IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 14th DAY OF MARCH 2011 BEFORE THE HON’BLE MR. JUSTICE V. JAGANNATHAN NO.2770 2006 BETWEEN STATE THROUGH P S I OF LOKAYUKTHA POLICE STATION BAGALKOT. APPELLANT (By Sri, M B GUNDAWADE, ADV,) AND LADSAB S/O IMAMSAB BADAMI AGED 60 YEARS, 0CC: JUNIOR ASSISTANT KPTCL, SUB-DIVISION, ILKAL DISTRICT: BAGALKOT. ILKAL RESPONDENT (By Sri. B M ANGADI, ADVJ CRL.A. FILED U/S.378(1) & (3) CR.P.C BY THE STATE P.P. FOR THE STATE PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT DT.31.8.06 PASSED BY THE SPL. JUDGE (SESSIONS JUDGE), BAGALKOT, IN SPL.CASE NO.38/02 - ACQUITtiNG THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/SS.7, 13(l)(d) RW SEC13(2) OF THE PREVENTION OF CORRUPTION ACT. 1988. THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal is by the State calling in question the acquittal of the respondent-accused by the Trial Court in respect of the offences punishable under sections 7, 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988. 2. Brief facts are that, the respondent who was working in KPTCL as a Junior Assistant at Ilkal Sub Division, demanded and accepted Rs.l,000/- from the complainant on 25.6.2001 as illegal gratification to show official favour to the complainant by removing the arrears of Rs. 1,980/- which was shown as amount of arrears in the electricity bill due by the complainant. 3. A complaint was lodged by PW-1 in regard to the demand made by the accused of Rs. 1.000/- to show official favour to the complainant and thereby to remove the arrears of Rs. 1,980/ - shown in the electricity bill and therefore the complainant being not willing to pay the said amount, went before the Lokayuktha and lodged his complaint as per Ex.P13. It was stated in the complaint that the arrears was Rs. 1,980/- and the accused demanded Rs. 1,000/- as bribe amount to remove the said arrears from the electricity bill. 4. Therefore, the complaint was lodged with the Lokayuktha police by PW- 1 which was received on the very same day at 200 p.m. Thereafter the entrustment mahazar was drawn as per ExP2 and the shadow witness PW-2 accompanied the complainant and according to the prosecution, the amount was paid by the complainant on demand by the accused near the office of the accused and on giving the signal, the Lokayuktha police came and caught hold of the accused z.. 4 and his hands were immersed in sodium carbonate solution which turned into pink colour. Rs.1,000/- of ten 100 rupees denomination notes were seized from the possession of the accused and trap mahazar was also drawn as per Ex.P3. On completion of the investigation, the charge sheet was filed against the accused person alleging commission of offences punishable under sections 7, 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988. 5. The accused pleaded not guilty and prosecution led evidence of PWs 1 to 8 and Ex.P1 to P16 were marked apart from M.Os 1 to 6 which include M.O.2 notes. 6. The accused statement was recorded and he denied the prosecution case and did not lead any defence evidence except marking one document as per Ex.D1. L 7. Learned Trial Judge after appreciating the evidence on record, found serious infirmities in the prosecution case and the said infirmities were, the sanction order being not valid in law and secondly the complainant as per the shadow witness did not support the prosecution case. Therefore, mere possession of Rs. 1,000/ by the accused was held to be not sufficient to draw the presumption in favour of the prosecution case and as the demand was not proved by the prosecution, the said order of acquittal is called in question by the State. 8. I have heard learned counsel Sri. M,B,Gundawade for the appellantState and Sri, B.M.Angadi for the respondent and perused the judgment of the Trial Court and also the evidence on record. 9. Submission of appellant’s counsel is that, the Trial Court erred in acquitting the accused and did 6 not take into account the fact of Rs. 1,000/- being found in possession of the accused and moreover, the amount of arrears was Rs. 1,980/ - and the accused had received the amount towards payment of electricity bill, then the accused must have had with him Rs.1,980/- and not Rs. 1,000/-. Therefore, the evidence appreciation by the Trial Court is not proper and once the possession of the amount was found with the accused, the presumption ought to have been drawn in favour of the prosecution. Therefore, relying on the judgment of the Apex Court reported in 2001 S.C.C.(Cri) 34 and (2010)1 S.C.C(Cri) 147, the appellant’s counsel argued that judgment of conviction be set aside. 10. As far as the sanction order Ex.P5 is concerned, submission made is that, the said order is valid in law and evidence has been let in in this regard by examining PW-4. As such, no infirmities could have been found in the sanction order and moreover section 19(4) of the P.C. Act also ought to have been taken into 7 consideration by the court while entertaining any objections to the sanction order at the appellate stage. The complainant and shadow witness have been won over by the accused and therefore the Trial Court ought to have seen this aspect of the matter. For all these reasons, the appeal be allowed. 11. On the other hand, submission of the learned counsel for the respondent is that, the Trial Court has observed that the complainant had turned hostile and did not support the prosecution case and therefore question of demand by the accused and acceptance does not arise. Consequently, presumption also cannot be drawn in favour of the prosecution in the absence of prosecution establishing the element of demand. 12. As far as the sanction order is concerned, learned counsel argued that the sanction order is initiated because PW4 has admitted in his cross 8 examination that he was given the delegation of power. But however, no document is produced to show that PW4 has been delegated with the power to issue the sanction order. At the same time, in the sanction order it is stated that PW-4 himself has got the authority to remove the accused and thus these two stands taken by the sanctioning authority are inconsistent with each other and rightly the Trial Court did not accord its approval for the sanction order. As such, learned counsel for the respondent placing reliance on the decisions reported in 2008 (3) Crimes 536, 2009(1) Crimes 252 (SC), (2010) 4 SCC 450, 2006(1) Acquittal 244 (SC), (2007)3 SCC (Cri) 175 argued that by virtue of the principles laid down in the aforementioned cases, the order of acquittal does not call for interference. 13. Having thus heard both sides, the only point for consideration is, whether the judgment of acquittal can be sustained in law. 9 14. The Apex Court in the case of Batcu Venkateshwarlu and others Vs Public prosecutor, High Court of A.P (2009(1) Crimes 252 (SC) while dealing with the power of the appellate court to interfere with the judgment of the Trial Court, has culled out several general principles and also took note of the judgment rendered by it in Chandrappa arid others Vs State of Karnataka and the principles which will have to be taken into account by the appellate court while dealing with the appeal against the order of acquittal are as under: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 1 0 (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc, are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of 11 his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court. Keeping the aforesaid principles in law, particularly 4 and 5, I have examined the evidence on record in the instant case. 15. As far as the sanction order is concerned, it is produced at Ex.P5 and it mentions that the sanctioning authority has got the power to remove the accused from the services, At the same time, PW-4 who is the sanctioning authority, in the course of his cross examination, has clearly admitted that he has been given the power of delegation. Thus, on the one hand PW4 says that he has got the power to remove the accused from the services, but on the other hand, in the 1) I evidence he deposes that he has been delegated with the power. No document is produced in proof of the delegation of power to PW4. Apart from that, the Trial Court has taken note of the judgment of this court in Crl,A,No,82 1/96 to hold that in respect of employees of KPTCL the disciplinary authority is the board and none else. 16. Under these circumstances, the Trial Court was of the view that the order of sanction is invalid in law. Such view taken cannot be termed as perverse and contrary to law. 17, As far as the demand and acceptance of bribe amount is concerned, the prosecution has relied mainly on the evidence of PW- 1 the complainant and PW—2 shadow witness. PW- 1 who is the complainant has turned hostile and in the course of his cross examination, he has gone on to state that he never made any com.plaint before the Lokyuktha police and 4 13 no panchanama was held in his presence and the contents of complaint are not true. Thus, the very complainant himself do not support the prosecution case. 18. Next is PW-2 who is the shadow witness and this witness in the course of his evidence has also stated that he did not over hear the conversation that took place between the complainant and the accused. Therefore, there is nothing to indicate that PW-2 did hear the accused demanding and accepting bribe of Rs.1,000/-. The cumulative effect of PW-1 and PW-2 is that, the prosecution has failed to prove the demand and acceptance of the amount by the accused. 19. Looked from another angle, the accused immediately after the trap has given a statement as per Ex.P4 and in the self statement he has stated that the complainant gave him Rs. 1,000/ - towards payment bf electricity bill. It is not in dispute that there are two 14 electricity meters installed in the complainant’s house. Therefore receipt of Rs.1,000/ by the accused from the complainant is towards payment of electricity bill which is different from the electricity bill with regard to which there was arrears of Rs, 1 ,980/. As such, defence taken by the accused is also probabalized not only from Ex.P4 but also from the evidence of PW-1 himself. 20. In the face of aforesaid evidence on record, the decisions referred to by the respondent’s counsel are applicable and in the case reported in 2008(3) Crimes 532 this court has taken a view that where the complainant and shadow witness did not speak about demand made by the accused, evidence of other witnesses could not help the prosecution and as such, there can be no interference with the order of acquittal. 21. In the case reported in (2010) 4 S.CC.450 the Apex Court has held that conviction of an accused cannot be founded on the basis of inference and the 15 offence should be proved against the accused beyond reasonable doubt either by placing direct evidence or even by circumstantial evidence if each link of chain of events is established pointing towards guilt of the accused. 22. In the case reported in 2006(1) Acquittal 244 (SC), it has been held that, if the reason for receiving the amount was explained and the explanation was probable and reasonable, then appellant will have to be acquitted. 23. (2007)3 S.C.C (Cri) 175 is a case wherein the Apex Court has held that the presumption cannot be raised when demand by the accused is not proved. 24. Finally in Crl.A.No.821/96 this court has taken the view that it is the board which is the competent authority for the employees of the KPTCL. 16 25. Above decisions are fairly and squarely applicable to the case on hand and the decisions cited by the appellant’s counsel though laid down on the well settled decisions of law, they are inapplicable as the facts and circumstances with which we are concerned are different from the ones that are involved in the aforesaid decisions referred to by the appellant’s counsel. For the above reasons, the order of acquittal passed by the Trial Court does not call for interference and accordingly the State appeal is dismissed. JUDcE Dvr: