Bangalore District Court
The State Of Karnataka vs H.T. Chandrashekar on 9 August, 2021
1
Spl.CC 41/2011
IN THE COURT OF LXXVIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE (P.C.Act), BENGALURU
(C.C.H-79)
Present: Sri.Gopalakrishna Rai.T, B.A.(Law), LL.B.,
LXXVIII Addl.City Civil & Sessions Judge
& Special Judge (P.C.Act.), Bengaluru.
Dated: 09th August, 2021
Spl.C.C.No.41/2011
Complainant: The State of Karnataka, represented by
Police Inspector, Karnataka Lokayukta,
City Division, Bengaluru.
(Represented by Public Prosecutor)
vs.
Accused: H.T. Chandrashekar,
S/o Late Thammegowda,
46 years, Assistant Engineer,
BBMP, Joint Commissioner
(East division) office,
Mayohal, Bengaluru.
R/at No.2512/88, 7th Main Road,
8th Cross Road, RPC Layout,
Vijayanagara, Bengaluru-40.
(Represented Sri. P. Prasanna Kumar,
Advocate)
Date of commission of offence : 29-09-2010
Date of report of occurrence : 29-09-2010
Date of arrest of accused : 29-09-2010
Date of release of accused on bail : 06-10-2010
Date of commencement of evidence : 07-02-2017
Date of closing of evidence : 18-04-2019
2
Spl.CC 41/2011
Name of the complainant : M. Basavaraju
Offences complained of : under sections 7, 13(1)(d) r/w
section 13(2) of Prevention
of Corruption Act.
Opinion of the Judge : Accused is found guilty.
JUDGMENT
The Police Inspector Sri S. Ramesh Babu of Karnataka Lokayukta Police, City Division, Bengaluru, has filed the charge sheet against accused H.T. Chandrashekar for the offences punishable under sections 7, 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988. (in short PC Act).
2. The essence of the prosecution case is that :-
The accused was working as Assistant Engineer in the office of Joint Commissioner (East), BBMP, Bengaluru. CW.6/PW4 Sri A. Ravishankar Shetty, Partner of M/s Vinayaka Enterprises, who intended to put up a commercial complex and residential building in property No.5/1, Kumarapark Road, Bengaluru, had approached the Joint Commissioner (East), BBMP, Bengaluru for securing Sanction Plan. The concerned committee has given approval on 23-9-2010. On behalf of CW.6, CW.1/PW 6 N. Basavaraju approached the accused on 25-9-2010. On that day accused has asked CW.1 to bring DD towards payment of plan fee and demanded bribe of Rs.1,00,000/-. Though the accused had already received Rs.1,00,000/- for the issuance of Sanction Plan, once again he demanded Rs.1,00,000/-. Where after negotiation, was scaled down to Rs.50,000/-. Disinclined to advance 3 Spl.CC 41/2011 illegal gratification, the complainant/PW 6 Basavaraju approached P W 8 Suresh Babu, Inspector, Karnataka Lokayuktha and lodged a written complaint as per Ex P13. He after registering the case, took preparatory steps to lay trap to intercept the accused and set up a trap team consisting of himself, complainant Basavaraju and panchas by name Srinivas and Umashankar. Currency notes furnished by the complainant amounting to Rs 50,000/- were treated with phenolphthalein powder and handed over to the complainant to be delivered to the accused on demand. PW2 Umashankar was nominated as shadow witness to accompany the complainant so as to be a witness to the possible transaction. Subsequent there to, on the same day, trap team visited the office of the accused, the complainant met the accused in his room and subsequently at 4.00 p.m while sitting in car No.KA.09.P 693 parked by the side of gate abutting to M.G.Road near the office of B.B.M.P, the accused received the tainted money of Rs 50,000/-. When trap team surrounded the car and subjected the hands of the accused to the process of hand wash in sodium carbonate solution the same turned to pink colour thereby evidencing that the accused has handled tainted money of Rs 50,000/-. So, the Investigating Officer having conducted successful trap and on securing required sanction at the later stage, has laid the Chargesheet.
3. After hearing both sides, this court has duly framed the charges for the alleged offences against the accused. The accused having denied the charges leveled against him has claimed to be tried and accordingly, the prosecution in order to establish the guilt of the 4 Spl.CC 41/2011 accused has examined totally 8 witnesses as PW.1 to 8 and has produced documents at Ex.P.1 to 31 and 19 material objects. At the time of cross examination of PW6 the accused confronted and got marked Ex D1.
4. The statement of accused as required under section 313 of Cr.P.C. is duly recorded and he has filed his written statement as provided under section 313 (5) of Cr.P.C.
5. In his written statement, the accused has stated as under :-
On 22-9-2010 Plan was approved by the Plan Sanctioning Committee and accordingly a notice was issued to M/s Vinayaka Enterprises calling upon it to remit required fee through DD and to execute undertaking bond. The accused was not Supreme Authority to deal with the application filed by the complainant. Though notice was served, fee was not remitted through DD and undertaking bond containing signatures of Owners, Architect and Engineer on the blue print was also not executed and the file was kept pending with concerned case worker. Hence, alleged demand for bribe amount does not arise. As on 29-9-2011 or prior to this date no work of the complainant was pending with the accused. Therefore, there was no occasion for the accused to demand any bribe amount from the complainant. The complainant has made hectic efforts to secure approved plan without remitting required fee and executing undertaking bond. When accused has refused to do so, by adopting arm twist method, the complainant has filed false case. Based upon false information given by the complainant, Lokayukta police forcibly 5 Spl.CC 41/2011 managed to hand over tainted currency notes to the accused. Hence, the accused has been victimized. However, to substantiate his defence the accused did not examine any witnesses on his behalf.
6. Heard the arguments of learned Public Prosecutor for the State and Sri K.S.P., Advocate for the accused. In addition to his oral submissions, learned counsel for the accused has also filed written arguments along with citations. The Prosecutor has placed reliance on the decisions of the Hon'ble Supreme Court in Special Leave Petition No. 5965/2019, in the case between Kallappa Mallappa Kamble V/s State of Karnataka, Crl.A.No.1180/2004, Crl.A.No.412/2013 and Crl.A.No.358-359/2008. The counsel for the accused has placed reliance on the decisions reported in 2014(10) SCC 473, 2015 SCC on-line 814, 2016(1) KCCR 815, 1979(4) SCC 526, 2012(1) KCCR 414, 2011(6) SCC 450, 2010(3) KCCR 1851, 2000(5) SCC 21 and in 1980 (Supp) SCC 684. The arguments of rival sides and the evidence on record to the extent essential is analysed and ratio of relevant citations are followed to adjudicate the charges leveled against the accused.
7. Now, points that are arisen for the due consideration of this court:-
1) Does the prosecution proves the fact that as required under section 19 of P.C.Act it has obtained valid sanction to prosecute the accused?
2) Does the prosecution beyond reasonable doubt proves the fact that the accused being a public servant working as Assistant Engineer, BBMP (East) 6 Spl.CC 41/2011 has demanded and accepted an illegal gratification of Rs.50,000/- from PW.6 N. Basavaraju and thereby committed an offence punishable under section 7 of PC Act ?
3) Does the prosecution proves beyond reasonable doubt that the accused has committed criminal mis-conduct as defined under section 13(1)(d) which is punishable under section 13(2) of P.C. Act ?
4) What Order?
8. My findings on the above points are:-
Point no.1 : in the affirmative Point no.2 : in the affirmative Point no.3 : in the affirmative Point no.4. : as per final order for the following:
REASONS
9.1. In order to prove charge against the accused for the offences punishable under sections 7, 13(1)(d) read with section 13(2) of PC Act, the prosecution has examined as many as 8 witnesses as P.Ws.1 to 8 besides marking Ex.P-1 to P-31 and MO.1 to 19. Further, at the time of cross-examination of PW.6, one document is confronted to him and same was marked as Ex.D-1. Now the endeavor of this court is to ascertain as to whether sufficient evidence is forthcoming from the side of prosecution against the accused to make out a case against him for the offence alleged.
9.2. Now, moving to the evidence of PW.6 N. Basavaraju, he being the complainant has deposed that on behalf of one Ravishankar 7 Spl.CC 41/2011 Shetty, when he approached the accused on 25-9-2010 for the issuance of Sanction Plan, he demanded bribe amount of Rs.50,000/-. It is also his evidence that being disinclined to pay bribe he lodged Ex.P-13 complaint and based on the same the Lokayukta police have registered the case, laid a trap and was successful as the accused demanded and accepted bribe of Rs.50,000/-.
9.3. PW.1 K. Srinivas and PW.2 B.N. Umashankar being panchas have deposed that they have participated in the process of pre-trap panchanama. It is also their evidence that the accused has received Rs.50,000/- from the complainant and hence, trap was successful.
9.4. PW.3 Malleshi Tavane being the colleague of the accused has deposed that he has given a Report as per Ex.P-5 to Lokayukta Police.
9.5. PW.4 Ravishankar Shetty being the Partner of M/s Vinayaka Enterprises has deposed that since accused has demanded illegal gratification for the issuance of Sanction Plan, he entrusted the work to PW.6 N. Basavaraju by executing authority as per Ex.P-10. It is also his evidence that he has paid Rs.50,000/- to PW.6 so as to enable Lokayukta police to trap the accused.
9.6. PW.5 G. Siddagangaiah, retired Deputy Secretary, Government of Karnataka, has deposed that he received a requisition along with investigation records including complaint, FIR, pre-trap mahazar and statement of witnesses where under ADGP has requested 8 Spl.CC 41/2011 him to issue Prosecution Sanction Order to prosecute accused H.T. Chandrashekar. It is his evidence that he had gone through the investigation records and on applying his mind he found prima facie case against the accused under the provisions of PC Act and hence issued Prosecution Sanction Order as per Ex.P-11.
9.7. PW.7 Narayanaswamy has deposed that Ravishankar Shetty of M/s Vinayaka Enterprises entrusted him to apply for Sanction Plan and at that time accused has demanded bribe amount of Rs.4,00,000/- and he paid Rs.1,00,000/- to him. It is also his evidence that since remaining amount was not paid, the accused has delayed the work of issuing Sanction Plan.
9.8. PW.8 Suresh Babu has deposed that based on Ex.P-13 complaint he has registered the case against the accused, submitted FIR to the court, secured presence of two witnesses, followed procedure, applied phenolphthalein powder to currency notes of Rs.50,000/-, transcripted its numbers and taken a print out as per Ex.P-1, drawn pre-trap panchanama, laid a trap, the same was successful and hence, after securing Prosecution Sanction, filed the chargesheet against the accused.
10. Point No.1:
10.1. It is the contention of the prosecution that in order to prosecute the accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act., it has secured valid sanction as per Ex.P-11. The learned defense counsel attacking 9 Spl.CC 41/2011 the order of sanction as per Ex.P-11 has submitted that, the same was practically drafted by Lokayukta police, sanctioning authority has not applied its mind and hence, Ex.P-11 has no sanctity in the eyes of law. In order to substantiate this submission he has relied on the evidence of PW.5, however, the suggestion that he has issued Ex.P-11 mechanically without verifying the records is denied by PW.5. In fact, learned PP submitted that sanction order in question as per Ex.P-11 was given by PW.5 only after verification of records and on application of mind and hence, there can be no ground to treat the order of sanction on hand as bad in law. However, in view of the rival submissions it is incumbent upon the court to examine the evidence of PW.5 in the light of the documentary evidence placed on record and law on the point.
10.2. At the very first instance itself I would like to make it very clear that there is no dispute that this accused was working as Assistant Engineer, BBMP (East), Bengaluru as on the date of alleged trap and earlier to it. Therefore, the accused is a public servant as defined under section 2(c) of PC Act. Hence, it is for the prosecution to show that, it has obtained valid sanction to prosecute the accused as required under section 19 of PC Act.
Similarly, it is incumbent for the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This process can be established by 10 Spl.CC 41/2011 producing original sanction order which contains the facts constituting the offence and the grounds of satisfaction and also by adducing the evidence of the author, who has issued order.
10.3. Before adverting to the facts of the case and evidence placed on record, in the opinion of this Court it is just and necessary to place reliance on the decision reported in 2013 (8) SCC 119 in the case between State of Maharastra through CBI Vs. Mahesh.G.Jain. In the said decision the Apex Court has held that "the adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. An order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity. When there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused."
10.4. In the present case, in order to substantiate the fact that it has obtained valid sanction to prosecute the accused, the prosecution has examined one G. Siddagangaiah as PW.5. It is his evidence that while discharging his duties as Under Secretary to the Government, PWD, Port & Inland Water Department, he received a requisition from ADGP, Lokayukta seeking prosecution sanction order. It is also his evidence that along with requisition he received investigation records 11 Spl.CC 41/2011 including complaint, FIR, pre-trap mahazar and statement of witnesses. His evidence would also show that investigating agency has sought for prosecution sanction to prosecute accused H.T. Chandrashekar working as Assistant Engineer in PWD and working on deputation to BBMP. In fact the evidence of PW.5 was formulated into the form of questions as per question No.122 to 129 while recording statement of the accused as required u/s. 313 of Cr.P.C. At question No.125 when a specific question is posed to the accused to the effect that PW.5 has been authorised to accord sanction to prosecute him, the accused has admitted this fact. From the above answer to question No.125, it is clear that accused has unequivocally admitted the Authority of PW.5 to issue prosecution sanction order as per Ex.P-11.
10.5. The counsel for the accused has submitted that though PW 5 has authored Ex P11, he has not applied his independent mind to the materials produced by the investigating agency. No doubt, as has been contended by the accused, PW 5 has deposed that except investigation record he has not gone through any other records. This evidence of PW 5 is in tune with the theory of prosecution. PW 5 being the author of Ex P11, was expected to examine the materials that were produced by the investigating agency and not more than that. Hence, the above portion of evidence of PW 5 that he has not examined any other documents other than investigation records would 12 Spl.CC 41/2011 show that he has applied his independent mind to the materials produced by the prosecution.
10.6. It is submitted that even according to PW 5 submission of D.D was a condition precedent to issue sanction plan but in the present case PW 6 being the authorised person of PW 4 did not produce DD as on the date of lodging complaint and this aspect of the matter is not at all considered by PW 5 and therefore no sanctity can be attached to Ex P11. This argument does not merit for consideration because PW 5 being the author of Ex P11 is expected to examine investigation materials only. This has been done by PW 5 as the same is evident from Ex P11.
10.7. It is the evidence of PW.5 that he has examined copy of complaint, FIR, statement of witnesses, chemical examination report and then on expressing his satisfaction to the materials, has issued Ex.P-11. Therefore, the evidence of PW.5 clearly indicate that on verification and careful scrutiny of records placed by ADGP, Lokayukta, on application of his mind he has issued Ex.P-11.
10.8. Further, a meaningful reading of evidence of PW.5 would clearly establish that he has stated as to what he has done after the receipt of request letter and materials collected by the investigating agency. Therefore, to disbelieve or to discard the testimony of PW.5 there are no reasons much less good reasons. In addition to it, the accused has not taken the contention that 13 Spl.CC 41/2011 only to falsely implicate him in the case, in collusion with Lokayukta police, PW.5 has issued false sanction order as per Ex.P-11. In the absence of any allegations of bias, it is wrong to discard otherwise impeccable evidence of PW 5.
10.9. In addition to the above factual aspect of the matter, law presumes that until the contrary is established, the authority has acted fairly and objectively and recorded its satisfaction based on the materials placed before it. In the present case also a conjoint reading of the evidence of PW.5 and contents of Ex.P.11 would establish the fact that, on applying its mind, the Authority constituted under Karnataka Government (Transaction of Business), Rules 1977 has issued Ex.P.11 sanction order. Hence, there is no reason to accept the contention of the accused that P.W.5 has issued Ex.P.11 mechanically.
10.10. In 2014(14) SCC 295 in the case between CBI Vs. Ashok Kumar Agarwal, the Apex Court of this Nation has held that, "the prosecution has to satisfy the Court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the 14 Spl.CC 41/2011 sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or to withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions with regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought".
10.11. It is also to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the public servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
10.12. Consideration of the material implies application of mind. Therefore, the order of sanction must ex-facie disclose that the sanctioning authority had considered the evidence and other materials placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant materials i.e, FIR, disclosure statement, recovery memos, draft chargesheet and other materials on records were placed before 15 Spl.CC 41/2011 the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind.
10.13. There is an obligation on the Sanctioning Authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. The prosecution must therefore send the entire relevant record to the Sanctioning Authority including FIR, disclosure Statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favor of the accused and on the basis of which, the Competent Authority may refuse action. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently by applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. The order of sanction should make it evident that the 16 Spl.CC 41/2011 authority had been aware of all relevant facts/materials and had applied its mind to all the relevant materials. In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that entire relevant facts had been placed before the Sanctioning Authority and the authority had applied its mind on the same and that sanction had been granted in accordance with law. From the study of above decision it is clear that the prosecution is under obligation to place entire records before Sanctioning Authority and satisfy the Court that, the authority has applied its mind. Similarly, the Sanctioning Authority has to do complete and conscious scrutiny of whole record placed before it. The sanction order should show that the authority has considered all the relevant facts and applied its mind. The reading of Ex.P.11 would show that the prosecution has placed investigation materials before PW.5 and he has applied his mind.
10.14. Thus, as per the discussions made herein above, it is evident that the prosecution has proved that Ex.P.11 order was issued by the competent authority after due application of mind to the materials produced by the investigating agency. Further, on independent appreciation of investigation materials, this court is also of the opinion that there are sufficient materials to accord prosecution sanction. Hence, the infirmities in respect of Ex.P.11 sanction order, pointed out by the learned counsel for the accused are not sufficient to hold that the prosecution did 17 Spl.CC 41/2011 not secure a valid sanction to prosecute the accused. Further, the same does not merit for consideration in view of the decision reported in 2013(8) SCC 119 referred hereinabove.
10.15. Hence, the oral and documentary evidence produced by the prosecution would clearly establish that it has secured valid sanction to prosecute the accused. In addition to it, the evidence produced by the prosecution is in accordance with the parameters imposed by the Hon'ble Apex Court in the decisions referred to above. Resultantly, it is held that the prosecution has secured a valid sanction to prosecute accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act. Accordingly, point no.1 is answered in the affirmative.
11. Points No.2 & 3:
Now let me consider both points at a stretch for discussion for the purpose of convenience and to avoid repetition of facts as they are inter-related.
11.1. It is the contention of the prosecution that PW 6 Basavaraju has lodged Ex P13 complaint and based on which a criminal case was registered in Crime No.47/2010 against the accused for the offence punishable under section 7, 13(1)(d) read with section 13(2) of P.C.Act. A perusal of complaint dated 29.09.2010 available as per Ex P13 would indicate that S.H.O of Lokayukta Police Station on being satisfied with the allegations that were made in the complaint 18 Spl.CC 41/2011 has registered the case and proceeded further in the lines of making preparations to lay trap so as to intercept the accused. It is the definite evidence of PW 8 S.Suresh Babu that on receipt of the complaint as per Ex P13, he registered the case and transmitted Ex P15 FIR to the jurisdictional Special Judge. The accused at no stage claimed that there existent any enimity or other motive for PW 8 to falsely implicate him in the instant case.
11.2 In the present case it is the definite contention of the accused that there is inordinate delay in lodging complaint and hence, the same is fatal to the case of the prosecution. A perusal of Ex P13 would show that the case was registered on 29.09.2010 at 11.15 hours and FIR was received by the Special Judge on 29.09.2010 at 12.45 p.m. Therefore absolutely there is no delay in transmitting the FIR to the Special Judge.
11.3. The counsel for the accused has submitted that as per the allegations made in Ex P13 complaint, on 25.09.2010 itself the accused has demanded illegal gratification but immediately no complaint was lodged to the police, on the contrary Ex P13 complaint was lodged on 29.09.2010 and therefore there is delay in lodging compliant. The averments that were made in the complaint would show that though on 25.09.2010 the accused has demanded illegal gratification of Rs 1,00,000/-, there was negotiation and thereafter the accused has agreed to receive illegal gratification of Rs 50,000/-. The evidence of PW 6 Basavaraju would reveal that as the accused has agreed to receive Rs 50,000/-, he has paid the same to him on 19 Spl.CC 41/2011 29.09.2010 as planned. Therefore, above aspect of the matter would indicate that there is no delay in lodging complaint.
11.4. At the time of cross-examination of PW 6 at para 43 it is elicited that immediately after 25.09.2010, he had no impediment to lodge complaint. As per the version of PW 6, except Ex P13 no other complaint was lodged against the accused either by himself or by Ravishankara Shetty. The materials placed on record would indicate that PW 6 has approached the accused on behalf of Ravishankara Shetty. Therefore, he had no independent authority to take any action in the lines of lodging complaint against the accused to Lokayukta Police immediately.
11.5. The counsel for the accused has invited the attention of this Court with regard to column No.3(c) of Ex P15 F.I.R and submitted that in this column delay for lodging the complaint has not been narrated. This submission is in accordance with the contents of Ex P15. However, cumulative effect of evidence of PW 6 is that since the accused has demand illegal gratification, he informed the same to PW 4 and collected Rs 50,000/- from him and produced the same before PW 8. From the evidence placed on record it is also clear that since there was negotiation, PW 6 has lodged complaint on 29.09.2010. Therefore, in a case like instant one, delay may not be a ground to dislodge entire theory of the prosecution. Further, in the present case according to the opinion of this Court, absolutely there is no delay in lodging the complaint.20
Spl.CC 41/2011 11.6. In AIR 2010 SC 944 in the case between Om Prakash V/s State of Uttar Pradesh, it was held that delay in lodging FIR assumes great importance in cases where there is enmity between the parties. In the present case there is no material to show that either Ravishankara Shetty or Basavaraju were in enemical terms with the accused. The allegations that were made in the complaint and the testimony of PW 6 would indicate that after demand so made by the accused, it was scaled down to Rs 50,000/- and thereafterwards Ex P13 was lodged. Under the circumstances, even if there is delay in lodging the complaint then also the same is not at all fatal to the case of the prosecution.
11.7. Further, in AIR 2012 SC 2488 in the case between Jithendra Kumar V/s State of Haryana it was held that mere delay in lodging FIR cannot be ground for throwing away the entire prosecution case. In view of the above decision, it is for this Court to consider other attending circumstances. But, in the present case from the meticulous perusal of material evidence placed on record, this Court is of the opinion that there is no delay in lodging the complaint as contended by the accused.
11.8. The learned counsel for the accused by placing reliance on the decision reported in 2014(2) SCC 1 in the case between Lalitha Kumari V/s Government of Uttar Pradesh and others argued that after receipt of Ex P13 complaint the Investigating Officer ought to have made preliminary enquiry with regard to the genuineness of allegations that were made therein and also pendency of the work with 21 Spl.CC 41/2011 the accused, but, he has not chosen to do so and hence, entire investigation is vitiated. A perusal of complaint dated 29.09.2010 as per Ex P13 would show that along with the complaint, PW 6 Basavaraju has produced a C.D said to containing the conversation that was taken place between himself and the accused with a regard to alleged demand of bribe. The fact that after receipt of complaint, a Pre-trap panchanama as per Ex P2 was drawn in the office of PW 8 is not seriously disputed by the accused. A meaningful reading of Ex P2 at page No.4 would show that the accused has demand for illegal gratification. It is the evidence of PW 8 that along with Ex P13 the complainant has produced one CD and the same was preserved as Article No.III as per MO 6. This process is also not denied by the accused. It is the definite evidence of PW 6 that except CD, he did not produce any document along with Ex P13 so as to justify the veracity of the allegations made therein. But his evidence would show that he has produced CD said to containing conversation that was taken place between himself and the accused. Whereas the evidence of PW 8 in the cross examination would show that the accused has not only produced one CD but also one receipt along with the complaint. From the evidence of PW 8 it is clear that since he has satisfied with the allegations made in the complaint as per Ex P13, he has registered the case against the accused and made preparation to trap the accused. Therefore in the opinion of this Court it was not the need of the hour to conduct any preliminary enquiry as enumerated in the decision of Lalithakumari's case. Hence, non conducting of preliminary enquiry as contended by the accused is not fatal to the case of the prosecution.
22Spl.CC 41/2011 11.9. It is definite stand of the accused that no work of the complainant was pending with him and hence question he demanding and accepting bribe amount does not arise. In fact to substantiate this stand, learned counsel for the accused has placed reliance on the proceedings of B.B.M.P dated 22.09.2010 available in ink page no.67 of Ex P8. As per this proceedings, the accused was not the member of the Committee constituted for approval of plan. In fact, PW 8 being the Investigating Officer into the crime has deposed that the accused was not the member of plan sanctioning committee. It is also his evidence that the accused was not the sole authority to approve the plan. It is not the case of the prosecution that the accused was the member of plan sanctioning committee or sole authority empowered to sanction the plan. The materials placed on record would show that the plan sanctioning committee has approved the plan of M/s Vinayaka Enterprises. However, it is relevant to note that mere passing of Resolution in the meeting is not sufficient, on the other hand, it is the duty of the officer of the concerned section to execute the Resolution passed by the committee. The stand taken by the accused would show that on 29.09.2010 he has called upon the complainant to get the signatures of Owners and Architect of the building on the plan and remit the D.D. If really no work of the complainant was pending with the accused as on 29.09.2010, there was no necessity for him to ask the complainant to get the signatures of the Owners and Architect of the building on the plan. Therefore, only conclusion that can be arrived is that since it was the responsibility of the accused to carry out the Resolution of the 23 Spl.CC 41/2011 committee, he has asked the complainant to get the signatures of the Owners of the site and Architect on the plan and remit DD for a sum of Rs.1,05,500/-.
11.10. It is the contention of the accused that the complainant did not obtain the signatures of the Owners of the site and Architect on the plan and hence the plan was not approved as per the resolution of the committee. In order to substantiate the same, he has placed the reliance on unsigned plan available in ink page No.130 of Ex P8. But a perusal of ink page No.132 of Ex P8 would clearly indicate that before 29.09.2010 itself, in the approved plan, the Owners/ Partners of Sri.Vinayaka Enterprises and Architect by name Prasanna Kumar have affixed their signatures. Therefore, the contention of the accused that PW 6 has not obtained the signatures of Owners and Architect on the plan and hence no work was pending with him is not probable to accept.
11.11. The learned counsel for the accused has placed reliance on the Report as per Ex P5 given by M.E.Tawani/ PW 3 and argued that at the time of trap file was not pending with the accused and on the other hand, at the request of Investigating Officer subsequently PW 3 has produced certified copies of the file pertaining to the complaint as per Ex P8. According to the opinion of this Court there is no merit in this submission because a perusal of Ex P3 trap panchanama dated 29.09.2010 at page No.8 would clearly show that when the Investigating Officer has asked Mr.Tavani to produce the file pertaining to the complainant, he has stated that the file was very 24 Spl.CC 41/2011 much available with the accused. Further as per Ex P3, page No.8 para 3, the I.O has collected the file of Property No.5/1, Kumarakrupa Road, Madhavanagara, Sampangiramanagara Ward No.27, B.B.M.P, Bengaluru from the table drawer of the accused. The contents of Ex P3 as narrated above is not at all challenged by the accused at the time of cross examination of any of the prosecution witnesses. Thus, it is crystal clear that entire file was found in the table drawer of the accused and subsequently through PW 3 at the spot itself the investigating officer secured the certified copies of the same. Therefore, this aspect of the matter throw much light with regard to the pendency of the work with the accused. This observation is also supported by the fact that PW 1 and 2 have also affixed their signatures on originals of Ex P8 in the office of the accused at the time of trap.
11.12. In addition to the above proved facts, the cumulative effect of oral and documentary evidence makes it very clear that the file pertaining to the complainant was very much available with the accused. In view of the above circumstances, merely on the ground that accused was not the authority to approve the Sanction Plan, does not lead to the conclusion that no work of the complainant was pending with him. On the other hand, it emanates from the evidence that the accused is the officer expected to execute the Resolution of the Committee and issue Sanction Plan after the compliance of formalities. In the present case, the contents of Ex P13 complaint and the evidence of PW 4 and 6 clearly indicate that the work was very much pending with the accused.
25Spl.CC 41/2011 11.13. In view of the above circumstances it is just and necessary to appreciate oral and documentary evidence placed on record and to find out whether the accused has demanded illegal gratification of Rs 50,000/- and subsequently received it from the complainant by making demand in the light of provision of law and settled proposition of law.
11.14. In order to bring home the guilt of the accused for the offence punishable under section 7 of PC Act, prosecution has to prove that the accused being a public servant demanded and accepted illegal gratification. The prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to the complainant.
11.15. In the decision reported in 2015 (16) SCC 350 in the case between Khaleel Ahmed Vs. State of Karnataka it is held that it is golden principle of criminal law that the burden of proof required to be discharged by the prosecution is one of "proof beyond reasonable doubt". Further, in 2013 (12) SCC 406 it is held that "suspicion however grave it may be, cannot take the place of proof, and there is large difference between something that may be proved and something that will be proved." No doubt, it is true that as has been held in Khaleel Ahmed's case demand of illegal gratification is a sine qua non for the offence under section 7 and 13(1)(d) of PC Act.
26Spl.CC 41/2011 11.16. Therefore, without proving demand for illegal gratification by the accused, prosecution cannot proceed further. For the offence under Section 7 of PC Act even an official act or favour to be done by the accused to the complainant and demand of bribe to do such official act or favour is also to be established.
11.17. In addition to the above, under Section 20 of PC Act, there is a presumption available in respect of offence under section 7. The benefit of presumption can be extended in favour of prosecution and onus can be shifted upon accused only when prosecution discharges initial burden of proving that accused has demanded and accepted illegal gratification.
11.18. Further, under Section 13(1)(d), accused receiving pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant or receiving any pecuniary advantage without any public interest would constitute the offence.
11.19. It is the definite case of the prosecution that the work of M/s Vinayaka Enterprises i.e., securing approved plan was pending in the office of Joint Commissioner, BBMP. In order to substantiate this aspect of the matter, the prosecution has placed reliance on the evidence of PW.4 Ravishankar Shetty. It is the evidence of PW.4 that he intended to put up a commercial complex in property No.5/1 of Madhava Nagar, 27 Spl.CC 41/2011 ward No.77 of BBMP and hence, he had entrusted the task of getting approved plan from BBMP to Narayanaswamy and paid Rs.1,00,000/-. This evidence of PW.4 is in tune with the theory of the prosecution.
11.20. Further, PW.4 has deposed that Narayanaswamy told him that for approval of plan, Engineer by name Chandrashekar is demanding money and hence, he has paid Rs.1,00,000/- to Narayanaswamy. It is also the evidence of PW.4 that since Narayanaswamy could not succeed in the task of securing approved plan and he has entrusted the work to N. Basavaraju by issuing Ex.P-10 authorisation letter. Further, he has deposed that he had paid Rs.50,000/- to N. Basavaraju. No doubt, PW.4 is subjected to cross-examination but to disbelieve or to discard his testimony there are no reasons before the court as nothing worthwhile is elicited from his mouth. It is not the case of the accused that this witness was in enemical terms with him and hence, he has given false evidence before the court. It is true that during the course of arguments, learned counsel for the accused has pointed out minor contradictions and omissions that are found in the evidence of PW.4. But, in the opinion of this court minor contradictions and omissions found in the evidence of PW.4 are not in the nature of taking away his entire evidence. On the other hand, from the meticulous scrutiny of the same it is clear that the evidence of PW.4 is worthy to accept.
28Spl.CC 41/2011 11.21. In fact, the prosecution has also placed reliance on evidence of PW.7 Narayanaswamy. It is the evidence of PW.7 that he was a well wisher of Ravishankar Shetty who was running one firm by name M/s Vinayaka Enterprises at Kumarapark, Bengaluru. The evidence of this witness would reveal that he was entrusted with the task of securing Sanction Plan and accordingly he has applied for the same on 14-7-2010. According to him when he has approached accused Chandrashekar, he told him that over all expenses is Rs.4,00,000/- and hence, Ravishankar Shetty has paid Rs.1,00,000/- and thereafter he (PW.7) paid the same to the accused. According to this witness since remaining amount was not paid, accused has withheld the work of sanctioning the plan. It is the definite evidence of PW.7 that Ravishankar Shetty has not given any authorisation letter authorising him to apply for Sanction Plan. In fact, PW.7 has fairly admitted that he had no problem to approach Lokayukta police when the accused has demanded Rs.4,00,000/-. The sum and substance of evidence of PW.7 is that though he has paid Rs.1,00,000/- to the accused he has not attended his work of securing Sanction Plan and hence, Ravishankar Shetty has entrusted this task to PW.6 N. Basavaraju. Though this witness is subjected to cross- examination, nothing worthwhile is elicited from his mouth to establish the fact that he has not approached the accused on behalf of the complainant.
29Spl.CC 41/2011 11.22. Thus, from the appreciation of the evidence of PW.4 & 7, it is clear that the work of PW.4 in securing sanctioned plan was pending with accused Chandrashekar. Similarly, it emanates from their evidence that in spite of paying a sum of Rs.1,00,000/- the accused did not attend the work of PW.4. In so far as acceptance of Rs.1,00,000/- is concerned, except self-serving testimony of PW.4 & 7, there are no other evidence available before the court. Further, it is made clear that PW.7 had no impediment to approach Lokayukta police. However, it is relevant to note here itself that the failure on the part of PW.7 to approach Lokayukta police for taking appropriate action against the accused is not a ground to disbelieve entire theory of the prosecution.
11.23. In fact, at the time of trap Investigating Officer has seized entire file pertaining to the work of the complainant as per Ex.P-8. A reading of Ex.P-8 would show that on 14-7-2010, Mr. Ravishankar Shetty of Vinayaka Enterprises has given application for securing Sanction Plan to put up a commercial complex. Therefore, it is clear that the work of PW.4 was pending in the office of Joint Commissioner (East), BBMP, Bengaluru for which the accused is the officer who is expected to attend the Resolution of the Committee.
11.24. The prosecution to substantiate its theory with regard to alleged demand for bribe of Rs.50,000/- and its acceptance by the accused, has relied on the evidence of PW.6 30 Spl.CC 41/2011 N. Basavaraju. It is the evidence of PW.6 that Ravishankar Shetty has entrusted the work of getting Sanction Plan to him and hence, he met accused Chandrashekar. At the inception itself PW.6 has deposed that Ravishankar Shetty was intended to construct one commercial/residential building at Madhava Nagar and he has entrusted the work of getting sanctioned plan from BBMP to one Narayanaswamy. The evidence of PW.6 would also show that though Narayanaswamy has paid Rs.1,00,000/- to the accused, as requested plan has not been sanctioned.
11.25. Further, PW.6 has deposed that on 25-9-2010 when he approached the accused, he told him that plan is ready and asked him to deposit the DD. Further, it is his evidence that accused Chandrashekar asked where is the money and demanded a sum of Rs.1,00,000/-. The sum and substance of evidence of PW.6 is that after the negotiation, the accused has agreed to receive a sum of Rs.50,000/- and this conversation was recorded in his mobile. This evidence of PW.6 is in tune with the theory of the prosecution.
11.26. In fact, PW.6 has deposed that as he was not interested to get his work done by paying bribe, he decided to lodge complaint and accordingly lodged Ex.P-13 complaint to Lokayukta police. A meaningful reading of Ex.P-13 would show that on 25-9-2010 when this complainant has approached the accused for obtaining Sanction Plan, he has demanded 31 Spl.CC 41/2011 illegal gratification of Rs.50,000/-. Therefore, from the conjoint reading of evidence of PW.6 and the contents of Ex.P-13, it is clear that the evidence of PW.6 has come out in a mathematical precision with regard to demand made by the accused for illegal gratification of Rs.50,000/-. Admittedly, the testimony of PW.6 is interested one. Therefore, it is the duty of the court to consider other evidence placed by the prosecution and to find out as to whether the testimony of PW.6 is worthy to accept or not.
11.27. In the present case, the prosecution has examined the investigating officer as PW.8. According to him on 29-9-2010, complainant Basavaraju has lodged Ex.P-13 complaint and based on which he has registered the case and transmitted FIR as per Ex.P-15 to the Special Judge. From the evidence of PW.8 it is clear that he on being satisfied with genuineness of allegations that were made in Ex.P-13 complaint, has registered the case against the accused. It is suggested to this witness that only for statistical purpose and to help the complainant he has registered a false case. Based solely on the above suggestion it cannot be said that PW.8 has registered false case against this accused. Further, at no stage the accused has not taken the contention PW 8 to wreck vengeance against him through PW 6 got lodged Ex P13 and registered case against him. Hence, there are no reasons to draw adverse inference to the testimony of PW 8.
32Spl.CC 41/2011 11.28. One of the contentions urged by the accused is that PW.6 is in the habit of lodging complaint against public servants and indulged in harassing them and in the same manner Ex.P-13 was filed. At the time of cross-examination of this witness, learned counsel for the accused has confronted certified copy of deposition of this witness in Spl.CC No.345/2014 and the same was marked at Ex.D-1. From the reading of this document, it is clear that this PW.6 has filed one more complaint against Smt. Rajamma Chowdareddy and he has given evidence in that case. No doubt, from the appreciation of the contents of Ex.D-1 and the evidence of PW.6 it is clear that he has lodged one more complaint before Lokayukta police and based on which they have laid trap and the trap was successful. However, in the present case fact remains that, it is for the court to find out as to whether the contents of Ex.P-13 and subsequent trap is proved by the prosecution by producing cogent and convincing evidence or not. Therefore, in the firm opinion of this court, lodging of another complaint by PW.6 is not a ground to disbelieve his version given in oath and the contents of Ex.P-13 which was accepted by PW.8 at an earliest point of time.
11.29. A perusal of Ex.P-13 would show that along with it, the complainant has produced a CD containing conversation that was taken place between him and the accused on 25-9-2010. It is the case of the prosecution that after 33 Spl.CC 41/2011 registration of the case, a pretrap panchanama was drawn as per Ex.P-2. In page No.4 of Ex.P-2, there is narration with regard to conversation that was found in the CD produced by the complainant along with Ex.P-13 complaint and the CD was preserved as per Article No.3, marked as MO 6 at trial. In so far as this C.D is concerned, PW 6 did not produce any certificate as required under section 65B of Evidence Act. Further, the evidence of PW 6 and PW 8 would clearly indicate that the mobile of the complainant was also not seized. Therefore, the counsel for the accused is justified in submitting that by virtue of the decision of the Apex Court reported in 2014(10) SCC 473 in the case between Anwar P.V V/s Basheer, MO6 is not admissible in evidence and no sanctity can be attached to it. Therefore, C.D seized by the I.O as per MO 6 will not enure to the benefit of the prosecution.
11.30. It is contended by the accused that work of PW.6 Basavaraju was not at all pending with him and hence, no reliance can be attached to his complaint as per Ex.P-13. But, it is the definite evidence of PW.6 that he was working under PW.4 Ravishankar Shetty and he has entrusted the task of getting Sanction Plan from BBMP. The evidence of PW.4 would show that he has issued authorization certificate to PW.6 as per Ex.P-10. The genuineness or otherwise of the same is not denied by the accused either at the time of cross-examination of PW.4 or at the time of cross-examination of PW.6. The definite 34 Spl.CC 41/2011 evidence of PW.4 & 6 that PW.6 has been authorized by PW.4 to secure Sanction Plan from BBMP is finds place in Ex.P-10. The oral evidence of PW.4 & 6 is in tune with the contents of Ex.P-10. Therefore, it is proved that PW.4 has authorized PW.6 to secure Sanction Plan from BBMP. Hence, the contention of the accused that PW.6 was not at all authorized to lodge complaint or that his work was not at all pending with the accused is cannot be accepted. However, it is made clear that PW 6 has acted on behalf of PW 4 Ravishankara Shetty.
11.31. Further, it is also the contention of the accused that since plan was already sanctioned by the Committee, it is for the complainant to produce DD towards fee, but, instead of remitting fee, he has lodged Ex.P-13 complaint only with an intention to secure sanctioned plan without payment of requisite fee. This contention of the accused is ex-facie fanciful because the Report of Joint Commissioner (East), Mayo hall, Bengaluru dated 11-10-2010 produced by the prosecution as per Ex.P-25 would show that the Committee has sanctioned plan on 22-9- 2010 itself, however, the accused has not attended the same. Further, the reading of this document would show that DD was remitted on 29-9-2010. This Report of the Joint Commissioner would also show that on 28.09.2010 itself PW.6 has purchased DD from Vijaya Bank. Therefore, the contention of the accused that without remitting fixed fee through DD, the complainant has expected him to issue Sanction Plan is cannot be accepted.
35Spl.CC 41/2011 This observation is made because as per Ex.P-25, the complainant has purchased DD on 28-9-2010 one day prior to the date of trap.
11.32. The counsel for the accused has placed reliance on a decision reported in 2016 Crl.L.J 3066 in the case between R.Srinivasan and another V/s State by Police Inspector, Lokayukta, Bangalore and argued that no work of the complainant was pending with the accused therefore it is for the prosecution to show that the capacity of the accused to do official favour in order to demand bribe. The very defence taken by the accused that he has asked the complainant to bring D.D and get the signatures of the partners of M/s Vinayaka Enterprises on the sketch itself is sufficient to hold that the work of the complainant was very much with the accused. Therefore, this Court is of the opinion that the ratio of the above decision is not applicable to the facts and circumstances of this case.
11.33. In order to show that as on 29-9-2010, this accused was discharging his duty, the prosecution has produced Attendance Register extract as per Ex.P-7. From the reading of this document it is clear that on 29-9-2010 the accused was discharging his duty as Asst. Engineer, BBMP, Bengaluru. Therefore, it is proved that on 29-9-2010 the accused was discharging his duty as a public servant.
36Spl.CC 41/2011 11.34. It emanates from the evidence of PW.8 that being satisfied with the genuineness of the allegations that were made in Ex.P-13 registered the case and secured two witnesses by name Umashankar and Srinivas in order to lay trap against the accused. It is relevant to note that though the evidence of PW.8 is in tune with the theory of the prosecution, nothing is elicited from his mouth to establish that only at the instance of complainant he has registered a false case against the accused. Thus, in the opinion of this court, PW.8 being an officer in the cadre of Police Inspector authorised under law to register the case under the penal provisions of Prevention of Corruption Act has registered the case against the accused and proceeded further in the lines of conducting further investigation into the matter.
11.35. The evidence of PW.8 would reveal that the complainant has produced Rs.50,000/- cash containing 1000 x 13 and 500 x 74 in its denominations. This witness has further deposed that he has got typed particulars of the currency notes including note numbers and denominations as per Ex.P-1 in the presence of panchas to show that a sum of Rs.50,000/-, was produced by the complainant so as to trap the accused. Admittedly, a sum of Rs.50,000/- is huge amount, therefore question of PW.8 investing this amount only for the purpose of falsely implicating the accused does not arise. Further, it is highly impossible to believe the contention of the accused that 37 Spl.CC 41/2011 only to falsely implicate him PW 4 has produced Rs 50,000/- through PW 6 Basavaraju.
11.36. In fact, it is the definite evidence of PW.6 Basavaraju that he has handed over Rs.50,000/- to the Police Inspector and in turn the panchas have counted the same and the Police Inspector got typed details of currency notes and its numbers in a sheet of paper as per Ex.P-1. This evidence of PW.6 clearly indicate that as PW 4 was not interested to pay bribe amount of Rs.50,000/- to the accused, he through PW 6 has produced the same before PW.8 so as to enable him to take further action in the matter.
11.37. No doubt, it is true that it may be said that the evidence of PW.6 & 8 as interested one. However, it is the evidence of PW.1 K. Srinivas independent pancha that the complainant has produced Rs.50,000/- and he has counted the same at the instance of Police Inspector. This evidence of PW.1 instill confidence in the mind of the court that he being independent pancha, has deposed as to what was transpired at Lokayukta office on that date. This witness was also subjected to cross-examination, however, with regard to production of Rs.50,000/- and this witness subjecting to currency notes to the process of counting is not at all denied by the accused.
11.38. The cumulative effect of evidence of PW.1, PW.6 & PW.8 is that the complainant has produced MO.2 cash of 38 Spl.CC 41/2011 Rs.50,000/- before PW.8 and in the presence of PW.1 & 2 so as to lay trap against the accused. The evidence of these witnesses would demonstrately indicate that after counting MO.2 a sum of Rs.50,000/-, its descriptions and details were mentioned in Ex.P-1 list prepared by the IO. In addition to the above, the evidence of PW.4 Ravishankar Shetty would show that he has paid a sum of Rs.50,000/- to PW.6 so as to enable him to produce the same before PW.8 for the purpose of doing needful action against the accused. No doubt, it is true that this witness has deposed that till the date of his appearance before the court he has not made any claim before the police for the refund of Rs.50,000/-. It is the evidence of PW.4 & 6 that the accused being Engineer of BBMP has demanded illegal gratification of Rs.50,000/-. As has been discussed above till the date of his evidence PW.4 has not claimed Rs.50,000/- from the Investigating Agency. Thus, it is clear that PW.4 was capable of paying bribe amount of Rs.50,000/- but as he was not interested to pay the same has produced the same before the IO through PW.6. Therefore, this court is of the opinion that the action taken by PW.4 in paying Rs.50,000/- to PW.6 so as to enable him to produce the same before PW.8 is genuine. The counsel for the accused has pointed out that according to PW 6 he obtained Rs 50,000/- from the wife of PW 4 whereas PW 4 has deposed that he paid Rs 50,000/- to the PW 6 and therefore, there is contradiction with regard to source of Rs 50,000/-. But in the opinion of this Court above contradiction is not in the 39 Spl.CC 41/2011 form of taking away entire theory of the prosecution and hence same is not fatal to the case of the prosecution as contended.
11.39. It is the definite evidence of PW.1 Srinivas that the police have treated the currency notes of Rs 50,000/- with powder and kept in a cover and powder was also applied on the cover also. This witness has deposed that on the instructions of police he kept said cover containing tainted currency notes in the right side pant pocket of CW.1. From this evidence of PW.1 it is clear that the police have not only smeared the phenolphthalein powder on the currency notes, but also asked him to keep the same in the right side pant pocket of PW.6 Basavaraju. Though this witness was subjected to cross- examination, this aspect of the matter is not at all denied by the accused. In other words, the evidence of PW.1 that he has kept tainted currency notes in the right side pant pocket of CW.1 Basavaraju is remained unchallenged.
11.40. In addition to the above evidence of PW.1, the complainant Basavaraju being PW.6 has deposed that on production of Rs.50,000/-, currency notes and its numbers were typed through a computer and print out was taken. This evidence of PW.6 is with reference to Ex.P-1 list of currency notes prepared by PW.8.
11.41. In fact, PW.6 has also deposed that at the instance of Police Inspector, his staff smeared phenolphthalein powder 40 Spl.CC 41/2011 on the currency notes and asked one of the panchas to recount the same. This portion of evidence of PW.6 is in tune with the evidence of PW.1. Further, it is the evidence of PW.6 that after smearing phenolphthalein powder, currency notes were kept in a brown color envelope and pancha by name Srinivas has kept the cover in his right side pant pocket. This evidence of PW.6 is probable to accept for the simple reason that PW.1 being independent pancha has in a mathematical precision deposed with regard to this aspect of the matter. There is one more reason to accept the evidence of PW.6 in this aspect of the matter because the evidence of PW.1 that he has kept phenolphthalein powder smeared currency notes on the right side pant pocket of PW.6 is not challenged by the accused.
11.42. Now, it is appropriate to consider the evidence of PW.2 B.N. Umashankara who was acted as shadow witness in this case. The evidence of this witness would show that complainant Basavaraju has produced Rs.50,000/- in denominations of 1000 x 13 and 50 x 74 and he has counted the notes and note numbers and its serial numbers were mentioned in Ex.P-1 sheet. It is also his evidence that then Lokayukta police have applied phenolphthalein powder on the said currency notes and put them in an envelope and phenolphthalein powder was smeared to the said cover also. Further, this witness has deposed that PW.1 has kept said envelope in the right side pant pocket of Basavaraju. The 41 Spl.CC 41/2011 evidence of this witness is in corroboration with the evidence of PW.1 & 6. It is relevant to mention here that though once this court has held that there is no cross-examination to this witness on behalf of the accused, later again he was summoned at the instance of the accused, though he appeared before the court, due to his health condition he was not in a position to give evidence. In ILR 1999 Karnataka 2953 in the case between T.R.Srikantaiah Shetty V/s Balakrishna and another, it was held that the evidence of the witness who dies after his examination in chief is recorded but before he is cross examined is admissible. In this decision it is also held that the testimony of a witness whose cross examination is not evaded or deliberately prevented and became impossible by reason of his death, sickness or other causes mentioning Section 33 of Evidence Act, can be treated as evidence and the Court should carefully appreciate the same. In the present case also at the first instance the prayer of the learned counsel for the accused to defer the cross examination was rejected. Subsequently, the presence of PW2 was secured by passing an order under section 311 of Cr.P.C but he was not in a position to give evidence. The ratio of the above decision is squarely applicable to the present case while appreciating the evidence of PW 2. The evidence of PW.2 is also a corroborative piece of evidence to substantiate the contention of the prosecution that PW.6 has produced Rs.50,000/- and the Investigating Agency after 42 Spl.CC 41/2011 following procedure through PW 1 kept the same in the right side pant pocket of PW 6.
11.43. In addition to the above corroborative piece of evidence of PW.1, 2 & 6 it is the definite evidence of PW.8 that PW.6 has produced currency notes as per MO.2 and by adopting required procedure he has not only subjected the currency notes to the process of recounting through PW.1, but also got treated with phenolphthalein powder and kept the same in the right side pant pocket of PW.6. No doubt, the testimony of PW.8 is interested one. However, there is no hard and fast rule that merely because the evidence of Police Officer is interested one, his evidence should be brushed aside, even if his testimony otherwise admissible. In the present case the evidence of PW.1, 2 & 6 is in-corroboration of the theory of prosecution, more precisely in accordance with the evidence of PW.8.
11.44. Thus, from the discussions made herein above, it is proved that on production of MO.2, list of currency notes was prepared as per Ex.P-1, process of smearing of phenolphthalein powder was done and then the currency notes were kept in the right side pant pocket of PW.6 so as to pay the same to the accused only in case of demand. Therefore, from the above evidence it is proved that after following procedure PW.8 has drawn Ex.P-2 pre-trap mahazar so as to proceed further in the lines of laying trap to the accused.
43Spl.CC 41/2011 11.45. In order to prove trap of the accused, the prosecution has placed reliance on the evidence of PW.6 Basavaraju. It is the definite evidence of PW.6 that on 29-9- 2010, he met the accused in his chamber and requested him to issue sanction plan. According to this witness, accused has asked him to remit DD and get the signature of Engineer and site Owner on the plan. This evidence of PW.6 is in accordance with the stand taken by the accused. However, the evidence of PW.6 would further reveal that he has told the accused that he has brought the amount as negotiated for which the accused has asked him to wait for some time outside of his chambers and later accused has taken him to the place where he has parked his car and both of them sat in the car. This evidence of PW.6 would show that at the instance of the accused he had gone along with him and sat in his car parked near his office. It is the definite evidence of PW.6 that when accused asked him to give money, he handed over Rs.50,000/- along with cover and the accused has taken out the amount from the envelope counted and kept the same in the seat cover of the car. This evidence of PW.6 is in tune with the entire theory of the prosecution. It is suggested to this witness that at the instance of Ravishankar Shetty and Narayanaswamy he has lodged false complaint against the accused and he has made the accused to come out of his chamber and forcibly paid the amount to him. This suggestion is categorically denied by PW.6.
44Spl.CC 41/2011 11.46. In order to disprove the contention of the prosecution, the accused at the time of recording his statement u/s. 313 Cr.P.C., has filed written statement and in para 6 he has contended that though there was no demand and acceptance from him, on the false information given by the complainant, alleged trap was laid by Lokayukta police and forcibly they have managed to hand over the tainted notes to him. Thus, this contention of the accused in writing would show that he did receive MO.2 a sum of Rs.50,000/- from PW.6.
11.47. In the present case in order to prove Ex.P-3 trap mahazar, the prosecution has also placed the reliance on evidence of PW.1 K. Srinivas. It is the definite evidence of this witness that on receiving signal from PW.1 Basavaraju, they rushed to the spot and on questioning the accused he told them that he has kept tainted money on the back side of the seat cover. The evidence of PW.1 would also show that MO.2 money was there on the back side of the seat cover. Further, the evidence of this witness also disclose that as per the instructions of Police Inspector, he took out the cover, counted the notes and on verification the serial numbers of currency notes tallied with Ex.P-1. This portion of evidence of PW.1 which is in a mathematical precision would inspire confidence in the mind of the court that he has deposed truth before the court with regard to accused disclosing the fact that tainted money is in the seat cover. Though the above portion of evidence of PW.1 clearly 45 Spl.CC 41/2011 corroborate with the theory of the prosecution, the same is not at all denied by the accused at the time of his cross- examination. Therefore, the evidence of PW.1 that it is the accused who has disclosed that tainted money is available in the seat cover and he (PW.1) has taken out MO.2 a sum of Rs.50,000/- from the seat cover is remained unchallenged.
11.48. In addition to the above, the evidence of shadow witness i.e., PW.2 B.N. Umashankar is that both complainant and accused sat in the car and he was observing the happenings closely. This witness has further deposed that when the complainant handed over the cover containing tainted money, the accused received it and kept the same in the backside of the seat cover. This evidence of PW.2 is also in corroboration with the theory of the prosecution.
11.49. Added to the above evidence of material witnesses, PW.8, the Investigating Officer has deposed that on receiving signal from the complainant, he along with the trap team rushed to the spot and recovered tainted money from the seat cover car bearing Reg.No.KA 09 P 693. This evidence of PW.8 would further substantiate the case of the prosecution that MO.2 tainted currency notes of Rs.50,000/- was recovered from the seat cover of the car of the accused.
11.50. Through out it is contended by the accused that the complainant has forcibly thrust the amount to his hands. If 46 Spl.CC 41/2011 really this contention of the accused were to be true, there was no impediment for him to come out of the car immediately and seek for the help of his colleagues. But he has not exhibited such an human action. In his written statement the accused has contended that Lokayukta Police have forcibly managed to hand over tainted notes to him. The evidence produced by the prosecution would show that tainted currency notes were recovered from the seat cover of the car. If really MO.2 was forcibly thrust to the hands of the accused, there was no necessity for him to keep the same in his seat cover. Further, it is not the stand of the accused that it is PW.6 who has kept MO.2 in the seat cover. No explanation is forthcoming from the side of the accused as to how MO.2 has gone to the seat cover after it was forcibly thrust to his hands. In the absence of any such explanation, the only inference that can be drawn is that since accused has received MO.2 as illegal gratification, he kept the same in the seat cover of his car. This is one of the strong circumstances to hold that the accused has voluntarily accepted Rs 50,000/- as per MO 2.
11.51. The evidence of PW.1, 2, 6 & 8 would clearly corroborate that when both the hands of accused were washed in sodium carbonate solution, the same was turned into pink colour and the same was preserved as Article 7, 7(a), 8 & 8(a). If really, the accused has not counted MO.2 currency notes or not handled the cover containing tainted notes, the question of 47 Spl.CC 41/2011 sodium carbonate solution turning into pink colour does not arise. On the contrary, it can be safely gathered that since the accused has counted the currency notes smeared with phenolphthalein powder, when his both hands were subjected to wash, sodium carbonate solution turned into pink colour evidencing the presence of phenolphthalein powder. This is another strong circumstance to hold that the accused has received Rs 50,000/- as per MO 2 from the complainant.
11.52. As has been discussed above, the evidence of PW.1, 2, 6 & 8 clearly establish the fact that on recovery of MO.2 a sum of Rs.50,000/- from the conscious possession of the accused and Ex.P-3 trap mahazar was drawn. In the present case the evidence of PW.1 & 2 is consistent with the theory of the prosecution. It is submitted that under the apprehension that Lokayukta Police may falsely implicate them in some other cases, PW.1 & 2 have deposed falsely in order to support the case of the prosecution. This submission is not probable to accept because on meticulous scrutiny of the evidence of PW.1 & 2 makes this court to feel that they are natural witnesses and they have deposed as to what was happened on 29-9-2010. Further, their evidence instill confidence in the mind of the court that they have deposed truth before the court.
11.53. The counsel for the accused has placed reliance on the decisions reported in 1979(4) SCC 526 in the case between Panalal Damodar Rathi V/s State of Maharashtra and 1980 48 Spl.CC 41/2011 (Supp) SCC 684 in the case between Gulam Mahmood A Malet V/s State of Gujarat and argued that PW 6 being the complainant is in the nature of an accomplice and hence his testimony require corroboration in material particulars before being relied upon. In the present case PW 6 has acted on behalf of PW 4. Admittedly, no work of PW 6 was pending with the accused. On the other hand, work of PW 4 i.e., securing approved plan was pending with the accused. Therefore, PW 6 cannot be termed as accomplice because he has not arranged money to pay the same to the accused. Thus, in the opinion of this Court in the present case the status of PW 6 is not that of an accomplice as contended by the learned counsel for the accused and hence, the ratio of the above decision is not applicable to facts and circumstances of this case.
11.54. In addition to evidence of PW.1 & 2, the evidence of the complainant being PW.6, is worthy to accept because the narration made by him in his chief-examination would show that he has deposed truth before the court. There is no justification to accept the contention of the accused that PW.6 has falsely implicated him in the case at the instance of Ravishankar Shetty and Narayanaswamy. Admittedly, Ravishankar Shetty is running M/s. Vinayaka Enterprises a construction firm. Therefore, question of Ravishankar Shetty falsely implicating the accused in the present crime does not 49 Spl.CC 41/2011 arise at all because he has to do his business by securing sanction plan from the office of BBMP. Ordinarily, a businessmen like Ravishankar Shetty will always very cordial with the officers of BBMP so as to run his business smoothly. Therefore, it is clear that as there was repeated demand from the accused, Ravishankar Shetty has authorized PW.6 to lodge complaint by arranging a sum of Rs.50,000/-.
11.55. Further, the evidence of PW.8, would also show that his evidence is worthy to accept because he has deposed what he has done as an Investigating Officer into the crime. Even if it is said that PW.6 had an intention to falsely implicate the accused, there was no necessity for PW.8 to register a false case against him and lay trap. Therefore, the official act of PW.8 inspire confidence in the mind of the court that as he has found genuineness in the allegations made in the complaint as per Ex P13, has registered the case and laid trap and the same was successful. Further, his evidence stands corroborated by the evidence of PW 1, 2 and 6.
11.56. In the present case, the evidence of PW 1 would indicate that all along he and PW 2 were standing outside the compound wall of the office of the accused. The learned counsel for the accused has argued that since PW 1 and 2 were standing outside of the compound wall, no sanctity can be attached to the evidence of PW2 that he has acted as shadow witness. But the categorical evidence of PW 2 that he has seen 50 Spl.CC 41/2011 the accused counting the notes inside the car is inaccordance with the theory of the prosecution. It is the definite case of the prosecution that the accused has received Rs 50,000/- in the car parked outside the compound wall of his office. Therefore, merely because of the fact that PW 1 and 2 were standing outside the compound wall of the office of the accused, it does not mean to say that PW 2 did not witness the happenings that were taken place inside the car.
11.57. Thus, for the reasons stated herein above, this court is of the opinion that the prosecution has proved that it has recovered MO.2 a sum of Rs.50,000/- from the seat cover of car bearing No.KA-09-3693 which belongs to the accused. In the present case as has been discussed above, the evidence of PW.1 & 2 inspire confidence in the mind of the court that they being independent panchas have deposed as to what was transpired on that day more precisely on 29-9-2010. The careful scrutiny of oral and documentary evidence placed on record makes this court to firmly believe that the accused has demanded illegal gratification for the issuance of plan so approved by the Committee and subsequently received the same.
11.58. In addition to above evidence, at the time of lodging Ex.P-13 complaint PW.6 has stated that in so far as demand made by the accused is concerned he has recorded the conversation and produced a C.D. to the scrutiny of PW.8 Ramesh Babu, Police Inspector of Lokayukta who registered 51 Spl.CC 41/2011 the case against the accused. In tune with the evidence of PW.6 it is the evidence of PW.8 Suresh Babu that along with complaint as per Ex.P-13, PW.6 has produced a C.D. as per Article No.3. It is his evidence that he in the presence of panchas, got played the C.D. and made them to hear the conversation. The evidence of panch witnesses by name PW.1 K. Srinivas and PW.2 B.N. Umashankar would clearly indicate that a C.D. was played before them and conversation found therein was transcribed in a sheet of paper. In fact, PW.8 being the I.O. has deposed that the conversation that was found in Article No.3 was transcribed in a paper as per Ex.P-18. But, as has been discussed above, no sanctity can be attached to Article III i.e., MO6 for the want of certificate as required under section 65B of Evidence Act.
11.59. It is the evidence of PW.1, 2, 6 & 8 that the entire pre trap proceedings was videographed and a C.D. was prepared as per Article No.4 i.e., MO 7. Further, their evidence would reveal that after pre trap mahazar, it is PW.6 has called the accused as to where he has to come to pay the bribe amount. According to them, the conversation that was taken place between PW.6 and the accused was recorded and preserved in a C.D. as per Article No.5 i.e., MO 8. It is very relevant to mention here itself that though all the material witnesses are subjected to lengthy cross-examination, the genuineness or otherwise of Article No.3, 4 and 5 as per MO 6, 7 and 8 has not 52 Spl.CC 41/2011 been denied by the accused. Therefore, this court is of the opinion that the evidence of PW.1, 2, 6 & 8 is worthy to accept with regard to preservation of C.Ds as per Article No.3, 4 & 5 i.e., Mos 6, 7 and 8. Further, the contents of Ex P3 trap mahazar and Ex P4 transcription would show that accused has demanded bribe.
11.60. It is the evidence of PW.8 that he has fixed one pen camera and Digital Voice Recorder to the person of PW.6 Basavaraju. This evidence of PW.8 is in accordance the material that are made available before the court. The evidence of PW.8 would also indicate that visuals that were recorded in pen camera was burnt into a C.D. as per Article No.13 i.e., MO 17 and the voice that was recorded in a Digital Voice Recorder was burnt into a C.D. as per Article No.14 i.e., MO 18. This evidence of PW.8 though consistent, is not seriously challenged by the accused.
11.61. It is the definite evidence of PW.8 that he has shown the visuals and conversation to the senior officer of the accused and he has recorded his statement. In order, to substantiate this aspect of the matter, the prosecution has examined one Mallesh E. Thavane as PW.3. It is the definite evidence of PW 3 that since he was working with the accused, he had regular official contacts with him. It emanates from his evidence that Lokayukta police have played a video and in it he has seen the accused, however, he could not recognize the voice 53 Spl.CC 41/2011 of the accused found in a audio as the same was not clear. The meaningful reading of evidence of PW.3 makes it clear that PW.8 has discharged his duty so as to enable PW.3 to identify the accused and his voice.
11.62. In so far as the C.Ds referred to above, PW.8 has produced certificate as required under section 65-B of Evidence Act, as per Ex P31. In fact, in Union of India vs. C.D.R. Ravindra V. Desai reported in 2018(16) SCC 272, it was held that non-production of certificate is curable defect. Further, in 2019(5) KLJ 401 (SC) in the case between Karnataka Lokayukta Police vs. M.R. Hiremat, at para No.16 it was held that the need for production of such a certificate would arise when the electronic record is sought to be produced at trial. In the present case, before subjecting the C.Ds to the process of marking, the prosecution could able to produce certificate as per Ex.P-31. Therefore, in the opinion of this court there is strict compliance of Sec.65-B of Evidence Act. The oral evidence of PW.1, 2, 6 & 8 is further substantiated by the prosecution by producing scientific evidence.
11.63. It is very relevant to note that material evidence placed on record would clearly indicate that at the time of drawing pre-trap mahazar phenolphthalein powder was smeared on MO.2 tainted money of Rs.50,000/-. The evidence of PW.1, 2, 6 & 8 would clearly indicate that sample sodium carbonate solution was preserved as per Article No.1 and when the fingers 54 Spl.CC 41/2011 of Srinivasa were washed in the solution and the same turned into pink and the same was preserved as per Article No.2 i.e.,MO 2. Further, the evidence of PW.1 Srinivas would clearly indicate that it is he who has smeared phenolphthalein powder on the currency notes and his both hands were washed in sodium carbonate solution, the same was turned into light pink colour. In so far as this process is concerned, nothing worthwhile is elicited from the mouth of this witness to the effect that he did not participate in the proceedings. In addition to the evidence of PW.1 the evidence of PW.2, 6 & 8 would demonstrate the same aspect of the matter.
11.64. It is the evidence of PW.1, 2, 6 & 8 that when right and left hand fingers of the accused were washed in sodium carbonate solution, the same was turned into light pink colour and the solution was preserved as per Article No.7, 7(a), 8 and 8(a) as per MO 10 to 13. The evidence of the PW.8 would indicate that he has sent these articles for chemical examination and secured a Report. In the present case the requisition sent to FSL is marked at Ex.P-22. The report of Chemical Examiner dated 8-10-2010 is marked as per Ex.P-28. It is the definite opinion of the Expert that the presence of phenolphthalein was detected both in the right hand and left hand finger wash of AGO. Therefore, it is clear that phenolphthalein powder was detected in Article No.7 & 8 containing sodium carbonate solution in which both right and left hand fingers of accused 55 Spl.CC 41/2011 were washed. Thus, only conclusion that can be arrived is that since the accused has handled Rs.50,000/- smeared with phenolphthalein powder, when his fingers were washed in the solution, the same turned to pink colour. In the present case to disbelieve the contents of Ex.P-28 or the evidence of prosecution witnesses, absolutely there are no reasons much less good reasons before the court. Therefore, the scientific evidence made available for the judicial scrutiny would also establish that the accused has accepted illegal gratification of Rs.50,000/- and subsequently the same was recovered from his possession.
11.65. The counsel for the accused has argued that as per Ex P20, PW 1 has received metal seal, but PW 1 has deposed that police have handed over the metal seal to him however, on the same day he has returned the same to them and hence I.O might have tampered the seals that were affixed to MO 4, 5, 9 to 16 and hence FSL Report is not worthy to accept. This submission is of no avail because at the time of cross examination of PW 8/I.O no suggestion was directed to him that after taking back the metal seal from PW 1, he has tampered the seals so affixed on MO 10 to 13 and secured FSL Report for his convenience. In the absence of such defence at trial based only on arguments no inference can be drawn that after taking metal seal from PW 1 the I.O has tampered the seal affixed on MO 10 to 13.
56Spl.CC 41/2011 11.66. It is argued that if really the accused had demanded bribe amount, PW 6 ought to have lodged complaint to the Senior Officers of the accused, but, he has not chosen to do so and hence, this aspect of the matter creates a doubt with regard to the allegations made by PW 6. In fact, PW 6 in his cross examination categorically admitted that when accused demanded bribe amount he did not complain to his higher officers. From the careful perusal of materials placed on record it is clear that as expected by the complainant, it is for the accused to issue the Plan. Therefore, merely on the ground that complainant did not lodge complaint to the higher officer of the accused it cannot be said that entire theory of the prosecution is outcome of concoction.
11.67. The Learned counsel for the accused has argued that mere recovery of tainted notes is not sufficient to bring home the guilt of the accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act. This submission is substantiated by him by placing reliance on the decision of the Apex Court in the case between P.Sathyanarayna Murthy V/s District Inspector of Police and another in Crl.A.No.31/2009. In this decision it was held that the proof of illegal gratification, thus, is the gravamen of the offence under section 7 and 13(1)(d) of (i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of 57 Spl.CC 41/2011 illegal gratification or recovery thereof, dehors the proof of demand, ipso-facto, would thus not be sufficient to bring home the charge under these two sections. Similarly, in 2012 (11) KCCR 414 R.Malini V/s State of Karnataka it was held that in the absence of any evidence of demand and acceptance of the amount as illegal gratification, mere acceptance of money will not sufficient to fasten the guilt. But, in the present case the convincing evidence produced by the prosecution makes this court to feel that based on genuine complaint of PW.6 Basavaraju as per Ex P13, Police Inspector of Lokayukta has registered the case, laid trap and it was successful. As has been discussed herein above, absolutely there are no reasons to discard consistent evidence of prosecution witnesses. Hence, this Court is of the opinion that the ratio of the decisions relied by the counsel for the accused is not applicable to the facts and circumstances of this case to record an order of acquittal as contended.
11.68. It is relevant to note that normally a citizen is always reluctant to lodge complaint against an officer in the cadre of Assistant Executive Engineer even if illegal gratification is demanded. This observation is made because Ravishankar Shetty being a Builder doing business in construction of building in the City of Bengaluru was expecting Sanction Plan from the accused. Hence, no fault can be attached to the action initiated by him through PW.6. Further, on all 58 Spl.CC 41/2011 probabilities it is not possible to believe that PW.4 being a businessman doing construction business would go to the extent of arranging currency notes of Rs.50,000/- to provide the same to the police officer for arranging trap and expose himself to the difficult task of becoming a witness in a criminal case, just in order to rope the accused against whom there was no personal enmity.
11.69. In the present case it is specifically contended by the accused that only to wreck vengeance he has been falsely implicated in the case. This contention is not probable to accept because admittedly, Ravishankara Shetty has through PW 6 Basavaraju produced Rs 50,000/- before the police at Lokayuktha so as to enable them to lay trap. If really the accused has not demanded bribe, question of the complainant being a builder in the City of Bengaluru calling upon PW 6 to lodge complaint does not arise. In addition to it, he has to comply with several formalities. Added to it, he has to remain away from his work. Therefore, he has to sacrifice his time and effort while doing so. Further he has to attend the court at the time of trial and withstand the test of cross-examination. It is also relevant to note that ordinarily, it is only when a citizen feels oppressed by a feeling of being commission of wrong, adopts the course of approaching Lokayukta Police. Hence, the contention that without any reason PW.6 has lodged a false complaint against the accused is cannot be accepted.
59Spl.CC 41/2011 11.70. The counsel for the accused has placed reliance on the decision reported in 2016(12) SCC 150 in the case between V.Sajjappa V/s State by Police Inspector, Lokayukta Chitradurga and the decision reported in 2009 (15) SCC 200 in the case between State of Maharashtra V/s Jnaneshwara Rao Wankhade and argued that there are two primary aspects which the prosecution has to prove is demand and acceptance of money and if these two factum is proved, then only presumption can be drawn as provided under section 20 of P.C.Act. There is justification in making such submission. But in the present case the evidence placed on record would clearly establish the fact that since the file of the complainant was very much available with the accused he not only demanded Rs.50,000/- but also accepted the same by sitting in his car.
11.71. The well established principles of law by catena of decisions of Hon'ble Apex Court is that only when the initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then burden of proving the defense shifts upon the accused and a presumption will arise under section 20 of Prevention of Corruption Act. Here in this case the evidence of the complainant being PW.6 coupled with corroborated version of PW.1 & 2 throw much light as to the demand and acceptance of illegal gratification by the accused and the same is proved by way of cogent and convincing evidence.
60Spl.CC 41/2011 11.72. While invoking the provisions of section 20 of the Act the court is required to consider the explanation offered by the accused, if any, only on the touchstone of the preponderance of the probability and not on the touchstone of proof beyond reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. In the present case the defense theory that PW.6 did thrust money into his pocket is not supported by any evidence. Further, the accused has not explained as to how tainted money of Rs.50,000/- gone to seat cover of his car. This observation is made because as per the testimony of PW.1, 2 & 8, MO.2 was recovered from the seat cover of the car of the accused. Even if the theory of the accused is accepted that PW.6 has forcibly thrust MO.2 to his hands, then it is for the accused to explain as to who has kept the same in the seat cover. But, there is no satisfactory explanation forth coming from the side of the accused. Hence, only option available for this court is to accept the evidence of PW.2 & 6 that it is the accused who has kept MO.2 in the seat cover of the car after the receipt of the same from PW.6. In addition to this, the accused effectively has ended up in admitting that he has handled MO 5. Hence, presumption contemplated under section 20 of P.C.Act is very much available in favour of the prosecution and accordingly drawn.
61Spl.CC 41/2011 11.73. Therefore, from the evidence both oral and documentary subjected to appreciation as per the discussions made hereinabove, make this Court to form an opinion that the accused has demanded illegal gratification of Rs 50,000/- and subsequently accepted the same to do official favour to Ravishankar Shetty through PW 6 Basavaraju. Therefore, both demand and acceptance and consequently criminal misconduct is proved by the prosecution beyond reasonable doubt. Hence, this Court has no hesitation to hold that the prosecution has satisfactorily proved the guilt of the accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act beyond reasonable doubt and record an order of conviction as provided under law. Accordingly, point Nos.2 and 3 are answered in the affirmative.
12. Point No. 4:- In view of my findings on point no.1 to 3 in the affirmative, accused is liable to be convicted. Further, in this case at the time of trap, the Investigating Officer has seized a sum of Rs.5,605/- as per MO3 from the conscious possession of the accused. However, till today accused has not offered any explanation for the possession of Rs 5,605/- as per MO 3. Further, at the time of cross examination of PW 8 the accused has not claimed the same. Therefore, the only option available for this Court is to confiscate this amount to the State. Hence, I proceed to pass the following 62 Spl.CC 41/2011 ORDER Accused is found guilty of the offences punishable under section 7, 13(1) read with section 13(2) of Prevention of Corruption Act, 1988.
The bail bonds executed by the accused and his surety is hereby stands cancelled and he is taken to custody.
The M.O.2 - cash of Rs.50,000/- and MO.3 -
cash of Rs.5,605/- are confiscated to the State after expiry of appeal period.
The office is hereby directed to destroy MO.1, MO.4 to MO.19 after expiry of appeal period as they are worthless.
Put up for hearing on quantum of sentence to be imposed on the accused.
(Dictated to the Judgment Writer on computer, typed by him, corrected, signed and then pronounced by me in the Open Court on day of 09 th day of August, 2021).
Sd/-09.08.2021 (Gopalakrishna Rai.T), LXXVIII Addl. City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru.
*** 63 Spl.CC 41/2011 ORDER ON SENTENCE Heard the accused and his counsel and Learned Public Prosecutor on sentence to be imposed on accused.
2. Accused and learned counsel for accused have submitted that accused is aged 58 years and having dependent family consisting of wife, the children and aged parents and is having huge responsibilities of his family and therefore, lenient view may be taken in sentencing him.
3. On the other hand, learned Prosecutor has submitted that the accused being a public servant has committed heinous offence of taking bribe and he is involved in corrupt practice and therefore maximum punishment is to be imposed.
4. The commission of offence by accused under section 7, 13(1)(d) r/w section 13 (2) of Prevention of Corruption Act is proved in this case and accused is found guilty for said offences. Offence under section 7 of Prevention of Corruption Act is punishable with minimum imprisonment of 6 months and maximum of 5 years and also with fine. Offence under section13 (1)(d) which is punishable under section 13 (2) of Prevention of Corruption Act, is punishable with minimum imprisonment of 1 year and maximum of 7 years and also with fine. Though by way of recent amendment, minimum and maximum imprisonment provided for the offence punishable under section 7 and 13(2) of Prevention of Corruption Act are 64 Spl.CC 41/2011 enhanced, those amended provisions are not applicable to this case, as offences alleged against accused was committed prior to coming into force of amendment i.e., on 29.09.2010.
5. The accused was an Assistant Executive Engineer, BBMP, Bengaluru at the time of trap. The fact that he is having dependent family is not in dispute. In so far as imposition of sentence in this case is concerned the court has to look into unamended provisions of PC Act. The accused had demanded illegal gratification of Rs.50,000/- and at the time of trap, he received Rs.50,000/-. The offence which this accused has committed is heinous in nature. However, a duty is cast upon the court to take into consideration of family status of the accused while imposing sentence.
6. On considering to the facts and circumstances of the case and gravity of the offence and its consequences on the society and the leniency prayed by the accused the Court is of the opinion that it is proper to sentence the accused to undergo simple imprisonment for 1 year and to pay fine of Rs.50,000/- for the offence under section 7 of Prevention of Corruption Act. Further, he shall undergo simple imprisonment for 1 year and to pay fine of Rs.50,000/- for the offence under section 13 (1)(d), punishable under section 13 (2) of Prevention of Corruption Act. If that is done it will sub-serve justice. Accordingly, the following 65 Spl.CC 41/2011 ORDER Acting u/s 235(2) of Cr.P.C. accused- H.T. Chandrashekhar is convicted for the offences punishable under Sections 7 and u/s. 13(2) of Prevention of Corruption Act, 1988. Accused is sentenced to undergo simple imprisonment for 1 year and to pay fine of Rs.50,000/- ( Rupees Fifty thousand only) for the offence punishable under section 7 of Prevention of Corruption Act, in default of payment of fine, he shall undergo further simple imprisonment for 6 months. Accused is sentenced to undergo simple imprisonment for 1 year and to pay fine of Rs.50,000/- (Rupees Fifty thousand only) for the offence punishable under section 13 (2) of Prevention of Corruption Act, in default of payment of fine, he shall undergo further Simple imprisonment for 6 months. The substantive sentences of imprisonment shall run concurrently.
Accused is entitled for the benefit of set-off under section 428 of Cr.P.C. for the period for which he was in judicial custody in this case.
Furnish a copy of this judgment to the accused free of cost forthwith.
Sd/-09.08.2021 (Gopalakrishna Rai.T) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru.
66Spl.CC 41/2011 List of witnesses examined for the prosecution:
P.W.1 - K. Srinivas P.W.2 - B.N. Umashankar P.W.3 - Mallesh E. Tavane P.W.4 - Ravishankar Shetty P.W.5 - G. Siddagangaiah P.W.6 - N. Basavaraju P.W.7 - C. Narayanaswamy P.W.8 - S. Suresh Babu
List of documents exhibited for the prosecution:
Ex.P1 - Details of currency notes
Ex.P.1(a) - Sign. of P.W.1
Ex.P.1(b) - Sign. of P.W.8
Ex.P2 - Pre-trap Mahazar
Ex.P.2(a) to (f) - Sign. of P.W.1
Ex.P.2(g to m) - Sign. of P.W.2
Ex.P.2(n) - Sign. of P.W.6
Ex.P.2(o) - Sign. of P.W.8
Ex.P3 - Trap Mahazar
Ex.P.3(a to h, j to m) - Sign. of P.W.2
Ex.P.3(n) - Sign. of P.W.1
Ex.P.3(o) - Sign. of P.W.6
Ex.P.3(p) - Sign. of accused
Ex.P4 - Video transmitted
Ex.P.4(a) - Sign. of P.W.1
Ex.P5 - Report of PW.3
Ex.P.5(a) - Sign. of P.W.3
Ex.P6 - Report of PW.3
Ex.P.6(a) - Sign. of P.W.3
Ex.P7 - Attested copy of attendance
register
Ex.P.7(a) - Sign. of P.W.3
Ex.P8 - The file pertaining to
complainant.
Ex.P.8(a) - Sign of P.W.3
Ex.P9 - Attested copy of Cash
declaration Register
67
Spl.CC 41/2011
Ex.P.9(a) - Sign. of P.W.3
Ex.P10 - Authorisation letter
Ex.P.10(a) - Sign of P.W.4
Ex.P11 - Prosecution sanction order
Ex.P.11(a) - Sign of P.W.5
Ex.P12 - 164 statement of P.W.7
Ex.P.12(a) - Sign of P.W.7
Ex.P13 - Complaint
Ex.P.13(a) - Sign of P.W.6
Ex.P.13(b) - Sign of P.W.8
Ex.P14 - 164 statement of P.W.6
Ex.P.14(a) - Sign of P.W.6
Ex.P15 - F.I.R.
Ex.P.15(a) - Sign. of P.W.8
Ex.P16 - Letter dt: 29-9-2010
Ex.P17 - Letter of Secretary, Karnataka
Housing Board dt: 29-9-2010.
Ex.P18 - Transcription of C.D. given along
with complaint.
Ex.P.18(a) - Signature of Pancha
Ex.P.18(b) - Signature of Pancha
Ex.P19 - Police notice
Ex.P20 - Endorsement
Ex.P21 - P.F. No.67/2016
Ex.P-21(a) - Sign of P.W.8
Ex.P.22. - Letter to FSL
Ex.P.23. - Letter to Joint Commissioner,
BBMP, Bengaluru.
Ex.P.23(a) - Sign of P.W.8
Ex.P.24. - Service register
Ex.P.24(a) - Sign of P.W.8
Ex.P.25. - Work report
Ex.P.25(a) - Sign of P.W.8
Ex.P.26 & 26(a) - Sketch
Ex.P.27. - 164 statement of complainant
Ex.P.28. - Chemical Examination report
Ex.P.28(a) - Sign of PW.8
Ex.P.29. - Memo dt: 3-11-2010
Ex.P.30. - Final report
68
Spl.CC 41/2011
Ex.P.31. - Certificate under section 65B of
Evidence Act
Ex.P.31(a) - Sign of PW.8
Evidence adduced on behalf of the defence:
NIL
Documents marked on behalf of the defence:
Ex.D.1 - Deposition of Basavarj N. in
Spl.CC No.345/2014.
Material Objects marked by Prosecution:
M.O.1 - Cotton
M.O.1(a) - Sign of P.W.2
M.O.2 - Cash of Rs.50,000/-
M.O.2(a) - Cover
M.O.3 - Cash of Rs.5,605/-
M.O.4 - Bottle (Article No.1)
M.O.5 - Bottle (Article No.2)
M.O.6 - C.D. (Article No.3)
M.O.7 - C.D. (Article No.4)
M.O.8 - C.D.(Article No.5)
M.O.9 - Bottle (Article No.6)
M.O.10 - Bottle (Article No.7)
M.O.11 - Bottle (Article No.7A)
M.O.12 - Bottle (Article No.8)
M.O.13 - Bottle (Article No.8A)
M.O.14 - Bottle (Article No.9)
M.O.15 - Bottle (Article No.10)
M.O.16 - Bottle (Article No.11A)
M.O.17 - C.D. (Article No.13)
M.O.18 - C.D. (Article No.14)
M.O.19 - C.D. (Article No.15)
Sd/-09.08.2021
(Gopalakrishna Rai.T),
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (P.C.Act),
Bengaluru. (CCH-79)