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TMI Blog2023 (8) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... charges levelled against him and as such interference of this Court is required. The judgment of the Trial Court on the file of IV Additional District and Sessions Judge and Special Judge (PCA), Belgaum, in Spl.C.No.164/2011, dated 30.11.2013 is hereby set aside - The accused is acquitted for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of P.C. Act - Appeal filed by the appellant/accused is hereby allowed. - Anil B. Katti, J. For the Appellant : Ram P. Ghorpade and J. Basavaraj, Advocates. For the Respondents : Santosh B. Malagoudar, Spl. P.P. JUDGMENT ANIL B. KATTI, J. 1. Appellant/accused feeling aggrieved by judgment on the file of IV Additional District and Sessions Judge (PCA) Belgaum, in Special Case No.164/2011, dated 30-11-2013 preferred this appeal. 2. Parities to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience. 3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that property bearing No.89 of Santi-Bastwad was standing in the name of father of complainant CW-12 Peeraji Gundu Desurkar and as per decree of Prl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged against accused. The evidence of PW-9 co-panch to the entrustment panchanama Ex.P.3 and trap panchanama Ex.P.17, so also the evidence of investigating officer PW.11 cannot be of any assistance to the case of prosecution to prove demand and acceptance of illegal gratification, since their evidence is based on the disclosure said to have been made by complainant PW-2. PW-10 who was working in the same office of accused and issued the receipt Ex.P.29 is proper person to speak on the alleged demand and acceptance of bribe money, but he has not supported the case of prosecution. Therefore, virtually there is no any evidence on record to prove the alleged demand and acceptance of illegal gratification as alleged by the prosecution. The Trial Court without appreciating the factual and legal aspect on the basis of evidence on record proceeded to hold the accused guilty for the offences alleged against him on erroneous recording of reasonings. Therefore, prayed for allowing the appeal and to set aside the judgment of conviction and order of sentence. Consequently to acquit the accused for the offences alleged against him. 7. In response to notice of appeal learned High Court Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer secured two panch witnesses CW.3 Anand Gunjikar and CW.4 Dr.Santosh Biradar. The complaint averments were made known to them. Accused produced 20 currency notes of Rs.100/- denomination amounting to Rs.2,000/- and Phenolphthalein powder was smeared on the currency notes by noting down the number of currency notes and accordingly entrustment panchanama Ex.P.3 was prepared, further the entire process was photographed Exs.P.4 to 10. 12. Thereafter, Lokayuktha Police and panch witnesses proceeded to the office of accused. PW.1 complainant and panch witness No.1 Anand Gunjikar were duly instructed to go to the office of accused, further enquire about the work. If money is demanded then, to give money and after accepting the same to give signal by wiping the face with handkerchief. PW.1 was provided with voice recorder and instructed to record the conversation and then along with panch witness No.1 went to the office of accused. After some time, PW.1 gave signal as instructed. On entering the office of accused, PW.11 disclosed his identity and enquired with the complainant who showed the accused and revealed that accused has demanded and accepted bribe money. The bribe money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - being charge for supply of the extract. After collecting the money, the extract is furnished to the complainant recording the name of complainant in the records Ex.P.21. However, he has not supported the case of the prosecution. It is in his evidence that after issuing the receipt Ex.P.13, went out of the office for offering Namaz. It is also not in dispute that no any conversation of complainant and accused was recorded in the voice recorder provided to the complainant. The explanation offered is that complainant did not play the audio recorder. 14. The evidence of co-pancha PW.9 who is the witness to the entrustment panchanama Ex.P.3 and the trap panchanama Ex.P.17, so also the evidence of Investigating Officer PW.11 is based on the statement of complainant on the core issue of demand and acceptance of illegal gratification by accused. Indisputably, PW.11 Investigating Officer came to know about accused demanding illegal gratification only when the complaint Ex.P.2 was filed. Similarly, PW.9 co-pancha to entrustment panchanama Ex.P.3 and trap panchanama Ex.P.17 got knowledge about demand of illegal gratification by accused on the disclosure of the same by complainant. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused has argued that complainant has not approached the accused in between the period of 03.06.2009 till 24.07.2009 for taking extract of the property. The resolution is passed on 03.06.2009 itself to record the name of complainant pursuant to his application Ex.P.12. The required fee for furnishing the extract was not paid by the complainant. It was paid only on 24.07.2009 and the receipt is accordingly issued as per Ex.P.13 and the extract also came to be furnished on the same day. 18. Learned Special Public Prosecutor relied on the judgment of Hon'ble Apex Court in Hazari Lal Vs. State (Delhi Administration) AIR 1980 SC 873 in the said case before the Hon'ble Apex Court it was found that the Trial Court did not consider the question whether recovery of the money along with other circumstances would establish that the accused has obtained gratification from any person. The Hon'ble Apex Court found that there is enough other material evidence to substantial the allegation about receiving of illegal gratification. Therefore, necessary presumption was drawn and confirmed the judgment of Hon'ble Delhi High Court in convicting the accused. Reliance is also placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of an illegal gratification may be made by a Court of law by way of in an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. It has been clarified that presumption in law under Section 20 of the Act is distinct from presumption of fact, as presumption of law is mandatory and presumption of fact is discretionary in nature. It is thereafter, Neeraj Dutta case referred above came to be disposed of on 17.03.2023 in Crl.A. No.1669/2009 2023 live law (SC) 211 holding that there are not circumstances brought on record which will prove the demand for gratification. Therefore, the ingredients of the offence under Section 7 of the P.C Act were not established and consequently, the offence under Section 13(1)(d) will not be attracted. 20. Learned counsel for appellant place reliance on another judgment of Hon'ble Apex Court in K.Shanthamma Vs. The State of Telangana 2022 Live Law (SC) 192, wherein it has been observed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to 24.07.2009. The receipt and panchayat document Ex.P.13 from the receipt book Ex.P.29, the requisite fee was paid only on 24.07.2009 and on that day itself, the extract recording the name of complainant Ex.P.21 was furnished to the complainant. Therefore, the contention of learned SPP that extract at Ex.P.21 was issued only on accepting the bribe money cannot be accepted in the absence of there being demand of bribe money on the day of trap as claimed by the prosecution. There is also no any valid explanation as to why complainant kept quiet from 03.07.2009 till the day of filing complaint on 23.07.2009 without taking any action on the alleged demand of bribe money by accused. There is also no any explanation offered in the complaint Ex.P.2 as to why there is inordinate delay in filing the complaint inspite of accused alleged to have made demand for bribe money on 03.07.2009. However, the only explanation offered by PW.2 in his examination in-chief is that he was uncertain as to what action should be taken against the accused. Even this explanation is not found place in the complaint Ex.P.2 nor the same is spoken by the scribe of the complaint PW.6 who is a practising advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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