Bangalore District Court
Central Bureau Of Investigation vs K.V.Srinivasa Prasad on 9 December, 2020
IN THE COURT OF THE XXXII ADDL.CITY CIVIL
AND SESSIONS JUDGE AND SPL.JUDGE FOR CBI
CASES, BANGALORE (CCH.34)
Dated This the 9th day of December, 2020
-: P R E S E N T :-
Sri.Shivaram.K, B.Com., LL.M,
XXXII Addl.City Civil & Sessions Judge
& Spl.Judge for CBI Cases, Bangalore.
Spl.C.C.No.13/2016
COMPLAINANT Central Bureau of Investigation,
CBI/ACB, Bengaluru.
(Rep. By Public Prosecutor)
-Vs-
ACCUSED:- 1. K.V.Srinivasa Prasad,
s/o.late V.Venkatapathy,
No.126, 24th Cross, 11th Main,
1st Stage, D-Block, J.P.Nagar,
Mysore 570 031.
2. Sri.A.Lourduprabhu,
s/o.late L.Anthoni Raj,
Quarter No.5, A-Block,
Central Excise & Customs Staff
quarters, BTM II Stage, Near
Central Silk Board,
Madiwala, Bengaluru.
And also at :
No.24/1, 4th Main Road,
Sampangiram Nagar,
Bengaluru 560 027.
(By Sri.Kiran S.Javali & Shivaji Rao Mane-
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Adv. for A.1)
(By Sri.Hashmath Pasha- Adv. for A.2)
Date of commission of : On the intervening night
the offence/s of 12 & 13.10.2015
Date & time of : 14.10.2015/11.20 a.m
Report of the RC.24(A)/2015
offence/s
Offences charged : U/sec.7 & 13(2) r/w.
Sec.13(1)(d) of the
P.C.Act, 1988
Name of the : Sri.T.Srikumar,
Complainant s/o.Late Thiruvengadam
Date of arrest of the : A.1 - 17.10.2015
accused A.2 - 13.10.2015
Period undergone in : A.1 - Upto 28.10.2015
J.C.by the Accused A.2 - Upto 17.10.2015
Date of :
commencement of the 11.04.2018
evidence
Evidence closed on : 03.10.2019
Statement of accused : 02.12.2019
u/sec.313 of Cr.P.C.
Final Verdict : Accused No.1 & 2 :
Convicted
(Shivaram.K)
XXXII Addl.City Civil and Sessions
Judge and Spl.Judge for CBI cases, Bengaluru.
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JUDGMENT
The CBI/ACB, Bengaluru, charge sheeted Accused No.1 and 2 for the offence punishable u/sec.7 and 13(2) r/w. Sec.13(1)(d) of The Prevention of Corruption Act, 1988.
2. The alleged offence took place on 12/13.10.2015. A.1 was the Superintendent of Customs, Office of the commissioner of customs (Air cargo and Airport), Kempegowda International Airport, Devanahalli, Bengaluru and A.2 was Head Hawaldar in the same office at the time of committing the alleged offence. A.1 was arrested on 17.10.2015 and produced before the court and was released on bail on 28.10.2015 by the order of this court. A.2 was arrested on 13.10.2015 and was remanded to J.C and released on bail on 17.10.2015. A.1 was under suspension with effect from 17.10.2015 and A.2 was under suspension with effect from 13.10.2015 for a short period. A.1 and A.2 are Central Government employees and they are public servants. 4
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3. It is not in dispute that A.1 and A.2 were on duty on the intervening night of 12/13.10.2015 at KIA airport.
4. The complainant has not been examined as a witness before this court since he died during the pendency of the case on 2.5.2018, but his statement u/s.164 of Cr.P.C was recorded by the learned Magistrate.
5. The brief facts of the case is that on the intervening night of 12/13.10.2015 the complainant travelled from Singapore to India and landed in KIA. On the said day it was found that complainant had brought 15 laptops without any authority of law. The complainant was caught by A.1 and to release the said laptops A.1 demanded Rs.1 lakh. Since the complainant did not agree to pay, there was bargain in between the complainant and A.1 and it was reduced to Rs.50,000/- and the complainant sought short time to pay Rs.50,000/- as bribe. Since, the complainant prayed for short time to pay the said amount, A.1 had retained the boarding pass, E-visa and other documents, original bill, passport, etc. vide Ex.P.3 to P.7 5 Spl.C.C. No.13/2016 and P.55 belongs to the complainant. Further, A.1 allowed the complainant to take with him 15 lap tops outside the airport area purchased by him from Singapore. The conversation in between the complainant and A.1 with regard to the demand of bribe was recorded suomoto by the complainant in a HTC mobile marked as MO.11(b). Thereafter, the complainant went to the house of his friend one Basavaraj.G (P.W.16) located near to the Airport at a distance of 4 to 5 kms from Airport. Thereafter, he and P.W.16 went to the office of C.B.I. at about 7.45 a.m and met the then Superintendent of police (P.W.17) and lodged a complaint as per Ex.P.1 and handed over MO.11(b) to P.W.17. P.W.3 had verified the complaint, and submitted verification report as per Ex.P.16 and P.W.17 had registered a case against A.1 and A.2 and other unknown officials of customs for the offence punishable u/s.7 & 13(2) r/w.13(1)(d) of the P.C.Act and prepared FIR vide Ex.P.17. P.W.17 had entrusted to P.W.3 to lay the trap. Accordingly, under the instruction of P.W.3 complainant brought Rs.50,000/- and witnesses were secured and an entrustment mahazar was drawn as per Ex.P.2 and a trap 6 Spl.C.C. No.13/2016 demo was conducted with regard to the modus operandi to nab the culprit on 13.10.2015.
6. During the verification of the complaint, the complainant telephoned to A.2 and the spot to lay trap was fixed in the Empire hotel, Kammanahalli Main Road, Bengaluru at the instance of A.2. The TLO and his team went to the spot at 7.30 p.m to lay the trap and during the trap the complainant gave Rs.50,000/- to A.2. A.2 as per the instruction of A.1 given over phone, had returned Rs.5,000/- out of the said amount to the complainant. The conversation between A.1 and A.2 during trap was recorded vide MO.3. After completion of trap, P.W.17 transferred the investigation to P.W.20 and after investigation, the I.O (P.W.20) has filed charge sheet.
7. To prove the case, prosecution has examined P.W.1 to P.W.20 witnesses and got marked Ex.P.1 to P.71 documents and MO.1 to MO.11. Ex.D.1 to D.4 got marked through defence. Ex.C.1 is opened seal cover which contained FIR.
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8. Accused denied the statement u/s.313 Cr.P.C. recorded on 2.12.2019. On 12.12.2019 and 11.3.2020 the counsel for A.1 has filed written statement of A.1 u/s.313(5) of Cr.P.C with documents. On 2.12.2019 itself A.2 has filed written statement u/s.313 Cr.P.C stating that on 12.10.2015 in the night he was on duty in 'C' batch and not under A.1 and A.1 did not ask him to receive bribe amount on behalf of him. The counsel for prosecution has filed written Memorandum of arguments u/s.314 of Cr.P.C. The counsel for A.1 has filed written arguments and reply to the written Memorandum filed by prosecution u/s.314 of Cr.P.C.
9. Heard the arguments.
10. The points that would arise for consideration are as under:-
1) Whether there was valid sanction to
prosecute A.1 and A.2?
2) Whether there was a demand by A.1 and A.2 helped A.1 in getting bribe amount for A.1?
3) Whether the prosecution was successful in the trap laid?
4) What order?
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11. My findings on the above points are as under:-
Point No.1 : In affirmative.
Point No.2 : In affirmative.
Point No.3 : In affirmative.
Point No.4 : 'As per final Order' for the following:-
REASONS
12. Point No.1 :- It is contended by the learned Public prosecutor that in compliance of Sec.19 of the Prevention of Corruption Act, sanction has been obtained. Accused No.1 was Superintendent of Customs in the office of Principal Commissioner of Customs, KIA, Devanahalli, Bengaluru during the relevant time i.e. on 12/13.10.2015 and the Commissioner of customs was the appointing authority of Superintendent of customs and sanction was obtained on 28.12.2015. Ex.P.48 is the sanction order. P.W.15 being the Principal Commissioner and additional charge of Chief Commissioner of customs has granted the sanction order. Sec.19 of P.C.Act says that sanction shall be by the officer competent to remove the public servant. 9
Spl.C.C. No.13/2016 It is not in dispute that A.1 was appointed as Inspector of Central Excise and promoted as Superintendent of Central Excise. A.1's post was a promotional one. P.W.15 (Retd. Prl.Commissioner of customs) states in his cross- examination in page 4 that when officers of Central Excise are transferred to work in customs, they will be under the control of Prl.Commissioner of customs till they are in customs department.
13. A.2 was the Hawaldar (Group C employee). Principal Commissioner of customs (P.W.15) has issued the sanction order vide Ex.P.49. His appointing authority was the Commissioner of customs. The designation of P.W.15 is mentioned as Principal Commissioner of customs. In Ex.P.47(a) it is stated about the authority to remove. It is contended by the learned Public prosecutor that even the sanction was issued by the higher rank of the appointing authority, then also the sanction is valid.
14. Admittedly, A.1 was Group B Officer and A.2 was Group C officer at the relevant time. As per Ex.P.47, 10 Spl.C.C. No.13/2016 Circular of Ministry of Finance department of Revenue i.e. Gazette notification dt.13.7.2010 (Ex.P.47a) and 16.9.2014 (Ex.P.47), for Group B officers Commissioner is the disciplinary authority and he can pass order of dismissal as per conduct Rules and Chief Commissioner is the appellate authority. Further, for Group C officers, Joint commissioner/Addl.Commissioner is the disciplinary authority and Commissioner is the appellate authority and in case where commissioner passes an order in a common disciplinary proceeding the Chief commissioner would be the appellate authority. In the case on hand, Principal Commissioner of customs of Airport and Air cargo was holding additional charge of Chief commissioner of customs and accorded sanction. Hence, it is contended by the learned public prosecutor that since the Principal commissioner of customs was superior to the commissioner of customs and Addl.Commissioner of customs, the sanction granted by superior officer is valid sanction. In support of the contention, counsel relies the judgment reported in AIR 1995 SC 1314 - State of Tamilnadu Vs. P.Thulasingam and others. In the said 11 Spl.C.C. No.13/2016 judgment in para No.75 the Hon'ble Apex court has observed that in the said case sanction was given by the superior authority namely the Government which appointed the special officer, and once sanction was granted by the superior authority it does not get invalidated. It could be invalid if the sanction had been granted by the authority subordinate to the authority who had to grant sanction and in that case would have been subject to challenge.
15. The counsel for accused No.1 contends that P.W.15 in his cross-examination has admitted that during his tenure as Principal Commissioner of customs he had not appointed any person as Superintendent of customs and Hawaldar and since A.1 was appointed as Inspector of Central excise and promoted as Superintendent of Central excise, the commissioner of customs is not the authority to appoint Superintendent of Central excise and can appoint only Superintendent of customs. Hence, P.W.15 cannot be competent to remove A.1. Further, it is contended that P.W.15 in his evidence in page No.5 para 6 12 Spl.C.C. No.13/2016 in the cross-examination has admitted that disciplinary proceedings and prosecution are different. Hence, counsel contends that the Principal commissioner of customs is not competent to remove the accused. I feel Ex.P.47(a) dt.13.7.2010 clearly indicates that Central board of Excise and customs designated the commissioner as appointing authority for the post of Inspector (Central Excise) and others and disciplinary authority for Group B and C as shown in the said document. In the case on hand, the sanctioning authority was the superior to the appointing authority of A.1 and A.2. Hence, in view of the principles laid down in the judgment cited above and Ex.P.47(a), I feel there is no merit in the contention of learned counsel for A.1 and A.2 to that extent.
16. It is further contended by the learned counsel for accused No.1 and 2 that there is no application of mind by the sanctioning authority (P.W.15). It is contended by the counsel for A.1 that the sanction order dt.28.12.2015 is a verbatim reproduction of the draft sanction order vide Ex.P.52 that was put up before the Principal commissioner 13 Spl.C.C. No.13/2016 of customs by the CBI. Further, there were no modifications made and the draft was re-typed and signed. Further, the counsel would contend that the wording of sanction order must be such that on a plain reading of that order the court should be satisfied that the sanctioning authority at the point of time had arrived a subjective satisfaction that the case warrants prosecution. Contrary to that the learned public prosecutor would contend that in para No.15 of Ex.P.48 and 49, P.W.15 had categorically stated that he had carefully examined all the material placed before him.
17. On perusal of Ex.P.48 in para No.15 it appears that P.W.15 had carefully examined all the material placed before him such as copy of the FIR, copies of statements of witnesses and other documents collected during the course of investigation. In his evidence also in para No.2 he has stated that CBI had sent investigation report containing statement of witnesses, documents recovered, document pertaining to recovery of money, two mahazars, voice transcripts, etc and it was placed before him and he 14 Spl.C.C. No.13/2016 had gone through them carefully and accorded sanction. Learned public prosecutor would contend that it is not necessary that the report shall be given in a particular form. It is further contended by the learned public prosecutor that even a statement has not been produced before the sanctioning authority it would not vitiate the sanction. In support of the contention the counsel relies the judgment reported in AIR 1992 SC 563 - State of Tamilnadu Vs. Damodaran. In the said case the statements under Sec.164 of Cr.P.C recorded of the witnesses have not been placed before the sanctioning authority. Hence, the Hon'ble High court of Tamilnadu had held that the sanction was not accorded applying his mind. The Hon'ble Apex Court has set aside the said finding and held that the authority had granted sanction after fully applying his mind. Further, learned public prosecutor would contend that sending draft sanction order would not vitiate the sanction order. Contrary to that learned counsel for A.2 would contend that sanction authority must independently apply its mind for the whole record of the case for according sanction. In support of 15 Spl.C.C. No.13/2016 the contention learned public prosecutor and learned counsel for A.2 relied the same judgment reported in AIR 2014 SC p.827 - CBI Vs. Ashok Kumar Agarwal. In the said judgment Hon'ble Apex Court has held that 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 authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. In support of the contention that sending a draft sanction order to the competent Authority does not vitiate the sanction order, the learned Public prosecutor relies the judgment rendered by the Hon'ble Supreme court of India in Appeal (Crl.) 462/2005 dt.29.3.2005 - C.S. Krishnamurthy Vs. State of Karnataka. In the said judgment it is observed by the Apex court that sanction should not be taken as a shield to protect corrupt and dishonest public servant. In the said case a draft sanction order was also been submitted before the competent Authority. Further, learned public prosecutor has also 16 Spl.C.C. No.13/2016 relied the judgment rendered by the Hon'ble Apex court reported in AIR 1958 148 - Indu Bhushan Chatterjee Vs. State of West Bengal. In the said judgment it is observed that it is inconceivable that an officer of high rank would blindly sign a ready made sanction prepared by the police.
18. The learned counsel for accused No.2 would contend that P.W.15 in the cross-examination in para No.14 had stated that the CBI had not forwarded the CD said to be containing the voice record. According to P.W.15 he did not receive the CD, but according to him he had received the voice transcripts. It is the contention of learned counsel for A.2 that if CD contained the voice record had it been examined by P.W.15, he would not have granted sanction. I feel, there is no merit in the said contention as he had examined voice transcripts. Further, while examining the records to accord sanction, acid test need not be applied and it is to be seen only prima-facie case and as to whether required procedure has been followed or not. It is further contended that the 17 Spl.C.C. No.13/2016 statement of Sudhakar-(P.W.12)-Hawaldar, was also not been forwarded to P.W.15 along with other documents. Hence, if those documents had been sent, P.W.15 would not have sanctioned for prosecution. Further, in Ex.P.49 sanction order, P.W.15 did not mention that he has authority to remove A.2 from service. Hence, the very granting of sanction order vitiates the proceedings. It is further contended by the learned counsel for A.2 that P.W.19 in page No.6 had deposed that he had signed MO.11(b) the HTC mobile and the same is not visible because of the gum pasted on double sides of the battery. Hence, he submits that it cannot be inferred without explicit evidence that MO.11(b) was examined by P.W.19. Further, counsel submits that P.W.19 has admitted in the cross-examination in page No.12 that in the sample voice the word "Lingarajapuram" was not there. Hence, proper comparison of the voice has not been made. Further, counsel contends that the sample voice of the complainant has not been taken for comparison. Hence, prosecution has failed to establish that the conversation vide Ex.P.29 was in between A.1 and A.2.
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19. It is further contended by the learned counsel for accused No.1 that the power to sanction permission for prosecution is vested in the Head of the department and he is expected to act with a sense of responsibility and discharge his functions judiciously. Further, once a sanction is accorded, it is virtually a point of no return so far as the public servant is concerned and the consequences are inevitable. Further, the action taken by the prosecuting authority spoils the career and reputation of the public servant and the damage caused is an irreparable one. Therefore, scrutiny of the documents before issuing sanction, authority should be in careful.
20. Further, it is contended that the sanctioning authority did not verify the CCTV footages installed in the Airport and he did not call for duty allotment register, passenger manifest and MHB register and not verified as to whether the customs declaration form was filed with customs department or not. The I.O did not obtain the CCTV footages installed in the Airport. P.W.20 was the I.O. In para 16 in the cross-examination it is admitted by 19 Spl.C.C. No.13/2016 him that CCTV footage was not handed over to him by P.W.3. Nothing is elicited in the cross-examination of P.W.3 and P.W.20 that they took CCTV footage and CCTV was fixed to the hotel and in the Airport covering the place wherein the alleged offence took place. Hence, I.O cannot be faulted that he did not collect the CCTV footage. It is not at all suggested to P.W.15 that A.1 and A.2 were not at all on duty on the day of incident. Further, it is not suggested to P.W.15 as to why he did not call for duty allotment passenger manifest and MHB register. Had it been the fact that such question was put, there would have been an answer from P.W.15 as to why he did not call for duty allotment, passenger manifest and MHB register. Further, according to A.2 as stated in his statement u/s.313 Cr.P.C dt.2.12.2019 that on the day of alleged incident in the night he was on duty but not under A.1. Therefore, I feel there is no merit in the said contention of the counsel for accused that since the above said documents were not called for, the sanction is vitiated. Hence, I answer the point in affirmative. 20
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21. Point No.2 & 3 :- It is not in dispute that on the relevant date and time A.1 and A2 were working in 'C' batch. It is the contention of the learned counsel for A.1 that on the intervening night of 12/13.10.2015, A.1 was not present in the red channel for flight No.TR2652 and he was posted for scanning duty of check-in-baggage for flight No.TR2652. In support of the contention he relies Ex.P.27. Ex.P.27 is the duty register. Ex.P.27(a) is the relevant page. On close scrutiny of the same, it appears that on the said day A.1 was on duty in scanning section and he had discharged duty while the flight No.TR2652 landed at KIA. Ex.P.27(b) is his signature for having present and attended duty while the above said flight came to KIA. Further, he had also attended the scanning duty of check-in-baggage of other flights on the said day. Ex.P.21 is the work allocation order dt.7.9.2014. It indicates that Shobi Thomas (P.W.9) and K.V.S.Prasad (A.1) were posted at Airport in the 'C' batch.
22. According to D.Anil (P.W.4), he was working as Addl.Commissioner of customs in KIA, Bengaluru during 21 Spl.C.C. No.13/2016 the year 2015. Further, A.1 was doing regular custom work in the year 2015 as Superintendent of customs in KIA, Bengaluru during the year 2015. To corroborate that A.1 and A.2 were on duty at KIA, Bengaluru during the relevant period, prosecution has examined one R.Chandra Murthy (P.W.7), Asst.Commissioner of customs, Air cargo, KIA, Bengaluru. According to him during the month of October 2015, he was working in KIA, Bengaluru in 'C' batch. Further, on 12.10.2015 he was on night duty as Asst.Commissioner of customs in 'C' batch. Further, in the said batch Mr.Shobi Thomas (P.W.9) was the Superintendent and batch head. Further, he, accused No.1 and C.G.Prabhu, (Hawaldar)-A.2 were also working in the said batch. Further, according to him the timings of the day duty was from 8 a.m to 8 p.m and night duty was from 8 p.m to 8 a.m. In para No.11 & 12 of his evidence he has stated that A.1 was allotted the duty of red channel and main scan in the intervening night of 12/13.10.2015. Further, he had marked the presence of A.1 and A.2 in the duty chart in Ex.P.27(a) and he (A1), himself had written the flight numbers in his hand writing and in the 22 Spl.C.C. No.13/2016 questioned night A.1 attended the duty of flight No.TR5262 and at that time A.2 was on duty as Hawaldar.
23. One Nataraj (P.W.8) was the Superintendent of Customs, Air Intelligence Unit of KIA, Bengaluru. According to him on the intervening night of 12/13.10.2015 he worked in 'C' batch and A.1 was also working as Superintendent of customs in 'C' batch on the said time. Further, on the said intervening night at about 1.00 a.m, one Prabhakar, Superintendent of customs called him over phone to meet A.1. Immediately, he (PW.8) came to the ground floor near green and red channel wherein A.1 was working and A.1 told him (PW.8) that one passenger was standing near red channel and he may enquire him (C.W.1) about the price of laptop and he (A.1) told P.W.8 to enquire about the price of laptop with the said passenger (CW.1). Further, after about one and a half hours from the above incident, Sudhakar (P.W.12) came along with a passenger to the place where he (P.W.8) was working. Further, the said passenger (C.W.1) came with an intention to sell laptop to him. P.W.8 refused to 23 Spl.C.C. No.13/2016 purchase. Further, according to Sudhakar (P.W.12) he was appointed as Hawaldar and he was working in the 'C' batch on the relevant day. Further, A.1 and A.2 were working in his batch. Further, on the said intervening night A.1 called him and asked to take CW.1 to Mr.Nataraj, Superintendent of AIU, accordingly, he (PW.12) took CW.1 to Sri.Nataraj and thereafter brought him to A.1. The above stated witnesses have consistently deposed about the presence of A.1 and A.2 during the intervening night.
24. According to Sujith Kumar T.Sompur (P.W.5), Dy.Commissioner of customs at KIA, Bengaluru, during the year 2015, A.2 was working as Hawaldar during the relevant period and Ex.P.23, office order indicates that A.2 was working in batch 'C'. One Nataraj (P.W.8) who was working as Superintendent of customs, Air Intelligence unit, KIA, Bengaluru has corroborated the incident by saying that during the intervening night he was on night duty and was posted at Air Intelligence unit and on the said intervening night A.1 was working as 24 Spl.C.C. No.13/2016 superintendent of customs in 'C' batch and he came to the ground floor near green channel and red channel wherein A.1 was working.
25. Apart from that P.W.9 Shobi Thomas - Superintendent of customs had spoken in his evidence that A.1 was on duty on the said day. Further, he has said in his evidence in page No.5 that A.1 was handling the said passenger (complainant).
26. In addition to prove that A.2 was posted for duty as Hawaldar, P.W.9 Superintendent of customs says in his evidence that he was in 'C' batch and A.2 was also in his batch along with other Hawaldars and he had marked the presence of Hawaldars including A.2 on duty in the chart at Ex.P.27(a). According to him whenever Inspector or Superintendent comes to duty to the main scan, the Hawaldar shall accompany them and after verification of the baggage by the Superintendent or Inspector, they shall mark the suspected baggage. Further, Sujith Kumar P.Sompur (P.W.5) says in his evidence that during the year 25 Spl.C.C. No.13/2016 2015 he was working as Dy.Commissioner of customs (Air port) at KIA. According to him, A.2 was working as Hawaldar on the said day. Ex.P.23 is the office work order of A.2. It is mentioned in Ex.P.23 that A.2 was posted for duty at KIA on the said day.
27. It is the contention of learned counsel for A.1 that P.W.4 in his evidence in para No.5 of page 3 has stated that the Superintendent in charge of a red channel was assigned with a duty of examining the baggages/goods received in the Airport. Further, in para 11 of page 7, he had deposed that if an officer was on duty at baggage scan area, simultaneously he cannot be in green or red channel area, and baggage scan area in KIA is far away from the area wherein the passengers pick up their luggages and also from green and red channels. Further, P.W.7 had deposed that he attended flight No.TR2652 and unmarked 110 baggages and marked 15 baggages. Further, P.W.20 during the cross-examination at para 18 of page 20 had stated that CW.12 V.G.Prabhakar was attending the scanning section at the 26 Spl.C.C. No.13/2016 relevant time. Hence, counsel contends that A.1 was not in the red channel on the alleged date of incident. Ex.P.27 is a crucial document. There is no dispute with regard to the entry made in Ex.P.27. It is not the defence that the entries in Ex.P.27 were made by any ill-will persons in connivance with other airport officials.
28. As contended by learned Public prosecutor in Ex.P.27(a) duty register maintained on 12.10.2015, it clearly indicates that A.1 was posted for duty on main scanning and red channel (MS/RC). Further, the name of A.2 is also shown that he was on duty on the said day in the main scanning and red channel. The duty of A.2 was to assist his superintendents. The documentary evidence prevails over the oral evidence. Apart from that as stated above, Ex.P.27(a) indicates that A.1 attended the passengers who had de-boarded from the flight No.TR 2652 and he had signed the register at Ex.P.27(c). No doubt as contended by the learned counsel for A.1 there is a little bit zigzag in the answer given in the cross- examination by P.W.4, P.W.7 and P.W.9 about the presence 27 Spl.C.C. No.13/2016 of A.1 on red channel. I feel the same is an immaterial one.
29. Further, learned counsel for A.1 has relied Ex.D.4 document to substantiate that no customs officer who was posted for scanning of the check in baggage is allowed to clear the goods of the passenger in the red channel for the same flight. On close scrutiny of Ex.D.4, it appears that accused had obtained those documents under RTI and were issued by Sahar Andheri (East) Mumbai Airport, Customs house, Marmugao, Dabolin Airport, Goa, IGI Airport, Terminal III, New Delhi, Calicut International Airport and International Airport, Ahmedabad. I feel the rules stated in Ex.D.4 is applicable to the respective Airports. It is not forth coming as to why A.1 did not produce the rules applicable to KIA, Bengaluru to substantiate that the officer who had been assigned the job of scanning, the check-in baggage is not allowed to clear the goods of the passengers in the red channel for the same flight. Hence, I feel Ex.D.4 would not come in the aid of accused No.1. Further, I 28 Spl.C.C. No.13/2016 feel as contended by the learned Public prosecutor the evidence of responsible officers of the Airport i.e. P.W.4, P.W.7, P.W.8 and P.W.9 cannot be brushed aside. P.W.9 - Superintendent of customs, Airport who was the then responsible officer in para No.5 of his evidence has stated that A.1 was allotted the duty of red channel and main scan. Apart from that P.W.8 the then Superintendent of Customs, Head of 'C' batch has consistently deposed that when he came to the ground floor near green channel and red channel, A.1 was working in the red channel. P.W.8 is a crucial witness. Nothing is elicited to disbelieve his version before court. The conversation took place in between A.1 and P.W.8, as stated by P.W.8 also supports the presence of A.1 at red channel. Therefore, since the witnesses have consistently deposed about the presence of A.1 and A.2 at main scanning area and at red channel, there is no merit in the contention of learned counsel for A.1 that A.1 was not in the red channel.
30. To prove that on the said day the complainant had travelled from Singapore and landed at KIA, the 29 Spl.C.C. No.13/2016 prosecution has produced Ex.P.30 a letter issued by Tiger Airways in which it is mentioned that the complainant had travelled on the said day. Further, one B.Ramashankar (P.W.10) Airport Manager had also spoken that complainant had travelled in the said Tiger Airways. Further, in Ex.P.3 in the boarding pass the PNR number shown corroborates Ex.P.6 luggage tag of the complainant. Further, one Nataraj.G (P.W.8) (Superintendent of customs) had given evidence that the accused No.1 had sent the complainant to sell laptop to him, accordingly C.W1 approached him and asked as to whether he intends to purchase the laptop.
31. It is not in dispute that A.1 was working as Superintendent of customs in the office of Principal Commissioner of Customs, KIA, Devanahalli, during the relevant period. Learned counsel for A.1 would submit that on 12/13.10.2015 on the day the alleged incident took place, the complainant did not arrive to Kempegowda International Airport. Further, even though the prosecution has relied on Ex.P.3 boarding pass, since it 30 Spl.C.C. No.13/2016 was over written it is suspectable one. Further, the counsel submits that the name of the passenger in the International flight shall be the same as that was shown in passport of the passenger. Ex.P.55 is the passport of the complainant (C.W.1) in which the name of the complainant is mentioned as Thiruvengadam Sri Kumar. In Ex.P.3 boarding pass, the name of the complainant is mentioned as Srikumar Thiruvengadam. The word Srikumar is written by pen by striking the word Kumar. Hence, it is contended that Ex.P.3 does not belong to the complainant and the same was a concocted one. Further, the name S.Kumar in the boarding pass vide Ex.P.3 reveals that it was tampered and changed to Srikumar manually by making use of a pen and it is not established as to how the hand writing was at there. Ex.P.6 is the luggage tag in which the name is mentioned as Skumar/Thir. The flight number, the date and from which place to which place the said flight was flied is mentioned in Ex.P.3 and P.6. The contents of Ex.P.3 & P.6 are one and the same. Hence, it appears that Ex.P.3 and P.6 belongs to same person. For mere because the name 'Skumar' was struck and written 31 Spl.C.C. No.13/2016 as Srikumar in Ex.P.3, it cannot be said that it was not related to the complainant. Skumar is the abbreviation of Srikumar. Further, the surname Thiruvengadam is mentioned in both the above documents. Apart from that, in Ex.P.55 passport the seal is affixed on 13.10.2015 by Bengaluru International Airport by showing arrival and a seal is also affixed at Singapore Airport on 10.10.2015 as dispatched.
32. It is the further contention of learned counsel for A.1 that since the name of the person in Ex.P.3 is partly scratched and the name Srikumar is written by hand at Ex.P.3(c), Ex.P.3 is a concocted one. Further, P.W.10 in page No.2, para 3 in the cross-examination had deposed that he does not know as to who has corrected the name of the passenger marked as Ex.P.3(c) and as per Ex.P.30 two passengers were travelled in the same PNR number and he cannot say certainly that the said passenger had travelled or not in the said plane unless it is checked with the passport. Further, P.W.9 in para 14 of page No.11 had admitted the suggestion that the passengers name 32 Spl.C.C. No.13/2016 entered in the Air ticket will be the same as entered in the passport. Further, it is contended that the letter dt.6.12.2015 (Ex.P.30) issued by Ramashankar (P.W.10) Manager, Tiger Airways indicates that the ticket was booked in the name of Thiruvengadam Skumar and not in the name of T.Srikumar. Further, the final flight manifest of TR2652 was not verified by the TLO (P.W.3) or by I.O (P.W.20) to ascertain as to whether C.W.1 had actually travelled or not on 12/13.10.2015. Further, the final manifest submitted to the court along with Sec.313 of Cr.P.C statement indicates that the passenger travelled was Skumar and not T.Srikumar. Therefore, the date and seal put on the passport (Ex.P.55) on 13.10.2019 would not prove that complainant had travelled in TR2652 which landed on 11.55 p.m on 12.10.2015. It is the contention that the complainant might have travelled in some other flights which landed in Bengaluru from 00.00 hours to 23.59 of 13.10.2015. Hence, any inference cannot be drawn that C.W.1 was the passenger and had travelled in flight No.TR2652 on 13.10.2015. It is further contended that the say of P.W.8 in para 7 of page No.7 that "one 33 Spl.C.C. No.13/2016 Srikumar the passenger of the aircraft came to me with an intention to sell a laptop. I have no idea with regard to selling of laptop other than the attempt made to sell to me", cannot be believed for the reason in para No.3 he has deposed that he was not knowing the name of the said passenger. I feel as stated above since Skumar is the abbreviation of Srikumar and the surname Thiruvengadam is mentioned in Ex.P.3 and P.6, document and the seal affixed on Ex.P.55 passport corroborates the same, there is no merit in the contention of learned counsel for A.1. Further, nothing is elicited from the witnesses as to what was the enmity they had with A.1 & A.2 to depose against them.
33. It is the further contention of learned counsel for A.1 that in the intervening night of 12/13.10.2015 the complainant did not bring the laptop alleged by the prosecution. The counsel contends that the complainant has not declared the laptops in the customs declaration form (Ex.P.5). On perusal of the same it appears that it was written as five baggages and the total value of 34 Spl.C.C. No.13/2016 dutiable goods being imported was of Rs.40,000/-. Further, Ex.P.7 cash receipt clearly indicates about the mention of laptop. The same was issued by a shop at Singapore. Hence, I feel for mere because it was not mentioned specifically about the laptop in Ex.P.5, in the presence of other evidence it cannot be doubted.
34. Further, counsel for A.1 brought my notice to the evidence of P.W.1 in para 59 of page 46 to the effect that "during the entire proceedings Srikumar or Rajashekar have not shown to him any laptop and while recording his evidence also." Further, P.W.17 has deposed at para 8 page 4 of his cross-examination to the effect that "the complainant did not show him the laptop". Further, P.W.7 also deposed in the cross-examination that laptop was not shown to him. But P.W.3 (TLO) has deposed that C.W.1 while coming to the office of CBI has brought 14-15 laptops but kept the same in his car but he did not wrote letter to custom Authority to take action and he did not seize it. Hence, counsel contends that import of laptops is itself doubtful. Further, the evidence of P.W.3 is contrary 35 Spl.C.C. No.13/2016 to Ex.P.16 verification report prepared by him. In support of the contention counsel relies the judgment reported in (2012) 4 Supreme Court cases 124 - Sampath Kumar Vs. Inspector of Police, Krishnagiri. In the said judgment it is held that it is wholly unsafe to rely upon a version with material improvement unless it is corroborated by some other independent evidence that may probablise the testimony. Further, counsel also relies the judgment reported in (2000) 8 Supreme Court cases, 457 - Narayan Chetanram Choudhary & another Vs. State of Maharastra. It is held in the said judgment that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witness though that cannot be a ground to discredit whole of his testimony. Further, counsel relies the judgment reported in (2000) 1 Supreme Court cases 247 - State of Himachal Pradesh Vs. Lekh Raj and another. In the said judgment it is held that corroboration is only a rule of prudence. Further, minor discrepancy or variance in evidence does not make the prosecution case doubtful. 36
Spl.C.C. No.13/2016 Further, contradictions in the statement of the witness is fatal for the case. Further, counsel relies the judgment reported in (1974) 4 Supreme Court cases 494 - State of Haryana Vs. Gurdial Singh and another. In the said case since the prosecution witnesses have come out with two inconsistent versions of the occurrence, the court doubted the case of the prosecution. Further, counsel relies the judgment reported in (1988) 3 Supreme Court cases 609 - Kehar Singh and others Vs. State (Delhi Administration). In the said judgment it is held that if the discrepancies between the first version and the evidence in court were material, it was safer to err in acquitting than in convicting the accused.
35. Further, counsel relies the judgment reported in (2014) 3 Supreme Court cases 412 - Vijay Kumar Vs. State of Rajasthan. In the said case the material witness has not stated the facts stated before the court, in the statement before the police. Hence, court rejected his evidence. I feel in the case on hand it cannot be said that it was a material improvement in the evidence of 37 Spl.C.C. No.13/2016 prosecution witnesses for the following reasons. The citations referred by the counsel relates to IPC offences and none of the citations relates to offences under Prevention of Corruption Act. The appreciation of evidence in IPC cases cannot be equated with the offence under Prevention of Corruption Act. As contended by the learned counsel for A.1, I feel the transcription of the conversation took place in between A.1 and C.W.1 in the intervening night of 12/13.10.2015 through the HTC mobile phone [MO.11(b)] vide Ex.P.20 and its English translation Ex.P.28 has not been proved since Sec.65B of the Evidence Act has not been complied. MO.11(b) was played in open court. No doubt Ex.P.20 clearly depicts about 15 laptops brought. Further, on verification of call details from the phone of C.W.1 vide Ex.P.45 it appears that on 13.10.2015 at 8.08 am C.W.1 called A.2, at 8.10 am A.2 called C.W.1 and at 8.30 am A.2 called C.W.1. According to P.W.3 during verification of the complaint as per his instruction C.W.1 called A.2 over phone. Ex.P.45 corroborates the same. I feel if the verification report was a cooked up story as per Ex.P.16, what was the necessity 38 Spl.C.C. No.13/2016 to A.2 to talk with C.W.1 on 13.10.2015. A.2 was not a friend of C.W.1 and they had any transactions interse. Learned counsels for A.1 & A.2 opposed to mark Ex.P.20 since Sec.65B of the Evidence Act has not been complied with. I feel there is merit in the contention. Therefore, the said transcription vide Ex.P.20 & 28 cannot be looked into.
36. It is also contended by the counsel for A.1 that the complainant need not enter red channel. It is the contention that the passenger with dutiable goods in excess of Rs.45,000/- has only to go to red channel and the passenger with value less than Rs.45,000/- has to go to green channel. In the case on hand C.W.1 made a declaration as per Ex.P.5 the value was at Rs.40,000/- and goes to red channel. Further, P.W.7 also deposed that the passenger having luggages at value of Rs.45,000/- shall go to green channel. Further, as per Rule 3 of Baggage Rules, 1988 (Ex.P.24) the value of the articles declared in the customs declaration form is Rs.40,000/-, the same shall be less than the prescribed limit and there is no 39 Spl.C.C. No.13/2016 chance of complainant entering red channel. I feel on the facts it could be inferred that C.W.1 brought the laptops without disclosing to the customs Authority. Therefore, he was caught red handed.
37. It is further contended that CCTV footages would have been collected. Since I.O did not want the said evidence, he did not collect the same. I feel it does not amount to suppression of material fact.
38. Contrary to that learned Public prosecutor would submit that the testimony of P.W.1, 2, 3, 6,8, 9 and 12 and the documents vide Ex.P.5 customs declaration form, Ex.P.7 bill for purchase of laptop and M.O.11(b) mobile phone (HTC) through which complainant had recorded the conversation in between A.1 and himself are sufficient to hold that the complainant had brought the laptop on the said date.
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39. It is the case of the prosecution that A.1 had taken Ex.P.3 boarding pass, Ex.P.4 e-visa, Ex.P.5 custom declaration form, Ex.P.6 luggage tag, Ex.P.7 bill for having purchased laptop from the hands of the complainant and the same was returned by A.2 to the complainant after he was bribed. The prosecution has produced Ex.P.4 visa to support that on the said day the complainant had travelled from Singapore to KIA, Bengaluru. The same was taken by A.1 as security till the complainant paid the bribe amount. In Ex.P.5 customs declaration form, the name of the complainant is mentioned, in which, the date of his arrival is mentioned as 13.10.2015 and the complainant had travelled from Singapore is also shown.
40. It is the contention of the learned counsel for A.1 that Ex.P.5 is a fake one ad the same was not in the format issued and used by CBEC. On comparison of Ex.P.5 and Ex.D.1, Indian customs declaration form I won't find any such material change in the format. It is further contended that P.W.7 in his evidence has stated that he does not know as to who had handed over Ex.P.5 to the 41 Spl.C.C. No.13/2016 officers of CBI. Hence, there is doubt in the case. I feel P.W.3 in his evidence has stated that A.1 has collected Ex.P.5 from C.W.1 and A.1 has handed over to A.2 and P.W.3 seized it. Hence, there is no merit in the contention. Further, Ex.P.7 is the purchase bill dated 10.12.2015 and a seal is affixed that it was purchased in Singapore on 12.10.2015. These documents support that the complainant had boarded the Tiger Air flight on 12.10.2015 at 22.15 hours and landed in Bengaluru International Airport on 13.10.2015 at 00.05 hours. The learned counsel for A.1 refers Ex.P.30 the letter collected by the I.O from the office of Tiger Air in which it reflects that in one PNR number, two passengers name is mentioned and the other passenger who had travelled along with the complainant had not been examined. Hence, the counsel contends that there is doubt. I feel it is not necessary to examine the other passenger. It is for the prosecution, as to what type of evidence it has to give to prove the case.
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41. It is further contended by the learned counsel for A.1 that the passenger need not pay duty on the goods carried along with him upto worth Rs.45,000/-. In the case on hand, in Ex.P.5 customs declaration form given by the complainant, the value of the dutiable goods is mentioned at Rs.40,000/-. Therefore, the complainant was permitted to carry the goods which was with him on the said day. Further, the counsel refers Ex.P.7 the cash bill in which it is written only as 10 laptops. Further, the counsel would submit that the total price of the laptops was mentioned as $1100. Therefore, to bring the laptops stated above, the question of permission does not arise. Further, with regard to 15 laptops no document is produced. Apart from that, in Ex.P.6 baggage tag, the total weight of the goods is mentioned as 30 kg. Therefore, the same shall be in checked-in-baggage only and cannot be in hand baggage. Further, in Ex.P.5 it is not declared that it was a laptop. Apart from that, the counsel would submit that it was permitted to take currency upto Rs.3000/- only to abroad and more than that one cannot take, hence, the question arises as to how the complainant 43 Spl.C.C. No.13/2016 had purchased the laptops worth more than Rs.40,000/- in Singapore. Apart from that, second hand items are not permitted to be imported unless it is declared and special licence was accorded and the said laptops were not seized by the I.O and no duty has been collected from the complainant. Hence, there is doubt that on the said day the complainant had brought 15 laptops. I feel since the complainant had suppressed the total worth of the laptops and false declaration been given and a false Ex.P.7 purchase bill was produced, he was prevented in the Airport and caught. Further, the number of laptops is immaterial. The question is as to whether there was demand and acceptance of bribe.
42. It is further contended by the learned counsel for A.1 that since no notice was issued to C.W.1 or A.1 by the Customs department with regard to the 15 laptops been brought, there is doubt in the case of the prosecution. Further, no steps been taken to conduct investigation and post facto seizure of laptops from C.W.1 u/s.110 of the Customs Act, no penalty has been levied u/s.112 of the 44 Spl.C.C. No.13/2016 Customs Act. No doubt P.W.9 has admitted with regard to the requirement of show-cause notice to be issued and P.W.7 also stated that he did not issue notice to A.1 for confiscation of laptops brought by C.W.1. Admittedly, laptops have not been seized and confiscated. I feel for mere because notice not been issued and laptops been not confiscated, in the presence of other evidence, the case of the prosecution cannot be doubted.
43. Apart from that one Nataraj (P.W.8), the then Superintendent of Customs, KIA had deposed before the court that on the intervening night of 12/13.10.2015 at about 1 a.m, one Mr.Prabhakar, Superintendent of customs called him over phone to meet A.1. Hence, immediately he came to the ground floor and met A.1 where he was working. Further A.1 told him that one passenger was standing near red channel and he (P.W.8) enquired A.1 about the price of laptop and A.1 told him(P.W.8) to enquire the same with the said passenger if he intends to buy laptop and he (P.W.8) told A.1 that he already purchased laptop and he does not want to know 45 Spl.C.C. No.13/2016 the price. Further, in the cross-examination P.W.8 in page No.7 had deposed that Srikumar, the passenger of the aircraft came to him with an intention to sell laptop. In addition to, Shobi Thomas (P.W.9) Superintendent of customs, Airport had deposed that when he had enquired with the passenger who was in red channel as to what he brought and he told that it was laptop and when he questioned about the value he quoted some very low value and A.1 was handling the said passenger. I feel the consistent evidence of P.W.8 and 9 who were the responsible officers of the airport that they had seen the laptop possessed by the complainant and the complainant's offer to sell the same to him corroborates the case of the prosecution. It is not the defence that A.1 had not in good terms with P.W.8 and 9, thereby, they had given evidence against him. Therefore, I feel the say of P.W.8 and 9 as stated above remained unshaken.
44. It is the further contention of the learned counsel for A.1 that the purchase of laptop in Singapore by C.W.1 is suspicious. To justify the same the counsel relied Ex.P.7 46 Spl.C.C. No.13/2016 and contends that in Ex.P.7 it is only shown about the purchase of 10 laptops and no document been produced for the purchase of remaining 5 laptops alleged. Further, counsel relies the affidavit of the alleged owner of the shop at Singapore produced by A.1 in his statement u/s.313 of Cr.P.C. I feel since the contents of the said affidavit has not been subjected for cross-examination with regard to its genuineness, it has no evidentiary value. It is contended by the learned counsel that the affidavit is notarised and certified by the Government of Singapore under its seal and is recognised u/s.3 of Indian Diplomatic and Consular officer (Oaths and fees) Act, 1948 to administer oath and take affidavit. In support of the contention he relies the judgment reported in AIR 1967 Calcutta 636 - J.K.Ray (Private limited). In the said judgment the question was with regard to admissibility of the affidavit sworn before a Notary public of U.S.A. As per Sec.82 of Indian Evidence Act, presumption cannot be drawn with regard to the documents in force other than in England or Ireland. By considering the procedure adopted by State of New York, U.S.A, the Delhi High Court 47 Spl.C.C. No.13/2016 permitted to admit the affidavit sworn before a Notary public of the United States of America.
45. Further, counsel relied the judgment reported in 1970(2) SCC 386 - Jugraj Singh Vs. Jaswanth Singh. In this case an Indian had executed power of attorney in California, U.S.A, authorizing an advocate in India to sell the property. On the strength of the document sale deed was executed. The Hon'ble Apex Court accepted the second power of attorney as it was executed before a proper Notary public who complied with the laws of California and authenticated the document as required by that law.
46. Further, counsel relied the judgment reported in ILR (1976) 1 Delhi 559, National And Grindlays Bank Ltd. Vs. M/s.World science News & Others. In this case the power of attorney executed and unauthenticated by a Notary public at London. Sec.82 of Indian Evidence Act permits to produce documents executed in England. In that circumstances, Hon'ble Apex 48 Spl.C.C. No.13/2016 Court observed in para 10 of the judgment that 'Notaries public' in Sec.85 of the Indian Evidence Act does not limit the meaning to Notary appointed in India only.
47. In the case on hand, the counsel for A.1 relied the affidavit sworn before Notary public, Singapore. Sec.82 of the Indian Evidence Act contemplates that the document which, by the law in force for the time being in England or Ireland would be admissible. Sec.85 of the Indian Evidence Act says with regard to presumption to be drawn on the power of attorney executed before and authenticated by a Notary public, that it was so executed and authenticated. Hence, presumption is only with regard to its execution and not the contents thereon. Further, the documents do not come within the perview of Sec.56 and 57 of Evidence Act. The contents of the document could only be proved either u/s.61 or Sec.62 of the Act by letting in evidence through a person who relies. In the case on hand that has not been complied with. 49
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48. Further, one Sudhakar (P.W.12) Hawaldar had given evidence that he was asked by A.1 to collect Rs.50,000/- from the complainant and P.W.12 told A.1 that he was otherwise engaged. Ex.P.24 baggage rules indicates as to how much duty free electronic items could be imported and ie. upto Rs.45,000/-. One R.Chandra Murthy (P.W.7) - Asst.Commissioner of Central Excise had spoken in his evidence that the passenger used to prepare challan for dutiable item and initially A.1 told the complainant that the duty payable was Rs.1,62,000/- and the total worth of laptop was $1100.
49. It is the further contention of the learned counsel for A.1 that the prosecution has failed to prove the preliminary enquiry said to have been conducted before the registration of FIR, thereby, the FIR and charge sheet are based on matters not verified and affected the entire proceedings. It is the contention that according to the prosecution the law was set into motion on a complaint of C.W.1 on 13.10.2015. Hence, if such was the fact, why Jacob Thomas (PW.6) independent witness has deposed in 50 Spl.C.C. No.13/2016 his evidence in para 2 that on 12.10.2015 he was informed by the Vigilance officer of Oriental Insurance Company to go to the office of CBI on 13.10.2015 at 7.45 am. Accordingly, he went on 13.10.2015 at 7.45 am. The incident took place on 13.10.2015 and witnesses gave evidence before court in the year 2018. I feel because of passage of time there is chances of variation in saying the time with an hour later or earlier. Hence, it cannot be inferred that P.W.6 was present in the office of CBI before P.W.17 received the complaint. No doubt it is the say of P.W.6 that he was informed on 12.10.2015, but it is not the defence that all the officials have hatched a plan to send A.1 & A.2 out and they had vengeance with A.1 & A.2.
50. According to T.Rajashekar (P.W.3) TLO, he has received the complaint for verification at 8 am on 13.10.2015 and he has submitted the verification report as per Ex.P.16 on 13.10.2015 at 3.30 pm. Further, at the time of verification as per the instruction of P.W.3, C.W.1 made a call to A.2 to ascertain the truth with regard to the demand of bribe by A.1. In the call A.2 specifically 51 Spl.C.C. No.13/2016 discussed about laptop. Through MO.11(b) HTCL mobile phone the call was made in the presence of Jacob Thomas (P.W.6) independent witness. Ex.P.16 is the verification report of the complaint. According to P.W.3 as instructed by him C.W.1 called A.2 over the phone collected from Basavaraj. Initially the call was disconnected, thereafter, A.2 himself called C.W.1. A.2 told to C.W.1 to come near hotel Empire situated at Kammanahalli, Bengaluru along with amount of Rs.50,000/- as instructed by A.1, A.2 told to come at 7.30 pm. On perusal of CDR vide Ex.P.45 of C.W.1 and Ex.P.34 of A.2 it appears corroboration with regard to call made. I feel the preliminary enquiry has no evidentiary value but the CDR cannot be brushed aside as the same took place in the natural course.
51. It is the further contention of the learned counsel for A.1 that the presence of C.W.1 during preliminary investigation was doubtful. In this regard he has brought my notice to the admission of P.W.6 in para 12 of his evidence. According to P.W.6, he was with the complainant in the office of CBI on 13.10.2015 from 7.45 52 Spl.C.C. No.13/2016 am to 12.30 pm and according to P.W.3 as stated in para 56 C.W.1 had brought mobile phone of Basavaraj and it was with him till next day. I feel since Ex.P.16 is not admissible whether C.W.1 was present at the time of preliminary enquiry or not has no relevancy.
52. According to P.W.11 (Nodal officer of Airtel - Karnataka) as per Ex.P.45 CDR of phone of Basavaraj, at 10.39 am the tower location of the said phone was at Indiranagar [Ex.P.45(b)] and at 11.27 am the tower location was at Chikkadevasandra [Ex.P.45(c)]. I feel if other entries are seen, one would not find any doubt with regard to the contact of C.W.1 and A.2. On close scrutiny of Ex.P.45 CDR, it appears that a call from the phone of P.W.14 to the phone of A.2 was made on 13.10.2015 at 8.08 am from the tower location of Veterinary college, Bengaluru and till 9.03 am the tower location was at Veterinary college. Further, at 6.23 pm the tower location was at Veterinary college. It is not in dispute that Veterinary college is near to the office of CBI. Further, at 7.36 pm, 7.51 pm, 7.52 pm and 8.59 pm on 13.10.2015 53 Spl.C.C. No.13/2016 the tower location was at Kammannahalli, Bengaluru. Kammannahalli is a place wherein the hotel Empire is located. It is not elicited either from P.W.3 or P.W.6 with regard to exact time the call was made by C.W.1 to A.2 during complaint verification. As per CDR (Ex.P.45) it appears that C.W.1 called A.2 at 8.08 am and A.2 called C.W.1 at 8.10 am (130 seconds). For the above said reasons, there is no merit in the contention of the learned counsel for A.1 that lap tops were not at all been brought by C.W.1.
53. It is further contended by the learned counsel for A.1 that pre-verification of the complaint would include verification of the antecedent's of the complainant also. But, nowhere in the evidence Act it is said that the previous bad character of the complainant is relevant. In support of the contention counsel for A.1 relies the judgment reported in 2015 SCC Online Bom.6558 - Ravindra Mahadeo Kothamkar Vs. the State of Maharastra, in which in para 11 it is held that "in appreciating evidence in trap cases, the character of the 54 Spl.C.C. No.13/2016 complainant assumes importance, viz. there are some complainants who basically want some favour from a public servant illegally and because of the refusal of the public servant to oblige him, decided to lodge a complaint against him. Hence, the complainant's evidence needs to be scrutinized with due care. It is not said in the cited judgment that at preliminary verification of the complaint antecedents of the complainant to be seen.
54. To prove the antecedent of the complainant, the learned counsel has relied Ex.D.3 the proceedings against C.W.1 herein for the offence u/s.135(1)(a) & 135(1)(b) of Customs Act. Ex.D.3 is the letter enclosed with xerox copy of the proceedings in CC.102/2012 on the file of Spl. Court for economic offences. In the said case C.W.1 was convicted. In the case on hand, it is not the defence that C.W.1 sought some favour from A.1 and A.1 refused for the same, thereby, C.W.1 took a revenge and lodged false complaint. I feel in the case on hand in the presence of voluminous evidence, Ex.D.3 would not help the defence. 55
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55. It is the further contention of the learned counsel for A.1 that preparation of the transcripts during preliminary enquiry was not proper. Therefore, there is doubt. It is the contention that according to P.W.3 the conversation recorded on intervening night of 12/13.10.2015 on the HTCL mobile phone of C.W.1 was heard during preliminary verification by putting mobile phone on speaker mode and the said conversation was transferred to laptop and then to a CD. P.W.3 has not issued certificate u/s.65B for transfer of conversation from mobile to laptop and laptop to CD, hence, the transcription made is inadmissible in law.
56. According to P.W.6, TLO (PW.3) he has played the conversation in the mobile phone during complaint verification. Ex.P.20 is the transcription and Ex.P.28 is its English translation. Admittedly, CD of the said conversation has not been produced. On perusal of the evidence of P.W.6 it appears that on 29.5.2018 learned Public prosecutor has got played the conversation recorded in the HTCL mobile [MO.11(b)] in the open 56 Spl.C.C. No.13/2016 court, of course, it was not fully clear and audible. I feel production of the mobile does not dispense the production of the certificate u/s.65B of Evidence Act. In support of the contention that the tape recorded statements are not admissible, the counsel for A.1 relies the judgment reported in 1985 (Supp) Supreme Court cases 611 - Ram Singh and others Vs. Col.Ram Singh. In the said case it is held that a tape recorded statement is admissible in evidence, subject to the following conditions :-
1. The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker of the record is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
2. The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence : direct or circumstantial.
3. Possibility of tampering with, or eraser of any part of, the tape recorded statement must be totally excluded.57
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57. In the case on hand, Jacob Thomas (PW.6) has said in his evidence that when it was played with the help of speaker some conversation was audible and during verification of the complaint it was audible. Further, it is not at all suggested to P.W.6 that the conversation stored in MO.11(b) was not the voice of A.1. P.W.7 who was an officer in KIA, Bengaluru has identified the voice of A.1 recorded in MO.11(b) in the open court. Further, it is not at all suggested to P.W.6, P.W.9, P.W.8 and P.W.12 that it was not recorded in Airport and in the office of CBI. Hence, I feel in the case on hand the ingredients stated in the judgment cited have been satisfied.
58. Further, counsel has also relied the judgment reported in (1982) 2 SCC 258 - Mahabir Prasad Verma Vs. Dr.Surinder Kaur. In the said judgment it is held that tape recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and it 58 Spl.C.C. No.13/2016 cannot be relied upon. In the case on hand, the sample voice of A.1 and A.2 were collected and compared by an expert (P.W.19) and he has given positive opinion as per Ex.P.58. Hence, there is corroboration. In the case on hand MO.3-CD contained the conversation took place in between A.1 and A.2 during trap. MO.11(b) contains conversation of C.W.1 and A.1 prior to trap and conversation recorded of C.W.1 and A.2 during complaint verification. MO.9, CD contained sample voice of A.1 and Ex.P.61 is its transcription. MO.10, CD contained sample voice of A.2 and Ex.P.62 is its transcription. The voice recorded in all these devices were compared by expert (P.W.19) and had given an opinion. Hence, there was corroboration in the voice recorded. I feel for comparison of voice of C.W.1, A.1 and A.2 & MO.11(b) (HTCL mobile), MO.3-CD, MO.9 and 10-CD's could be used but for transcription, certificate u/s.65B of Evidence Act is necessary.
59. The counsel has further relied the judgment reported in (1973) 1 SCC 471 - R.M.Malkani Vs. State 59 Spl.C.C. No.13/2016 of Maharastra, (1976) 2 SCC 17 - Ziyauddin Burhanuddin Bukhari Vs. Brigmohan Ramdass Mehra and others. In the said judgments it is held as to what are the material tests required to admit tape recording conversation.
60. It is contended by the counsel that in Ex.P.1 complaint and in Ex.P.2 Entrust mahazar the name was shown as 'Prasad' as accused and in Ex.P.20 it was created as Srinivasa Prasad between 8 to 1.00 pm on 13.10.2015. It is not the defence that there was one more Prasad working as Customs officer in the Airport. Therefore, there is no merit in the said contention.
61. It is the further contention of the learned counsel for A.1 that the material collected prior to the registration of FIR cannot be used against the accused for the reason the same was not under investigation. In support of the contention counsel relies the judgment rendered by the Hon'ble High Court of Karnataka in Crl.Petn. No.3750/2013 decided on 11.2.2016 - Sri.Lakshmikantha 60 Spl.C.C. No.13/2016 S.G. Vs. State by Karnataka Lokayuktha police. In the said case the complainant approached the Lokayuktha police on 26.3.2013 on the alleged demand of bribe by the accused. The I.O handed over a voice recorder to him with an instruction to record the conversation while he was demanding illegal gratification. On 28.3.2013 the complainant met the accused and the conversation with regard to the demand of bribe came to be recorded and thereafter on 28.3.2013 an FIR came to be registered. The I.O while drawing trap mahazar has got played the voice recorder and output of the audio got translated into writing and made part of the trap mahazar. Hence, the Hon'ble court has held that the Lokayuktha cannot approbate and reprobate at the same time. Further, the I.O relied the transcription of conversation taken prior to registration of FIR as a part of their investigation by incorporating the same in the trap mahazar. In the circumstances, it is held by the Hon'ble court that the material collected before registration of the case made to blend with the trap mahazar subsequent to registration of the FIR vitiates entire investigation. In the case on hand 61 Spl.C.C. No.13/2016 also on perusal of Ex.P.1 complaint it appears cognizable offence committed. But, I.O is not in wrong in verifying the complaint.
62. P.W.3 was the Trap laying officer (TLO). He had verified the complaint by looking into Ex.P.20 and 28 i.e. the conversation took place in between A.1 and the complainant. Thereafter, the independent witnesses P.W.1 and 2 were secured and entrustment mahazar was drawn and in the entrust mahazar demo with regard to laying of trap was conducted. Thereafter, raid was conducted and recovery mahazar was drawn as per Ex.P.10 during trap. Since evidence was required with regard to the tainted currency notes kept by A.2 in his pocket, pocket wash was collected and stored in a bottle vide MO.7. After the arrest of A.2, A.2 was asked to telephone to A.1 and while he was speaking with A.1 his mobile speaker was put in on and the same was recorded in a digital voice recorder and it was transferred to a laptop possessed by P.W.3 and copied in two C.Ds. One of the C.Ds was kept in a closed cover. The other one kept for investigation. The said 62 Spl.C.C. No.13/2016 cover was opened in the open court. The signature of P.W.1, P.W.2 and P.W.3 was found in the CD (MO.3). Ex.P.18 is the certificate u/s.65B of Evidence Act issued by P.W.3. Ex.P.29 is the transcription of the conversation in between A.1 and A.2. On perusal of Ex.P.29 it clearly appears that A.1 asked A.2 to collect the bribe and the said conversation supports the bribe collected by A.2. Hence, it is contended by learned public prosecutor that the trap was successful.
63. It is further contended by the learned Public prosecutor that on perusal of Ex.P.55 Passport relates to the complainant, it appears that on 12.10.2015 the complainant had boarded the Airlines at Singapore and arrived to KIA air port on 13.10.2015 in the night. In support of the same boarding pass relates to the complainant is produced vide Ex.P.3. Ex.P.6 is the luggage receipt to evidence that the complainant had collected the luggage on 13.10.2015 at KIA. Ex.P.27 is the Duty register. It indicates that A.1 was on duty while the flight TR 2652 came from Singapore and landed at KIA on 63 Spl.C.C. No.13/2016 13.10.2015. Ex.P.21 work allocation order indicates that A.1 was posted for duty on the intervening night of 12/13.10.2015. Ex.P.27(a) indicates about the nature of duty and to where A.1 was posted. It is mentioned that his duty was MS/RC(main scan/red channel).
64. It is the contention of the learned counsel for A.1 that the prosecution has failed to prove that C.W.1 has used the mobile phone of Basavaraju (P.W.14). The counsel has brought my notice to Ex.P.45, CDR of the mobile phone of Basavaraju and contends that at 6.16 am a call was made to mobile phone No.9901165282 from the mobile of Basavaraju and the mobile phone No. 9901165282 is of C.W.1. On perusal of Ex.P.45, it appears that a call was made at 6.15 am as stated. It is not elicited from Basavaraju (P.W.14) that mobile phone No. 9901165282 is of Srikumar (CW.1) Even it is also not suggested to P.W.14 that the said mobile sim was of Srikumar. Apart from that P.W.14 has stated in his evidence that on 13.10.2015, C.W.1 came to his house and he gave his mobile to C.W.1 as requested and on 64 Spl.C.C. No.13/2016 14.10.2015 C.W.1 returned the same. Further, counsel has also brought my notice to the evidence of P.W.3 in para 8 & 9, evidence of P.W.14 in para 2 & 9 and the evidence of P.W.6 in para 12 with regard to inconsistency statement about the mobile phone. I feel on the basis of the above said statement it cannot be inferred that use of mobile phone of P.W.14 by C.W.1 is doubtful. Hence, there is no merit in the said contention.
65. It is the further contention of learned Public prosecutor that the complainant had used the phone belongs to one Basavaraj (P.W.14) to make a call to A.2 after the complaint been lodged. Ex.P.43 and 45 are the call details. On perusal of the same, it appears that on 13.10.2015 accused No.2 had made a call from the sim number 9482218950 to the sim of A.1 in No.9845097495 and the complainant had made a call from his sim No.9972314166 to A.2. The complainant is a total stranger to A.1 and A.2. Hence, a doubt arises as to what was the necessity to the complainant to make call to A.2 and in turn A.2 had made a call to the complainant 65 Spl.C.C. No.13/2016 without a purpose. Therefore, it could be inferred that for some purpose this telephone conversation took place in between the complainant and A.2 and A.1 with A.2 at the relevant date and time. Further, the purpose cannot be deviated in the presence of these evidence.
66. Ex.P.34, P.43 and P.45 are the record of call details. Those are very important documents. The importance of it cannot be ignored. One Stanley Agnelo (P.W.11) has given evidence before court on Ex.P.34, 43 & P.45. Nothing is elicited from P.W.11 to disbelieve the contents of Ex.P.34, 43 & 45. Further, it is not suggested that it was a concocted one. Hence, it was recorded while performing regular official acts. Therefore, it has presumptive value as contemplated u/s.114(e) of the evidence Act. On perusal of Ex.P.34 call details of the sim belongs to A.2 it appears that on 13.10.2015 at 8.08 p.m complainant called A.2 and again at 8.10 p.m A2 called C.W.1 and it was a duration of 129 seconds and again at 8.30 p.m A.2 called C.W.1. Further, on perusal of Ex.P.43 call details of the sim belongs to A.1, it appears that on 66 Spl.C.C. No.13/2016 13.10.2015 at 7.59 p.m A.2 called A.1 and at 8.38 p.m A.1 called A.2 and on perusal of Ex.P.45 call details of the sim belongs to C.W.1 it appears that on 13.10.2015 at 8.08 a.m C.W1 called A.2 and at 8.10 a.m A.2 called C.W.1 and at 8.30 a.m A2 called C.W.1 and at 7.37 p.m and 7.51 p.m A.2 called C.W.1 and at 7.52 p.m C.W.1 called A.2. These call details have not been denied by the accused. Therefore, one has to question for himself as to what was the necessity of A.2 to call C.W.1 and A.2 to A.1 during relevant date and time. Hence, evidence of P.W.11 and the documents stated above corroborates the case of the prosecution.
67. To prove the conversation was of A.1 and A.2, the questioned voice and sample voice of A.1 and A.2 were sent for voice test and the voice of the above persons were tallied as per Ex.P.58 report. It is the further contention of learned counsel for accused No.1 that the voice of A.1 has not been properly identified. Hence, there is doubt in the case of the prosecution with regard to involvement of A.1 in the crime. In support of 67 Spl.C.C. No.13/2016 the contention counsel relies the judgment reported in AIR 1965 SC 712 - Kirpal Singh Vs. State of U.P. In the said judgment in para No.4 the Hon'ble Apex court has observed that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognizing is not familiar with the person recognized may be somewhat risky in a criminal trial. Further, the counsel has also relied the judgment reported in (2008) 14 SCC 495 - Inspector of Police, Tamilnadu Vs. Palanisamy @ Selvan. The said case is with reference to the offence punishable u/s.302 of IPC. The witnesses in the said case identified the accused from their voice and it was a dark night. In the circumstances Hon'ble Apex court has held that no evidence was adduced to show that witnesses were closely acquainted with the accused to even identify him from his voice, that too from very short replies, purported to have been given. Hence, the Apex court has disbelieved the evidence of the said witnesses. Further, the counsel has relied the judgment rendered by Madhya Pradesh High court in Crl.A.No.00148/2005 - Virendra 68 Spl.C.C. No.13/2016 Singh Vs. The State of M.P decided on 17.5.2017. In the said judgment in para No.23 it is observed by the Hon'ble High Court that identification by voice has to be considered carefully by the court as accurate voice identification is much more difficult than visual identification. The courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. Further, the prosecution cannot take recourse to the weakness of the evidence. Voice can be identified by means of voice identification parade.
68. In the case on hand one of the witnesses who had identified the voice of A.1 and A.2 was P.W.7. According to him on 12.10.2015 he was in 'C' batch and one Mr.Shobi Thomas (P.W.9) was the superintendent and head of the batch. Further, accused No.1 and 2 were also working in the said batch. Since accused No.1 and 2 were working along with him he was familiar in their voices. Further, he had identified their void in the office of CBI and he had identified the voice of A.1 and A.2 when the CD MO.3 and MO.11(b) the mobile phone was played in 69 Spl.C.C. No.13/2016 the open court. Hence, I feel since P.W.7 was familiar with the voice of A.1 and A.2, he had identified the voice of A.1 and A.2. Therefore, the said piece of evidence also supports the case of the prosecution and there is no merit in the contention of learned counsel for A.1.
69. It is further contended by the learned counsel for A.1 that the sample voice of A.1 was not properly taken and has not been properly compared with the questioned voice. In support of the contention counsel relies the judgment rendered by the Hon'ble Allahabad High Court , Lucknow bench in No.4424/2017 - Sudhakar Rastogi Vs. State of U.P decided on 18.7.2017. In the said judgment it is observed by the Hon'ble court that in Indian Forensic science laboratories, voice identification technics are regularly conducted and have the facility of voice analysis and the report so derived have to be considered within the ambit and scope of law, which the legislation has not recognized. Further, the voice sample obtained from the petitioner shall be confined to the transcription of sentence other than what is said to be discovered in 70 Spl.C.C. No.13/2016 conversation obtained in the form of CD - disk and the court below shall ensure adequately that the voice sample is distinctly procured, which may be preserved only to serve the purpose of investigation in the said case. In the case on hand P.W.19 an expert in Forensic science has prepared the report vide Ex.P.58. On perusal of the same, it appears that he has put the voice sample and questioned voice of A.1 and A.2 into auditory examination and voice spectrographic examination. Further, he has compared the questioned voice of A.1 and A.2 not only confining to the wordings and voice recorded in MO.3 CD. It appears in Ex.P.58 report that the I.O has collected the sample voice of A.1 and A.2 not only confining to the voice and wordings recorded in MO.3 CD, but more than that. Hence, I feel the comparison of voice of A.1 and A.2 by P.W.18 and the conclusion arrived by him is proper and no fault could be found in it. Therefore, the judgment cited by the counsel for A.1 would not help his case. Therefore, there is no merit in the contention of the learned counsel for A.1 in that aspect.
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70. It is the contention of learned Public prosecutor that the trap was successfully laid. P.W.1 and 2 the independent shadow witnesses have consistently deposed about the trap laid. According to P.W.1 he was working as Manager, Food Corporation of India, Regional Office, Jayanagar, Bengaluru. Further, as per the instruction of the AGM, he met T.Rajashekar, P.W.3, the TLO in the office of C.B.I. Further, he was introduced to one Srikumar (C.W.1) and Pradeep Kumar (P.W.2). Further, P.W.3 had shown the complaint (Ex.P.1) to him and to prove the allegations made in it. Further, P.W.3 had played the CD containing the conversation between Srikumar, accused No.1 and others and he identified the voice of A.1 when the said CD was played by P.W.3 in the office of C.B.I. Further, as per the instruction of P.W.3 the complainant had brought Rs.50,000/- to the office of C.B.I. The said money was verified by P.W.1 and 2 about the serial number of the currency notes and its denomination. Further, an entrustment mahazar as per Ex.P.2 was prepared in the office of C.B.I. Further, the demonstration was made. In the demonstration currency notes were 72 Spl.C.C. No.13/2016 given to P.W.2 and a glass of water was brought. Some Sodium carbonate was smeared into the said water. As per the instruction of P.W.3, P.W.2 had dipped his fingers in the glass of water containing sodium carbonate powder. At that time the colour of the water has not been changed. Thereafter, as per the instruction of P.W.3, phenolphthalein powder was smeared on the currency notes. Further, as per the instruction of P.W.3, P.W.2 had dipped his fingers into the glass of water. The colour of the said solution was changed to pink colour. Further, it was confirmed by P.W.3 that in that manner they would catch A.2 if he demands the bribe amount and receives the same. The TLO gave one voice recorder to the complainant and instructed to switch on it when he wanted to record the conversation. Thereafter, P.W.1 along with the complainant met A.2 in Hotel Empire as instructed by P.W.3.
71. P.W.1 has further deposed in his evidence that all of them went to the Hotel Empire of Kammanahalli. At the entrance of the hotel, the complainant called A.2 over his 73 Spl.C.C. No.13/2016 mobile phone and told him that he has come to Hotel Empire. After 2-3 minutes a person (A.2) came near the entrance of the hotel where the complainant was standing. P.W.1, the complainant and A.2 discussed for sometime and took the complainant towards back of the hotel to the parking area on a two wheeler. P.W.1 had followed them at a distance. All stood in different position. A.2 took a cover from his pocket of the pant and handed over to the complainant, the complainant verified the same and thereafter, A.2 called some one (A.1) over phone, thereafter A.2 handed over the said mobile phone to the complainant, the complainant had also spoke with the said person (A.1) and handed over mobile phone to A.2. Thereafter, A.2 spoke to the said person (A.1). Further, on the request of the complainant, A.1 had reduced a sum of RS.5000/- out of the total amount of Rs.50,000/- and the said amount of Rs.5000/- was paid to the complainant by A.2 during the trap. After completion of the conversation over mobile phone and the complainant handed over the money to A.2, A.2 counted the currency notes and returned some notes to the 74 Spl.C.C. No.13/2016 complainant. Thereafter, the complainant after receiving the currency notes from A.2 wiped his face with his kerchief as instructed. Thereafter, P.W.3 (TLO) came and called A.2. P.W.3 took A.2 inside the hotel and spoke to the Manager of the hotel and P.W.3 had introduced himself to A.2 and A.2 was shocked and unable to answer. Thereafter, A.2 said his name and told that he was working as Hawaldar in KIA Airport.
72. Further, thereafter, all of them went to first floor of the hotel, there the TLO asked A.2 to dip his fingers in a glass of Sodium Carbonate water and the same was turned into pink and the said solution was poured into a bottle and its cover was closed. In another glass of water containing sodium carbonate, A.2 was asked to dip his left hand fingers, he dipped his fingers as said and the solution was turned into pink. The said solution was also kept in a separate bottle and both the bottles were sealed. Thereafter, the TLO asked A.2 to hand over tainted currency notes to P.W.1 and 2, and P.W.1 and 2 had verified the denomination of currency notes and also the 75 Spl.C.C. No.13/2016 serial numbers mentioned in the entrustment mahazar. They found the currency notes in total of Rs.45,000/-. Hence, it is the contention of learned P.P that the trap was successful. I feel the above stated activity of A.1 & A.2 establishes that A.2 has accepted the bribe under the instruction of A.1.
73. Further, it is the contention of learned P.P that the evidence of P.W.11 and 13 corroborates the above aspect. P.W.11 was the Nodal Officer of Bharathi Airtel Ltd. and P.W.13 was the Manager of Hotel Empire. According to P.W.11 he was working as Nodal officer in Bharathi Airtel Ltd. He has furnished customer application form, covering letter, CDRs and certificate u/s.65B of Indian Evidence Act to the C.B.I. police and the seizure memo was prepared at there by C.B.I. police vide Ex.P.31. Ex.P.31(a) is his (P.W.11) signature. Further, the sim No.9482218950 stands in the name of A.2 and it was given to him on 28.1.2014. Ex.P.34 is the call detective report (CDR) for the period from 12.10.2015 to 17.10.2015 and he had given certificate u/s.65B of Indian 76 Spl.C.C. No.13/2016 Evidence Act at Ex.P.35. Further, he (P.W.11) has also furnished the call details of mobile phone sim No.9845097495 stands in the name of Srinivas Prasad K.V (A.1) vide Ex.P.43 and the certificate u/s.65B of the Indian Evidence Act is at Ex.P.44 and mobile phone sim No.9972314166 stands in the name of the customer Basavaraj vide Ex.P.45 and the certificate u/s.65B of the Indian Evidence Act is at Ex.P.46. On perusal of the same, it appears that the timings mentioned in Ex.P.43, 45 and 34 tallies with the evidence of P.W.1 to 3.
74. In corroboration to their evidence, one Basavaraju (P.W.14) had deposed before the court that on 13.10.2015 he accompanied Srikumar (CW.1) to the office of C.B.I and the mobile sim No.9972314166 belongs to him. According to him the complainant came to his house on 13.10.2015 in the early morning at 4.30 a.m and told that he brought some laptop from Singapore and in the Airport somebody demanded bribe from him. However, in the cross-examination it is admitted by him that he did not state to I.O of C.B.I with regard to the visit of C.W.1 to his 77 Spl.C.C. No.13/2016 house. Therefore, that piece of his evidence can only be an omission and cannot be a contradiction. Other than that, nothing is elicited to disbelieve the entire testimony of this witness. Further, he denied the suggestion that he did not give his mobile phone to C.W.1. Hence, I feel P.W.14 has corroborated the case of the prosecution.
75. According to P.W.13, Akhil Zain, the Manager of Hotel Empire that he had provided the space in the first floor of the hotel on 13.10.2015 around 8 to 8.30 p.m as requested by the C.B.I. officers. Accordingly, they went there. This aspect has not been challenged by A.2 as A.2 did not cross-examine P.W.13. Further, A.1 also did not deny the space provided by him to C.B.I officers on the said day and time. Ex.P.10 is the Recovery mahazar, Ex.P.8 is the sketch of the spot. MO.1 is the tainted currency notes of Rs.45,000/-, MO.2 is the tainted currency notes of Rs.5000/-, MO.3 is the CD conversation recorded during the trap, MO.4(b) is the Sony Erickson mobile phone used by A.2 during the trap. MO.5 is the left hand finger wash of A.2, MO.6 is the right hand finger wash of A.2, MO.7 is 78 Spl.C.C. No.13/2016 the pant pocket wash, MO.8 is the blue colour pant worn by A.2 at the time of trap. The timings stated by P.W.2 and 3 tallies with the timings mentioned in Ex.P.43 and 45 CDRs.
76. The complainant has submitted Ex.P.5 Customs declaration form. The learned counsel for the accused submits that the conversation of A.1 and A.2 during the trap is not admissible for the reason after A.2 was caught, A.2 was made to call to A.1. Therefore, any statement in the presence of the police is not admissible. Contrary to that, it is opposed by the learned Public prosecutor that the conversation between A.2 and A.1, no doubt at that time A.2 was in the presence of the police, but A.1 was not in the presence of police, therefore the entire conversation cannot be brushed aside. I feel, there is merit in the contention. Ex.P.10 is the Recovery mahazar in which the conversation took place was mentioned in a word formation. On perusal of the same, it appears that the speech by A.1 over phone with A.2 was a voluntary 79 Spl.C.C. No.13/2016 one in which the material conversation took place is reproduced hereunder.
77. It is further contended by the learned Public prosecutor that the voice of A.1 and A.2 were identified through scientific test. MO.3, 11(b), 9 and 10 were taken for voice identification test. MO.9 and 10 were the sample voice of A.1 and A.2 respectively. The sample voice was recorded in the presence of P.W.1 and 2. Ex.P.13 is the proceedings drawn while recording the sample voice of A.1 and A.2. According to P.W.1, in his presence A.2 called A.1 over his mobile phone. Initially A.1 did not pick up the phone. Later on A.1 called A.2 over his mobile phone. A.2 asked A.1 as instructed by TLO that he would not come to the office on the next day and when he can give the amount. The same was recorded in the voice recorder and it was transmitted to the Laptop and thereafter, from the Laptop it was copied to a CD and then CD was played and it was kept in a sealed cover. According to P.W.7 he was the Asst.Commissioner of Central Excise, during the relevant time, and on 80 Spl.C.C. No.13/2016 12.10.2015 he was in 'C' batch and at that time one Mr.Shobi Thomas was the Superintendent and batch head. He, A.1, A.2 and one Prabhakar-Superintendent, were also working in the said batch. Therefore, he (P.W.7) was well acquainted with the voice of A.1 and A.2. In the open court he (P.W.7) had identified the voice of A.1 and A.2 while the CD containing conversation of A.1 and A.2 was played in the Laptop. Ex.P.28 is the English translation of Ex.P.20 ie.transcription of the conversation in between C.W.1, A.1 and others recorded in HTCL mobile [MO.11(b)]. Ex.P.29 is the transcription dt.13.10.2015 in between A.1 & A.2 of the CD (MO.3). MO.11(b) is the HTC mobile phone. It contains conversation between the complainant, A.1 and other customs officials. Further, according to him (P.W.7) the recorded voice was transmitted from the mobile MO.11(b) into a CD and it was played in his presence by the I.O and he had identified the voice of A.1. Further, it appears in paragraph 14 and 17 of his evidence that he had identified the voice of A.1 & A.2 when the conversation of A.1 & A.2 was played in the office of C.B.I and in the court. Further, 81 Spl.C.C. No.13/2016 MO.11 was played with the help of speakers and he identified the voice of A.1 in the open court during his evidence.
78. It is the further contention of learned Public prosecutor that the voice of A.1 and A.2 was sent for scientific test and P.W.19 had given a report to that effect. According to P.W.19 he was working as Senior Scientific Officer, CFSL, New Delhi during the relevant period when the sample was sent for test. Further, on 17.12.2015 the laboratory of the office had received forwarding letter dt.15.12.2015 from C.B.I./ACB/ Bengaluru for voice examination along with 4 sealed covers, certificate of authority, specimen seal impressions, photocopy of transcriptions and photo copy of related documents. Further, he had received MO.11(b) mobile handset contained the conversation of complainant and A.1. Further, he had received the CD contained the questioned audio recording vide MO.3. Further, he found one CD contained specimen voice of A.1 and specimen voice of A.2 vide MO.9 and 10 respectively. He had subjected the 82 Spl.C.C. No.13/2016 questioned voice and specimen voice recordings to auditory and spectrographic examination. On examination, he found the questioned voice tallied with the sample voice. He got marked the specimen voice of A.1 & A.2 contained in different C.Ds as S-1 and S-2 respectively. He had prepared a report vide Ex.P.58 dt.28.4.2017. On perusal of Ex.P.58 it appears that he had adopted several tests and found that the questioned voice and the sample voice tallied with one another. Ex.P.28 is the transcription of the contents of MO.11(b) and Ex.P.29 is the transcription of MO.3 made in the presence of P.W.18 (I.O) and Ex.P.18 is the certificate u/s.65B of Evidence Act with regard to Ex.P29. Ex.P.28 is not certified u/s.65B of the Act. But, Ex.P.58 report supports to prove Ex.P.29 transcription. Further according to P.W.19 the sample voice of A.1 & A.2 stored in MO.9 and 10 were tallied with the questioned voice recorded in MO.3-CD at the time of trap ie.conversation of A.1 and A.2. Further, there was similarity. Hence, evidence of P.W.19 and the report in Ex.P.58 scientific report supports the case of the prosecution.
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79. It is the contention of the learned counsel for A.2 that since P.W.19 in his cross-examination in page 15 did not agree with the opinion expressed by the author Richard Saferstein in his book in page No.470 Criminalystics an introduction to Forensic science, he is not an expert in the field. Hence, his opinion expressed in Ex.P.58 cannot be taken into consideration. In support of the contention counsel relies the judgment reported in (1999) 7 SCC 280 - State of H.P Vs. Jai Lal & others. In the said case in the year 1983 the apple orchards in different areas of Himachal Pradesh were afflicted by a disease called "scab" rendering the fruits unfit for human consumption. Feeling concerned, about the heavy financial loss facing by the growers and keeping in view of the danger to public health if the said apples were sold in markets, the state took a policy discussion to purchase it, but it was alleged that the accused entered into a criminal conspiracy with a view to cheat the State, prepared false records showing inflated quantities of the scabbed apple brought by the growers, thereby caused loss to the state exchequer. The prosecution case was that the growers 84 Spl.C.C. No.13/2016 had brought lesser quantities of scabbed apple than the quantity entered in the official records. Hence, an expert opinion was required for assessing the fruit-bearing capacity of the orchards in question. To prove that the testimony of District Horticulture officer, Shimla was relied by the prosecution. In the said circumstances, Hon'ble Apex court has held that an expert witness is one who has made the subject upon which he speaks a matter of particular study, practice or observation, and he must have a special knowledge of the subject. In the said case the expert has not stated anything in his testimony to show that he had made any scientific study or research in assessing the productivity of apple trees in the State of Himachal Pradesh or he had undertaken any such work prior to the said case. Hence, court not accepted the opinion of the expert.
80. In the case on hand, the witness did his M.Sc in Physics & Ph.D in Forensic science and had undergone training in the examination of audio & video and had examined in more than 465 cases and gave evidence in 85 Spl.C.C. No.13/2016 more than 110 cases before the court in India and he was awarded with National level Fellowship. Further, he has also stated in the cross-examination that he has not given any opinion contrary to the opinion expressed by the author referred. Hence, the facts of the case in the cited judgment is entirely different from the facts of the case on hand and the same is not applicable. Further, I feel the expert opinion is not a conclusive fact to convict the accused. It is only a corroborative piece of evidence. Hence, there is no merit in the said contention of learned counsel for A.2.
81. According to P.W.16 during the relevant period he was working in the Department of Health and Family Welfare as Assistant Chemical Examiner. According to him, on 4.11.2015 he had received 3 sealed bottles with a request to examine the contents of chemical contained in the said bottles. On 7.11.2015 he had examined the same. While examining the contents of the bottles he had given the names as 'A', 'B' and 'E' to the bottles and bottle 'A' contained the right hand finger wash and he found 86 Spl.C.C. No.13/2016 phenolphthalein and sodium carbonate in the said bottle. He had given opinion that presence of phenolphthalein in both right hand and left hand finger washes of A.1 was detected.
82. Ex.P.20 is the transcript of the conversation recorded by the complainant in his HTC mobile phone in the intervening night of 12/13.10.2015 with A.1. The extract of incriminating conversation is as stated below:
²æÃPÀ Ä ªÀ i Ágï B ºÉ à ½ ¤ÃªÀ Å ¤ªÀ Ä UÉ JµÀ Ä Ö ¨É à PÀ Ä CAvÁ ²æäªÁ¸ï ¥À æ ¸Ázï B MAzÀ Ä PÉ ® ¸À ªÀ i ÁqÀ Ä E¯É Æ è A zÀ Ä C¯É Ä Áè A zÀ Ä ¯Áå¥ÁÖ¥ï PÉ Æ lÄÖ©lÄÖ ºÉ Æ ÃUÀ Ä ²æÃPÀ Ä ªÀ i Ágï B JµÀ Ä Ö ºÉ à ½ ¸Ágï JµÀ Ä Ö ²æäªÁ¸ï ¥À æ ¸Ázï B ¥À Æ wð ºÁUÉ PÀ ¼ À Ä »¸À Ä vÉ Û Ã £É 2 ¯Áå¥ï mÁ¥ï PÉ Æ mï©lÄÖ ºÉ Æ ÃUÀ Ä E°è ²æäªÁ¸ï ¥À æ ¸Ázï B ¯Áå¥ïmÁ¥ï ©lÄÖ©rÛ Ã AiÉ Ä Ã£À Ä E¯É è à £É , 162000 PÉ Æ Ãn §gÀ Ä vÉ Û ¤ªÀ Ä UÉ MAzÀ Ä ¯Áå¥ïmÁ¥ï ©lÄÖ©r £À ª À Ä UÉ ²æäªÁ¸ï ¥À æ ¸Ázï B £Á£À Ä 50 ¸Á«gÀ PÉ Æ qÀ P É gÉ r E¢Ý à ¤ ¯Áå¥ïmÁ¥ïìUÉ ²æÃPÀ Ä ªÀ i Ágï B ¸À é ®à PÀ r ªÉ Ä ªÀ i Ár ²æäªÁ¸ï ¥À æ ¸Ázï B CzÉ Ã MAzÀ Ä ºÉ à ½zÀ £ À ¯ Á, 50PÉ Ì ¯Áè U À Ä vÉ Û jà 50PÉ Ì , ºÉ Æ ÃV ªÉ Ä Ã¯É Æ ÃV 1 ®PÀ ë PÉ Æ r 87 Spl.C.C. No.13/2016 ²æÃPÀ Ä ªÀ i Ágï B E¯Áè ¸À g ï CµÉ Æ ÖAzÀ Ä E¯Áè ¸À g ï CzÉ g À q À Ä £À £ À ß zÀ Ä ²æäªÁ¸ï ¥À æ ¸Ázï B ¸À j qË£ïUÉ §jæ The above conversation took place prior to the trap. Ex.P.20 & 28 are one and the same. Since Ex.P.20 does not accompanied certificate u/s.65B of Evidence Act, it cannot be proved. Hence prosecution failed to prove Ex.P.20 &
28. The production of mobile Ex.P.11(b) itself not sufficient. The contents of mobile could only be known when it is played and it is transcripted. Therefore, transcription needs to be certified.
83. Ex.P.28 is the transcription of the recorded conversation taken place between the complainant and accused persons on the intervening night of 12/13.10.2015 at Kempegowda International Airport and it was prepared in English on 12.12.2015 in the presence of the witnesses. Ex.P.28 has no evidentiary value since certificate u/s.65B of Evidence Act has not been enclosed. Ex.P.29 is the transcription of the recorded conversation taken place between A.1 and A.2 on 13.10.2015 during trap proceedings and it was prepared in English on 88 Spl.C.C. No.13/2016 12.12.2015. The extract of incriminating conversation is reproduced here under :-
A.Lourdu Prabhu : Sir, cash tagondu aytu Sir Srinivas Prasad : Hello A.Lourdu Prabhu : Sir Cash tagondini sir Srinivas Prasad : Ha A.Lourdu Prabhu : Sir, cashu 45000 tagondini sir Srinivas Prasad : Ha A.Lourdu Prabhu : Day Tarla sir Srinivas Prasad : Ha A.Lourdu Prabhu : Day shift tarla Srinivas Prasad : Ha A.Lourdu Prabhu : Sir Day shift Day shift Srinivas Prasad : Ha. Ha. Helo A.Lourdu Prabhu: Sir, dayshift ge tarla Nanu urgentagi Oorge hogabeku, yarkaige kodli sir, adu.
Srinivas Prasad : Ha. Sariyagi Keluthilla Prabhu A.Lourdu Prabhu : Sir, Yar kailli kodli Srinivas Prasad : Ha. Cut hagtide A.Lourdu Prabhu, sariyagi Kelisuthilla A.Lourdu Prabhu : Sir, Nale nanu oorge hogta iddini.
Aa cash Yarattira kodli Srinivas Prasad : Alla, ivaga oorge hogta iddiya, Yavaga Bartiya A.Lourdu Prabhu: Day ge barilla sir, night shift ge bartini Srinivas Prasad : Tondare illa, night tagond Ba En Tondare illa, Hello 89 Spl.C.C. No.13/2016 A.Lourdu prabhu : Aytu Sir Srinivas Prasad : Ok ok This conversation was made as per the instruction of C.B.I. police by A.2 with A.1 with regard to handing over of the cash taken by A.2 from the complainant. MO.3 is the CD of Ex.P.29 transcription. It has more relevance with regard to demand.
84. It is further contended by the learned Public prosecutor that the accused No.1 and 2 had committed the offence punishable u/s.7 of the P.C.Act and there was demand by A.1 to pay the bribe and A.2 had helped to collect the bribe on behalf of A.1. It is contended that prior to the trap, the complainant had recorded his conversation with A.1 in his HTC mobile MO.11(b). The conversation recorded in MO.11(b) was reduced to writing vide Ex.P.20. Ex.P.28 is the English version. On perusal of Ex.P.20 and 28 it clearly appears with regard to the demand of bribe by A.1 with the complainant. Since certificate u/s.65B of Evidence Act has not been enclosed to Ex.P.20, the same cannot be proved. Hence, 90 Spl.C.C. No.13/2016 prosecution has failed to prove Ex.P.20 transcription which was recorded by C.W.1 with regard to demand of A.1.
85. It is further contended by the learned Public prosecutor that even if Ex.P.20 (Ex.P.28 is its English translation) and MO.11(b) HTC mobile has excluded the conversation recorded in MO.3 and its transcription Ex.P.29 along with the other evidence of the witnesses is sufficient to prove the demand of A.1. On close scrutiny of the transcription vide Ex.P.29, it could be inferred that on the instruction of A.1, A.2 collected the bribe on behalf of him(A.1). It cannot be said that without their being a demand by A.1, A.2 would not have come to Hotel Empire and collected the bribe from C.W.1. Therefore, strong inference could be drawn that A.1 had demanded the bribe.
86. Contrary to that, learned counsel for A.1 contends that there is no material to support the purported demand for illegal gratification. Hence, it is 91 Spl.C.C. No.13/2016 contended that the fact of demand has not been established nor probablised by the prosecution. In support of the contention counsel relies the judgment reported in (2015) 10 SCC 230 - Selvaraj Vs. State of Karnataka. In the said judgment it is held that the allegation of bribe taking should be considered along wit other material circumstances. Demand has to be proved by adducing clinching evidence. Recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of testimony of complainant regarding demand of bribe. Further, the counsel also relies the judgment rendered by the Hon'ble High Court of Gujarath in Crl.A.No.401/2006 - State of Gujarath Vs. Jayantilal Chunilal Gor Talati. In the said judgment it is held that proof of demand of illegal gratification is the gravamen of the offences under P.C.Act and in absence thereof, unmistakably the charge therefore would fail.
Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso-facto would thus not be sufficient to bring home the charge under P.C.Act.
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87. The counsel further relies the judgment reported in 1987(Supp) SCC 266 - G.V.Nanjundaiah Vs. State (Delhi Administration). In the said judgment it is held that the allegation of bribe taking should be considered along with other material circumstances. Further, where the prosecution's allegation of demand of bribe was false, the allegation of payment of bribe and recovery of the same from the accused must be viewed with suspicion. Further, the counsel relies the judgment rendered by the Hon'ble Apex Court in Crl.A.No.1098/2006 - State of Kerala and another Vs. C.P.Rao. In the said judgment it is held that the prosecution has to prove the charge in P.C.Act beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is vital ingredient to secure the conviction in a bribery case. Further, the counsel relies the judgment rendered by Hon'ble Apex court in Crl.A.639/2004 - A.Subair Vs. State of Kerala. In the said case, the complainant has not been tendered any evidence by the prosecution and it 93 Spl.C.C. No.13/2016 has not been explained as to why he had not been examined. Hence, the court held that the best evidence to prove the demand was not made available before the court by not examining the complainant. In the case on hand, since the complainant was dead, he has not been examined. Hence, there was reason for non examination of the complainant in the case on hand. I feel, the CDR reports vide Ex.P.34 in which out and in call from the mobile phone of A.2, CDR report vide Ex.P.43 pertains to the phone of A.1 and the CDR report vide Ex.P.45 of the phone of C.W.1 is a relevant one. These reports have been accompanied by certificate u/s.65B of Evidence Act. If it is believed as contended by the learned counsel for accused No.1 that there was no demand at all by A.1, I feel what was the necessity for phone calls of A.1 with A.2 and the phone calls in between A.2 and C.W.1. Hence, I feel there is no merit in the contention of learned counsel for A.1 in that aspect. Since, C.W.1 is no more, direct evidence is not expected. But, the circumstantial evidence cannot be ignored and it has relevancy as contemplated u/s.7 of Indian Evidence Act. 94
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88. As contended by the learned counsel for A.1 if the complainant had not travelled from Singapore to Bengaluru on the alleged date, the question is what was the necessity of the conversation as such, in between the complainant and A.1, and A.1 with A.2. The above said conversation further more infers that complainant had travelled on the said day from Singapore to Bengaluru. Apart from that, according to P.W.1 he was the nodal officer of Bharathi Airtel limited and he has furnished the call detail report pertains to the mobile sim No.9482218950 stands in the name of Lourdu Prabhu (A.2) for the period from 12.10.2015 to 17.10.2015. Ex.P.35 is the certificate u/s.65B of the Indian Evidence Act. Further, he has also furnished the CDR vide Ex.P.43 & 45 pertains to the mobile sim No.9845097495 belongs to A.1 and mobile sim No.9972314166 belongs to one Basavaraj. The CDR reports for the above two mobile sim was from 12.10.2015 to 17.10.2015. The CDR report pertains to the mobile sim number stands in the name of A.2 is Ex.P.34. On perusal of the above said CDRs it appears that there was phone call between the 95 Spl.C.C. No.13/2016 complainant and A.1, A.1 with A.2 during the relevant time. Hence, the CDR reports corroborates the evidence of P.W.1, 2 and 3 that in the intervening night of 12/13.10.2015 the complainant landed from Tiger Air flight from Singapore to Bengaluru during the relevant time as stated above. Hence, on that ground also there is no merit in the contention of learned counsel for A.1 that the complainant did not travel from Singapore to Bengaluru on the above said date and no such incident took place.
89. The other ground stated by the learned counsel for A.1 that on the said day the complainant did not travel from Singapore to Bengaluru and not brought 15 laptops and by seeing Ex.P.30 one cannot understand from where the passenger had travelled. Admittedly, it is not written in Ex.P.30 that on which date the Tiger Air flight flied and from where to where it flied. Only it is said in Ex.P.30 that the complainant and one Madan Kantan.K had travelled under one PNR number in flight TR 2652 on 12.10.2015. Further Ex.P.30 indicates that it was issued on 6.12.2015. 96
Spl.C.C. No.13/2016 Further it indicates that it was issued by Tiger Air Airport Manager, KIA dt.6.12.2015 addressing to the Inspector of Police, C.B.I. A doubt arises as to how the said information was given on 6.12.2015 pertaining to the information dt.12.10.2015. It is further contended by the learned counsel that it is not mentioned in Ex.P.30 about the return ticket. The counsel would further submit that generally for international travelers ticket must be taken to board a flight for abroad unless it was for education or any other purpose of long stay. Further, it is not explained by the prosecution as to why something was deleted and name Srikumar was written in Ex.P.3. Hence, Ex.P.3 lacks with the information required. Further, even though it was written the name of two passengers under a common PNR number in Ex.P.30, the other co-passenger had not been examined by the prosecution.
90. Further, in Ex.P.71 statement of witness u/s.164 of Cr.P.C, the complainant has stated that he and his friend brought the above 15 laptops whose weight was less than 40 kgs. Further, the counsel has brought my 97 Spl.C.C. No.13/2016 notice to Ex.P.1 complaint by referring the sentence that "either I used to go to Singapore and purchase the electronic items or I used to request my friends who used to come from Singapore to carry the electronic goods.." Further, the complainant was in the habit of carrying electronic goods and he was involved in the racket of getting electronic goods from abroad to sell in India without any permission. Further, in Ex.P.7 it is written that the complainant had purchased only 10 laptops and had paid $1100. It is not explained as to how he took so much of money to Singapore to purchase the laptops and one cannot carry Indian currency to abroad without exchanging the same into foreign currency. Apart from that, A.1 had obtained the document attested by a notary stating that the complainant did not purchase any laptops or the laptops stated in Ex.P.7. This document was given by J.K.Infotech and trading, PTE limited, Singapore. Ex.P.7 indicates that it was issued by the said company.
91. It is contended by the learned Public prosecutor that the documentary evidence vide Ex.P.3, P.6, P.30 and 98 Spl.C.C. No.13/2016 P.55 itself is sufficient to prove that on the said day and time C.W.1 had boarded the flight in Tiger Airways TR 2652 and landed in KIAL. Ex.P.3 boarding pass indicates that on 12.10.2015 at 21.45 hours C.W.1 had boarded the flight No.TR 2652 and the same flied to Bengaluru. Ex.P.6 is the luggage tag, in which also it is clearly stated that luggage has reached in the flight No. TR 2652 belongs to C.W.1. Ex.P.3 is three luggage tag. In total 30 kg goods been brought under those tags. Further, Ex.P.50 is the certificate issued by the Tiger Air, Airport Manager, KIAL which indicates Skumar travelled from Singapore to Bengaluru. The PNR number mentioned in it and the PNR number mentioned in Ex.P.6 are one and the same. Ex.P.55 is the passport of C.W.1 for which it is mentioned that C.W.1 was holding passport in No.JO787615 and as per immigration seal of Singapore Airport, C.W.1 shown to be departed on 12.10.2015 and as per Indian immigration, he arrived in India on 13.10.2015. Hence, there is consistency in the documents stated above. I feel as stated above in the midst of these evidence, it cannot be said that on such and such date and time C.W.1 did not 99 Spl.C.C. No.13/2016 travel and there is no merit in the said contention of the counsel for A.1.
92. It is further contended by the learned counsel for A.1 that the principle is that the evidence of the complainant is to be corroborated, but in this case since the complainant is no more, he has not at all been examined. Further, the documents relied by the prosecution are contradictory to the case of the prosecution. Hence, the counsel submits that the say of the complainant in Ex.P.1 complaint that he had purchased 15 laptops under Ex.P.7 cannot be believed. Further, counsel would submit that in Ex.P.30, two passengers name is shown and in Ex.P.71 the original statement of complainant it is stated that himself and his friend had purchased 15 laptops. Under what context it is stated in the complaint that "I have decided to come back to India by Tiger Airways on 12.12.2015.." The counsel submitted that according to the complaint since himself and his friend had purchased 15 laptops it should have been in the complaint that "we have decided". It is 100 Spl.C.C. No.13/2016 further contended that according to the complainant when A.1 demanded the bribe immediately he got recorded the conversation in his mobile. Further, according to Jacob Thomas (P.W.6) in his evidence in page No.6 has stated that while MO.11 (HTC mobile phone in which conversation recorded) was played, the same was not audible. Further, in paragraph 10 of the evidence the court has observed that :
"The recorded conversation is played in a speaker ..... The conversation played is not fully clear and audible. Certain conversation can be heard and it is difficult to understand the conversation.."
Thereafter, for better understanding of the conversation, the recorded conversation was played with the help of speaker connected to the laptop. Still some of the conversations were not audible. CFSL envelope cover (MO.11) the conversation was said to be stored in file manager. It is further contended by the learned counsel that according to T.Rajashekar (TLO) he secured the independent witnesses at 8 a.m. According to Jacob 101 Spl.C.C. No.13/2016 Thomas, P.W.6 on 12.10.2015 the vigilance officer of Oriental Insurance Company informed him to come to the office of C.B.I. on 13.10.2015 at 7.45 a.m. Hence, the counsel submits that according to the prosecution the incident took place on 13.10.2015, then under what circumstances it was informed to P.W.6 on 12.10.2015 itself. Hence, there is doubt with regard to the alleged fact took place on the said date. Further, counsel submits that in Ex.P.71 statement u/s.164 of Cr.P.C, the C.W.1 has stated that A.1 and A.2 gave back his 12 laptops and took his passport. Hence, there is inconsistency in the case of the prosecution that the prosecution has produced documents vide Ex.P.7 with regard to purchase of 10 laptops. I feel since C.W.1 has not been examined, his statement u/s.164 of Cr.P.C vide Ex.P.71 cannot be proved.
93. Apart from that, in Ex.P.54 the letter issued by the Additional Commissioner, Airport, it is stated that the complainant did not pay customs duty and as there was no material evidence in respect of the said facts, the office did not initiate any action in that regard against the 102 Spl.C.C. No.13/2016 complainant. Hence, the counsel would submit that Ex.P.1 complaint is a concocted one. For the reason that the complainant did not pay customs duty, it cannot be said that complainant did not bring 15 laptops.
94. Ex.P.71 is the statement of the complainant u/s.164 of Cr.P.C. This statement could only be used to corroborate the later testimony as contemplated u/s.157 of Indian Evidence Act. Since the complainant has not been examined, Ex.P.71 statement cannot be proved. The statement u/s.164 of Cr.P.C was recorded behind the back of the accused ie. res inter alia acta. Therefore, as rightly contended by the learned counsel for A.1 in the case on hand the statement u/s.164 of Cr.P.C of C.W.1 cannot be used in any way and cannot be looked into. But, as because complainant is no more, in a trap case the evidence of other witnesses cannot be brushed aside. Further, minor inconsistency in the evidence of the witnesses is common and parrot type of evidence is not expected.
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95. It is contended by the learned counsel for accused No.2 that to attract Sec.7 of P.C.Act, it shall be in the knowledge of accused that he was collecting the illegal gratification. In the case on hand, even if it is proved that A.2 had collected money from the complainant, it was not in his knowledge that it was an illegal gratification. Further, nothing is stated in Ex.P.1 complaint about the involvement of A.2 in the alleged crime. Further, A.2 was a Class-IV employee and he was under the control and guidance of his higher officer. Further, on the alleged date of incident one Sudhakar (P.W.12) was attached to A.1 for his assistance and not A.2. Further, A.2 has no any command. P.W.12 deposed that he had handed over a cover containing the passport and other documents to A.2 and A.1 had given the phone number of A.2 to C.W.1. Hence, there was no nexus in between A.1 and A.2 on the day of alleged incident. Since A.2 was caught in red-hand at the time of trap and his conversation with A.1 immediately after the trap proved the nexus in between A.1 & A.2. A.2 is not an ordinary person who is an experienced employee in Airport. Had 104 Spl.C.C. No.13/2016 he been no knowledge, why did he go to Hotel and what was his necessity to talk to C.W.1 before or after trap over phone. Hence there is no merit.
96. It is further contended by the learned counsel for A.2 that A.2 had no knowledge that the amount of Rs.50,000/- given in a cover to him by the complainant was a bribe amount. Hence, there was no mens rea of A.2. Further, the counsel contends that there is no mention of the name of A.2 in the complaint vide Ex.P.1. On perusal of Ex.P.1 it appears that it is stated that the complainant had requested to take appropriate action against Sri.Prasad (A.1) and Prabhu (A.2). The counsel further contends that since the complainant has not been examined, the complaint has no evidentiary value and the same shall not be considered or used by the prosecution to prove the case against the accused. Further, the complaint can only be a previous statement. Apart from that, even in the confession statement of the complainant also it is not stated the name of A.2 that he had demanded the bribe and it was not in the knowledge of A.2 that the 105 Spl.C.C. No.13/2016 complainant had handed over the bribe of Rs.50,000/-. Further, since the complainant had not been examined by the court, the said statement remained un-tested and the same cannot be used by the accused to contradict the case of the prosecution or the evidence of the complainant. Hence, the non examination of the complainant is fatal to the case of the prosecution. Further, even in the conversation (Ex.P.29) between A.1 and A.2, it cannot be inferred that A.2 had knowledge. Hence, it is contended that on that ground also A.2 is entitled for acquittal. In support of the contention counsel relies the judgment reported in (1996) 11 SCC 688, Virendranath Vs. State of Maharashtra. In the said judgment it is observed in para 4 by the Lordships that unless the prosecution could lead further evidence to show some meeting of minds between the two accused for acceptance of money, and mere acceptance on the suggestion of A.1 cannot establish any guilty intent. Hence, Hon'ble Apex court had acquitted A.2 of the charges. In the case on hand, on perusal of the conversation in between A.1 and A.2 vide Ex.P.29 it cannot 106 Spl.C.C. No.13/2016 be said that A.2 had no knowledge that it was a bribe amount. If the conversation is looked into carefully, one can easily infer that A.2 had knowledge.
97. It is further contended by the learned counsel for A.2 that in para 44 of the evidence of P.W.1, he states that he did not understand the conversation A.2 had with C.W.1 at Empire hotel and P.W.2 in his evidence in para 20 states that he was unable to hear the conversation. P.W.1 & 2 have consistently stated in their evidence that while A.2 ws collecting money from C.W.1 A.2 talked with C.W.1 over phone and thereafter, in the presence of all trap team members there was talk in between A.1 and A.2 and the same was recorded in voice digital recorder and it was recorded to a laptop and to a CD. MO.3 is the said CD. Ex.P.18 is the certificate u/s.65B of the Evidence Act to that effect. Ex.P.29 is its transcription. Hence, any doubt cannot be inferred as contended.
98. It is further contended by the learned counsel for accused No.2 that there is no procedure as such to hold a 107 Spl.C.C. No.13/2016 preliminary enquiry before registering the FIR and in fact the complaint (Ex.P.1) itself was the FIR. It is further contended that nowhere in the criminal procedure either u/s.154 or 157 of Cr.P.C it is stated that the complaint is to be verified and a verification report is to be filed after holding a preliminary enquiry. Further, the counsel would contend that u/s.157 of Cr.P.C, an officer in charge of the police station who had received the information with regard to the commission of an offence, shall forthwith send a report to the Magistrate empowered to take cognizance of such offence upon a police report. In the case on hand, C.W.1 files complaint before Dr.A.Subramanyeshwara Rao, the then S.P of CBI (P.W.17) and P.W.17 refers the complaint to T.Rajashekar (P.W.3) Trap Laying officer for verification. Hence, any information collected during the investigation is not admissible as contemplated u/s.162 of Cr.P.C.
99. In the case on hand, during the preliminary enquiry a conversation was recorded in between the complainant and A.2 through the HTC mobile phone 108 Spl.C.C. No.13/2016 [MO.11(b)] in the presence of P.W.3. The alleged conversation was with regard to the say of A.2 as to where the complainant was and A.2 wanted to meet C.W.1 and in the conversation, A.2 had fixed a hotel to receive the illegal gratification. Hence, since the alleged conversation took place before the complaint been lodged, it is hit by Sec.162 of Cr.P.C. Apart from that, the counsel would contend that the conversation alleged to have been taken place in between A.2 and C.W.1 was in the HTC mobile. The said conversation has not been played in the open court through the said mobile [MO.11(b)]. It is the case of the prosecution that the said conversation was reduced to a laptop and from the laptop it was copied to CDs. P.W.3 in his evidence in para No.9 has stated that C.W.1 had collected mobile phone from his driver by name Basavaraju (P.W.14) who was standing outside the CBI office, in the conversation in between C.W.1 and A.2, A.2 told to C.W.1 to come near Empire hotel at 7.30 p.m along with bribe amount of Rs.50,000/- as instructed by A.1, and A.1 had handed over all the documents to C.W.1 to hand it over to him and A.2 told C.W.1 to come near Hotel Empire 109 Spl.C.C. No.13/2016 at 7.30 p.m and the said conversation was downloaded into his laptop and prepared transcription of the same with help of Smt.Sowmyalatha, WPC of CBI and the said conversation was transferred to two blank CDs. In the cross-examination in para No.54 and 56 he had denied the suggestion that the said fact had not taken place, but in para No.58 he had deposed that he did not seize the said mobile phone of Basavaraju. Hence, the prosecution has failed to prove the alleged conversation said to have been been taken place in between the complainant and A.2. I feel since certificate u/s.65B of evidence Act has not been enclosed to the said conversation said to have been recorded in HTCL mobile phone MO.11(b) and the transcription of the same has not been produced, the said conversation in between C.W.1 and A.2 cannot be proved.
100. It is further contended by the learned counsel for accused No.2 that there was inordinate delay in FIR been reached to the court. In Ex.P.1 cover in which the FIR was sent, the court had recorded that on 14.10.2015 at 11.20 a.m FIR had reached to the court and the 110 Spl.C.C. No.13/2016 complaint was lodged on 13.10.2015 at 7 a.m. Sec.157 of Cr.P.C contemplates that immediately after receipt of the information by the officer in charge of police station with regard to commission of an offence, a report is to be sent to a Magistrate empowered to take cognizance of such offenceupon the police report forthwith. Further, the delay has not been explained. Hence, there is suspicion in the case of the prosecution. It appears in Ex.P.17 that FIR was dispatched from the office of CBI was at 5.30 pm on 13.10.2015 and reached to court on the next day at 11.20 am. It is the contention of learned Public prosecutor that the delay if any is not fatal to the case of the prosecution. In support of the contention, public prosecutor relies the judgment rendered by the Apex court in Crl.A.No.126 and 351 of 2020 decided on 4.11.2015 - State of Rajasthan Vs. Daud Khan. In the said judgment, it is said that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution.
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101. Further learned Public prosecutor has relied the judgment rendered by the Apex court in Crl.A.No.1156 and others of 2008 decided on 3.5.2013 - Manga Vs. State of Uttarakhand. In the said case it is stated that every such delay is not fatal unless prejudice to the accused is shown. The expression forthwith does not mean that the prosecution is required to explain delay to every hour in sending the FIR to the Magistrate. Further, same principle is held in the judgment reported in AIR 1998 SC 533 - Jinnat Mia & others Vs. State of Assam.
102. In view of the principle laid down in the cited judgment and the facts involved in the case on hand it cannot be said that there was inordinate delay as contended.
103. Further, Sec.154 of Cr.P.C does not mandate to hold a preliminary enquiry. Hence, the registration of FIR after the verification of report being filed is an unfair investigation and it vitiates the entire investigation. In 112 Spl.C.C. No.13/2016 support of the contention, counsel for A.2 relies the judgment rendered by the Hon'ble Apex court in WP(C) No. 1015/2018 with WP(C) No.1016/2018 - Prathvi Raj Chauhan Vs. Union of India and others. Contrary to that learned Public prosecutor relies the judgment rendered in (2014) 2 SCC 1, Lalitha Kumari Vs. Government of U.P and others. In the said judgment it is held that registration of FIR is mandatory u/s.154 of the Code, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation. Further, as to what type and in which cases preliminary enquiry is to be conducted will depend on the facts and circumstances of each case. Further, in corruption cases, preliminary enquiry may be made and it is only an illustrative and not exhaustive. It is the contention of the learned counsel for A.2 that on perusal of Ex.P.1 complaint it appears that the averment made is not sufficient to register FIR. Since it is the choice of the police officer depending on each case, I feel the preliminary enquiry conducted in this case does not 113 Spl.C.C. No.13/2016 vitiate the case. Hence, there is no merit in the contention of learned counsel for A.2 in that aspect.
104. One Dr.A.Subramanyeshwara Rao (P.W.17) had registered the FIR. In the cross-examination in para No.16 he had stated that on the basis of oral information and a written complaint he did not satisfy with the allegation made in the complaint to register the FIR. Hence, I feel there is no wrong on the part of P.W.17 in directing P.W.3 to file a verification report of the complaint. It is always on the personal satisfaction of the Station house Officer in charge of the station. Further, in the cited judgment also, in para III(vi) and (vii) it is said by the Lordships that the Station House Officer who had received the first information can hold a preliminary enquiry in corruption cases to protect the rights of the complainant and the accused.
105. It is further contended by the learned counsel for A.2 that presumption can also be drawn that the money said to have been collected by A.2 might be a 114 Spl.C.C. No.13/2016 customs duty. I feel such inference cannot be drawn for the reason that the conversation between A.1 and A.2 was in such a type that A.2 had collected Rs.45,000/- on behalf of A.1 as asked by A.1 and it was a bribe amount.
106. It is further contended by the learned counsel for A.2 that P.W.3(TLO) in his evidence in para 67 has stated that he did not find the conversation said to have taken place at Empire hotel during trap in the mobile MO.4(b) of A.2. It is the contention of learned Public prosecutor that in the CDR report of the phone of A.2 it contains the call made by A.2 to A.1 and A.1 to A.2 during relevant time. I feel the available evidence is only to be seen and what was not contained in MO.4(b) cannot be looked into. Further, any inference cannot be drawnfor non present of conversation of A.2 with A.1 in MO.4(b) mobile phone. Hence, there is no merit in the contention of the learned counsel for A.2.
107. It is further contended by the learned counsel for A.2 that the conversation in between A.1 and A.2 vide 115 Spl.C.C. No.13/2016 MO.3 and the transcription in Ex.P.29 is hit by Sec.25 & 26 of Evidence Act. I feel since the said conversation was not an admission of guilt it cannot be a confession. Further, the said conversation is in the natural course. Even it may be in the presence of police in one end but it was not in the presence of police on the other end where from A.1 had spoken. Hence, there is no merit in the said contention.
108. It is further contended that the statement u/s.164 of Cr.P.C cannot be used for any other purpose. In support of the contention, he relies the judgment reported in (2010) 6 SCC 736, Baij Nath Sah Vs. State of Bihar. In the said judgment it is held that statement u/s.164 of Cr.P.C is not a substantial evidence and can be used only to corroborate or contradict the witness vis-a- vis statement made in court. As rightly pointed out by the counsel, in the court the complainant had not been examined, hence the statement u/s.164 of Cr.P.C cannot be relied by the prosecution. Further, the counsel submits that in the statement u/s.313 Cr.P.C also A.2 had stated 116 Spl.C.C. No.13/2016 that he had no knowledge. Further, A.2 was a Hawaldar and one Sudhakar (P.W.12) who was also a Hawaldar had given evidence that the Hawaldars are always under the mercy of their superiors and the counsel relies the evidence of P.W.12. In para No.8, P.W.12 had stated that his superior officers used to take his services to drive their car to visit other places and normally persons working as Hawaldars used to oblige the directions of the superior officers and they used to do the office work as well as outside office work as per the instructions of superior officer and they cannot refuse to follow the instructions of their superior officers and as per the oral command of their superior officer, they have to work. It is not the case of the defence that on compulsion of A.1, A.2 had collected the amount and there was force from A.1 to collect the same. The conversation in Ex.P.29 itself is sufficient to hold that the act of A.2 was a voluntary one and it was on the request of A.1.
109. It is further contended by the learned counsel for A.1 that if the material gathered or received prior to 117 Spl.C.C. No.13/2016 the registration of FIR (Ex.P.17) is excluded from consideration in view of the law laid down in that regard, there existed no material to register a complaint. In the judgment rendered by the Hon'ble Apex court in Lalitha Kumari's case it is held that preliminary enquiry is permissible in corruption cases.
110. It is the contention of learned Public prosecutor that the complainant died during the year 2017 and it was reported as per report dt.2.5.2018 along with hospital document showing that C.W.1 died due to heart attack. There is no dispute with regard to the death of C.W.1. It is the contention that the evidence of P.W.1, 2, 3, 6, 10, 12 & 14 are sufficient to prove the travel of C.W.1 from Singapore to Bengaluru along with laptop and the demand of bribe. For mere because C.W.1 has not been examined, the entire case of the prosecution cannot be brushed aside and the guilty cannot be set free. In support of the contention, counsel relies the judgment reported in 1982(3) SCC 446 - Kishan Chand Mangal Vs. State of Maharastra. In the said case since complainant died 118 Spl.C.C. No.13/2016 he has not been examined. The Hon'ble court taking into consideration of the factum of recovery of money from the accused convicted the accused and it cannot be said that there is no evidence of demand of bribe. Further, counsel also relies the judgment reported in (1980) 2 SCC 390 - Hazari Lal Vs. State (Delhi administration). In the said case complainant did not support the case. Even then based on the evidence of the Trap laying officer and panch witnesses the Hon'ble court has held that it is not necessary that passing of money should be proved by direct evidence and it may also be proved by circumstantial evidence by taking into consideration of the illustrations to Sec.114 of the Evidence Act that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen.
111. It is further contended by the learned counsel for A.2 that P.W.1 in his evidence in para No.44 has stated that immediately after A.2 was caught hold by P.W.3 (TLO), A.2 except disclosing his name did not say anything 119 Spl.C.C. No.13/2016 to P.W.3. Hence, on that ground also it can be inferred that A.2 had no knowledge that it was a bribe amount. Apart from that, the contents of MO.3 CD is the conversation in between A.1 and A.2 and Ex.P.29 is the text of the said conversation in writing. It is the contention that since the said conversation by A.2 with A.1 was in the presence of police officer, that means A.2 was in the presence of police in one end and A.1 was in the other end. Therefore, in view of Sec.26 of Indian Evidence Act, the said conversation cannot be proved against the accused and the said conversation was done in the course of an investigation, thereby, the same is hit by Sec.162 of Cr.P.C. Further, the counsel has brought my notice to the say of P.W.2 in para No.22. On perusal of the same, it appears that P.W.2 has stated before the court that "he was understanding that A.2 was informing to the officer of CBI that he does not know anything.." Further, P.W.2 has stated in his evidence in para No.20 that he was unable to hear the conversation between A.1 and A.2. Further in para No.21 he has stated that he would repeat the said conversation and he can repeat the words 120 Spl.C.C. No.13/2016 "ತಗಗಗಡಡ ಬನನ". The same word appears in Ex.P.29 the conversation in between A.1 and A.2. Therefore, the incriminating words cannot be ignored. The counsel further contends that P.W.2 in his evidence in page 24 has stated that all signatures were made in the office of CBI and not in the spot. Therefore, counsel contends that according to P.W.2 the mahazar and verification report of those things were prepared in the office of CBI and there is no sanctity to the recovery mahazar vide Ex.P.10. I feel minor discrepancy in the evidence of witnesses is always there and parrot type of evidence is not expected. Further, case is to be proved in accordance with Indian Evidence Act and not by other way.
112. The learned Public prosecutor further contends that presumption could be drawn as contemplated u/s.20 of P.C.Act where public servant accepts any undue advantage which is punishable u/s.7or 11 of P.C.Act and it is proved that he has accepted or obtained or attempted to obtain for himself or for any other person, it shall be presumed, unless the contrary is proved that he accepted 121 Spl.C.C. No.13/2016 as a motive or reward u/s.7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or as the case may be. In support of the contention counsel relies the judgment reported in AIR 2001 SC 318 - M.Narasinga Rao Vs. State of Andhra Pradesh. In the said judgment it is held that from a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled. Further, the counsel also relies the judgment reported in AIR 1982 SC 1511 - Kishan Chand Mangal Vs. State of Rajasthan. In the said judgment it is held that demand and voluntary acceptance of any amount other than the legal remuneration would raise presumption u/s.4(1) of P.C.Act. Further, absence of name of appellant in the FIR was hardly of any significance as complainant did not knew the name of appellant, but by his designation of his office as factory inspector. In the case on hand also the prosecution has proved the demand and acceptance of illegal gratification. To rebut that, the accused did not produce any evidence as to why A.2 had collected money 122 Spl.C.C. No.13/2016 from the complainant. Hence, even though the complainant has not been examined due to his death, the other circumstantial evidence is sufficient to prove the guilt against the accused. Further, as contended by the learned counsels for accused even if it is believed that the complainant was a smuggler and was in the habit of bringing electronic goods without declaring the same and by not paying customs, I feel why this A1 and A.2 are bending for him, straight away they could have bring the same to the notice of the concerned police and why A.1 allowed C.W.1 to go out without paying customs duty. That means A.1 allowed C.W.1 to go out of the airport gate. That itself indicates the involvement of A.1 in committing crime. Hence, for the reasons stated above, prosecution has proved point No.2 and 3. Therefore, I answer point No.2 & 3 in affirmative.
113. Point No.4:- Accused No.1 and 2 have committed the offence on 12/13.10.2015. Since accused No.2 has collected bribe on behalf of accused No.1, Sec.7 of P.C.Act does apply to A.1 and A.2 as the offence was 123 Spl.C.C. No.13/2016 committed prior to 26.7.2018. Hence, the law in existence prior to 26.7.2018 is applicable as the offence committed was prior to 26.7.2018. The offence u/s.13(2) within the meaning of Sec.13(1)(d) was committed by A.1 and A.2 prior to 26.7.2018. Hence, the then law is applicable. For the discussions made above and in view of the findings on the above points, I proceed to pass the following:-
ORDER Acting u/s.235 (2) of Cr.P.C, accused No.1 and 2 are convicted for the offence punishable u/s.7 & 13(2) of P.C.Act.
To hear on sentence.
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(Dictated to the Judgment Writer, computerized transcript thereof corrected, signed and then pronounced by me in the Open Court on this the 9th day of December, 2020).
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(Shivaram.K) XXXII Addl.City Civil and Sessions Judge, and Spl.Judge for CBI cases, Bengaluru. 124
Spl.C.C. No.13/2016 9.12.2020 Orders on sentence of Accused No.1 & 2 Heard the learned Public prosecutor and the counsels for accused No.1 and 2 on sentence.
Learned P.P submits that on the date of offence the punishment for the offence punishable u/s.7 of P.C.Act was imprisonment shall be not less than 3 years and may extend to 7 years and shall also be liable to fine and Sec.13(2) of the Act prescribes the minimum punishment with imprisonment for 4 years and it may extend to 10 years and shall also be liable to fine. Hence, learned P.P contends that maximum sentence may be imposed. Contrary to that, learned counsel for A.1 contends that accused has aged parents and two minor children and they are depending on him only and A.1 is looking after them. The counsel for A.2 contends that the accused is a Class IV employee and he is under the mercy of his higher officers and he has wife and aged mother and they are depending on him only. Further, his mother is suffering from multiple diseases. It is further contended that since the alleged bribe amount involved in the crime was of 125 Spl.C.C. No.13/2016 Rs.50,000/-, minimum fine amount may be imposed and the fine shall be in the capacity of the accused to pay. Contrary to that, learned P.P submits that the offence committed by the accused is against the society and the fine imposed shall reach to the sentiments of the general public and it should be a lesson to the accused and shall be a moral to other persons not to commit the offence.
I feel since no documents been produced with regard to the ill health and family members asserted, that cannot be considered at this stage.
By considering the submissions made, I proceed to pass the following :-
ORDER (1) A.1 has to undergo simple imprisonment for a period of 3(three) years and shall pay a fine of Rs.10,000/-
and in default shall undergo S.I for a period of 2 months for the offence punishable u/s.7 of the Prevention of Corruption Act, and, (2) has to undergo S.I for a period of 4(four) years and pay a fine of Rs.20,000/- and in default shall undergo 126 Spl.C.C. No.13/2016 SI for a period of 3 months for the offence punishable u/s.13(2) of the Prevention of Corruption Act.
(3) A.2 has to undergo simple imprisonment for a period of 3(three) years and shall pay a fine of Rs.5,000/- and in default shall undergo S.I for a period of 2 months for the offence punishable u/s.7 of the Prevention of Corruption Act, and, (4) has to undergo S.I for a period of 4(four) years and pay a fine of Rs.10,000/- and in default shall undergo SI for a period of 3 months for the offence punishable u/s.13(2) of the Prevention of Corruption Act.
Sentence of imprisonment of A.1 and A.2 shall run concurrently.
The period spent in J.C shall be set off as contemplated u/s.428 of Cr.P.C.
The bail bonds and surety bonds of A.1 and A.2 stand cancelled.
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Spl.C.C. No.13/2016 MO.1 & 2 currency of Rs.45,000/- and Rs.5,000/- and MO.11(b) is HTC mobile phone and MO.4(b) is Sony Ericsson mobile phone shall be confiscated to the State after appeal period is over.
MO.3, 5 to 10, 11, 11(a),(c) & (d) are CDs, envelopes and bottles containing hand wash solution and envelope covers are ordered to be destroyed after appeal period is over.
Copy of this judgment shall be given to A.1 and A.2 forthwith.
(Shivaram.K) XXXII Addl.City Civil and Sessions Judge, and Spl.Judge for CBI cases, Bengaluru. 128
Spl.C.C. No.13/2016 LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PWs/CWs Name of the witnesses PW1(CW2) K.Varun Reddy PW2(CW3) Pradeep Kumar PW3(CW4) T.Rajashekar PW4(CW5) D.Anil PW5(CW6) Sujeet Kumar P.Sompur PW6(CW7) Jacob Thomas PW7(CW8) R.Chandramurthi PW8(CW11) Nataraj.G PW9(CW9) Shobi Thomas PW10(CW15) B.Ramashankar PW11(CW14) Stanley Angelo PW12(CW10) Sudhakar PW13(CW24) Akhil Zain PW14(CW13) Basavaraju PW15(CW32) Rajiv Bhushan Tiwari PW16(CW29) Basavaraj.G PW17(CW25) Dr.A.Subramaneshwar Rao 129 Spl.C.C. No.13/2016 PW18(CW23) Dr.Somanna.C PW19(CW33) Subrat Kumar Choudhary Addl.Witness PW20(CW26) R.K.Shivanna LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Exhibit Particulars No. Ex.P.1 Complaint Ex.P.1(a) Signature of P.W.17 Ex.P.2 Entrustment Mahazar Ex.P.2(a) Signature of P.W.1 Ex.P.2(b) Signature of C.W.1 Ex.P.2(c) Signature of P.W.2 Ex.P.2(d) Signature of P.W.3 Ex.P.3 Boarding pass Ex.P.3(a) Signature of P.W.2 Ex.P.3(b) Signature of P.W.1 Ex.P.4 E-visa Ex.P.4(a) Signature of P.W.2 Ex.P.4(b) Signature of P.W.1 Ex.P.5 Customs declaration form Ex.P.5(a) Signature of P.W.2 Ex.P.5(b) Signature of P.W.1 Ex.P.6 Luggage Tag Ex.P.6(a) Signature of P.W.2 Ex.P.6(b) Signature of P.W.1 130 Spl.C.C. No.13/2016 Ex.P.7 Receipt Ex.P.7(a) Signature of P.W.1 Ex.P.7(b) Signature of P.W.2 Ex.P.8 Rough sketch (map) Ex.P.8(a) Signature of P.W.1 Ex.P.8(b) Signature of C.W.3 Ex.P.8(c) Signature of CW.4/PW.3 Ex.P.9 Arrest Memo of A.2 Ex.P.9(a) Signature of P.W.1 Ex.P.9(b) Signature of Pradeep Ex.P.9(c) Signature of P.W.3 Ex.P.10 Recovery mahazar Ex.P.10(a) Signature of P.W.1 Ex.P.10(b) Signature of Pradeep Ex.P.10(c) Signature of P.W.3 Ex.P.11 Declaration of witness of voice sample recording of Srinivas Prasad Ex.P.12 Declaration of witness of voice sample recording of Lourdu Prabhu Ex.P.13 Proceedings drawn on 12.12.2015 Ex.P.13(a) Signature of P.W.1 Ex.P.13(b) Signature of Pradeep Ex.P.14 Declaration of witness of voice sample recording of Pradeep Kumar Ex.P.14(a) Signature of P.W.2 Ex.P.15 Paragraph in continuation of declaration of witness of voice sample recording of Pradeep Kumar Ex.P.15(a) Signature of P.W.2 Ex.P.16 Complaint Verification report Ex.P.16(a) Signature of P.W.3 131 Spl.C.C. No.13/2016 Ex.P.17 FIR Ex.P.17(a) Signature of P.W.17 Ex.P.17(b) Signature of P.W.17 Ex.P.18 Certificate u/s.65-B IE Act Ex.P.18(a) Signature of P.W.3 Ex.P.19 Letter of Passport Ex.P.19(a) Signature of C.W.1 Ex.P.19(b) Signature of P.W.3 Ex.P.20 Transcription Ex.P.20(a) Signature of P.W.3 Ex.P.20(b) Signature of Jacob Thomas/PW.7 Ex.P.21 Work allocation order Ex.P.21(a) Signature of P.W.4 Ex.P.21(b) Copy of work allocation order Ex.P.21(c) Signature of P.W.4 Ex.P.22 Allocation of duty of DC/AC Ex.P.22(a) Signature of P.W.4 Ex.P.23 Copy of office order Dt.22.12.2014 Ex.P.23(a) Signature of P.W.4 Ex.P.24 Letter Dt.5.11.2015 18 pages Ex.P.24(a) Signature of P.W.7 Ex.P.25 Covering letter Dt.1.12.2015 Ex.P.25(a) Signature of P.W.7 Ex.P.26 Covering letter Ex.P.26(a) Signature of P.W.7 Ex.P.27 Duty allotment Register Dt.12.10.2015 Page no.127 Ex.P.27(a) Page No.127 Ex.P.27(b) Signature of KVS Prasad 132 Spl.C.C. No.13/2016 Ex.P.27(c) -do-
Ex.P.27(d) -do-
Ex.P.27(e) Signature of P.W.9 Ex.P.28 Transcription letter Ex.P.28(a) Signature of P.W.7 Ex.P.28(b) Signature of P.W.18 Ex.P.28(c) Signature of P.W.18 Ex.P.28(d) Signature of P.W.20 Ex.P.29 Transcription Dt.13.10.2015 Ex.P.29(a) Signature of P.W.7 Ex.P.30 Letter of Tigerair Ex.P.30(a) Signature of P.W.10 Ex.P.31 Seizure Memo dt.8.12.2015 Ex.P.31(a) Signature of P.W.11 Ex.P.32 Application for Airtel mobile phone Ex.P.33 Xerox copy of Aadhar card Ex.P.34 Mobile call details Ex.P.34(a) Signature of P.W.11 Ex.P.35 Certificate u/s.65(B) Ex.P.35(a) Signature of P.W.11 Ex.P.36 Covering letter of Airtel Ex.P.36(a) Signature of P.W.11 Ex.P.37 Application form of Airtel for mobile phone Ex.P.38 Identity card Ex.P.39 Voter identity card Ex.P.40 D.L 133 Spl.C.C. No.13/2016 Ex.P.41 Application form of Airtel mobile phone Ex.P.41(a) Signature of P.W.14 Ex.P.42 Voter identity card Ex.P.42(a) Signature of P.W.14 Ex.P.43 Call details of phone No.984509495 Ex.P.43(a) Signature of P.W.11 Ex.P.43(b) Tower location list Ex.P.44 Certificate u/s.65B Ex.P.44(a) Signature of P.W.11 Ex.P.45 Call details of phone No.9972314166 Ex.P.45(a) Signature Ex.P.45(b) Tower location list to (e) Ex.P.46 Certificate u/s.45B Ex.P.46(a) Signature of P.W.11 Ex.P.47 Notification of commissioner of customs
Ex.P.47(a) Order of commissioner of customs Ex.P.48 Sanction order of Srinivas Prasad Ex.P.48(a) Signature of P.W.15 Ex.P.48(b) Covering letter dt.29.12.15 Ex.P.48(c) Signature of Ganesh Prasad Ex.P.49 Sanction order of Lorduprabhu Ex.P.49(a) Signature of P.W.15 Ex.P.49(b) Covering letter dt.29.12.15 Ex.P.49(c) Signature of Ganesh Prasad Ex.P.50 Chemical examiner opinion Ex.P.50(a) Signature of P.W.16 Ex.P.50(b) Seal of Chemical examiner Ex.P.50(c) A portion in Ex.P.50 Ex.P.51 Copy of the letter of C.B.I. with enclosures Ex.P.51(a) Signature of P.W.16 on request letter 134 Spl.C.C. No.13/2016 Ex.P.51(b) Signature of P.W.20
(c) & (d) Ex.P.51(e) Signature of SP C.B.I./ACB/BNG Ex.P.52 Covering letter through which C.W.25 sent draft of sanction order Ex.P.53 Replica of original sanction order Ex.P.54 Letter dt.21.4.16 of Addl. Commissioner of Airport to Prl.Comm. of Customs Ex.P.55 Passport of Srikumar Ex.P.56 Letter dt.15.3.16 of Prl. Commissioner of customs to Addl.Director General of Vigilance Ex.P.57 Covering letter of C.W.25 along with draft sanction order Ex.P.58 Voice examination report of CSFL,dt.28.4.2017 Ex.P.58(a) Signature of P.W.19 Ex.P.59 Letter dt.15.12.15 for forwarding of mobile hand set from C.B.I. to CFSL Ex.P.59(a) Signature of P.W.20 Ex.P.59(b) Signature of SP C.B.I./ACB/ BNG Ex.P.59(c) Signature of SP C.B.I./ACB Ex.P.59(d) Signature of P.W.20 Ex.P.60 Proceedings dt.12.12.15 of voice identification and transcription of recorded conversations Ex.P.60(a) Signature of P.W.20 Ex.P.61 Script prepared for voice sample of A.1 Ex.P.61(a) Signature of P.W.20 Ex.P.61(b) Signature of P.W.1 Ex.P.61(c) Signature of P.W.2 135 Spl.C.C. No.13/2016 Ex.P.62 Script prepared for voice sample of A.2 Ex.P.62(a) Signature of P.W.20 Ex.P.62(b) Signature of P.W.1 Ex.P.62(c) Signature of P.W.2 Ex.P.63 Declaration of A1 Ex.P.64 Declaration of A2 Ex.P.65 Certificate u/s.65(b) of IT Ex.P.65(a) Signature of P.W.20 Ex.P.66 C.C of statement u/s.164 of Cr.P.C Ex.P.67 Letter dt.7.12.15 of Dr. Bejoy John Ex.P.67(a) Signature of P.W.20 Ex.P.68 Arrest cum personal search memo of A1 Ex.P.68(a) Signature of P.W.3/TLO Ex.P.69 Arrest cum personal search memo of A2 Ex.P.69(a) Signature of P.W.3/TLO Ex.P.70 Envelope cover (opened in open court) Ex.P.70(a) Another envelop cover Ex.P.70(b) Covering letter No.230/15 dt.1.12.15 Ex.P.70(c) Signature of P.W.20 Ex.P.71 Original statement u/s.164 of Cr.P.C of Srikumar/complainant LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE Exhibit Particulars No. Ex.D.1 Custom declaration form 136 Spl.C.C. No.13/2016 Ex.D.2 Letter dt.19.2.2016 of Airports Authority of India Ex.D.3 Copy of records of customs Ex.D.4 Copy of records of customs LIST OF DOCUMENTS MARKED BY COURT Ex.C.1 Opened seal cover of FIR LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION M.O.1 Sealed cover including currency notes in 2 covers Rs.50,000/-
M.O.1(a) Signature of PW.1 on cover M.O.1(b) Signature of Pradeep CW.3 on cover M.O.1(c) Signature of CW.4(TLO) on cover M.O.2 Another sealed cover including currency notes M.O.2(a) Signature of PW.1 on cover M.O.2(b) Signature of Pradeep/CW.3 on cover M.O.2(c) Signature of Rajashekar/ CW.4(TLO) on cover M.O.3 C.D M.O.3(a) Signature of PW.1 on CD M.O.3(b) Signature of Pradeep on CD M.O.3(c) Signature of PW.1 on CD mailer cover M.O.3(d) Signature of Pradeep on CD mailer cover M.O.3(e) Signature of P.W.3 on CD M.O.3(f) Signature of P.W.19 M.O.4 C.D. Mailer cover M.O.4(a) Signature of P.W.1 M.O.4(b) Sony Ericsson mobile phone M.O.4(c) Signature of P.W.2 137 Spl.C.C. No.13/2016 M.O.4(d) Signature of P.W.3 M.O.5 Bottle containing hand wash solution of left hand of A.2 M.O.5(a) Signature of P.W.1 M.O.5(b) Signature of P.W.2 M.O.5(c) Signature of P.W.3 M.O.6 Bottle containing right hand wash solution of A.2 M.O.6(a) Signature of P.W.1 M.O.6(b) Signature of P.W.2 M.O.6(c) Signature of P.W.3 M.O.7 Bottle containing solution of pant pocket wash M.O.7(a) Signature of P.W.1 M.O.7(b) Signature of P.W.2 M.O.7(c) Signature of P.W.3 M.O.8 Blue colour pant M.O.8(a) Signature of P.W.1 M.O.8(b) Signature of P.W.2 M.O.8(c) Signature of P.W.3 M.O.9 CD sample voice recorder A1 M.O.9(a) Signature of P.W.1 M.O.9(b) C.D Mailer cover M.O.9(c) Signature of P.W.1 on CD Mailer cover M.O.9(d) CSFL envelope cover M.O.9(e) Signature of P.W.2 M.O.9(f) Signature of P.W.2 on CD Mailer M.O.9(g) Signature of P.W.19
(h) (j) M.O.10 C.D sample voice recording of A.2 M.O.10(a) Signature of P.W.1 M.O.10(b) C.D Mailer cover M.O.10(c) Signature of P.W.1 on CD Mailer cover M.O.10(d) CSFL envelope cover M.O.10(e) Signature of P.W.2 138 Spl.C.C. No.13/2016 M.O.10(f) Signature of P.W.2 on CD Mailer cover M.O.10(g) Signature of P.W.19
(h) (j) M.O.11 CSFL envelope cover M.O.11(a) Another cover M.O.11(b) Mobile phone (HTC) M.O.11(c) Signature of P.W.19 M.O.11(d) Signature of P.W.19 (Shivaram.K) XXXII Addl.City Civil and Sessions Judge and Spl.Judge for CBI cases, Bengaluru. 139 Spl.C.C. No.13/2016 Judgment pronounced in the open Court, (vide separately) ORDER Acting u/s.235 (2) of Cr.P.C, accused No.1 and 2 are convicted for the offence punishable u/s.7 & 13(2) of P.C.Act.
To hear on sentence.
XXXII ACC & SJ & Spl.Judge for CBI Cases, Bengaluru.
Heard the learned Public prosecutor and the counsels for Accused No.1 & 2 ORDER ON SENTENCE (1) A.1 has to undergo simple imprisonment for a period of 3(three) years and shall pay a fine of Rs.10,000/- and in default shall undergo S.I for a period of 2 months for the offence punishable u/s.7 of the Prevention of Corruption Act, and, (2) has to undergo S.I for a period of 4(four) years and pay a fine of 140 Spl.C.C. No.13/2016 Rs.20,000/- and in default shall undergo SI for a period of 3 months for the offence punishable u/s.13(2) of the Prevention of Corruption Act.
(3) A.2 has to undergo simple imprisonment for a period of 3(three) years and shall pay a fine of Rs.5,000/- and in default shall undergo S.I for a period of 2 months for the offence punishable u/s.7 of the Prevention of Corruption Act, and, (4) has to undergo S.I for a period of 4(four) years and pay a fine of Rs.10,000/- and in default he shall undergo SI for a period of 3 months for the offence punishable u/s.13(2) of the Prevention of Corruption Act.
Sentence of imprisonment of A.1 and A.2 shall run concurrently.
The period spent in J.C shall be set off as contemplated u/s.428 of Cr.P.C.
141 Spl.C.C. No.13/2016 The bail bonds and surety bonds of A.1 and A.2 stand cancelled.
MO.1 & 2 currency of Rs.45,000/- and Rs.5,000/- and MO.11(b) is HTC mobile phone and MO.4(b) is Sony Ericsson mobile phone shall be confiscated to the State after appeal period is over.
MO.3, 5 to 10, 11, 11(a),(c) &
(d) are CDs, envelopes and bottles containing hand wash solution and envelope covers are ordered to be destroyed after appeal period is over.
Copy of this judgment shall be given to A.1 and A.2 forthwith.
Issue conviction warrant.
(Shivarama.K) XXXII Addl.City Civil & Sessions Judge, & Spl.Judge for CBI Cases, Bangalore.
142 Spl.C.C. No.13/2016