LAW FINDER

Submitted By: Prakash Naidu Advocate

PDF downloaded from the online archives of Chawla Publications(P) Ltd.

K.M. Mallaiah v. State of Karnataka (SC) : Law Finder Doc Id # 653540

2015 All SCR 1799 : 2015(2) R.C.R.(Criminal) 117 : 2015(2) Recent Apex Judgments (R.A.J.)
51 : 2015(2) Law Herald (SC) 1272
SUPREME COURT OF INDIA
Before:- Madan B. Lokur and R.K. Agrawal, JJ.
Criminal Appeal No. 260 of 2015 (Arising out of SLP (Crl.) No. 6965 of 2014). D/d. 10.2.2015.
K.M. Mallaiah - Appellant
Versus
State of Karnataka - Respondent
For the Appellant :- Mr. B.P.S. Patil, Senior Advocate, Mr. Amjid Maqbool, Mr. Chinmay Deshpande,
Mr. B. Subrahmanya Prasad and Anirudh Sanganeria, Advocates.
For the Respondent :- Mr. Parikshit P. Angadi and Mr. V.N. Raghupathy, Advocates.
Prevention of Corruption Act, 1988 Sections 7 , 13 (1)(d) and 13 (2) Acquittal in corruption
case -
(i) Prosecution version that accused demanded L 3000/- for releasing medical leave
salary of complainant - A trap was laid - Bribe money was paid to accused -
According to prosecution shadow witness was given micro tape recorder to record
conversion - Accused acquitted on following grounds :-
(i) Complainant not examined as he had died.
(ii) Shadow witness stated that he did not hear the conversion.
(iii) Tape recorder not produced on court.
(iv) Tainted currency notes were lost and were not produced before the trial Court.
[Paras 11 to 15]
ORDER
1. Leave granted.
2. The appellant is aggrieved by the judgment and order dated 22.7.2014 passed by the Karnataka
High Court in Criminal Appeal No. 969 of 2011.
3. By the impugned judgment and order, the conviction of the appellant for offences punishable
under Section 7, 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988, (for
short 'the Act') was affirmed and he was sentenced to undergo rigorous imprisonment for a period
of one year and to pay a fine of L 5000/-. In default of payment of fine, the appellant was to
undergo further rigorous imprisonment for a period of six months.

1/3
 LAW FINDER
Submitted By: Prakash Naidu Advocate
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

4. The case of the prosecution is that one V. Nagabhushan, was on medical leave and was
subsequently unauthorizedly absent. He wanted his pay to be sanctioned for the period that he was
on medical leave and while he was unauthorizedly absent. The appellant is alleged to have agreed
to do the needful but demanded bribe of L 3,000/- for obliging Nagabhushan.
5. In view of the alleged demand made by the appellant, Nagabhushan made a complaint to the
office of the Lokayuktha on 26th December, 2006.
6. Thereafter, in association with the office of the Lokayuktha and the Lokayuktha police, a trap
was laid in which Nagabhushan was to pay the bribe amount to the appellant in the presence of a
shadow witness Ashwathnarayana. A micro tape recorder was given to Ashwathnarayana to record
the proceedings when the bribe was being paid to the appellant.
7. As per the pre-arranged procedure decided by the Lokayuktha police, the complainant
Nagabhushan and the Ashwathnarayana went to the office of the appellant and on his demand
paid him the bribe. Thereupon Nagabhushan gave a signal to the raiding party which apprehended
the appellant and conducted proceedings relating to the trap laid out. A mahazar was also drawn
up which included the contents of the micro tape recorder and after recording the proceedings a
charge-sheet was filed against the appellant. On these facts a prosecution was lodged against the
appellant and the trial Court found the appellant guilty of an offence under the Act and sentenced
him.
8. Feeling aggrieved, the appellant preferred a criminal appeal which came to be dismissed by the
High Court thereby affirming the decision of the trial Court. It is, in these circumstances that the
appellant is before us.
9. It is submitted that even though the proceedings took place on or about 26.12.2006, the
complainant Nagabhushan was not examined by the prosecution for as long as five years and
ultimately the complainant is reported to have died on 3.8.2011. That apart, it is submitted that
PW.1 Ashwathnarayana admitted in his cross-examination that he did not hear the conversation
that took place between the complainant Nagabhushan and the appellant. To make matters worse,
it is admitted that the micro tape recorder was not produced before the trial Court. Finally, it is
submitted that the treated currency notes and which were said to have been accepted as a bribe by
the appellant were lost and were not produced before the trial Court.
10. We have gone through the evidence with the assistance of learned counsel for the parties and
also heard them in considerable detail.
11. The admitted position is that the complainant Nagabhushan died during the pendency of the
proceedings and was not examined by the prosecution for as long as five years. It is not clear why
the complainant Nagabhushan was not examined for such a long time. But be that as it may, the
person who could have confirmed the demand for a bribe by the appellant, that is, PW.1
Ashwathanarayana stated in his cross-examination that he did not hear any conversation between
the complainant and the appellant. Consequently, there is no evidence on record to show that there
was any demand of bribe made by the appellant.
12. It is on record that entire conversation that took place between the complainant Nagabhushan
and the appellant was recorded on a micro tape recorder and the conversation was actually
transcribed in a mahazar but the micro tape recorder was not produced before the trial Court to
confirm the transcription. This could have been used to confirm the demand for a bribe but was
not produced by the prosecution for reasons best known to it.

2/3
 LAW FINDER
Submitted By: Prakash Naidu Advocate
PDF downloaded from the online archives of Chawla Publications(P) Ltd.

13. In the circumstances, there is absolutely no evidence on record to indicate that the appellant
had demanded a bribe from the complainant Nagabhushan for sanctioning the salary said to have
been due to him.
14. We may note that from the judgment under appeal it is clear that it was submitted by the
appellant before the High Court that the micro tape recorder was not produced before the trial
Court and the effect of this was also submitted before the High Court. Yet there is no finding given
by the High Court in this regard. In fact this submission has been completely glossed over by the
High Court. We also find that the High Court has considered only the examination-in-chief of PW.1
Ashwathanarayana but has not considered his cross-examination to the effect that he did not hear
the conversation between the complainant Nagabhushan and the appellant.
15. In the circumstances, we are of the opinion that the High Court erred in upholding the
conviction of the appellant. Accordingly, the appeal is allowed and the judgment and order passed
by the High Court and accordingly conviction of the appellant is set aside. We make it clear that the
observations made in the criminal case filed against the appellant will not have any effect on the
pending departmental proceedings against the appellant.
16. The appellant is on bail. His bail bonds shall stand discharged.
.

3/3