Bangalore District Court
State Of Karnataka Represented By vs ) C. Lingaiah S/O Channalingaiah on 30 August, 2021
IN THE COURT OF XXIII ADDL.CITY CIVIL & SESSIONS JUDGE &
SPECIAL JUDGE ( P.C. Act) BENGALURU (C.C.H.No.24)
Dated: This the 30th day of August, 2021
:PRESENT:
LAKSHMINARAYANA BHAT K., B.A., LL.B.,
XXIII Additional City Civil and Sessions Judge
and Special Judge ( P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.666/2017
Complainant: State of Karnataka represented by
Police Inspector, Anti Corruption
Bureau, Bengaluru Urban, Bengaluru.
(By Special Public Prosecutor)
V/s
Accused : 1) C. Lingaiah S/o Channalingaiah,
aged about 54 years, Assistant
Revenue Officer, Rajajinagar Sub-
division (in-charge
Mahalakshmipuram Sub-division,
BBMP, Visveswaraiah Complex,
Rajajinagar, Bengaluru -10.
2) Nandeesh M. S/o Late Muniyappa,
aged about 58 years, Revenue
Inspector, No.44 Marappanapalya
ward, office of the Revenue Officer,
Mahalakshmipuram Sub-division,
BBMP, Visveswaraiah Complex,
Rajajinagar, Bengaluru -10.
(By Sri. PNH Advocate)
2 Spl.C.C.666/2017
JUDGMENT
The accused are charge-sheeted by the Anti Corruption Bureau, Bengaluru Urban (in short ACB) for the offences punishable under sections 7, 13(1)(d) read with section 13(2) of The Prevention of Corruption Act, 1988 (in short "PC Act").
2(a). The factual matrix of the case is that accused No.1 is working as Assistant Revenue Officer and accused No.2 is working as Revenue Inspector, Rajaji Nagar, sub-division, Rajaji Nagar, Bengaluru. PW5 - Ganesh Reddy N. is the owner of a vacant site situated at Jarakbande Kaval village, Bengaluru North Taluk which he claimed to have acquired through a registered gift deed dated 08-9-2016 executed by his father Nagaraju N . In order to change khata of the said property, he has issued a letter of authorization in the name of PW-1 Gopal S. In pursuance of the said authorisation, the informant PW1 Gopal S. has filed an application before BBMP, Rajajinagar Sub-division, Rajajinagar, Bengaluru for changing the katha in the name of Ganesh Reddy. The prosecution allegation is that the accused have demanded illegal gratification of Rs.3,00,000/- from PW-1, the informant for passing an order of change of katha. It is stated on 28.3.2017 PW1 along with PW2 - Chidananda approached the accused and after negotiation, the accused have agreed and reduced the bribe amount to Rs.2,50,000/- and directed the informant to make payment of Rs.1,00,000/- in advance and to pay the balance amount after change of khata in the name of applicant Ganesh Reddy. It is stated the informant has recorded the aforesaid conversation with accused No.1 in his 3 Spl.C.C.666/2017 mobile phone and since he is not willing to pay the bribe amount, he approached ACB Police and lodged a report.
2(b) In furtherance of recording the statement of the informant at Ex.P-4, Dy.S.P. ACB, Bengaluru Urban has registered a case in Crime No.12/2017 against the accused for the aforesaid offences. He has secured two independent witnesses and after completion of pre-trap proceedings, conducted raid and arrested accused No.1, when he has made a demand and accepted illegal gratification of Rs.1,00,000/- from the informant. After completion of investigation, the concerned ACB Police secured prosecution sanction order from the competent authority and filed charge sheet against the accused.
3. After taking cognizance of the offences, presence of the accused was secured and they were on bail. After complying Section 207 of Cr.P.C., charge was framed and both the accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution has examined in all ten witnesses as P.w.1 to 10 and produced Ex.P1 to P44 documents and material objects M.O. No.1 to 12 were identified. Accused were examined under Section 313 of Cr.P.C. by putting the incriminating evidence appearing against them. The accused did not choose to adduce any oral evidence in support of their defence. However during cross- examination of the prosecution witnesses, they have confronted and got marked Ex.D1 and D2 documents.
4 Spl.C.C.666/2017
5. Heard the arguments of learned Special public prosecutor and learned defence counsel. They have relied upon the following reported judgments.
For the prosecution side:-
1) (2008) 8 Supreme Court Cases 571 Madhukar Bhaskarrao Joshi Vs. State of Maharashtra
2) (2009) 9 Supreme Court Cases 752 State of U.P. Vs. Kommaraju Gopala Krishna Murthy.
3) (2001) 1 Supreme Court Cases 691 M.Narsinga Rao Vs. State of A.P.
4) (2006) 12 Supreme Court Cases 277 B.Noha Vs. State of Kerala and another.
5) (2016) 13 Supreme Court Cases 258 S.C.Goel Vs. State through Central Bureau of investigation.
6) (2008) 11 Supreme Court Cases 681 Raj Rajendra Singh Seth Alias R.R.S.Seth Vs. State of Jharkhand and another.
7) (2009) 11 Supreme Court Cases 708 Krishna Ram Vs. State of Rajasthan.
8) (2015) 11 Supreme Court Cases 361 Kallappa Mallappa Kamble Vs. State of Karnataka.
9) (2015) 7 Supreme Court Cases 283 State of Andhra Pradesh Vs. Venkateshwarlu.
10) (2014) 15 Supreme Court Cases 103 Somabhai Gopalbhai Patel Vs. State of Gujarat.
11) (2012) 7 Supreme Court Cases 80 Narendra Champaklal Trivedi Vs. State of Gujarat
12) (2010) 15 Supreme Court Cases 1 C.M.Sharma Vs. State of Andhra Pradesh.
5 Spl.C.C.666/2017 For the defence side :-
1) (2000) 5 Supreme Court Cases 21 Smt.Meena Vs. State of Maharashtra
2) (2015) 10 Supreme Court Cases 152 P.Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and another
3) (2016) 3 Supreme Court Cases 108 Krishan Chander Vs. State of Delhi
4) (2015) 16 Supreme Court Cases 350 Khaleel Ahmed Vs. State of Karnataka
5) 1982 Crl.L.J. 1314 - Bharatkumar Jaymanishanker Mehta Vs. State of Gujarat.
6) (1979) 4 Supreme Court Cases 526 Panalal Damodar Rathi Vs. State of Maharashtra
7) AIR 2013 Supreme Court 3368 - State of Punjab Vs. Madan Mohan Lal Verma.
8) (1976) 1 Supreme Court Cases 145 Raghbir Singh Vs. State of Punjab
9) (2012) 13 Supreme Court Cases 552 Rakesh Kapoor Vs. State of Himachal Pradesh
10) 2016 Crl.L.J. 3066 - R.Srinivasan and Anr. Vs. State by Police Inspector, Lokayuktha, Bengaluru.
11) (1972) 3 Supreme Court Cases 652 Ram Prakash Arora Vs. State of Punjab
12) (2015) 15 Supreme Court Cases 629 T.K.Ramesh Kumar Vs. State through Police Inspector, Bengaluru
13) (2006) 1 Supreme Court Cases 401 T.Subramanian Vs. State of T.N.
14) (2002) 7 Supreme Court Cases 317 Ashish Batham Vs. State of M.P.
6 Spl.C.C.666/2017
15) (1996) 11 Supreme Court Cases 720 M.K.Harshan Vs. State of Kerala
16) (2014) 10 Supreme Court Cases 473 Anvar P.V. Vs. P.K.Basheer and others.
6. The arguments of rival sides and the evidence on record to the extent essential are analysed and ratio of relevant judgments are followed to adjudicate the charges framed against the accused. At this stage the points that would arise for the determination of this court are :
1. Whether the prosecution proves that it has obtained valid sanction order at Ex.P13 to prosecute the accused as required under Section 19 of PC Act?
2. Whether prosecution beyond reasonable doubt proves that the accused No.1 and 2 being the public servants as Assistant Revenue Officer and Revenue Inspector on 28.3.2017 demanded and accepted illegal gratification of Rs.1,00,000/- from PW1 Gopal S other than the legal remuneration and thereby they are guilty of the offence punishable under Section 7 of P. C. Act?
3. Whether the prosecution beyond reasonable doubt proves that the accused being the public servants by
7 Spl.C.C.666/2017 abusing their official position as such public servants demanded and accepted pecuniary advantage of Rs.1,00,000/- and thereby committed an offence punishable under section 13(1)(d) read with section 13(2) of P.C. Act?
4. What order?
7. My findings on the aforesaid points are:
Point No.1 : In the affirmative.
Point No.2 : in the affirmative against accused
No.1 and
in the negative against accused
No.2.
Point No.3 : in the affirmative against accused
No.1 and
in the negative against accused
No.2.
Point No.4 : As per final order,
for the following:
REASONS
8.(a) Point No.1 : As per the prosecution case, accused No.1 was working as Assistant Revenue Officer and accused No.2 was working as Revenue Inspector and they are public servants within the ambit of Section 2(c)(i) of PC Act. Both the accused have not disputed this fact during the trial. Since the accused are public servants, as per Section 19 of the PC Act, the prosecution is required to obtain a valid sanction to 8 Spl.C.C.666/2017 prosecute them. As per the said provision no Court shall take cognizance of the offence narrated therein alleged to have been committed by a public servant, except with the previous sanction of the competent authority. The object of the provision is to protect the public servant from harassment on frivolous or unsubstantiated allegations. Therefore, obtaining of a valid sanction is condition precedent for taking cognizance of the offence leveled against the accused.
8(b). In this regard, the prosecution has examined PW-7 Sri. Manjunath Prasad, the then Commissioner BBMP Bengaluru and got marked Ex.P-13 sanction order. It is the evidence of PW-7 that he was working as Principal Secretary to Government of Karnataka and he has received a requisition along with documents from the Director General of Police, ACB, Bengaluru seeking prosecution sanction. It is his evidence that the requisition was accompanied with copy of the statement of informant, FIR in Crime No.12/2017, pre-trap and trap panchanama, chemical analysis report, file relating to the alleged demand of gratification made by the accused, explanation statement of the accused, statement of the witnesses and final report of the Investigation Officer. After examination of the documents produced by the investigating agency, he claimed to have satisfied that a prima-facie case is made out against the accused and thus accorded sanction as per Ex.P13 to prosecute both the accused. It is his evidence that he is the competent authority to remove the accused from their service.
9 Spl.C.C.666/2017 8(c). During cross-examination of PW-7, the accused have not challenged the authority of the said witness to remove them from the office. They have only contended that Ex.P13 order was passed without application of mind. During cross- examination, PW7 has stated that he is not remembering whether Investigating Officer had sent the file relating to alleged demand of gratification made by the accused. But on perusal of Ex.P-13 order at Sl.No.6, it is clear that the Investigating Officer had sent the concerned file to the competent authority for consideration. The learned defence counsel has also cross-examined witness touching the proceedings held in the said file in connection with the application submitted by PW-1 i.e. the informant. Accused have not seriously disputed Ex.P-13 sanction order or the authority of PW7 to pass said order.
8(d). In the judgment reported in (2012) 3 SCC 64 in Subramanian Swamy Vs. Dr.Manmohan Singh case in para-44 the Hon'ble Supreme Court held as under
"grant or refusal of sanction is not a quasi
-judicial function. What is required to be seen by the competent authority is whether the facts placed before it by the investigating agency prima-facie disclose commission of an offence by a public servant. If the competent authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the competent authority is otherwise, then it can refuse sanction. The
10 Spl.C.C.666/2017 competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true".
8(e). The Supreme court in the matter of State of Karnataka vs Ameerjan reported in (2007)11 SCC 273 has held that the sanction order must be demonstrative of the fact that there had been proper application of mind on the part of sanctioning authority.
8(f). In the matter of P.L. Tatwal vs state of Madhya Pradesh reported in (2014)11 SCC 431 it has been held by the Apex court that grant of sanction is an administrative function which intend to protect the public servant against frivolous and vexatious litigation.
8(g). In the judgment reported in (2013) 8 SCC 119 in State of Maharastra v/s. Mahesh G Jain the Apex court held that the adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and that an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.
8(h). On applying the above ratio laid down by the Apex court to the facts of the case in hand, PW-7 in clear and unambiguous terms deposed that the materials placed before him by the investigating agency prima-facie made out a case for prosecution against the accused. Ex.P-13 sanction order 11 Spl.C.C.666/2017 and oral evidence of PW.7 reflect that before passing the order, the sanctioning authority has applied his mind and it is not a mechanical order as contended by the accused. The sanction order shows that the authority was satisfied after complete and conscious scrutiny of the records produced in respect of the allegations made against the accused. The prosecution has proved by leading evidence of PW-7 and by producing Ex.P13 order that the sanctioning authority perused all the materials and hence an inference may be drawn that the sanction has been granted in accordance with the mandatory requirement under section 19 of the PC Act. The grounds urged during argument challenging Ex.P-13 order is not legally sustainable in view of the above referred settled principles of law laid down by the Apex court. Hence this court is of the firm opinion that the prosecution has obtained a valid sanction as per Ex.P-13 to prosecute the accused. Therefore, my finding on the point No.1 is in the affirmative.
Point Nos.2 and 3 :-
9. The aforesaid points are interconnected and in order to avoid repetition and for brevity they are taken up together common discussion.
Amongst the prosecution witnesses, PW1 is the informant and his evidence is that he is doing real estate business as an agent/middleman in house sale transactions, and also doing revenue departmental works such as change of katha etc. It is his evidence that PW5 Ganesh Reddy is known to him and the said Ganesh Reddy owns a vacant site property at Jarakabande Kaval, Bengaluru acquired under a registered 12 Spl.C.C.666/2017 gift deed dated 08-9-2016 executed by his father N.Nagaraj. The aforesaid Ganesh Reddy on account of his business schedule usually remains outside Bengaluru and hence approached and requested PW-1 to get the bifurcation katha of the property changed in his name and issued Ex.P1 an authorisation letter.
10. In pursuance, PW1 - Gopal S. has moved an application on 21.11.2016 before the office of Assistant Revenue Officer, BBMP, Rajajinagar, Bengaluru for change of katha of the property on behalf of PW-5 Ganesh Reddy and received an endorsement as per Ex.P3. After filing the application, he had approached the accused on several times and after repeated requests they have informed going to make spot inspection of the site and both the accused visited the spot and directed him to put up boundary stone on all corners of the property and assured to pass the khata change order within a period of one month. After lapse of one month, when PW-1 approached the accused both of them have demanded illegal gratification of Rs.3,00,000/- for passing katha change order.
11. That on 28.3.2017 at about 11.30 a.m. PW-1 along with PW2 Chidananda again went to the office of the accused. At that time accused No.1 had demanded Rs.3.00 lakhs and after negotiation reduced the amount for Rs.2,50,000/- as bribe to change the katha of the property and has directed PW-1 to make payment of Rs.1,00,000/- in advance and the balance amount after change of katha in the name of PW-5. PW-1 claimed to have recorded the aforesaid conversation in 13 Spl.C.C.666/2017 his mobile phone and since he was not willing to make the payment as demanded by the accused, he approached ACB Police, Bengaluru Urban and lodged Ex.P-4 first information statement. At the same time he has also produced the telephonic conversation intercepted between himself and accused No.1 in order to substantiate the demand of illegal gratification by the accused.
12. PW8 - Vajeer Ali Khan was working as Dy.S.P., ACB, Bengaluru and he is the investigation officer ( IO in short ) of the case. As per his evidence, on 28-3-2017 at 2.30 p.m. PW- 1 appeared before him and he has recorded the oral statement of Pw-1 and reduced it into writing as per Ex.P4 and registered Ex.P14 FIR. He deposed after registering the case, he has sent a requisition letter to Town Planning Authority, requesting them to depute two officials as witness to lay a trap against the accused and secured presence Pw.3 and 4 and they have agreed to assist in the investigation of the case.
13. It is the evidence of Pw.1 and 2 that on 28.3.2017 they approached PW-8, Dy.S.P. ACB at 2.30 p.m. and PW.3 and 4 have reported before PW-8/IO at 3.00 p.m. After securing the presence of Pw.3 and 4, PW-8 has informed them the details of Ex.P-4 statement and Ex.P14 FIR. Pw.1 and 2 on the one hand and Pw.3 and 4 on the other introduced themselves to each other. Then as directed by PW-8, PW1 has produced Rs.2,000/- denomination currency notes (32) and Rs.500/- denomination currency notes (72) in all Rs.1,00,000/-. The description of the aforesaid currency notes and its serial 14 Spl.C.C.666/2017 numbers have been noted as per Ex.P-9 list and PW-8 has also collected the telephonic conversation from PW1 intercepted in his mobile phone and prepared Ex.P-8 transcript and P.w.3 and 4 were made to hear the conversation between PW1 and the accused.
14. As directed by PW-8, his investigation assistants smeared phenolphthalein powder on the currency notes of Rs.1,00,000/- produced by the informant PW-1 and thereafter, they prepared sodium carbonate solution. As per the direction of PW-8, pancha-2/PW4 - V.Sendil Kumar, counted the currency notes and PW-3- C.T.Selvan ascertained that there is no other cash or other property is in the person of PW-1 - Gopal S. and PW-4 has kept the treated currency notes in the right trouser pocket of PW-1. Thereafter, as per the direction of PW-8/IO, when PW4 dipped his fingers in chemical solution, it was changed to pink colour. PW-8 has explained to Pw.1 to 4, the informant and other witnesses as to the consequences of chemical reaction due to application of phenolphthalein powder to the currency notes. PW-8 has separately collected the solution and colour changed hand wash liquid as per article No.2 and 3 for scientific examination and those articles were identified during trial as M.O.3 and 4.
15. Then PW8 gave instructions to PW1 to approach the accused and only on demand by the accused, he should pay the bait money and then to give signal to the trap raid team. PW-1, and P.w.2 to 4 were instructed as to how they should act when they are going to meet the accused. PW3 C.T.Selvan was asked to follow PW1 as shadow witness. PW-8 instructed 15 Spl.C.C.666/2017 PW-2 to accompany with PW1 and to record the conversation and trap proceedings in the mobile phone of PW1. PW8 has prepared pre-trap panchanama as per Ex.P-5 and Pw.1 to 4 are the signatories to the said document. At the time of pre- trap proceedings, Exs.P16 to 19 photos were taken. PW-8 has also seized and sealed a CD produced by PW-1 containing the conversation between PW-1 and accused No.1 numbered as article No.1 and identified as MO-2 during trial.
16. The witnesses have deposed that they left ACB office at 4.15 p.m. and reached near Rajajinagar, ARO Office, approximately at 4.30 p.m., and the raiding party parked their vehicle at a distance of about 100 meters from the said office. PW-8 again directed PW-1 to pay the bait money to the accused only on demand and instructions were also issued to the witnesses and members of the raiding party to play their respective role before and after trap. PW-3 was directed to follow P.w.1 and 2 as shadow witness and to observe all the developments between PW1 and the accused. PW8 and his subordinate officials and PW4 were waiting outside the BBMP Office for the signal of PW1.
17. After few minutes from entering the office, PW-1 came out and shown his pre-arranged signal to the raiding party. Soon after PW8 and 4 and other officials entered the room and PW-8 showed his identity card to accused No.1 who was on his chair. PW-1 has disclosed to PW-8 that accused No.1 has demanded and accepted Rs.1,00,000/- by directing him to keep the tainted cash on right hand side table drawer.
16 Spl.C.C.666/2017 Accused No.1 has disclosed his name, address and designation to PW8/IO.
18. PW8/IO got prepared sodium carbonate solution and asked PW-4 panch witness-2 to take out cash from the table drawer of the accused and on verifying the description and serial numbers they tally with pre-trap panchanama and list prepared as per Ex.P9. PW-8 has received tainted bait money, and kept the currency notes in a cover and sealed as per article No.5. PW-8 after preparing the chemical solution, drawn the sample in a bottle as article No.6. The IO has taken a cotton ball and rubbed it inside the table drawer of the accused where PW-1 was asked by accused No.1 to keep the tainted currency notes. Thereafter when the said cotton ball was dipped in the chemical solution, the liquid turned into pink colour and IO/PW-8 has preserved the liquid in an empty bottle marked as article No.7 for scientific examination and dipped cotton was seized and sealed as article No.8 and it was identified during the trial as M.O.8.
19. PW8 has asked P.w.1 and 2 about the incident, they have deposed when they entered the office accused No.1, he told them to sit and asked whether cash is ready and directed PW1 to keep the amount in his right hand side table drawer. PW-3 has deposed when he has entered the room separately with P.w.1 and 2, accused No.1 has questioned the purpose of his visit and when he said he came to obtain a birth Certificate, accused No.1 has informed that birth certificate is not available in the said office and asked him to go out from the office room. It is the evidence of PW-3 that he went out of 17 Spl.C.C.666/2017 the office, and was standing near the door and at that time he has seen accused No.1 has demanded bribe amount from PW-1 and as per his instruction, PW1 has kept the tainted currency notes in the right hand side table drawer of the accused No.1.
20. It is the prosecution case that PW8 has asked PW2 to hand over the mobile phone recording and recovered the memory card inserted in the said mobile. The audio conversation recorded in the said memory card was re- produced in Ex.P6 trap mahazar and memory card was played in their presence and they have watched the video containing the demand and acceptance of the bribe by accused No.1. PW-8 has seized the memory card as article No.4/ M.O. No.5.
21. It is the evidence of the prosecution that PW8 asked accused No.1 to give his explanation and in pursuance, he has given his written explanation as per Ex.P20. PW-3 4 and 8 are the signatories to the said document. In the explanation, accused No.1 has stated that PW-2 is known to him, came to his office with his friend and has kept something in his table drawer and at that time raid team came and apprehended him. In this regard when IO/PW8 has asked Pw.1 to 4 regarding truthfulness of the explanation, they have stated that the contents of statement/explanation offered by the accused as per Ex.P-20 is totally false and untrue.
22. As per the evidence of Pw.1 to 4 and 8, during the trap proceedings ACB police have taken photos at different stages and it was marked as Ex.P22 to 27. PW-8 has prepared 18 Spl.C.C.666/2017 Ex.P6 trap mahazar from 4.50 to 8.15 p.m. in the presence of PW 1 to 4 in the place of incident/office of Assistant Revenue Officer, Rajajinagar Sub-division, Bengaluru. Pw.1 to 4 are the signatories to the said document. Ex.P28 and 29 are the certificates secured under Section 65B of Indian Evidence Act, regarding Ex.P-16 to 19 and 22 to 27 photos taken during pre- trap and trap panchanama and hence those photos are admissible in evidence.
23. It is the evidence of PW8 that as on the date of trap 28-3-2017, accused No.2 was on leave and it was brought to the notice of Pw-8 in the said office that the katha change file relating to PW-5 is in the custody of accused No.2. PW-8 has collected copy of attendance register and other documents as per Ex.P-21 from Smt.Kempamma, Assistant Revenue Officer, Mahalakshmipuram, Bengaluru.
24. PW8 has further deposed that he has collected the sample voice of accused No.1 in the voice recorder and converted the said file into CD marked as per article No.9 and sealed the document and it is marked as MO-9 during trial. Ex.P-30 is the certificate issued with regard to the document under Section 65B of Evidence Act. PW-8 has claimed he has recorded the statement of witnesses and sent a requisition to Revenue officer, Mahalakshmipuram to produce the katha file relating to PW-5 and as per Ex.P32 on 7-4-2017 he had received the documents from the said office.
25. PW5 - Ganesh Reddy is the owner of the property and he has sought service of PW1 for change of katha of his 19 Spl.C.C.666/2017 property which is the subject matter under Ex.P-3 gift deed. He has admitted issuance of Ex.P1 letter of authorization in favour of PW-1 for the purpose of change of katha of his property. But during his examination, he has shown ignorance regarding the revenue officials visit to his property for spot inspection or the fact of accused have demanded illegal gratification from PW-1 for changing the katha of his property. The witness has not given evidence in consonance with his statement recorded by the police during investigation. The learned Special Public Prosecutor has cross-examined him treating him as hostile but PW5 has denied given the statement to the police as per Ex.P12.
26. PW6 - Mallikarjun B.H. and as per his evidence he was working in the year 2016-2017 as Deputy Commissioner, BBMP west and he visited ACB Office as per their direction and watched a recorded video in which accused No.1 has made demand of bribe from PW-1 for passing an order to change the katha of the property. He has deposed the steps to be followed for change of katha and the history of the revenue documents relating to the property of PW-5, which is the subject matter of Ex.P-3 gift deed.
27. PW9 Smt. Chandrika is the Senior Scientific Officer, Forensic Science Laboratory, Bengaluru and it is her evidence that on 18.5.2017 she has received a sealed cover shown as article No.4, 9, 10 and 11 in Cr.No.12/2017 of ACB Bengaluru for voice examination. As per her evidence, by using digitalized speech signals for analysis by using multi speech software and conducted aural examination and voice feature 20 Spl.C.C.666/2017 extraction by semi-automatic method and cepstral measurements were carried out and rendered her opinion as per Ex.P34 and the relevant portion reads as:
a. The respective speeches said to be of male speaker, suspect Sri C.Lingaiah found recorded in the DVD marked as article No.1 and Micro SD card marked as article No.4 and the sample speeches found recorded in the CD marked as article No.9 are similar.
28. PW-10 Nanjegowda, the Police inspector who has conducted further investigation and deposed that he has recorded further statement of PW1, collected sample voice of Pw.1 and 2 in presence of P.w.3 and 4 witnesses as per article No.10 and 11. Ex.P30 panchanama was drawn at the time of collecting sample voice and it is stated thereafter he has sent CD and memory card for examination to the FSL, Bengaluru. He further deposed that during investigation he has collected the service particulars of accused No.1 as per Ex.P-39 and work allotment as Ex.P40 and spot sketch from Executive Engineer, Rajajinagar as per Ex.P41. He has stated that after collecting aforesaid documents recorded statement of PW5 and on completion of investigation and after obtaining sanction order filed charge sheet against the accused.
29. The defence of the accused is that, Ex.P4 first information statement is the result of frustrated mind of PW-1 on account of delay caused in katha change order relating to property of PW5. It is the evidence of PW1 that on 24.3.2017, both the accused have demanded bribe, but PW-5 owner of the property is not aware of this fact and he has totally turned
21 Spl.C.C.666/2017 hostile to the prosecution case. It is contended that accused No.1 has not handled M.O.10 tainted cash of Rs.1,00,000/- and at the earliest point of time as per Ex.P20, he has submitted his explanation and the said defence is probable and it is not an afterthought defence. It is alleged by the defence that PW2 has put the tainted cash in the table drawer and it is a conspiracy to implicate the accused. There is no corroboration to the interested evidence of PW1 and PW2. During cross-examination, PW-3 the shadow witness of the prosecution has specifically admitted that he is not aware who has kept the cash in the table drawer of the accused and therefore he is not an eye witness to the alleged demand and acceptance of bribe by the accused and his evidence is required to be rejected in toto. It is argued on behalf of the accused that there is some purpose, sanctity and sense of responsibility is attached to the evidence of shadow witness but it is absent in the evidence of PW-3. In this regard he relied on the judgment of Gujarat High Court referred supra in Bharatkumar Jaymanishanker Mehta case. There was no pending work with accused No.1 and katha change order was not passed on account of non-production of required documents by the concerned applicant. For the aforesaid reasons the learned Sri. PNH advocate prayed for an order of acquittal of both the accused.
30. The learned Special Public Prosecutor has argued, as per Section 7 of the PC Act, there is also burden of proof on the accused and in this case prosecution has placed evidence of P.w.1 to 4 in support of demand and acceptance of bribe. He submitted that evidence of PW1 is sufficient to arrive 22 Spl.C.C.666/2017 conclusion regarding guilt of the accused and hence no corroboration is necessary. The entire evidence placed on record shows presence of PW3, the shadow witness which is not disputed and hence he was present at the time of raid is proved and his statement is admissible under Section 6 of Indian Evidence Act as res gestate forming part of same transaction contemporaneously with the act or immediately thereafter. The recovery of tainted currency from the table drawer of the accused No.1 is proved. The explanation of the accused as per Ex.P20 that PW2 has kept the cash is contradicting. PW1 was required to pay gratification and once demand and acceptance is proved, it turns into the colour of illegal gratification. PW1 to 4 witnesses have clearly supported the prosecution case. In addition to the oral and documentary evidence, there is also electronic evidence by way of video and audio recording and the defence has not challenged the technical evidence placed by the prosecution. He further submitted for the sake of argument, even in the absence of evidence of Pw.3 and 4, there is evidence of PW8 Investigation Officer by way of corroboration to the evidence of PW-1. As per Section 20 of the PC Act, there is a presumption and accused has failed to rebut the said presumption. At the end, the learned Special Public Prosecutor has fairly admitted that the evidence available against accused No.2 as compared to the evidence available against accused No.1 is not up to the expected mark. For the aforesaid reasons he prayed for convicting both the accused.
31. Accused No.1 has not disputed recovery of M.O.10 tainted cash of Rs.1,00,000/- from his right hand side table 23 Spl.C.C.666/2017 drawer. But according to him there is no demand and acceptance of illegal gratification as alleged by the prosecution. During cross-examination, accused No.1 has not disputed presence of PW3 in the office immediately before the trap. Therefore, the fact in issue is whether the prosecution is able to prove accused No.1 has demanded and accepted M.O.10 cash of Rs.1,00,000/- from PW1 as illegal gratification and secondly as per the direction of accused No.1 PW1 has put/kept the tainted cash in the table drawer. If the prosecution is able to prove these foundational facts, then it is for the accused to prove his defence as per Ex.P 20 explanation by preponderance of probability that PW1 and PW2 entered his office and PW2 has kept the tainted cash of Rs.1,00,000/- in table drawer without his knowledge and consent only to falsely implicate him for the purpose of the case.
32. The learned defence counsel relied upon the judgment referred supra in Ashish Batham case and the offence charged in the said judgment were under Section 302 and 449 of IPC. As per the judgment the fundamental principle of criminal delivery system is innocence of the accused till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence. There cannot be any doubt with regard to the above settled proposition of law. In the light of the above settled proposition of law that innocence of the accused till the charges are proved beyond reasonable doubt, this court proceed to appreciate the evidence to find out whether the charge leveled against the accused is proved.
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33. The learned defence counsel has vehemently argued that PW5 Ganesh Reddy being owner of the property has totally turned hostile to the prosecution case and PW-1 is only an agent of PW-5. It is argued that PW-1 has not informed PW5 regarding the developments of demand of bribe by the accused and this shows PW-1 is an interested witness to implicate the accused. But in his examination-in- chief PW-5 has specifically admitted he has issued Ex.P1 authorisation letter in favour of PW1 and this aspect of the matter is not disputed by the accused. Even accused has not challenged Ex.P1 letter of authorisation during examination of PW1 and PW-5. Hence, PW5, as per Ex.P1 authorisation letter empowered PW1 to move an application before revenue authority for change of katha of the property is proved. Moreover, PW5 is not a witness to any of the prosecution documents such as pre-trap or trap mahazar. Therefore his hostile attitude towards prosecution case makes no difference or causes any dent in the prosecution case. The accused did not chose to cross-examine PW-5 to dispute Ex.P-1 letter of authorisation.
34. During cross-examination of PW1 the accused has challenged that PW-1 failed to inform PW-5 that the accused have demanded Rs.3,00,000/- illegal gratification for change of katha of his property. It is to be considered that once PW5 gives an authorisation as per Ex.P1 in favour of PW1 to change katha of the property, it is his responsibility to get the work done in accordance with law. According to prosecution case, accused have demanded illegal gratification from PW1 25 Spl.C.C.666/2017 and since he was not willing to make said payment approached ACB Police as per Ex.P4 statement and we cannot find fault with with him in initiating the criminal action against the accused. Therefore, whether PW1 has informed the demand of bribe by the accused to PW5 is not relevant to consider charges framed against the accused. Secondly whether PW1 collects service charge from PW5 for his work or he had agreed to do it free of cost is not the look after of the accused. During cross-examination, PW1 has deposed that he is doing aforesaid katha change work of PW-5 to assist him and it is out of free of cost. During cross-examination PW- 1 deposed the tainted cash of Rs. 1,00,000/- belonged to him and he received the equivalent amount from the State within 15 days of registration of the case. The argument of the defence that what was the necessity for PW-1 to withdraw amount from his bank account for the katha change work of PW-5 cannot be entertained. Since the accused have demanded bribe from PW-1, he has set the criminal law in motion.
35. According to the argument of accused No.1 evidence of PW3 the shadow witness is not acceptable and he is not a trustworthy witness and has given clear admission during his cross-examination and therefore, the entire case of the prosecution falls to the ground. PW3 shadow witness in his examination-in-chief deposed evidence in consonance with the testimony of P.w.1 and 2 and PW8. It is the specific evidence of PW3 that when he has separately entered into the room of accused No.1 with Pw.1 and 2, accused asked why he came and when the witness has stated for obtaining 26 Spl.C.C.666/2017 birth certificate, and thereafter he was informed by the accused that birth certificate is not available in the said office and asked him to verify the same in the outside. As per the prosecution evidence of PW-1 and 2 and testimony of PW3, it is clear that he was standing outside the office near the door. Thereafter, accused No.1 has demanded and directed PW1 to come to his right side of his table and keep the cash in the table drawer and accepted the bribe amount. After making payment PW1 came outside the office and gave pre-arranged signal to the ACB police.
36. During cross-examination of PW3, he has admitted that he went inside the office with PW-1 and 2 and accused No.1 informed him that birth certificate is not available in the said office, hence he came out and after 5-6 minutes PW1 came out of the room and gave signal to the Investigation Officer. There is a stray sentence in the cross-examination of PW3 that after he came out of the room, he is not aware what happened inside the chamber of the accused. The learned defence counsel has submitted with immense force that PW-3 has not supported the prosecution case from the categorical admission elicited during cross-examination. In the humble opinion of this Court this portion of evidence itself is not sufficient to discard the entire testimony of PW-3. The said statement of the witness in the considered opinion of this court is not be read out of context or in isolation. It is well settled principle that evidence has to be appreciated in its entirety and no importance has to be attached to the stray sentence elicited during cross-examination. It is not the case of the accused No.1 that PW-3 was not at all present in the 27 Spl.C.C.666/2017 vicinity at the time of trap. It is also not the defence of accused No.1 that at the time of incident he was sitting in a closed door chamber and hence PW-3 could not watch and see the developments inside the office room regarding demand and payment of bribe. Therefore when PW3 was standing outside the room near the door at a distance of 5-6 meters, definitely it is possible to the witness to watch the developments in the office room. Moreover after the trap, PW- 3 also entered the office room with PW-8 and he was throughout present at the time of drawing Trap panchanama. The testimony of PW3 in para 4 of his examination-in-chief is that he was standing near the door remains unchallenged. Therefore, argument of accused No.1 that PW3 is not an eyewitness to the demand and acceptance of bribe by the accused is not acceptable one.
37. During cross-examination of P.w.1 to 4 all the witnesses have admitted that the accused has submitted his explanation as per Ex.P20, but as per their evidence his contention in said document is false. PW3 was examined in chief on 15.5.2019 and he was further examined in chief on 17.6.2019 and witness was cross-examined on 9.7.2019. Therefore, there was chance of PW3 being win over by the accused cannot be ruled out. In addition, after completion of cross-examination, the learned Special Public Prosecutor has re-examined the witness and at that time he deposed that accused has asked PW-1 to put the cash in table drawer and his evidence as deposed in his examination-in-chief is true and correct. When the witness was further cross-
28 Spl.C.C.666/2017 examined, he deposed the evidence deposed in his cross- examination is true.
38. It is quite common that due to passage of time and rigor of cross-examination, the witness may mis- spelt about a fact and that cannot be picked and exhibited as defence to disprove the prosecution case. Mere eliciting some minor contradictions from the mouth of the witness is not sufficient to rebut the evidence of PW-3 and it will not go to the root of the case. That such minor contradictions are bound to appear and they are natural variations. Therefore the argument of defence that PW-3 has not supported prosecution case in material particulars and he is not a trustworthy witness is hard stone to digest.
39. The learned Special Public Prosecutor has relied upon the judgment referred supra in C.M.Sharma case, wherein in para-18, the Apex court held:
"Corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witness can be broadly categorised in three categories viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be 29 Spl.C.C.666/2017 any person who could see the giving and taking of bribe. As in the present case, a shadow witness did accompany the contractor but the appellant did not allow him to be present in the chamber. Acceptance of this submission in abstract will encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such a situation.
In our opinion it is not necessary that the evidence of a reliable witness is necessarily to be corroborated by another witness. Not only this corroboration of the evidence of a witness can be found from the other materials on record".
40. As per the facts of the aforesaid judgment also the accused did not allow the shadow witness present in the chamber and ratio of the judgment how to appreciate the evidence and under what circumstances corroboration is necessary is applicable to the facts of the case. But in the case in hand, evidence of PW3 shows he has fully supported the case of prosecution in its entirety and his evidence is wholly reliable.
41. The evidence of PW3 as referred herein above will not take away the admissibility of evidence of Pw.1 and 2 regarding demand acceptance of illegal gratification and their testimony is corroborative and trust worthy. Both Pw.1 and 2 have deposed that accused No.1 has demanded bribe amount and directed PW1 to keep the amount in the table 30 Spl.C.C.666/2017 drawer, and hence he had kept the money in the drawer. PW1 in his examination-in-chief deposed that after accused No.1 has asked PW3 to go out from the room, PW3 was standing at a distance of 5-6 meters from the main door. This part of evidence is not challenged by the accused. It is the evidence of Pw.1 and 2 that accused No.1 has asked how much he has brought and when PW1 disclosed him Rs.1,00,000/-, accused No.1 asked him to come to his right side and by way of gesture directed him to put the amount in the table drawer. The above testimony of PW1 is natural version of the incident and there is no attempt of any exaggeration.
42. The learned defence Counsel has argued that PW1 in his statement under Section 164 of Cr.P.C. at Ex.P7 stated that accused No.2 Nandish has demanded and directed him to put the amount in the table drawer. In Ex.P7 Statement in para-1 there is specific reference that PW1 has stated names of both the accused Nandish and Lingaiah. Therefore, there is every possibility that due to confusion while giving statement under Ex.P7 before Magistrate, PW1 has stated the name of Nandish instead of Lingaiah. Moreover, PW1 is an illiterate and it can be made out from Ex.P4 statement. Therefore, accused No.1 is not entitled to take any advantage from the aforesaid discrepancy appearing in Ex.P7 statement. Moreover, it is not the case of prosecution that PW1 has paid the tainted cash M.O.10 in favour of accused No.2. Therefore the said discrepancy is not material and it can be ignored. Moreover Pw-1 in his evidence has specifically deposed accused No1 has demanded and accepted illegal gratification.
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43. During cross-examination of PW1 in para 27 it is put to the witness that the Investigating Officer has asked the accused to put the cash in the drawer and he did as per the request and thereafter accused No.1 was asked to dip his hands in the chemical solution. PW-1 has admitted the said suggestion tendered to him. But the evidence on record shows it is only an attempt made by the accused to mislead the witness. It is nobody's case that accused No.1 was subjected to undergo chemical hand wash test during the trap and it is not the case of the prosecution that accused No.1 was directed to handle the tainted currency notes and thereafter he was asked to dip his hand in the chemical solution. DW-8 was not questioned during cross-examination in this regard. It appears, in order to take advantage of similar facts of the case in M.K.Harshan judgment referred supra, accused No.1 has made a futile attempt by misleading the witness during cross-examination. In the case in hand, as per the evidence of P.w.1 to 4 and 8 immediately after the trap, Investigation Officer has collected only M.O.8 cotton ball to rub inside the drawer where the tainted cash was kept. Since accused No.1 did not handle M.O. No.10 Cash, PW8 did not direct the accused to undergo chemical hand wash process. More over even during examination of the accused No.1 under section 313 of Cr.P.C. he failed chose to forward aforesaid explanation relating to the above aspect. It is true the accused in a criminal trial is entitled to take contradicting, conflicting and inconsistent defence.
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44. During cross-examination of PW1 it is contended by accused No.1 that PW1 is in the habit of giving false statement to the police to implicate public servants for getting his work done. But unfortunately, accused No.1 has failed to elicit any admission during cross examination of PW1 or able to produce any documents to substantiate the aforesaid contention. PW-1 during his cross-examination para 23 deposed he is not an informant in any other criminal case registered by ACB or Lokayukta. The other argument of accused No.1 is that PW2, who was working as personal assistant to Ex. MLA Priya Krishna and PW1 has compelled accused No.1 by putting political pressure to pass katha bifurcation order. But PW1 specifically deposed that he did not make any phone call to BBMP, Mahalakshmipuram division office for the purpose of change of katha either through PW2 or from the office of MLA. During cross-examination of PW1 accused has failed to elicit any admission to disbelieve the testimony of the witness. There is no enmity between PW2 and accused No.1 to give false evidence against the accused. Hence, evidence of PW2 is trustworthy, admissible and acceptable.
45. It is the defence of accused No.1 that PW2 is an interested witness and there is no independent corroboration to the testimony of PW-1. It is argued on behalf of accused that PW-1 is an accomplice and his evidence requires corroboration and in this regard, he has relied upon the judgment referred supra in Ramprakash Arora case. As per the facts of the said judgment, the trap witnesses were found to be interested and partisan witnesses and they were 33 Spl.C.C.666/2017 concerned in the success of the trap and in the above circumstances Apex Court held their evidence must be tested in the same way as that of interested witnesses. The evidence in the aforesaid judgment showed statement of Joginder Singh was not at all impressive and his cross- examination showed that he could not be implicitly relied upon. But in the case in hand, there is corroboration to the testimony of PW1 from the evidence of Pw.2 to 4. Therefore, the ratio laid down in the above said judgment is not applicable to the facts of the case.
46. In respect of other limb of argument of the accused that PW-1 is an accomplice, there is an answer in C.M. Sharma judgment referred supra. A person concerned in the commission of crime, a partner in crime and associate in guilt is an accomplice. A witness forced to pay on promise of doing or forbearing to do any official act by a public servant, is not a partner in crime or associate in the guilt and therefore cannot be said to be an accomplice. In the case in hand PW-1 who was compelled to give bribe for katha change cannot be said to be an accomplice as it was extracted from him. Therefore submission of defence Counsel that character of evidence of PW1 is an accomplice cannot be accepted.
47. It is defence of accused No.1 that PW2 has kept the tainted money M.O.10 in the table drawer without his knowledge and consent. Accused No.1 in his explanation as per Ex.P20 has stated this fact. But during cross-examination PW2 has specifically deposed the aforesaid contention of the accused is totally false. It is suggested by the accused during 34 Spl.C.C.666/2017 cross-examination that when PW1 went out of the room to give pre-arranged signal to ACB police, PW2 put the cash in the table drawer of the accused. PW1 during cross- examination in para-26 specifically denied this suggestion. Accused No.1 could not elicit any admission in support of his defence during cross-examination of Pw.1 and 2. Moreover, even if the aforesaid contention of the accused No.1 is accepted for the sake of argument that PW2 has kept the tainted cash in table drawer, nothing prevented accused No.1 to bring the said fact to the notice of PW-8/IO and compel PW2 to undergo hand wash in the chemical solution immediately accused suspected role of PW-2 in the trap. If PW2 was compelled to undergo chemical hand wash, there was possibility of ascertaining whether PW2 has handled the tainted currency notes and the accused could prove his defence. The evidence and other attending circumstances clearly shows aforesaid defence of the accused is only for the purpose of making futile attempt to falsify the evidence appearing against him.
48. As per the facts of the judgment relied upon by the defence in M.K.Harshan case, the tainted money was recovered from the table drawer in his office but the accused pleaded that money was put into his drawer without his knowledge. The accused was not in his office prior to 4 pm. and there was no other evidence except testimony of PW1 and in the above circumstances the Apex Court came to the conclusion regarding probable doubt that the tainted cash was planted in the table of the accused. But in the facts and circumstances of the case in hand, accused No.1 was in his 35 Spl.C.C.666/2017 chamber before the trap and therefore planting tainted cash in the table drawer of accused No.1 is highly improbable and unbelievable. In this aspect, the facts of the case in hand can be distinguished. As per the facts of the judgment DSP asked the accused to touch the currency notes and then made him to dip his finger in lime water which become pink in colour. Therefore, the ratio of aforesaid judgment is not applicable to the facts of the case.
49. It is argued on behalf of accused that as per the evidence of PW8, Ex.P4 statement was recorded on 28.3.2017 at 14.30 p.m. The learned defence counsel has invited the attention of this court to the oral evidence of P.w.1 and 2 that a day before Ex.P4 statement was lodged, they went to ACB Police. PW2 has deposed that on 28.3.2017 they went to ACB office at 1.30 p.m. Whether P.w.1 and 2 went to the ACB office on 27.3.2017 or 28.3.2017 makes no difference in the prosecution case. The accused has failed to make out due to the delay in FIR or above referred inconsistency he has been falsely implicated in the case or PW-1 is having enmity to implicate him in a false prosecution.
50. The evidence of P.w.1 to 3 regarding demand and acceptance of illegal gratification is clear and unambiguous. Accused No.1 has demanded illegal gratification and as per his demand PW1 had kept the cash in the right hand side table drawer of the accused No.1 is proved and the aforesaid developments inside the office room was within the knowledge of accused and he has made conscious attempt/efforts to receive the amount. The argument of the 36 Spl.C.C.666/2017 defence that there was sufficient space in the cabin of the accused No.1 and there was an opportunity and possibility for PW2 to plant tainted cash in the table drawer of accused No.1 is not acceptable and highly improbable. Accused No.1 has not disputed presence of PW2 at the time of trap. In the above circumstances, evidence of PW-2 can be safely relied as an independent evidence in addition to the evidence of PW3 shadow witness.
51. During cross-examination of PW-4 it is elicited that when they entered the room after receiving signal from PW1, PW2 has informed to P.W.8 - I.O., the cash is in the table drawer of the accused. The aforesaid statement cannot be suspected because when PW1 has kept the cash as per the direction of accused and PW2 was present in the said room and recorded audio and video of the proceeding. Secondly, PW2 was standing near the table of the accused is also not disputed. When once the prosecution has proved accused No.1 has demanded and accepted M.O.10 tainted cash, it is his burden to prove that PW2 has kept the cash in the table drawer, but he has failed to prove the said contention. There is nothing wrong if PW-2 had informed PW-4 and PW-8 IO the place where the tainted cash was kept.
52(a). Accused No.1 has referred several judgments in support of his defence claiming there is absence of demand and acceptance. In the judgment relied by the accused in Meena case referred supra, the Hon'ble Court held like any other criminal case, the prosecution has to prove the charge beyond reasonable doubt and the accused should be 37 Spl.C.C.666/2017 considered as innocent till it is established. As per the facts of the said judgment, evidence on record found not sufficient to convince the judicial conscience to record a verdict of guilt. In the said case, the shadow witness examined did not support the prosecution case and was treated as hostile and another shadow witness was not examined and withheld by the prosecution. The Apex Court found in the impugned judgment the trial court overlooked fundamental principle of presumption of innocence of an accused till the charge is established beyond reasonable doubt and unwarranted inference were liberally drawn against the accused. In the later judgment in CM Sharma case referred supra in para-20 the Apex Court referred and held in Meena case faced with contradictory evidence and plea of the accused this Court found corroboration is necessary to uphold conviction. But in the case in hand, there is clear, cogent, credible or unimpeachable evidence of Pw.1 to 4 and 8 is available on record. There cannot be any quarrel with the above settled preposition of law, but it is not applicable to the facts and circumstances of the case.
52(b). In the other judgment relied by the accused in P.Satyanarayana Murthy case referred supra, the complainant died before trial and PW1 deposed evidence that the complainant handed over one renewal application along with challan to the accused. As per the facts of the said judgment, the Apex court found evidence of PW1 falls short of quality and decisiveness of the proof of demand of illegal gratification.
38 Spl.C.C.666/2017 52(c). In Krishan Chander case, the Apex Court observed the complainant turned hostile and the prosecution has failed to prove the factum of demand of bribe from the complainant. Both the trial court and High Court have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification though there is no substantive evidence and found the appellant was erroneously convicted.
52(d). In the judgment in Khaleel Ahmed case referred supra held golden principle of criminal law that burden of proof required to be discharged by the prosecution is one of proof beyond reasonable doubt.
52(e). In the judgment in Panalal Damodar Rathi case Apex Court observed marked notes were not recovered from the accused and the version regarding the conversation given by the complainant and PW3 was not consistent and by giving benefit of doubt acquitted the accused. It is further observed that the Court is not convinced about the innocence of the accused and though there is grave suspicion, the guilt of the accused has not been established beyond reasonable doubt. The aforesaid ratio is not applicable because in this case there is cogent and satisfactory evidence against the guilt of accused No.1.
52(f). In the other judgment Madan Mohan Lal Verma case, the prosecution has not disclosed the genesis of the case correctly and there was inconsistency in the evidence of complainant and PW12. In the other judgment Raghbir Singh case, prosecution case suffered serious infirmity and it was 39 Spl.C.C.666/2017 resting entirely on the evidence of interested witnesses or police witness. As per the facts of the said judgment, the prosecution has failed to prove demand of bribe and recovery from the accused.
52(g). In the Rakesh Kapoor judgment there was no material evidence for demand of bribe and license was ready before the incident and it was available in the hands of complainant. The facts of the judgment is not applicable to the facts of the case as the official work of katha change was pending with the accused.
52(h). In the judgment of Karnataka High Court in R.Srinivasan case no official work was pending with the accused for demanding bribe and the Investigating Officer has not given an opportunity to the accused for his explanation and in the above circumstances held prosecution has failed to prove demand.
52(i). In T.K.Ramesh Kumar case para-13 Apex Court observed demand made by the appellant with the complainant and with his father is not established. 52(j) In the judgment in T.Subramanian case, the defence of the accused that the trap was the result of act of vengeance of the complainant and PW2 and 6 were nurturing enmity towards the accused and civil suit filed by the accused as Executive Officer against PW1 complainant and others was pending and in the above circumstances found accused was falsely implicated and hence set aside the judgment of the High Court and confirmed the verdict of trial court.
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53. I have referred the judgment reported in (2020) 2 SCC 88 in Vinod Kumar Garg Vs. State. As per the facts of this judgment, shadow witness was not physically present but his presence in the immediate vicinity was remained unchallenged. It is held the witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time. Picayune variations do not in any way negate and contradict the main and core incriminatory evidence of demand of bribe. By referring the judgment State of U.P. Vs. G.K.Ghosh held that in a case involving an offence of demanding and accepting illegal gratification, depending upon the circumstance of the case, it may be safe to accept the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence there is circumstantial evidence which is consistent with guilt of the accused and inconsistent with his innocence there should be no difficulty in upholding the conviction. Therefore from the aforesaid ratio laid down in the judgments, on considering the facts and circumstances of the case, the prosecution from the oral evidence of Pw-1 to 4 and 8 and documentary evidence is able to prove demand and acceptance of Rs. 1,00,000/- illegal gratification by accused NO.1
54. The statutory presumption under Section 20 of the Act can be confuted by bringing on record some evidence, either direct or circumstantial, that the money was accepted 41 Spl.C.C.666/2017 other than for the motive or the reward under section 7 of the Act. The standard required for rebutting the presumption is preponderance of probabilities.
55(a). In the judgment relied by the prosecution refereed supra in B.Noha case considering the evidence of P.w.1 and 2 accused found guilty and PW3 did not support the prosecution case. In para-10 the Apex court observed there was voluntary, conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive.
55(b). In another judgment S.C. Goel case the Apex court observed so far as demand made by the accused, witness supported the case and he was declared hostile with regard to certain other aspects of the evidence tendered by him and hence the entire evidence cannot be discarded. The evidence tendered by the witness with regard to the demand can be accepted if the same is otherwise worthy of trust and the aforesaid ratio is applicable to the evidence of PW3 shadow witness.
55(c). In the Raj Rajendra Singh Seth case referred supra it is contended no demand was established; role of PW8 is highly suspicious, no independent witnesses and no positive evidence regarding recovery. The Apex court referred the judgment in B.Noha case and Madhukar Bhaskar case referred by this court in this judgment and held the evidence clearly establishes that the accused demanded and accepted 42 Spl.C.C.666/2017 the money even though the amount was paid to ward boy and thereafter he handed it over to the accused.
55(d). In the judgment referred by the prosecution in Kallappa Mallappa Kamble case accused claimed demand is not proved beyond reasonable doubt. It was the defence of the accused that PW1 was forcing him to accept the money against his will and ratio in this judgment is not applicable to the facts of the case since the accused has not taken the defence that he was forced to accept the money.
55(e). In the judgment in P.Venkateshwarlu case, accused who was a Sub-registrar was charged on the allegations that he demanded and accepted illegal gratification of Rs.500/-. The other defence of the accused is that document writer foisted a false case. In the said judgment complainant died before trial. The accused has taken a similar defence as in the case on hand that he was not aware who kept the tainted amount in his table drawer The Apex Court held factum of demand and acceptance has been proved and the accused has not successfully rebutted the presumption under Section 20 of the Act. In the case in hand also the accused has failed to prove his defence that PW2 has kept the currency notes in his table drawer.
55(f). In the judgment Somabhai Gopalbhai Patel case the accused contended that there is no evidence to prove demand, voluntary acceptance of illegal gratification and recovery of currency notes had been proved. The Apex court held recovery of currency notes from the possession of the 43 Spl.C.C.666/2017 accused stood proved and accused has failed to dislodge the presumption under Section 20 of the Act.
55(g). In the other judgment Narendra Champaklal Trivedi case the complainant approached to obtain property card and sketch from City Survey office, filed an application and the accused demanded bribe. It is the defence of the accused there is absence of demand of bribe and acceptance and ingredients of Section 7 and 13 are not established. The Apex Court arrived to the conclusion that there had been a demand of illegal gratification, it is the duty of the court to take into consideration the facts and circumstances brought on record in their entirety and for the said purpose undisputedly, the presumptive evidence as laid down in the Section 20 of the Act must also be taken into consideration. It is further held that a presumption under 20 becomes obligatory and it is a presumption of law and cast an obligation on the court to apply it in every case brought under Section 7 of the Act and the said presumption is rebuttable.
56. In addition to the oral evidence of Pw.1 to 4 and 8 , prosecution has produced M.O.5 memory card installed in the mobile phone of PW1and in the said mobile/memory card, PW2 has recorded audio conversation and video during the trap proceeding. PW8 in his evidence in para-13 has deposed he has collected audio and video from PW-2 and in para-6 of trap mahazar there is specific reference regarding the transcript of conversation recorded in M.O.5 memory card. The aforesaid transcript of conversation, more particularly, 44 Spl.C.C.666/2017 the relevant conversations of the accused No.1 and PW-1 regarding demand and acceptance are as below:
ಆರರರರಪ ಹರರ ಹರರ ಹರರ (ನಗಗ) ನಧಧನಕರಕ ಓಡಧಡ, ನಧಧನಕರಕ ಓಡಧಡ ಇದಗ ಆಫರಸಸ ಇದಗ, ಈ ಕಡರ ಈ ಕಡರ, ಈ ಕಡರ, ಈ ಕಡರ, ಈ ಕಡರ, ಅಲಲ ಇಡಡ ಮಧಧವರರ ಬದಸ ಗದಸ ಬಟಟಯಧ ಆಮರಲರ ಗಗರಗ ಅರರರರಪ ಅಲಲ ಇಡಡ, ಅದಗ ನನದರಶಸ ರಜಧ ಹಧಕದಧದನರ ಎರಡಸ ದಸ ಸರರರ ಬಲರ ಅವವ, ಏನಸ ಕತಧಪರ ಇಲಲ ತಧನರ ಅಲಲ ಫಯಧರದ ಏನಸ ಇಲಲ ಸಧಸಮ ಏನಸ ಎಲಲ, ಸಸಲಲ ನರರರಡರರಕಬಡ ಅರರರರಪ ಇಲರ ನಧನಸ ಏನಸ ನರರರಡಲಲ, ನರವಸ ನರರರಡದರಡ ಅಷರಟ ನಧನಸ ಏನಸ ನರರರಡರರರಕರ ಹರರರಗಲಲ, ನಧನಸ ಕಣಸ ಎರತ ನರರರಡಲಲ. ಇನಸ ಪಪಟನಸ ಡರರಸಸ
57. The aforesaid conversation clearly shows accused has asked PW1 to come to his particular side and the repeated words ಈ ಕಡರ ಈ ಕಡರ, ಈ ಕಡರ, ಈ ಕಡರ, ಈ ಕಡರ, ಅಲಲ ಇಡಡ shows he directed PW-1 to keep the amount in the table drawer. In the above referred conversation except a single sentence, PW-2 shown as middleman, there is no other conversation between PW-2 and the accused. In the above circumstances, the defence of the accused that PW-2 has kept the tainted cash in the table drawer is proved to be false. In addition in the transcript of conversation shown in Ex.P5 pre-trap mahazar also there is clear and specific demand by the accused for Rs.2.75 lakhs as bribe. The well established inference that a person may lie but not the circumstances and this applies to the defence of the accused No1. The accused has failed to prove PW-2 has put the cash in the table and all the facts and circumstances in the case are against the imaginary and false defence of the accused.
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58. As per the contents of Ex.P6 mahazar, PW8 has seized memory card as article-4 and identified during the trial as M.O.5. During cross-examination PW8 has deposed that he is not remembering whether in the video recorded by PW2 includes PW-1 keeping the tainted cash in the table drawer of accused No.1. After the matter reserved for judgment, this Court verified M.O.5 memory card and it was played through lap-top and watched the video and there is clear video recording to the effect PW1 going from the left side of accused No.1 behind his chair and came to the right side and made an attempt to give the tainted cash to the right hand of the accused, but at that time he refused to handle the cash and directed PW1 to put the amount in the table drawer. Therefore, the defence of the accused that PW-2 has put the amount in table drawer is utterly false and against electronic evidence in M.O.5 memory card. It is common in majority of the trap cases, public servants takes precautions not to receive bribe directly for the reason of apprehension of being trapped. This can also be noticed in the present case from the conduct of accused No.1. Therefore courts should also take judicial notice of these facts of human conduct.
59. The learned defence counsel has relied upon the judgment referred supra in Anvar P.V. case. As per the said judgment in para-15 the Hon'ble Court held if any party desire to give electronic record it is permissible provided the requirements of Section 65-B (4) are fulfilled. In para-24 of the judgment the Apex Court specifically clarified that on the secondary evidence of electronic record with reference to 46 Spl.C.C.666/2017 Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act. That on applying the above ratio, evidence of Pw.1, 2 and 8 shows M.O.5 chip was used for recording audio and video during the trap and therefore, even in the absence of certificate under Section 65-B of Evidence Act, M.O.5 memory card is admissible in the evidence. As per Ex.P6 trap panchanama PW-8 has seized memory card as article No.4 and identified during trial as M.O.5. Therefore video and audio recording can be considered as corroborative evidence in support of prosecution case. During cross-examination of PW-9 Scientific officer, nothing is elicited disputing MO No.5 memory card and to disbelieve the oral evidence of the witness and Ex. P- 34 report
60. It is argued that as per Ex.P32 file relating to the application of PW1 for change of katha in respect of property of PW5, no official work on their part was pending with the accused and hence there was no occasion for them to demand bribe. But in the note sheet page 95 there is no reference that after submission of application, accused No.1 and 2 have visited the site property for spot inspection. During the examination of accused under Section 313 Cr.P.C. while answering question No.2 both the accused have admitted that they have visited the site of PW5 for spot inspection. If spot inspection is an official visit, nothing prevented the accused to make a note of aforesaid step taken in the case sheet in Ex.P32. It is submitted PW1 and PW5 47 Spl.C.C.666/2017 have failed to produce required documents to pass katha change order even after service of notice. But the accused has failed to place any evidence to show that notice issued to PW5 was duly served directing him to produce sketch or any other documents. It is further contended there is a civil dispute was pending relating to the property in question. If so it is for the accused to pass necessary order in accordance with law and the aggrieved party takes the remedy as provided under law.
61. The another aspect of the matter is, PW1 has submitted his application for change of katha on 21.11.2016 and in page No.5 of Ex.P32 there is office note dated 22.11.2016. During cross-examination PW8 deposed in para-18 that there is no document to show, the notice issued by the authority on 9.12.2016 was served on the PW1 or PW5. PW6 in his evidence has deposed that as per Ex.P32 report, accused No.2 has illegally recommended for change of katha directly in the name of PW5 Ganesh Reddy and accused No.1 has approved the said note of accused No.2. There is every reason to suspect accused No.1 and 2 were deliberately keeping the file with them in order to demand illegal gratification. As per the admitted case of the prosecution, katha application filed by PW1 on behalf of PW5 was pending with the accused as on 28.3.2017 the date of raid/trap. In the above circumstances argument of the defence that no work was pending with accused No.1 is unsustainable. As on the date of raid on 28.3.2017 accused No.2 was on leave and Ex.P-32 file was in his custody. PW-8 IO secured Ex.P-32 after the trap and arrest of accused No.1 on 07-04-2017 and 48 Spl.C.C.666/2017 therefore the possibility of accused No.2 manipulating the entries in Ex.P32 during the intervening period cannot be totally ruled out.
62. During cross-examination of PW1, accused No.1 confronted and got marked Ex.D1 and 2 two applications dated 29.6.2017 and 24.7.2017 regarding katha change proceeding of the property of PW5. These documents came into existence after the date of trap. As per Ex.D1 and D2 PW-1 filed objection to the notice dated 20.6.2017 issued to PW5. Therefore merely because PW1 has stated he is going to initiate action against the public servants is not amounts threat and these documents are not helpful for the accused in any way to prove his defence.
63. Once the prosecution proves there is demand and acceptance of illegal gratification by discharging their initial burden of proof, court shall draw the presumption mandated under section 20(1) of P.C. Act. Then it becomes the onus of the accused to prove his defence by preponderance of probability and he is expected to forward plausible explanation. In this case, the prosecution has successfully proved from the facts and from the evidence of Pw.1 to 4 regarding demand and acceptance of illegal gratification by accused No.1. The plea put forth by the accused that PW-2 has kept cash without his consent and knowledge in the table drawer is not fit to be believed in the face of categorical and consistent evidence of Pw.1 to 3. Section 20 of the PC Act is an exception to the general rule as to the burden of proof in corruption case and it shifts onus of proof on the accused. In 49 Spl.C.C.666/2017 this regard, the judgment referred supra by the prosecution in Narasinga Rao case it is held in para 14 and 15:
14. When the sub-section deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence.
Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
15. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for the reaching the supposition is that of a prudent man acting in any important matter concerning him.
In this judgment P.W.1 and 2 turned hostile to the prosecution case and Apex Court observed the accused has made the witness to speak his version and examined two 50 Spl.C.C.666/2017 witnesses on the defence side. But the Apex court held Court is under a legal compulsion to draw the legal presumption that such gratification was accepted as a reward for doing the public duty. That on applying the above law to the facts of the case stands on better footing as P.W.1 to 4 have clearly supported prosecution theory and the judgment is aptly applicable and there is no impediment for this court to draw the presumption under section 20 of the PC Act.
64(a). In Madhukar Bhaskarrao Joshi case referred supra in para 12 Apex court held:
The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward"
for doing or forbearing to do any official act.
64(b). The prosecution relied judgment in Krishnaram case the Apex court held once it is proved that the money was recovered from the possession of the accused, the burden of presumption as contemplated under Section 20 of the PC Act shifts upon the accused.
64(c). In the judgment reported in (2009) 3 SCC 779 in the case between C.M. Girish Babu Vs. CBI the Apex court held it is well settled that the presumption to be drawn under Section 20 is not inviolable one. The accused charged with the offence could rebut it either through the cross- examination of the witnesses or by adducing reliable
51 Spl.C.C.666/2017 evidence. If the accused fails to disprove the presumption, the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratification.
65. In the case in hand, the prosecution has proved foundational facts from the oral evidence of PW-1 to 4 and 8 and documentary evidence, attending circumstances and opinion evidence of PW-9 Expert and electronic evidence. Therefore, it has to be presumed that the accused has obtained illegal gratification from PW1 as a motive or reward for doing an official act of katha change by drawing the presumption under section 20 of the PC Act. In this case, in the background of the above legal position, accused No.1 has miserably failed to rebut the presumption. Though Pw.1 to 4 are thoroughly cross-examined nothing was elicited to disbelieve their testimony about demand and acceptance of the gratification. The admissions elicited during the cross- examination do not go to the root of the prosecution case. When accused No.1 was examined under Section 313 of Cr.P.C., he has answered to almost all the questions as false and not aware and political persons falsely implicated him. The aforesaid explanation is not sufficient to rebut the presumption. The evidence placed by the prosecution is consistent with guilt of accused No.1 and inconsistent with his innocence. As such, this Court is of the considered opinion that the prosecution has successfully proved demand and acceptance of illegal gratification by accused No.1 from the evidence of Pw.1 to 4 and 8 and can safely take additional 52 Spl.C.C.666/2017 benefit of presumption under Section 20 of the Act to prove the charge against accused No.1.
66. It is well settled principle of law that minor discrepancies or contradictions in the evidence which do not affect the merits of the case should be ignored. In this case, prosecution has proved from the evidence of Pw.1 and 2 that accused No.1 has demanded illegal gratification of Rs.3,00,000/- and accepted Rs.1,00,000/- as part of bribe amount from the informant PW1 on 28.3.2017. There is evidence of PW3 shadow witness in support of the testimony of Pw.1 and 2. From the evidence of Pw.1 to 4 and 8 and from the contents of pre-trap and trap mahazar, prosecution has proved the charge. From the documentary and oral evidence it is proved M.O.10 currency notes were recovered from the conscious possession of accused No.1 from his table drawer. It is proved from the evidence that to show official favour i.e. to change katha of the property in the name of PW5, accused No.1 has demanded and accepted illegal gratification of Rs.1,00,000/-. Accused No.1 has miserably failed to rebut the presumption appearing against him under Section 20 of the Act.
67. Accused No.2 is charged for the offence under Section 7 and 13(1)(d) read with 13(2) of PC Act along with accused No.1. The evidence appearing against accused No.2 is at one reference in Ex.P4 first information statement that both the accused have informed PW-1 to make spot inspection, thereafter on 24.3.2017 accused No.1 and 2 appears to have demanded Rs.3,00,000/- as illegal 53 Spl.C.C.666/2017 gratification to change the katha of the property. Even PW1 has not recorded aforesaid conversation to substantiate the charge of demand of illegal gratification by accused No.2. During evidence in examination-in-chief, PW1 in para 4 has deposed accused No.1 has demanded Rs.3,00,000/- gratification and at that time accused No.2 was also present. In the entire prosecution evidence except the aforesaid testimony of PW1 referring to the role of accused No.2 in the commission of offence and the stray sentence in Ex.P4 first information statement, there is no clear evidence against him to prove the demand of bribe and charges framed against him. In this regard, the Special Public Prosecutor has also fairly admitted this fact. In the above circumstances without much discussion this Court can safely arrive to the conclusion that prosecution has failed to prove both the charge framed against accused No.2.
68. Demand of illegal gratification is sine qua non to constitute the offence under the PC Act. Further, mere recovery of currency notes itself does not constitute the offence under the Act unless it is proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the case, both the ingredients to bring the act of accused No.1 within the mischief of section 7 and 13(1)(d) of PC Act are satisfied. From the evidence led on behalf of the prosecution it is evident that accused No.1 demanded and accepted illegal gratification from PW-1. The accused accepted the money as illegal gratification other than legal remuneration as a motive or reward to do official act. Accused No.1 being public 54 Spl.C.C.666/2017 servant by abusing his official position as such public servant demanded and accepted pecuniary advantage and thereby committed the offence of criminal mis-conduct as defined under section 13(1)(d) of P.C Act.
69. A criminal trial is meant for doing justice to all, the accused, the society, and a fair chance to prove to the prosecution. Then alone can law and order be maintained. As held by the Hon'ble Supreme court the courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. After considering the oral evidence of P.w.1 to 4 and 8 and documentary evidence and material objects produced, prosecution has successfully proved charge against accused No.1 under section 7 and 13(1)(d) of PC Act that he has demanded and accepted illegal gratification of Rs.1,00,000/- from PW1 on 28.3.2017. Prosecution has failed to prove the above said charges against accused No.2. In the result my findings on point No.2 and 3 against accused No.1 is in the affirmative and against accused No.2 is in the negative.
70. Point No.4 :- In view of my findings on point No.2 and 3 accused No.1 is liable to be convicted and accused No.2 is entitled for an order of acquittal. Accordingly I proceed to pass the following:
ORDER Acting under Section 248(1) Code of Criminal Procedure 1973 accused No.2 is acquitted for the offence punishable under Section 7 and 13(1)(d) 55 Spl.C.C.666/2017 read with 13(2) of Prevention of Corruption Act, 1988.
Acting under Section 248(2) Code of Criminal Procedure 1973 accused No.1 is convicted of the offence punishable under Section 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988.
The bail bonds and surety bonds executed by the accused and their surety are hereby stand discharged.
M.O. No.10 cash of Rs. 1,00,000/- is confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to ACB Police.
Office is directed to keep M.O. No. 2,9, 11 and 12 CDs, M.O. No.5 memory card along with file. Office is directed to destroy M.O. No. 3,4, 6 to 8 after appeal period as the same are worthless.
(Dictated to the judgment writer, transcribed and computerized by him, corrected, signed and pronounced by me in the open Court on this the 30th day of August, 2021.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
56 Spl.C.C.666/2017 ORDERS Judgment pronounced finding accused No.1 is guilty of the offences punishable under Section 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988.
2. On the question of sentence to be imposed, heard the learned Sri. PNH advocate appearing on behalf of the accused. The learned counsel submitted that only 13 months service is left for the accused, about six months back he lost his son aged 25 years, and 14 days back he lost his father. He is the sole bread earner of his family and on considering the mitigating circumstances counsel submitted that the court may be pleased to impose minimum sentence as prescribed under the enactment.
3. It is well settled law that as held in the judgment reported in AIR 2004 SC 2317 in the case between N Bhargavan Pillai vs State of Kerala and in State vs Parthiban [(2006) AIR SCW 5267) the provisions of Probation of Offenders Act do not apply to the offence under PC Act.
4. In this case incident had occurred on 28-03-2017. Thus, as per Amended Act No.1 of 2014, which came into effect from 16-01-2014, the offence under section 7 of PC Act as on the date of offence was punishable with imprisonment which may extend to seven years and with fine and minimum punishment shall be not less than three years. The offence under section 13 (2) of PC Act as on the date of offence was punishable with imprisonment which may extend to ten years 57 Spl.C.C.666/2017 and with fine and minimum punishment shall be not less than four years. The recent amendment Act No. 16 of 2018 came into force from 26-7-2018 are not applicable to this case.
5. In the light of the facts and circumstances of the case with particular reference to the nature and conduct of the accused in committing the offence, quantum of sentence to be imposed is to be determined. I am persuaded by the submission of the learned defence counsel to pass minimum sentence of imprisonment as prescribed under the above referred provisions of law. The accused by committing an offence under the provisions of PC Act has invited the risk to himself, and now he cannot plead for laxity or leniency in the sentence to be imposed. On the other hand the facts and circumstances of the case, the conduct of accused in demanding Rs.3.00 lakhs illegal gratification for changing katha of immovable property and after negotiation reduced it into Rs.2.75 lakhs and reluctantly agreed for Rs. 2.50 lakhs do demand that he be punished by apposite sentence, of course after taking into consideration the submission of the defence counsel to scale down the sentence to the permissible extent by taking a lenient view. The offence in question proved against the accused is of a serious magnitude.
6. As per section 31 of Cr.P.C. when a person is convicted at one trial of two or more offences, the punishment of imprisonment to commence one after the expiration of the other is the rule and unless the Court directs such punishments shall run concurrently is an exception.
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7. In the judgment reported in 2020 SCC on line 412 in the case State of Gujarath vs Mansukhbhai kanjibhaibai Shah the Apex court held Corruption is the malignant manifestation of a malady menacing the morality of men. There is common perception that corruption in India has spread to all corners of public life and is currently choking the constitutional aspirations enshrined in the preamble.
8. In the judgment reported in (2006)8 SCC 693 State of M.P. vs Shambhu Dayal Nagar Apex court while responding to the plea for a lenient view for a charge of corruption expressed its concern against rampant venality by public servant and observed the public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post.
9. In AIR 2013 SC 1682 Niranjan Hemchandra Sashittal case the Apex court held the gravity of the offence under PC Act is not be judged on the measure of quantum of bribe, as corruption is not to be justified in degree.
10. In the judgment reported in (2000)8 SCC 571 in the case between Madhukar Bahskarrao Joshi vs State of Maharastra para 18 the Apex court observed " When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within bounds of law. One such measure is to provide condign punishment.
59 Spl.C.C.666/2017 Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given, the sentence shall not be less the imprisonment for one year. Such a legislative insistence is reflection of parliament's resolve to meet corruption cases with a very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. ....Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same process"
11. The above referred law laid down by the Apex court are aptly applicable to the facts of the case in hand. On considering the age of the accused and his family background as submitted by the learned defence counsel, it is necessary at this stage to impose minimum punishment as prescribed under the enactment. It is settled principle that when the offence proved against accused No.1 are under two different sections providing different punishments, the offender should
60 Spl.C.C.666/2017 not be punished with a more severe punishment than the court could award to the person for any one of the two offences. After considering the above ratio laid down by the Apex court, facts and circumstances of the case and reasons stated herein above, it is just and proper to sentence the accused to undergo rigorous imprisonment for a period of three years for the offence under section 7 and four years rigorous imprisonment for the offence under section13(2) of the PC Act would meet the ends of justice.
12. As per section 16 of P C Act where a sentence of fine is to be imposed under section 7 or 13(2) of PC Act, the court shall take into consideration the amount or value of the property the accused person has obtained by committing the offence. In the case in hand accused No.1 has demanded illegal gratification of Rs.3,00,000/- and received part amount of Rs.1,00,000/- from PW-1 for change of katha of immovable property. Having regard to the amount of demand of bribe made by the accused, this court thinks imposing fine of Rs. 3,00,000/- and in default to pay it, to suffer simple imprisonment for four months is just, proper and reasonable. In the result, I proceed to pass the following:
ORDER Accused No.1 is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- (one lakh) for the offence punishable under section 7 of PC Act and 61 Spl.C.C.666/2017 to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 2,00,000/- (two lakhs) for the offence punishable under section 13(1)(d) read with 13(2) of PC Act.
In default of payment of total fine of Rs.3,00,000/- (three lakhs) he shall undergo simple imprisonment for a further period of four months.
Both the substantive sentence of imprisonment shall run concurrently.
Acting under section 428 of the Code, the period of detention undergone by the accused during investigation from 28-03-2017 to 04-04-2017 shall be set off against the sentence of imprisonment.
Free copy of the judgment be furnished to the accused forthwith.
(Dictated to the judgment-writer directly on computer, typed by him, corrected, signed and pronounced by me in the open Court on this the 30th day of August, 2021.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Gopal S.
PW 2 : Chidananda
PW 3 : C.T.Selvan
PW 4 : V.Saindil Kumar
62 Spl.C.C.666/2017
PW 5 : Ganesh Reddy
PW 6 : Mallikarjun B.H.
PW 7 : Manjunath Prasad
PW 8 : Vajeer Ali Khan
PW 9 : Chandrika G.
PW 10 : Nanjegowda
List of documents marked on behalf of prosecution:
Ex P 1 : Authorisation letter Ex P1(a) : Signature of PW 1 Ex P2 : Suvarna Katha Acknowledgment Ex P3 : Gift deed Ex P 4 : First information statement Ex P4(a) : Signature of PW 1 Ex P4(a) : Signature of PW 8 Ex P5 : Pre-trap mahazar Ex P5(a) : Signature of PW 1 Ex P5(b) : Signature of PW 3 Ex P5(c) : Signature of PW 4 Ex P5(d) : Signature of PW 8 Ex P6 : Trap mahazar Ex P6(a) : Signature of PW 1 Ex P6(b) : Signature of PW 2 Ex P6(c) : Signature of PW 3 Ex P6(d) : Signature of PW 4 Ex P6(e) : Signature of PW 8 Ex P7 : 164 Cr.P.C. Statement of PW1 Ex P7(a) : Signature of PW 1 Ex P8 : Video conversation of A-1 & complainant transmission Ex P8(a) : Signature of PW 3 63 Spl.C.C.666/2017 Ex P8(b) : Signature of PW 4 Ex P8(c) : Signature of PW 8 Ex P9 : Currency details sheet Ex P9(a) : Signature of PW 3 Ex P9(b) : Signature of PW 4 Ex P9(c) : Signature of PW 8 Ex P10 : Trap conversation transcription Ex P10(a): Signature of PW 3 Ex P11 : Seal acknowledgment letter Ex P12 : Portion of statement of PW5 Ex P13 : Sanction order of accused Nos.1 and 2 Ex P13(a): Signature of PW 7 Ex P14 : FIR Ex P14(a): Signature of PW 8 Ex P15 : Requisition letter dtd.28.3.2017 (Office copy) Ex P16 to: Four photographs (pre-trap) Ex.P19 Ex P20 : Explanation given by Lingaiah (A-1) Ex P21 : Attested copies of Attendance register and register extract Ex P22 to: Six photographs (Trap proceedings) Ex.P27 Ex P28 : Certificate under Section 65-B of Evidence Act Ex P29 : Certificate under Section 65-B of Evidence Act Ex P30 : Certificate under Section 65-B of Evidence Act Ex P30(a): Signature of PW 8 Ex P31 : Certificate under Section 65-B/Chidananda Ex P32 : Attested copies of documents Ex P33 : Screen shot of Annexure A-1 64 Spl.C.C.666/2017 Ex P34 : FSL report Ex P34(a): Signature of PW 9 Ex P35 : Sample seal letter Ex P36 : Cepstral plots (17 sheets) Ex P37 : Certificate under Section 65-B of Vinodh K.N. Ex P38 : Voice sample recording mahazar Ex P39 : Letter of BBMP/Service particulars of A-1 and transfer order Ex P40 : Work distribution details of A-1 Ex P41 : Letter of BBMP/Engineer Sketch Ex P42 : Letter of BBMP/Service particulars of A1 (Vasanth Nagar zone) Ex P43 : 164 Cr.P.C. Statement of Chidananda Ex P44 : Work order issued by Deputy Commissioner of BBMP.
List of material objects marked on behalf of the prosecution:
MO 1 : Metal seal 'V' Kemparaju MO 2 : CD containing the recording of demand MO 2 (a) Cover MO 3: Bottle containing the sample solution prepared during pre trap mahazar MO 4 : Bottle containing hand wash of Syndil Kumar MO 5 : 4 GB Memory card MO 5 (a) Cover MO 6 : Bottle containing Sample solution 65 Spl.C.C.666/2017 MO 7 : Cotton washing solution MO 8 : Cotton piece MO 8 (a) Cover MO 9 : Voice sample recording of accused MO 9 (a) Cover MO 10 : Tainted currency notes of Rs.1,00,000/-
MO 10 (a) Cover MO 11 : CD - Voice sample of CW2/Chidananda MO 11 (a) Cover MO 12 : CD - Voice sample of CW1/Gopal MO 12 (a) Cover List of witnesses examined on behalf of accused:
NIL List of documents marked on behalf of accused:
Ex.D1 - Objections to the Enquiry notice dtd.29.6.2017 Ex.D2 - RTI application dtd.24.7.2017 XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
66 Spl.C.C.666/2017 Judgment pronounced in the open Court vide separate Judgment. The final order portion reads as under:
ORDER Acting under Section 248(1) Code of Criminal Procedure 1973 accused No.2 is acquitted for the offence punishable under Section 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988.
Acting under Section 248(2) Code of Criminal Procedure 1973 accused No.1 is convicted of the offence punishable under Section 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988.
The bail bonds and surety bonds executed by the accused and their surety are hereby stand discharged.
M.O. No.10 cash of Rs. 1,00,000/-is confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to ACB Police.
Office is directed to keep M.O. No. 2,9, 11 and 12 CDs, M.O. No.5 memory card along with file.
67 Spl.C.C.666/2017
Office is directed to destroy M.O. No.
3,4, 6 to 8 after appeal period as the same are worthless.
(LAKSHMINARAYANA BHAT K.), XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ORDER Accused No.1 is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-
(Rupees one lakh) for the offence punishable under section 7 of PC Act and to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 2,00,000/- (two lakhs) for the offence punishable under section 13(1)(d) read with 13(2) of PC Act.
In default of payment of total fine of Rs.3,00,000/- (three lakhs) he shall undergo simple imprisonment for a further period of four months.
Both the substantive sentence of imprisonment shall run concurrently.
Acting under section 428 of the Code, the period of detention undergone by the accused during investigation from 28-03-
68 Spl.C.C.666/2017
2017 to 04-04-2017 shall be set off
against the sentence of imprisonment.
Free copy of the judgment be furnished
to the accused forthwith.
XXIII Addl.City Civil & Sessions Judge
& Special Judge (PCA), Bengaluru.