
who asserts, namely the prosecution, to prove its case beyond
reasonable doubt, and not on the accused to disprove it.
65. The trial Court has also committed a serious
error in invoking the statutory presumption under Section 20 of
the Prevention of Corruption Act without first establishing the
foundational facts of demand and acceptance. It is common that
such presumption is not automatic and arises only after the
prosecution proves the primary facts. Even where the
presumption arises, it is rebuttable, and the burden on the
50 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022accused is not to prove his defence beyond reasonable doubt,
but merely, to establish a probable explanation on the
touchstone of preponderance of probabilities. This position is
encapsulated in the maxim “Semper necessitas probandi
incumbitei qui agit” — the necessity of proof always lies on the
party who brings the charge. In the present case, the accused
has consistently explained that the amount received was towards
official dues, and such explanation, being plausible and
consistent from the inception, is sufficient to rebut any
presumption, if at all it arose.
66. The reasoning of the trial Court in drawing an
adverse inference merely because the money was kept in the
shirt pocket of the accused No.2 is also wholly untenable. Such a
circumstance, by itself, does not establish illegal gratification,
particularly when the defence explanation is not shown to be
false. Criminal jurisprudence does not permit conviction based
on suspicion or moral inference. Moreover, the delay in lodging
the complaint coupled with inconsistencies in the evidence of the
complainant and the absence of independent corroboration of
51 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022demand, further weakens the prosecution case. Delay, if not
satisfactorily explained, introduces the possibility of
embellishment and false implication. This principle aligns with
the maxim “Falsus in uno, falsus in omnibus” (false in one thing,
false in everything), which, though not strictly applied in India,
underscores the caution that must be exercised when the
credibility of a witness is shaken on material particulars. In the
present case, not only is there doubt, but the prosecution has
failed to prove its case beyond reasonable doubt, while the
defence has offered a reasonable and probable explanation.
Ultimately, the trial Court has reversed the settled burden of
proof and convicted the accused on the basis of presumption and
inference rather than proof. This approach strikes at the root of
criminal jurisprudence, which is governed by the maxim “proof
beyond reasonable doubt”, ensuring that no person is convicted
unless the prosecution establishes guilt with certainty. The
findings of the trial Court, being based on mis-appreciation of
evidence and erroneous application of law, are therefore
perverse and liable to be set aside in appeal, entitling the
accused to an order of acquittal.
52 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
67. Applying the well-settled principles governing
trap cases, the demand of illegal gratification is sine qua non for
constituting an offence under the Prevention of Corruption Act.
Suspicion, however strong, cannot take the place of proof
(“suspicio non estprobatio”). The Hon’ble Supreme Court in
decisions reported in OM PRAKASH v. STATE OF HARYANA
reported in (2006)2 SCC 250; and in the case of BANARASI
DASS v. STATE OF HARYANA reported in (2010)4 SCC 450, has
consistently held that mere recovery of tainted money is not
sufficient unless the prosecution proves beyond reasonable
doubt that there was a prior demand and conscious acceptance
of bribe. Further, as held in ANVAR P.V. B. P.K. BHASEER
reported in 2014(10) SCC 473and in the case of RITESH SINHA
v. STATE OF UTTAR PRADESH reported in 2019(3) Crimes 207
(SC), minor discrepancies, procedural irregularities, or informal
conduct in handling money cannot substitute the foundational
requirement of proof of demand.
68. In the present case, the alleged absence of
immediate receipt, or the manner in which the money was
53 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022handled, is wholly insufficient to establish guilt in the absence of
clear and cogent evidence of demand. Similarly, in DURAISAMY
v. STATE (REP. BY INSPECTOR OF POLICE, VIGILANCE AND
ANTI-CORRUPTION WING) reported in1997(2) Crimes 412, it
has been held that unexplained delay in lodging the complaint
creates doubt about the prosecution story, especially in trap
cases where prior animosity or deliberation cannot be ruled out.
69. The burden lies on the one who asserts, not on
the one who denies “eiincumbitprobatio qui dicit, non qui negat”.
The trial Court has also taken note of the evidence of DW1, the
Secretary of the Grama Panchayat, who in his cross-
examination, has clearly stated that the jurisdiction of the
Panchayat is confined only to Gramathana lands and does not
extend to survey number lands. On that basis, the trial Court
has observed that since the proposed poultry farm was situated
in a survey number land, the Panchayat would not ordinarily
have jurisdiction to issue an NOC. However, the trial Court
proceeded to draw an adverse inference against the accused 1
and 2 by holding that they had taken advantage of the
54 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
complainant’s lack of legal knowledge and misused their position
to extract illegal gratification.
70. When the very evidence of DW1 establishes
absence of jurisdiction with the Panchayat, the foundational
requirement of a “pending official work” or “official favour” itself
becomes doubtful. In the absence of any legally enforceable duty
or authority to issue an NOC for the said land, the question of
the accused demanding illegal gratification for performance of
such an act becomes inherently improbable. The trial Court,
instead of appreciating this vital aspect in favour of the accused,
has erroneously converted it into a circumstance against them,
which is contrary to settled principles of criminal jurisprudence.
71. The trial Court has further considered the
defence documents marked as Ex.D1 to Ex.D10 and has held
that they are either portions of statements recorded under
Section 161 of the Code of Criminal Procedure or routine
administrative records, and that the discrepancies pointed out
therein are minor in nature. While it is true that minor
discrepancies may not affect the substratum of the prosecution
55 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
case, it is equally well settled that in trap cases the Court must
scrutinize the evidence with greater care, particularly when the
defence has raised a plausible and probable explanation. The
explanation offered by the accused that the amount was
received towards official dues, particularly in the context of
prevailing practices in rural Panchayats, cannot be said to be
improbable. When two views are possible, the one favourable to
the accused must necessarily be adopted. The appreciation of
evidence by the Trial Court on the aspects of demand,
acceptance and recovery is legally unsustainable, as it proceeds
on inferences rather than proof of the essential ingredients
required under the Prevention of Corruption Act.
72. In P. SATYANARAYANA MURTHY v. DISTRICT
INSPECTOR OF POLICE, STATE OF ANDHRA PRADESH AND
ANOTHER reported in (2015) 10 SCC 152, the Hon’ble Supreme
Court reiterated that proof of demand of illegal gratification is
the sine qua non for constituting an offence under the Prevention
of Corruption Act. Mere recovery of tainted currency notes
56 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
(MO.7), in the absence of proof of demand and voluntary
acceptance, is insufficient to sustain a conviction.
73. In NEERAJ DUTTA v. STATE (GOVERNMENT OF
NCT OF DELHI) reported in (2023) 4 SCC 731, the Constitution
Bench of the Hon’ble Supreme Court, authoritatively held that
proof of demand and acceptance of illegal gratification
constitutes the foundational fact and is the sine qua non for
establishing an offence under the Prevention of Corruption Act.
The Bench further held that although demand and acceptance
may be established by direct or circumstantial evidence. It was
also held that the statutory presumption under Section 20 of the
PC Act arises only after the prosecution establishes these
foundational facts, and the accused may rebut such presumption
on the touchstone of preponderance of probabilities. Hence, in
the present case, mere recovery of tainted currency notes
(MO.7) from the possession of Accused No.2, in the absence of
proof of demand and voluntary acceptance, cannot sustain a
conviction. The reasoning adopted by the trial Court is contrary
57 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022
to the settled principles laid down by the Hon’ble Supreme
Court.
74. Viewed from any angle, the findings recorded by
the trial Court are based on mis-appreciation of evidence and
erroneous application of law. The prosecution has failed to prove
its case beyond all reasonable doubt. Hence, I answer point
No.1 in the affirmative.
Regarding Point No.2:
75. For the aforestated reasons and discussions, I
proceed to pass the following:
ORDER
(i) The Criminal Appeal No.1696 of 2022 filed by
accused No.1; and the Criminal Appeal
No.1737 of 2022 filed by accused No.2, are
hereby allowed.
(ii) The judgment of conviction and order of
sentence dated 20th September, 2022 passed
in Spl. Case No.332 of 2019 by the Court of
the VII Additional District and Sessions Judge
58 Crl.A No.1696 of 2022
c/w Crl.A. No.1737 of 2022and Special Court for trial of cases under the
Prevention of Corruption Act, is hereby set
aside.
(iii) The appellants/accused are hereby acquitted of
the offences punishable under Sections 7(a),
7-A and 12 of Prevention of Corruption Act,
1988;
(iv) The bail bonds, if any executed by the
accused, shall stand cancelled;
(v) Fine amount if any deposited, shall be
refunded to the accused, after due
identification;
(vi) Registry is directed to transmit the copy of this
judgment along with records to the trial Court
forthwith.
Sd/-
(G. BASAVARAJA)
JUDGE
lnn
