M/S BAGMANE DEVELOPERS PVT LTD vs. THE ASSISTANT COMMISSIONER OF INCOME TAX

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL NO. 350 OF 2014 (A) BETWEEN:

STATE OF KARNATAKA LOKAYUKTA POLICE MANDYA REP/BY SPL. PUBLIC PROSECUTOR FOR LOKAYUKTA HIGH COURT BENCH BANGALORE-560 001 …APPELLANT (BY SRI. H.D. KUMAR, ADVOCATE FOR SRI. VENKATESH S. ARABATTI, ADVOCATE)

AND:

M.C. PUTTASWAMY S/O CHIKKA MARIGOWDA AGED ABOUT 38 YEARS OCC:JUNIOR ENGINEER MUNCIPALITY, S.R.PATNA R/O NO.2005, 1ST MAIN SRIRAMPURAM III STAGE MYSORE-570 005 …RESPONDENT (BY SRI. P.N. HEGDE, ADVOCATE)

THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:30.8.13 PASSED BY THE PRL. SPECIAL JUDGE, MANDYA IN SPL.CASE NO.24/2009 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 7 OF THE PREVENTION OF CORRUPTION ACT 1988 AND U/S 13(2) OF THE PREVENTION OF CORRUPTION ACT 1988.

Digitally signed by SHAKAMBARI Location: High Court of Karnataka

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

ORAL JUDGMENT

This appeal is directed against the judgment of acquittal dated 30.08.2013 passed in Special Case No.24/2009 by the Principal (Special) Judge, Mandya. 2. The parties to this appeal are referred to as per their rank before the trial Court for convenience. 3. The facts leading up to this appeal are as under:

The accused was charge sheeted by the Inspector of Karnataka Lokayukta, Mandya District alleging the offence under Sections 7 and 13 (2) of Prevention of Corruption Act, 1988 (for short 'PC' Act). A crime was registered based upon the complaint lodged by PW.3 – complainant by name C.J. Nagaraju S/o. Javare Gowda, resident of Chinakuarali village alleging that, he was working as a Civil Contractor at Srirangapatna Town Panchayat. From the said town panchayat, he obtained 3

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tenders about 5 to 6 months back prior to the filing complainant. It is his specific assertion that, for the 1st tender 80% of the bills were prepared by Junior Engineer - Puttaswamy i.e., accused, who was working as Junior Engineer at Srirangapatna panchayat and for the remaining bill he has told that, it is not possible for him. Further, it is stated that, for the purpose of preparing bills for the remaining tenders, it has to be inspected and unless the complainant pays Rs.34,000/- towards the same, it is not possible to prepare the bill. It is further stated by the complainant that, for the 2nd tender he has already paid Rs.60,000/- to the accused as a bribe for issuing the cheque towards the bill. Towards the 3rd tender, the accused had prepared the bill and submitted the same to the Chief Officer for the purpose of getting his signature and the accused demanded to pay Rs.34,000/- as a bribe and it was told to him on 05.12.2017 that the complainant has to bring the said amount and thereafter, he will get the cheque issued in favour of the complainant. There was a force by the accused to pay the said amount.

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The complainant is a physically handicapped person. He was not intending to pay any bribe amount. Therefore, he filed a complaint before the Police Inspector, Karnataka Lokayukta, Mandya, on 05.12.2007 at 1.00 p.m., which was registered in Crime No.13/2017 for the aforesaid offences. 4. On receipt of the complaint, it was registered and criminal law was set in motion. As per the prosecution papers, PW.7 - E.S. Veerabhadraiah, the then Police Inspector of Lokayukta, conducted the raid on the person of the accused, by following all the proper procedures of raid i.e., preparation of panchanama etc. On completion of the investigation, charge sheet was filed against the accused by PW.6 - Sri.B.P. Dineshkumar, the then Lokayukta Inspector against the accused for the aforesaid offences. After filing the charge sheet, cognizance of the offence was taken and presence of the accused was secured. In the crime stage itself, accused was enlarged on bail.

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This is how now the appellant/State is before this Court, challenging the judgment of acquittal passed against the accused by the trial Court. 8. The learned counsel Sri.Kumar H.D., appearing for the appellant along with learned counsel Sri.Venkatesh S.Arbatti, with all vehemence submits that, the Trial Court has committed a grave error in acquitting the accused. Though, PW.3-complainant has been turned hostile but his evidence stated in the examination-in-chief as well as in the cross-examination shows that, there was a real demand and acceptance of the bribe by the accused. So also the evidence of the shadow witness and the investigation officer support the case of the prosecution. He would submit that, even then, the trial Court has acquitted the accused on flimsy grounds. Thus, according to his submission, the impugned judgment is unsustainable under law and on the facts and has to be set aside. He would further submit that, though there are minor discrepancies in the evidence of the prosecution

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witnesses, the trial Court ought to have disbelieved such discrepancies and discarded the same. The evidence of the shadow witness clinchingly establish about the demand and acceptance of the bribe by the accused. In support of his submission, learned counsel Sri.Kumar H.D., relied upon the evidence placed on record by the prosecution especially that of, complainant and shadow witness, and the Investigation Officer. He submits that, in view of the grounds stated in the appeal memo. The impugned judgment is liable to be set aside. He prays to allow the appeal. 9. As against his submission, the learned counsel Sri. P.N. Hegde for the accused submits that, the whole case of the prosecution is based upon the evidence of PW.3 - Complainant. The complainant's evidence is silent about the demand and acceptance of the bribe by the accused. He would submit that, the evidence of PW.3 is not worth to be believed as he has given varied evidence in his examination-in-chief as well as in his cross-

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examination. The shadow witness, who was examined by the prosecution, has not supported the case of the prosecution. The place of conducting raid is also not duly proved in accordance with law. There were no justifiable reasons for the Trial Court to convict the accused. According to Sri. P.N. Hegde, learned counsel for the accused, the Trial Court has properly assessed the evidence and has come to a right conclusion that, no case is made out against the accused so as to attract the offences under the provisions of the Prevention of Corruption Act. He would submit that, on reading the evidence of all the witnesses, especially that of PW.3 and other witnesses, it shows that, there is no consistency in the evidence put forth by the witnesses. Even the chemical examiner is not to examined, which is fatal to the case of the prosecution. He further submits that as per the evidence so brought on record, though the Investigation Officer alleged to have seized 100 Rupee currency notes, what made him to get the notes of Rs.500/- by sending the said amount to the bank, is not explained and what

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was necessity for him is also not explained. Therefore, pointing out so many discrepancies and inconsistencies in the evidence of the prosecution witnesses, he submits that, all is not well with the case of the prosecution. He would further submit that, as per Ex.P.20, an explanation is offered by the accused with regard to the receipt of the said money. It is not properly appreciated by the Trial Court. Hence, he prays to dismiss the appeal. 10. I have given my anxious consideration to the argument of both the sides. Meticulously perused the records. 11. On perusal of the records, the points that would arise for my consideration:

"Whether the judgment of the trial Court, acquitting the accused suffers from any infirmity or illegality and hence require any interference by this Court?"

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P.C Act, there must be a demand and acceptance. For better appreciation, it is just and proper to incorporate the provisions of the Section 7 of the Act, which reads as follows. "7. Offence relating to public servant being bribed.-- Any public servant who,--

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person,

shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence

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even if the performance of a public duty by public servant, is not or has not been improper.

Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.

Explanation 2.--For the purpose of this section,--

(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."

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necessary to prosecute the civil servants. To that effect PW.1 Sri.Anjum Farvez, the then Commissioner and Director of Public Administration Department is examined as PW.1. According to his evidence, during his tenure as sanctioning authority in between 27.06.2008 to 04.06.2011, he received a requisition from the concerned I.O. to issue the sanction to prosecute the accused. Accordingly on going through the same and after satisfying himself, has issued the sanction as per Ex.P.1. Though, he has been cross-examined by the defence but, with regard to the satisfaction of the sanctioning authority, there is no effective cross-examination directed to him. In his further evidence that, after going through the entire records placed before him, he has issued Ex.P.1. Therefore, I do not find any factual or legal error committed by PW.1 in issuing the sanction. Therefore, Ex.P.1 is duly proved in accordance with law by the prosecution. Thus, the evidence of PW.1 has to be accepted to the extent that, he has issued sanction as per Ex.P.1 in accordance with law.

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complaint and he being taken to the office of the accused. Further, for the first time, he states that, when he gave Rs.34,000/- to the Police Inspector i.e., Investigation Officer in this case, the said money was having a denomination of 100 rupees. The IO has sent the same and got converted the same into 1000 rupees of 16 currency notes and also of 500 rupees denomination of 40 notes. What made his I.O to get the said conversion of the currency notes is not explained either by PW.3 or by the I.O. Further PW.3 states that, to the said amount, the I.O. has applied some powder and made the complainant to dip his fingers in the chemical water. It converted into pink colour etc. Further he states that, when he reached Srirangpatna, it was about 4.00 p.m. on that day, as he was unable to climb the stairs, therefore, he entered the office of the accused from hind door and the raiding staff entered the office from the front door. He further submits that, on seeing the accused, asked him to take money and requested him to prepare the bill and issue cheque. At that time, accused told him to pay the said amount to

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Dayananda. Further he states that, as he had a quarrel with said Dayanand, he will pay the money to the accused himself. On the same day, accused received the money and kept the money in his left pocket. At that time, official staff and raiding staff were very much present in the office and even there were other people. Thereafter, he came out of the office. It was about 5.30 p.m. When he entered the office again, it was asked to him whether he has paid money to the accused. He told that, he has given money to the accused. There the police took the photographs. By that time, raiding parties completed the procedures there itself. As it was dark, they were called to the office at Mandya. Therefore, himself, accused together went to Mandya. 15. PW.1 was declared as a hostile witness by the prosecution. He was cross-examined, but he denied all the suggestions so directed to him. The cross-examination directed to PW.3 by the defence is worth reading. It is elicited in the cross-examination that whatever the

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amount to be paid to the Government, demand bill is prepared by the Office by the official who prepares the bills. He admits that, the said bill was prepared by the accused. In the further cross-examination, he states that, he had to pay Rs.10,437/- towards service tax, Rs.5,870/- towards income tax and Rs.5,101/- towards royalty, in all Rs.34,464/- and even he had to pay Rs.13,046/- towards the security. Thus, in all, he had to pay Rs.34,464/- to the Government. As per the defence of the accused, the said amount ought to have been paid by the PW.1 to be credited to the Government head of accounts and accused, now at the instance of the complainant, a false complaint is designed. PW.1 admits about payment of such amount to the Government because of accepting the tender and the contract work entrusted by the Chief Officer of the Muncipal Corporation, Mandya. 16. Further, he admits that, the said Dayanada is a follower of local MLA. It is elicited that, towards the contract work done, certain amount has to be paid to the

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said Dayananda. There was a galata in between the complainant and the accused to that effect. For the first time, in his cross-examination, this PW3 states that : "7. ¤jÃPÀëPÀgÀÄ, £ÀAvÀgÀzÀ°è £À£ÀߣÀÄß «ZÁgÀuÉ ªÀiÁqÀ°®è. vÀ£ÀUÉ §gÀ¨ÉÃPÁzÀ ºÀt §gÀ¢zÀÝgÉ, ©$ï ªÀiÁr¸ÀĪÀÅ¢®èªÁV zÀAiÀiÁ£ÀAzÀ EªÀ£ÀÄ £À£ÀUÉ ºÉzÀj¸ÀÄwÛzÀÝ. zÀAiÀiÁ£ÀAzÀ£À «gÀÄzÀÝ PÀæªÀÄ vÉUÉzÀÄPÉƼÀî®Ä DUÀĪÀÅ¢®èªÁzÀÝjAzÀ DgÉÆæ EAf¤AiÀÄgï «gÀÄzÀÝ zÀÆgÀÄ §gÉ JAzÀÄ $ÉÆÃPÁAiÀÄÄPÀÛ DgÀPÀëPÀgÉà £À£ÀUÉ ºÉýzÀÝgÀÄ. ©$ï DzÀ ªÉÄÃ$É, zÀAiÀiÁ£ÀAzÀ EªÀgÀÄ PÉýzÀÝ ºÀt PÉÆqÀ¨ÉÃQzÀÝ°è, CzÀ£ÀÄß DvÀ¤UÉà PÉÆqÀ¨ÉÃPÉAzÀÄ DgÉÆæ EªÀ£ÀÄ ºÉýzÀÝ. vÀ£ÀUÉ ºÀt PÉÆqÀ¨ÉÃPÉAzÀÄ DgÉÆæ £À£ÀߣÀÄß JAzÀÆ PÉýgÀ°®è, £Á£ÀÄ $ÉÆÃPÁAiÀÄÄPÀÛ PÀbÉÃjAiÀÄ°è ºÀt PÉÆmÉÖ JAzÀÄ ºÉýzÁUÀ, AiÀiÁªÀÅzÉà §gÀªÀtÂUÉ DUÀ°®è, ªÀÄvÀÄÛ DUÀ £Á£ÀÄ AiÀiÁªÀÅzÉà §gÀªÀtÂUÉUÉ ¸À» ªÀiÁqÀ°®è."

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denied. Further, he has stated that, accused has not demanded any money from him. Thus, the very ingredient of the demand and acceptance of the bribe is missing in the evidence of PW3 a complainant, a main witness. Therefore, if such evidence is placed on record by the prosecution, it requires corroboration. 18. To corroborate the evidence of this PW3, the prosecution examined PW2, S. Venkatarao, being shadow witness. According to him, on 05.12.2007 at 12 noon, when he was in his office, as per the request of the Lokayuktha Inspector, he and PW3, Ramaiah accompanied the police. At that time, in the office of the Lokayuktha, there were 1000 rupees of 14 currency notes and 500 rupees of 40 notes were there and they were counted and they prepared the pre-trap panchanama as per Ex.P2. Thereafter, all of them were taken to the office of the accused at Srirangapatna. PW1 and PW3 got down near the Muncipal Office at Srirangapatna. It was told that, some raid has been conducted. In the office of the

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accused, so many papers were prepared and signatures were taken. He identified Ex.P3 signed by him. Before going to the office of Srirangapatna, certain photographs were taken by the IO. He identified certain photographs at Exs.P4 to P10. PW.2 states that, he does not know what are all the proceedings conducted at the time of conducting the raid were. No such raid was conducted in his presence. Even after returning to the Office of Lokayuktha at Mandya, certain signatures were taken in the said office. 19. If the evidence of PW.2 is scrupulously perused, he has given the clear go by to the case of the prosecution. 20. The prosecution further relies upon the evidence of PW.4. B. Ramaiah, being another shadow witness. Though he speaks about accompanying IO at the time of conducting raid, states that he was present, when the pre- trap panchanama was prepared. He has signed Ex.P16 in the office of Municipality at Srirangapatna. He states that,

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the person who was caught hold by the IO, coming on the motorcycle was taken inside the office and there he enquired as to whether he had received money or not. Thereafter, accused was brought to the chambers and there his pant was checked and it was seized by the police. Police said that, the bribe amount was found in the pant pocket of the accused. The said pant was dipped into water and it turned to blue colour. For the first time, PW5 speaks this evidence in his examination-in-chief. There are so many omissions spoken to by him in his cross- examination. Therefore, his evidence cannot be accepted as a truthful evidence, for the simple reason that his evidence does not inspire any confidence in the mind of the court, that he was really present and acted as a shadow witness at the time of conducting the raid. 21. PW.4, Chandrashekar B.N, was the Chief Officer of Srirangapatna at the relevant time. According to him, when he was working as a Chief Officer in the year 2007, accused was working as a Junior Engineer in his office. He

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is the hearsay witness with regard to the said conducting of raid by the Lokayuktha Police. He came to know about the said fact only after returning to his office along with the Tahasildar. To the extent that, accused was working as a Junior Engineer in the said office, his evidence has to be accepted. According to his evidence, the accused has to deposit certain amount and to that effect, no documents were furnished to the Inspector and he has not certified the said documents. But, as per the evidence of PW1, the sanctioning authority, if such bills have been prepared, the accused had no power to pass the said bills and it is vested with the Chief Officer. Further, he admits that, when the trap was conducted, the file was not with the accused. That means, evidence of PW1 and PW4 are quite contrary with regard to passing of the bills and issuance of the cheque, as accused has no power to issue any cheque. Accused has to prepare the same and submit. When the file was not with the accused, when the raid was conducted, it can be stated that, no such offence has been

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committed by the accused in the manner alleged by the prosecution. 22. PW6 is the charge sheeting officer and PW7 is the IO. In the absence of acceptable evidence from the prosecution witnesses, it can never be stated that, evidence of IO be accepted by the Court. First of all PW.3, the complainant has not supported the prosecution, so also the shadow witnesses. Therefore, I find inconsistent evidence is placed on record by the prosecution. The learned Trial Court, after evaluation of the evidence and on assessment of the evidence in proper perspective has rightly disbelieved the story of the prosecution by observing that, there was no demand and acceptance by the accused. No such ingredients have been fulfilled by the prosecution with legal evidence. Therefore, I do not find any factual or legal error committed by the Trial Court in acquitting the accused. The very ingredients of the offence of bribery against the accused as alleged by the prosecution are not fulfilled by the prosecution. More so,

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as per Ex.P20, the accused has given explanation. This explanation is plausible explanation which ought to have been accepted by the IO. So there is lapse on the part of the IO in not accepting the said explanation at Ex.P20 as rightly submitted by Sri.P.N.Hegde, learned counsel for the accused. Therefore, in view of the above analysis of evidence, placed on record, the prosecution has utterly failed to prove the guilt of the accused. I do not find any infirmity or illegality in acquitting the accused by the Trial Court. Therefore, the appeal lacks merit and is liable to be dismissed. In view of the above, I pass the following: ORDER

(i) The appeal is dismissed.

(ii) Judgment of acquittal dated 30.08.2013 passed by the Prl.Special Judge, Mandya in Spl.Case No.24/2009, is hereby confirmed.

(iii) Bail bonds if any, shall stand discharged.

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(iv) Send a copy of this judgment to the trial Court along with TCRs.

Sd/- (RAMACHANDRA D. HUDDAR) JUDGE

AM,AMM List No.: 1 Sl No.: 22