(Non-Reportable)

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.307 OF 2003

NARAYANA  …..Appellant

Versus

STATE OF KARNATAKA …..Respondent

J U D G M E N T

HARJIT SINGH BEDI, J.

1. PW-1 Sudarshan and PW-2 Bhargave, two brothers, were  

running the Varsha Provision Store, Bijapur situated near the  

Government  Maternity  Hospital  since  the  year  1989  after  

having obtained a license in the name of PW-2.  The accused-

appellant  Narayana who was working as a Commercial  Tax  

Inspector  came  to  the  shop  in  early  December  1994  and  

enquired from PW-1 and PW-2 as to why they were not paying  

sales tax.  PW-1 told him that as the sale in the shop was less  

than  Rupees  one  lakh,  no  sales  tax  was  payable.   The  

appellant, however, told the two brothers that they should pay  

a sum of Rs.2000/- on Diwali  as was being paid by others  

failing  which  he  would  issue  a  notice  that  the  accounts  

maintained  by  them  were  not  accurate  and  that  the  shop  

would be seized and they would be penalized.  This threat was  

repeated  by  the  appellant  on  two  different  occasions

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thereafter.  On the 4th January, 1994, the appellant came to  

the  shop  at  around  10:00  a.m.  and  again  demanded  the  

payment.  PW-1, however, refused to pay as the sales tax was  

not leviable.  The appellant, however, told him that if a sum of  

Rs.1500/- was not paid within two or three days they would  

suffer on that account.

2. As  PW-1  was  not  prepared  to  make  the  payment,  he  

appeared on 5th January, 1994 before CW-16-M.Vishwanath,  

Inspector  in  the  Lokayuktha  Office  and  made  a  complaint  

Exhibit P-1 to him.  CW-16 also asked PW-7 Head Constable  

Khanderao,  to  secure  the  presence  of  PW-5  Basavant  

Shankargouda  Patil  and  PW-6  Mahadev  Sidramappa  

Dandoragi to act as witnesses.  They were accordingly brought  

to the office of the Inspector and the complainant narrated the  

entire story to them as well.  CW-16 also told PW-1 to produce  

the  bribe  amount  of  Rs.1500/-  and  the  currency  notes  

provided  by  him  were  smeared  with  Phenopthelene  powder  

and the details of the test to be conducted were also displayed  

to the witnesses.   

3. The  raiding  party  left  for  Bijapur  at  3:00  p.m.  and  

reached  the  Inspection  Bungalow at  about  5:00  p.m.  PW-1  

was sent to find out as to whether the appellant was available  

in his office.  He returned after a short while and told them  

that the appellant was indeed in the office and that he would  

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be  visiting  the  shop  in  the  evening.   The  party  thereafter  

returned to the Inspection Bungalow and then went on to the  

shop belonging to the complainant.  The appellant, however,  

came to the shop at about around 8:00 p.m. and at that time  

PW-2 was also present in the shop.  The appellant stated that  

he was in a hurry and that the payment should be made to  

him immediately.  PW-1 thereafter took out the currency notes  

and handed them over to the appellant who put the same in  

his hand bag.  Immediately thereafter, PW-1 came out of the  

shop and made a pre-determined signal on which CW-16 and  

PW-7  and  the  other  witnesses  rushed  in  shop.   CW-16,  

thereafter  took  out  the  money  from  the  hand  bag  of  the  

appellant and the Phenopthelene test was carried out and the  

colour of the solution turned pink.  The serial numbers of the  

currency notes were also tallied with the memo prepared at  

the time of the preparation of the trap.

4. On  the  completion  of  the  investigation  and  after  due  

sanction from PW-8, the Commissioner of Commercial Taxes,  

the appellant was brought to trial.  The prosecution in support  

of its case relied primarily on the evidence of PWs-1, 2 and 7  

and also the circumstantial evidence in the case as PWs-5 and  

6 turned hostile.   The Trial Court on a consideration of the  

evidence acquitted the appellant.  The matter was thereafter  

taken in appeal to the High Court.  The High Court has, by the  

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impugned judgment, set aside the conviction and sentenced  

the appellant as under:

“…………………..the accused is  sentenced to undergo  imprisonment for a period of 6 months and also to pay  a fine of Rs.2000/- and in default to suffer S.I. for one  month  for  the  offence  under  Section  7  of  the  Prevention of Corruption Act and he is also directed to  undergo imprisonment for a period of 1 year and also  to pay fine of Rs.5000/-  and in default to suffer S.I.  for 3 months for offence under Section 13 (1)(d) r/w 12  (2) of the said Act and the accused is directed to suffer  the  said  sentence  accordingly,   The  accused  is  also  directed appear before the trial court and to pay the  fine amount within one month from the date of this  judgment and the trial court shall commit him to the  prison to suffer imprisonment in accordance with this  judgment,  failing  which  the  trial  court  shall  issue  warrant and secure the presence of the accused and  commit  him  to  prison  in  accordance  with  this  judgment. Both  the  sentences  to  run  concurrently  and  the  accused is also entitled for the benefit of provisions of  Section 428 Cr.P.C.”

5. For arriving at its conclusions, the court observed that  

though interference in an appeal against acquittal should only  

be  for  substantial  and compelling  reasons but  at  the  same  

time it was open to the appellate court to review the evidence  

and to determine as to whether the judgment of the trial court  

was justified on the evidence if the acquittal was completely  

without basis, interference was called for.

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6. With this prefatory note,  the High Court  examined the  

evidence.  It was observed that the statements of PWs-1, 2 and  

7 were without any blemish as to the recovery of the bribe  

amount  was  proved  beyond  any  doubt  notwithstanding  the  

fact  that  CW-16,  the  Lokayuktha  Inspector,  had since  died  

and could not thus be examined as a witness.    The court  

observed  that  as  there  were  several  witnesses  to  the  trap  

merely because PWs-5 and 6 had not supported the evidence  

and  had been declared  hostile,  would  not  detract  from the  

evidence of the other witnesses.  The court also observed that  

the money had been handed over to the appellant who had put  

it  in  his  hands  bag  and  as  the  phenopthelene  test  was  

positive,  this  too  was  a  corroborative  evidence.   The  court  

further  opined  that  in  the  light  of  the  presumption  drawn  

under Section 20 of the Prevention of Corruption Act, 1988,  

the case against the appellant stood proved.   

7. The  present  appeal  has  been  filed  impugning  the  

judgment of the High Court.   

8. Mr.  Bhat,  the  learned  counsel  for  the  appellant  has  

submitted that the trial court had taken a view in favour of the  

appellant  and  interference  by  the  appellate  court  in  an  

acquittal  appeal  was  not  warranted.   It  has  also  been  

submitted  that  there  were  substantial  discrepancies  in  the  

evidence of PWs-1, 2 and 7 with respect to the actual trap as  

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PWs-5 and 6, the only two independent witnesses had been  

declared  hostile,  the  evidence  of  interested  witnesses  alone  

could not form the basis for conviction.

9. Mr. Hegde, the learned counsel for the State of Karnataka  

has, however, supported the judgment of High Court and has  

pointed out that there was absolutely no justification in the  

acquittal recorded by the Trial Court and the said judgment  

was completely contrary to the evidence.  It has been argued  

that the appellant had visited the premises belonging to PWs-1  

and 2 on three or four occasions and there was absolutely no  

reason as to why they would involve him in a false case as no  

animosity  of  any kind had been suggested.   He  has finally  

submitted in the light of the fact that the money had been  

recovered from the hand bag of the appellant a presumption  

under Section 20 of the Act was also to be raised against him.

10. We  have  considered  the  arguments  advanced  by  the  

learned counsel for the parties.  We find in the facts of the  

case that the decision of the High Court was fully justified.  

The Trial Court, had on a complete misreading of the evidence,  

rendered a judgment which could not be sustained.  We have  

also  gone  through  the  evidence  of  the  PWs.1  and  2  who  

categorically  speak  about  the  demand  and  these  witnesses  

alongwith PW-7 speak about the recovery of the tainted money  

as  well.   It  is  also  significant  that  the  evidence  had  been  

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recorded over a period of about four years and if there were  

some minor discrepancies inter-se PWs-1, 2 and 7, it would  

reasonably be explained on account of this long delay.

11. Mr.  Bhat  has,  however,  submitted  that  as CW-16,  the  

Investigating Officer had not been examined, this fact caused  

prejudice to the appellant.  This argument has absolutely no  

merit  as  CW-16  had  died  before  his  statement  could  be  

recorded.

12. For the reasons recorded above, we find no merit in this  

appeal.  It is accordingly dismissed.

……………………………..J. (HARJIT SINGH BEDI)

……………………………..J. (CHANDRAMAULI KR. PRASAD)

OCTOBER 05, 2010 NEW DELHI.

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