Bangalore District Court
State Of Karnataka Represented By vs H. Hanumanthappa S/O Late Erappa on 7 April, 2017
IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU. (CCH-24)
Dated this the 7th day of April, 2017
PRESENT:
Shri GOPAL, B.Com.LL.B.,
XXIII Additional City Civil and Sessions Judge and
Special Judge,
Bengaluru Urban District, Bengaluru
SPL.C.C. NO.99/2013
Complainant: State of Karnataka represented by
Police Inspector, Karnataka
Lokayuktha Police Wing City Division,
Bengaluru.
(By Sri D. Ramesh Babu, Special
Public Prosecutor)
V/s
Accused: H. Hanumanthappa S/o late Erappa,
Aged 52 years, Police Inspector,
Rajarajeshwari Nagar Police Station,
Bengaluru City. Residing of No.747,
C.I.D. Police Quarters, Kengeri
Satellite Town, Bengaluru.
(By Sri Shankar P. Hegde, Advocate)
2 Spl.C.C.No.99/2013
JUDGMENT
1. Police Inspector, Karnataka Lokayuktha, City Division, Bengaluru urban has submitted charge sheet against the accused for the offences punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988.
2. Case of the prosecution in brief are that the accused being public servant working as Police Inspector, of Rajarajeshwari Nagara police station, Bengaluru demanded bribe of Rs 15,00,000/- from the complainant Basoor Nataraj in connection with the case in Crime No.148/2012 registered by the Rajarajeshwari Nagara Police Station and on the request of complainant, it was scaled down to Rs 5,00,000/-. Unwilling to pay the bribe amount, CW 1 Basoor Nataraj approached the Lokayuktha police station and lodged complaint on 25.09.2012. 3 Spl.C.C.No.99/2013
3. Pursuant to the complaint of the complainant, CW 18 Prasanna V Raju, Police Inspector registered the case against the accused for the offences punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act in Cr.No.77/2012 on 25.9.2012. On that day itself, a trap was organized and the Investigating Officer secured Government official witnesses CW 2 Sri.V.Nagarajaiah (PW.2) and CW 3 M.S.Ravindranath (PW 3) to act as trap witnesses. CW.1 Basoor Nataraj produced Rs.2,00,000/- in 200 currency notes of denomination of Rs.1,000/- each before CW 18 the Investigating Officer and in the presence of witnesses. The number of the said currency notes were recorded on a sheet of paper and the said currency notes were smeared with phenolphthalein powder and it was kept with the Investigating Officer. After observing the formalities, CW 18 drawn Pre-trap mahazar. Thereafter, the complainant and panch witnesses, CW 18 and his 4 Spl.C.C.No.99/2013 raiding staff proceeded towards the police station of the accused. At the entrance of the Bengaluru University Campus, after verifying the currency notes, CW 18 placed the said currency notes in the suitcase of the complainant through witness Ravindranath after confirming that there was no cash inside the said suitcase except the tainted notes. CW 18 instructed CW 1 to give the tainted notes to the accused only on his demand and after accepting the bribe amount by the accused, Investigating Officer instructed the complainant to convey the signal by wiping the face with kerchief. The Investigating Officer (C W 18) also instructed the Police Inspector B.K.Manjaiah (PW 5) (CW 14) to go to Rajarajeshwari Nagara police station and lodge complaint with regard to the loss of mobile handset and remain in the police station. CW 1 alone enter the Rajarajeshwari Nagara Police Station along with the suitcase on 26.09.2012 at about 9.30 A.M, He told the accused that he brought the cash. The 5 Spl.C.C.No.99/2013 accused questioned as to how much amount brought by him, he told that brought cash of Rs 2,00,000/-. The accused instructed the complainant to pay the balance amount of Rs 3,00,000/- on the next day and CW 1 placed the tainted currency notes of Rs 2,00,000/- on the table of the accused. The accused counted the currency notes with his both hands and kept the same in the right side table drawer. The complainant conveyed the signal to the Lokayuktha police by wiping his face with kerchief. Immediately, CWs 2 and 3, CW 18 and his raiding staff entered the Rajarajeshwari Nagara police station. Sodium carbonate solution was prepared and after obtaining the sample of the said solution, both hands of the accused immersed in the solution separately which turned to light pink colour and the same has been seized in a separate bottle. CW 18 Investigating Officer seized the tainted currency notes from the possession of the accused through CW 2 6 Spl.C.C.No.99/2013 V.Nagarajaiah. After completing the formalities, CW 18 drawn the trap mahazar.
4. The accused was arrested and intimated to his Higher Officers and produced the accused before the Court on 26.09.2012 and he was remanded to the judicial custody. On 29.09.2012 the accused was released on bail. CW 18 the Investigating Officer after obtaining sanction order for prosecuting the accused for the offences punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and after completion of the investigation, laid the charge sheet against the accused for the said offences.
5. The accused was secured who represented by his counsel. Copy of the charge sheet was supplied to the accused as contemplated under section 207 of Cr.P.C and the case was posted to hear before 7 Spl.C.C.No.99/2013 charge and after hearing on both side, my learned predecessor-in-office has framed charge against the accused on 8.12.2014 for the offences punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and it was read over and explained to the accused who pleaded not guilty and claimed to be tried.
6. The prosecution to prove the guilt of the accused has examined five witnesses as PWs.1 to 6 and got marked documents at Exs.P.1 to P.18 and MOs.1 to 11 and 11(a) and 11(b) and accused got marked at Exs D1 to D6 in the course of cross examination of PW 2 and PW 4. After closure of the prosecution evidence, the accused was questioned under section 313 Cr.P.C. who denied the incriminating circumstances appears against him as false ad submitted his statement under section 313(5) of Cr.P.C with the copy of statements and certificates. 8 Spl.C.C.No.99/2013 The accused has not chosen to adduce defence evidence on his side.
7. Having heard the arguments on both sides and taking into consideration of the evidence on record coupled with the documents, the following points arise for consideration.
a. Whether the prosecution proves beyond all reasonable doubt that accused being public servant working as Police Inspector, Rajarajeshwari Nagara Police Station, Bengaluru City in order to take action against the accused persons in Cr. No. 148/2012 registered by Rajarajeshwari Nagara Police for the offences under section 448, 504, 506 r/w section 34 IPC has demanded the bribe amount of Rs 15,00,000/- and at the request of CW 1 the accused scaled down the bribe amount of Rs 5,00,000/-
and on 26.09.2012 at about 9.40 and 9.50 PM the accused demanded and 9 Spl.C.C.No.99/2013 accepted illegal gratification of Rs.2,00,000/- from CW.1/PW.2 Basoor Nataraja towards part of the bribe amount and demanded to pay balance bribe amount of Rs 3,00,000/- on the next day to do official favour and thereby the accused has committed the offence punishable under section 7 of the Prevention of Corruption Act, 1988 ? b. Whether the prosecution proves beyond all reasonable doubt that on the said date time and place the accused being public servant working as Police Inspector, Rajarajeshwarinagara Police Station, Bengaluru abused his position as public servant by accepting illegal gratification of Rs.2,00,000/- to do official favour from CW.1/PW.2 Basoor Nataraj and obtained pecuniary advantage without public interest and committed criminal misconduct and thereby accused has committed the offence punishable under section 10 Spl.C.C.No.99/2013 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 ?
c) What order ?
8. My findings on the above points are:
Point No.1: In the affirmative.
Point No.2: In the affirmative.
Point No.3: As per final order, for the following:
REASONS
9. Point Nos.1 and 2: Undisputed fact is that the accused being public servant working as Police Inspector, Rajarajeshwari Nagara Police Station during the year 2012. According to the prosecution, the accused has demanded and accepted illegal gratification of Rs 2,00,000/- to do official favour on 26.09.2012. Defence of the accused is bare denial of the case of the prosecution in toto.
11 Spl.C.C.No.99/2013
10. Before going to decide the merits of the case, it is necessary to decide the validity of the sanction obtained by PW.4 Prasanna V Raju (CW 18) the Investigating Officer for prosecuting the accused for the alleged offences.
11. Valid sanction is sine qua non in the case under the Prevention of Corruption Act 1988. In view of section 19 of the Act the Court cannot take cognizance of the offence punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act 1988 alleged to have been committed by the public servant except with the previous sanction by the competent authority. It is well settled law that the sanction order can be challenged on two grounds; one is the competency of the sanctioning authority and another is the non-application of mind by the sanctioning authority. 12 Spl.C.C.No.99/2013
12. Ex P8 is the sanction order. The learned counsel for the accused has admitted the contents of sanction order and endorse the same on Ex P8 and it proves that the accused has not disputed the validity and competency of the sanction order issued by the Director General and Inspector General of Police, Bengaluru to prosecute the accused for the offence punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act 1988.
13. Now the question arises for my consideration is whether the accused has demanded and accepted bribe from the complainant to do official favour. It is well settled law that the demand and acceptance of amount as illegal gratification is sine qua non for constituting the offence under the Act. It is also well settled in law that there is a statutory presumption under section 20 of the Act which can be dislodged by the accused by bringing on record some evidence 13 Spl.C.C.No.99/2013 either direct or circumstantial that money was accepted other than the motive or reward as stipulated under section 7 of the Act. It is obligatory on the part of the Court to consider the explanation offered by the accused under section 20 of the Prevention of Corruption Act and the consideration of the explanation has to be on the anvil of preponderance of probabilities.
14. It is necessary to state that the prosecution is bound to establish that there was illegal offer of bribe and acceptance thereof, the same has to be found on facts. In this regard, I have perused Ex P6 the complaint lodged by PW 2 Basoor Nataraj, which reveals that, on 18.07.2012 he gave a complaint with D.C.P Crimes against few persons who were intimidating and harassing him for money by threatening with dire consequences. On 09.09.2012 second complaint lodged by Mr.Prashanth at 14 Spl.C.C.No.99/2013 Sakaleshpura Police Station, Hassan District and a case was registered for the offence punishable under sections 406 and 420 of IPC. Sakaleshpura police officials came to Bengaluru on 20.09.2012 and took him to police station and after enquiry he was released on bail. On 24.09.2012, the accused called him at Rajarajeshwari Nagara police station at 9.30 PM and told him there is lot of pressure from the top officials and he require money to take care of the said case and demanded Rs 15,00,000/- and later scaled down the bribe amount to Rs 5 lakhs. He recorded the demand of bribe by the accused and transferred to compact disc and same has been given to the DCP (crime), Additional Commissioner of Police (Law & Order) and complaint at Rajarajeshwari Nagara Police Station in crime No.148/2012 dated 02.08.2012 along with FIR. Pursuant to his complaint, PW 4 Investigating Officer registered a case in Crime No.77/2012. 15 Spl.C.C.No.99/2013
15. Ex P6 proves that PW 2 complainant lodged complaint against one Prashanth in Crime No.148/2012 at Rajarajeshwari Nagara Police Station, Bengaluru. In turn, the said Prashanth lodged complaint with the Sakaleshpura Police Station, wherein a case was registered against PW 2 complainant for the offence punishable under section 406 and 420 of IPC and he was apprehended and released on bail. In connection with the criminal case, the accused has called the complainant and demanded bribe to do the official favour. Ex P9 discloses that PW 4 Investigating Officer has recovered the case paper from the Rajarajeshwari Nagara Police Station. Ex P9 proves that PW 2 gave a complaint to the Rajarajeshwari Nagara Police Station against 1) Ramachandra, 2) Rajakumar 3) Swamy and others for the offence punishable under sections 448, 504, 506 read with section 34 of IPC. One Rangaswamy filed a complaint against PW 2 Basoor Nataraj for cheating to the tune of Rs two crores with 16 Spl.C.C.No.99/2013 the Station house Officer, Rajarajeshwari Nagara Police Station. Ex D5 discloses that one K.M.Uday filed a complaint under section 200 of Cr.P.C against PW 2 Basoor Nataraj for the offence punishable under section 138 of the Negotiable Instruments Act on the file XIII Additional Chief Metropolitan Magistrate, Bengaluru City in C.C.No.7789/2014. Ex D4 private complaint lodged by H.M.Prashanth Kumar against pW 2 Basoor Nataraj for the offence punishable under section 138 of the Negotiable Instruments Act in P.C.R.No.161/2012 on the file of J.M.F.C. Court, Sakaleshpura. The said documents discloses that there was a criminal case lodged by PW 2 Basoor Nataraj (complainant herein) in Crime No.148/2012 before Rajarajeshwari Nagara Police Station and also a case was registered against PW 2 Basoor Nataraj before the XIII Additional Chief Metropolitan Magistrate, Bengaluru City and another case before the Court of J.M.F.C. Sakaleshpura for the offence punishable under 17 Spl.C.C.No.99/2013 section 138 of Negotiable Instruments Act. In the background of said criminal cases, according to the PW 2, he was called upon by the accused and demanded bribe amount to do an official favour.
16. PW 2 complainant in the oral evidence has deposed that in connection with the criminal case in Crime No.148/2012 the accused summoned him on 09.09.2012 and 24.09.2012 and demanded illegal gratification of Rs 15 lakhs for which he has not agreed to pay the said amount and thereafter, the said amount was scaled down to Rs 2 lakhs and insisted him to pay the said amount on 26.09.2012. On 25.09.2012 he approached the Lokayuktha police and lodged complaint before PW 4 Prasanna V.Raju, Investigating Officer along with the compact disc. The accused has not disputed the pendency of the criminal case between the complainant and also one K.M.Uday and Prashanth Kumar before the Court of XIII 18 Spl.C.C.No.99/2013 Additional Chief Metropolitan Magistrate, Bengaluru and J.M.F.C Court, Sakaleshpura respectively and also a case in Crime No.148/2012 registered by the accused police station. Thus, the evidence of PW 1 coupled with the documents placed by the prosecution and also the accused proves that the work was pending with the accused to do the official favour in connection with the criminal case.
17. PW 2 Basoor Nataraj (complainant), PW 1 V.Nagarajaiah, PW 3 M.S.Ravindranath, PW 4 Prasanna V Raju (Investigating Officer) and PW 5 B.K.Manjaiah (witness) have deposed that PW 4 Investigating Officer after receiving the complaint from PW 2 registered a case in Crime No.77/2012. Immediately, trap was organized and secured PW 1 V.Nagarajaiah, PW 3 Ravindranath as Government Officials to act as a trap witnesses. PW 2 Basoor Nataraj produced 200 currency notes of Rs 1000/- denomination amounting 19 Spl.C.C.No.99/2013 to Rs 2,00,000/-. The numbers of the said currency notes were recorded in a sheet of paper as per Ex P1. Phenolphthalein powder were applied on the said currency notes and after observing formalities drawn pre-trap mahazar as per Ex P2 on 25.09.2012. On perusal of Ex P2 the Pre trap mahazar was drawn in the Lokayuktha police station from 6.00 PM to 8.00 PM. The said fact has not been seriously disputed by the accused in the cross examination of PWs 1 to 5 and thus, the prosecution has proved Ex P2 Pre trap mahazar drawn by the PW 4 Investigating Officer in the Lokayuktha police station on 25.09.2012 from 6.00 PM to 8.00 PM.
18. PW 2 Basoor Nataraj has deposed that on 26.09.2012 he along with PW1, PW 3 and PW 5 and the raiding staff and PW 4 Prasanna V.Raju Investigating Officer proceeded towards the Rajarajeshwari Nagara Police Station and they 20 Spl.C.C.No.99/2013 assempled at the entrance of Bengaluru University campus at 8.30 PM. PW 4 after verifying the above currency notes placed the above tainted notes inside the suitcase of PW 2. Thereafter, they have reached near Rajarajeshwari Nagara Police Station, Bengaluru. A button camera and digital voice recorder were given to PW 2 by the Investigating Officer PW 4 and again instructed to give the tainted notes to the accused and to communicate the acceptance of bribe amount by wiping face with kerchief. PW 4 also instructed PW 5 Manjaiah, Police Sub-Inspector to lodge a complaint with the accused stating that PW 5 Manjaiah had lost his mobile handset and to remain inside the Rajarajeshwari Nagara Police Station, Bengaluru. He has further deposed that PW 4 instructed him to enter the Rajarajeshwari Nagara Police Station to avoid the suspicion by the accused of his entry to the police station. He entered police station along with suitcase. He told the accused that he has brought the case and 21 Spl.C.C.No.99/2013 accused questioned about the how much of amount brought by him for which he told the accused that he brought Rs 2 lakhs. Accused instructed him to give the balance amount of Rs 3 lakhs on the next day. He placed the tainted currency notes of Rs 2 lakhs on the table of the accused who has not touched the cash and asked him whether any Lokayuktha police staff was brought by him and after confirming that no Lokayuktha is brought by him, the accused took the above case with both hands and kept the same in the right side drawer of his table. Immediately, he came out of the police station and conveyed the signal by wiping his face with kerchief. Immediately, PWs 1, 3 and 4 and the raiding staff entered the Rajarajeshwari Nagara Police Station, Bengaluru. PW 4 came to know through him that the tainted currency notes was in the table drawer of the accused, PW 4 secured CW 5 H.S.Ramu to the chamber of the accused. Staff of PW 4 prepared sodium carbonate solution and fingers both 22 Spl.C.C.No.99/2013 hands of the accused were immersed in the solution separately, it turned to light pink colour and same has been secured in two separate bottles. The said two bottles were marked as MOs 6 and 7 respectively. PW 4 has seized the said currency notes of Rs two lakhs and copy of the documents pertaining to the complainant. Since PW 4 thought that the Rajarajeshwari Nagara Police Station was not suitable for conducting trap mahazar return to the Lokayuktha police station along with the accused and witnesses. Trap mahazar at Ex P3 was drawn by PW 4 and on enquiry, accused has given his explanation as per Ex P7.
19. In the cross examination, it is elicited that on 28.12.2012 he lodged the complaint at Rajarajeshwari Nagara Police Station, there was a departmental enquiry against the accused in connection with the case. In para 19 of his cross examination, he admitted 23 Spl.C.C.No.99/2013 that the accused has not mentioned in his complaint that the accused is demanding bribe amount in connection with Crime No.148/2012. He has not dictated the contents of trap mahazar. He has not observed that there was lock to the table drawer of the accused. He admits that the accused chamber consists of hydrolic door; sketch was not prepared in his presence. He denied that there is no footings of the accused appear in the videograph taken by the police. He gave a signal in the second door of the police station to the Lokayuktha police. Lokayuktha Inspector was standing at the distance of 5 to 10 feet from the accused police station. He admit that before entering into the accused police station, already two Lokayuktha police were inside the accused police station. He stated that he has not observed that when he went to outside of the police station to give signal, two Lokayuktha police were entered the chamber of the accused. He admit that the Lokayuktha police entered 24 Spl.C.C.No.99/2013 the accused police station and shown their identity card. He cannot say how many numbers of panchanama were drawn in the police station of the accused. Immediately after entering into the accused police station by the Lokayuktha police, both hands of the accused were immersed in the solution. He admits that one Prasanna Kumar lodged the complaint against him in the Sakaleshpura Police Station. He admits that as per Ex D2 he has given statement in the departmental enquiry of the accused. He admits that the Sakaleshpura Police took him to Sakaleshpura in connection with the complaint lodged by Prashanth Kumar. He admits that as per Ex D5 one Uday lodged a complaint in XIII A.C.M.M Court, Bengaluru in .C.C.NO.7789/2014. He denied the fact that the accused before entering to his chamber or went to the toilet in his chamber, he kept the tainted currency notes in the table drawer of the accused. He denied the suggestion that in order to avoid arrest in 25 Spl.C.C.No.99/2013 connection with the case registered against him in several police station, he lodged false complaint against the accused. In para 28 of his cross examination, it is elicited that on 25th he placed 2 lakh rupees before the Lokayuktha Police Inspector. On 26th, the said two lakh rupees was placed in his suitcase at the entrance of the Bengaluru University by PW 4/Investigating Officer. In para 29 of his cross examination, he admits that after taking the tainted currency notes from the table drawer of the accused, the witnesses verified the numbers of currency notes and after counting the currency notes, both hands of the accused were immersed in the solution.
20. The testimony of PW 1 clearly proves the pendency of criminal case registered by one Udaya and Prashanth Kumar before the Sakaleshpura Police Station and XIII A.C.M.M, Bengaluru and also one of the case lodged by him with the Rajarajeshwari Nagara 26 Spl.C.C.No.99/2013 Police Station Bengaluru against Prashanth Kumar and others. The accused has admitted the presence of PW 2, PW 5, PW 4 Investigating Officer and PWs 1 and 3 in the police station of the accused on 26.09.2012. Defence of the accused that the PW 2 has placed the tainted currency notes in the table drawer of the accused before arrival of the accused to the police station or when the accused went to the toilet in his chamber. The said suggestion is unequivocally denied by PW 1. The accused has not disputed the immersion of fingers of both hands in the solution which turned to light pink colour and the same has been seized in the separate bottles as per MOs 6 and 7 respectively. Placing of currency notes of Rs two lakhs by the PW 2 in the Lokayuktha police station on 26.09.2012 during pre trap mahazar has been elicited by the accused. Further, the tainted currency notes were placed in a suitcase of PW 2 by the PW 4 at the entrance of the Bengaluru University campus which is 27 Spl.C.C.No.99/2013 near to Rajarajeshwari Nagara Police Station. From the evidence of PW 2 proves the accused in order to help the complainant/PW 2 in connection with the case, demanded and accepted the bribe amount from PW 2. PW 2 has clearly deposed that the accused after confirming that the Lokayuktha police were not brought by the PW 2 received the tainted currency of Rs 2 lakhs from PW 2 and kept the same in his table drawer. This evidence of PW 2 proved the demand and acceptance of illegal gratification to show official favour to PW 2 in connection with the criminal case.
21. In support of evidence of PW 2, prosecution has examined PW 1 V.Nagarajaiah and PW 3 M.S.Ravindranath, Government official witnesses. PW 1 has deposed about the drawing of pre trap mahazar in the Lokayuktha police station on 25.09.2012. PW 1 has specifically deposed that the tainted currency notes were placed in the suitcase of the PW 2 at the 28 Spl.C.C.No.99/2013 entrance of the Bengaluru university Campus and then proceed to the police station of the accused. PW 2 alone proceeded towards the Rajarajeshwari Nagara Police Station, Bengaluru. PWs 1, 3 and 4 and his raiding staff were gathered around the Rajarajeshwari Nagara Police Station. PW 5 B.K.Manjaiah was already in the Rajarajeshwari Nagara Police Station as per the instruction of PW 4 Investigating Officer. After 5 or 10 minutes, PW 2 came out of Rajarajeshwari Nagara Police Station and wiped face with kerchief. Immediately, PWs 1, 3 and 4 and his raiding staff entered Rajarajeshwari Nagara Police Station and the Lokayuktha police have shown their identity card to the accused and the accused told that the tainted currency notes are kept by him in his table drawer. PW 1 took out the above notes from the table drawer of the accused and the numbers of the above notes corresponded with the numbers entered on Ex P1 has been tallied. Both the fingers of the hands of accused 29 Spl.C.C.No.99/2013 were immersed in the solution. Right hand solution was turned to light pink colour and left hand finger was not turned to any colour. The learned Special Public Prosecutor cross examined PW 1 wherein he admitted that after immersing both hands fingers in the solution turned to pink colour and the same has been seized in two separate bottles as per MOs 6 and 7 respectively. Copies of the documents are seized by PW 4 in the accused police station and rough sketch was prepared by the Lokayuktha police. He admitted that on enquiry he gave statement as per Ex P7.
22. In the cross examination by the accused, he has denied that both hands of the accused has not been immersed in the solution. Accused has not denied the fact that the accused has received the tainted currency from PW 2 and the same has been kept in the right side of his table drawer and the same has been taken out by PW 1 from the table drawer and 30 Spl.C.C.No.99/2013 thereafterwards the PW 4 has seized the said tainted currency notes. When the specific evidence of seizure of tainted currency notes from the table drawer is not disputed, it amounts to admission in the eye of law. Thus, the evidence of PW 1 is fully corroborated with the evidence of PW 2 complainant.
23. PW 3 M.S.Ravindranath who is the Government Officer has deposed that in the line of PW
1. PW 3 has stated that PW 2 alone entered into the police station of the accused along with the suitcase which consist of tainted currency notes. Before entering into the chambers of the accused, PW 5 was in the police station with regard to the lodging of complaint in connection with the missing of his mobile, as per the instructions of PW 4 Investigating Officer and PW 2 entered into the accused police station. He, PW 1 and PW 4 and his raiding staff standing around by the Rajarajeshwari Nagara Police Station. After 31 Spl.C.C.No.99/2013 seeing signal of PW 2, he entered the police station of the accused. PW 2 told to PW 4 that the tainted currency notes received by the accused which were kept in the table drawer of the accused. PW 4 shown his identity card to the accused and got prepared sodium carbonate solution and both hands of the accused immersed in the solution which turned to light pink colour. When questioned about the tainted currency notes, the accused told that tainted notes are inside the drawer of the table. PW 1 took out tainted notes from the table drawer of the accused. Numbers of tainted notes tallied with the numbered mentioned on Ex P1. PW 4 seized the said tainted notes of Rs 2,00,000/- and placed in a envelope cover. MO 11 is the cash of Rs two lakhs. On enquiry, the accused gave his explanation as per Ex P7.
24. In the cross examination, he stated that he has not observed when he went to the police station 32 Spl.C.C.No.99/2013 the amount was on the table of the accused. Further, he stated that he has not observed that the accused himself gave the tainted amount to the Lokayuktha police. He admits that both hands of the accused were immersed in the solution and the same has been seized in separate bottles. He admits that PW 4 asked accused to give the explanation for which accused has given his explanation as per Ex P7. He admitted that two panchanama were typed on the same day. He denied the fact that the accused himself gave the tainted currency notes to PW 4/Investigating Officer in the police station. He voluntarily states that one Nagarajaiah who is PW 1 has taken out the currency notes from the table drawer of the accused as per instructions of PW 4 the Investigating Officer. He denied the fact that after the immerse of the fingers of the accused in the solution, it has not changed to any colour. Except bare denial nothing has been elicited from the mouth of PW 3.
33 Spl.C.C.No.99/2013
25. From the evidence of PW 3 also proves the tainted currency was on the table drawer of the accused and the same has been taken out by the PW 1 as per the instructions of PW 4 and thereafter PW 4 seized the said tainted currency MO 11. The evidence of PW 3 also supported and consisted the case of the PW 2 complainant and PW 1 witness. Thus, the evidence of PWs 1 to 3 are corroborated with each other with regard to the demand and acceptance of illegal gratification by the accused and the same has been seized from the table drawer of the accused on 26.09.2012 by the Investigating Officer PW 4.
26. The PW 5 B.K.Manjaiah who was Sub-
Inspector of Police, has deposed that on 26.09.2012 they proceeded to the office of the accused i.e., Rajarajeshwari Nagara Police Station, Bengaluru and near the entrance of the Jnanabharathi University, as 34 Spl.C.C.No.99/2013 per the instructions of PW 4 Investigating Officer, PW 3 M.S.Ravindranath placed the tainted currency notes in the suitcase of the complainant/PW 2. As per the instructions of PW 4 he entered the police station of the accused to lodge a complaint with the Station House Officer pretending the loss of mobile. PW 2 entered the chamber of the accused and after some time PW 2 complainant went outside the police station and conveyed pre-scheduled signal to the Lokayuktha police. The accused told PW 4 that the tainted currency notes was kept on his right side table drawer. As per the instructions of PW 4 PW 1 Nagarajaiah took out the currency notes from the table drawer of the accused and verifying the numbers of the notes which corresponding to Ex P1. Thereafter, the said tainted notes MO 11 have been seized by the PW 4 Investigating Officer. In the cross examination, it is elicited that in the chamber of the accused, there is a toilet room. He denied that no amount has been seized 35 Spl.C.C.No.99/2013 in his presence. The accused has made a suggestion that there is a difference in serial number of notes mentioned in Ex P2 and the notes found from the accused, but the same has been verified by PW 5 in the cross examination. The accused has not disputed the arrival of PW 5 in the police before entering of PW 2 to the police station. The testimony of PW 5 proves the seizure of tainted currency notes from the table drawer of the accused. The said fact has not been disputed by the accused. Evidence of PW 5 also supported and corroborated the evidence of PW 1, and 3 the Government officials and also PW 2 and 4.
27. Prosecution has examined the Station House Officer of Rajarajeshwari Nagara Police Station as PW
6. PW 6 H.H.Ramu, Assistant Sub-Inspector of Police has deposed that PW 5 came to Rajarajeshwari Nagara Police Station to lodge a complaint pretending that his mobile was lost. Three persons suddenly came and 36 Spl.C.C.No.99/2013 entered the chamber of the accused. After 2-3 minutes he came to know that the accused was trapped by the Lokayuktha police. He was taken to the chamber of the accused by PW 4 Dy.S.P and pull the drawer and shown two bundles of currency notes and thereafter the hands of the accused were washed in the solution which turned to pink colour. The learned Special Public Prosecutor cross examined PW 6, wherein he has stated that he has not observed that PW 2 entered the chamber of the accused along with the suitcase and thereafter, PW 2 came out of the police station and gave signal to the Lokayuktha police. He pleaded ignorance of both hands of the accused on wash turned to light pink colour. He pleaded ignorance that two lakh rupees were found in the table drawer of the accused. He admits that he and accused were working in the same police station for two years. He has been cross examined by the accused, naturally he admitted that one person entered the chamber of 37 Spl.C.C.No.99/2013 the accused before arrival of the accused to the police station. Thereafter, the Lokayuktha police came to his police station. Totally three persons entered the police station, out of three persons one person entered the chamber of the accused before the accused came to the police station. He has not denied the suggestion that in the absence of the accused, PW 2 complainant entered the chamber of the accused and kept the amount in the table drawer.
28. PW 6 the Sub-Inspector of Police, Rajarajeshwari Nagara Police Station worked with the accused for two years, he has not denied about the seizure of currency notes from the table drawer of the accused. He stated that one police entered the chamber of the accused before arrival of the accused to his chamber. PW 6 who is Sub-Inspector of Police and Station House Officer of the police station no one can enter the chamber of the accused without his 38 Spl.C.C.No.99/2013 permission. Naturally, PW 6 was worked with the accused he supported the accused. In the cross examination also the presence of two official witnesses, PW 4 and a raiding staff and seizure of currency notes from the table drawer has been admitted by PW 6. PW 6 also admitted the presence of PW 5 in the police station before entering into by the complainant. Therefore, on the basis of evidence of PW 6 it cannot be said that in the absence of accused neither police of Lokayuktha nor the complainant PW 2 entered the chamber of the accused and place the tainted currency notes on the table drawer of the accused. The said suggestion has not been put to PWs 1 and 3 in the cross examination. The evidence of PW 6 also supported the case of the prosecution.
29. PW 4 Investigating Officer has deposed about the conducting of the investigation after lodging the 39 Spl.C.C.No.99/2013 complaint by PW 1 and organized the trap after following the formalities, drawn the pre trap mahazar on 25.09.2012 and also proceeded to the police station of the accused on the next day i.e., on 26.09.2012 and in the entrance of the Bengaluru University, he placed the tainted currency notes in the suitcase of PW 2 and PW 2 alone entered the police station of the accused. Before entering the complainant into the police station of the accused, PW 5 entered into the police station as per the directions of PW 4/Investigating Officer pretending to lodge a complaint about the loss of mobile. After giving the prescheduled signal PWs 1, 3 and 4 entered in the police station of the accused and the fingers of the hands of the accused immersed in the separate solution and the solution turned to light pink colour and thereafter the tainted currency notes were on the table drawer of the accused was taken out through PW 1 Nagarajaiah and after tallying the number of currency notes with Ex P1 he seized the 40 Spl.C.C.No.99/2013 said tainted currency notes MO 11. He deposed about the seizure of documents pertaining to the complainant and seizure of service records and recorded the statements of P Ws 1 to 3 while drawing the trap mahazar. In the cross examination, it is elicited that MOs 6 and 7 solution not in pink colour and it is light pale in colour. He denied that the complainant has lodged complaint against the accused on account of animosity or vengeance and immersion of hands of the accused in the sodium carbonate solution. Only bare denial nothing has been elicited from the mouth of PW 4 why he has deposed falsehood and why PWs 1 to 3 have deposed falsehood against the accused.,
30. Thus, the evidence of PWs 1 to 6 have corroborated and consisted with regard to the demand and acceptance of illegal gratification by the accused to show the official favour in connection with the criminal case against PW 2 complainant.
41 Spl.C.C.No.99/2013
31. Learned counsel for the accused has argued that the phenolphthalein test cannot be said to be conclusive proof against the accused as the colour of the solution does not turn into pink colour while immersing both hands of the accused. Therefore, the prosecution has failed to prove that after immersing the hands of the accused in the solutio, the solution turned into pink colour and he relied upon the decision reported in 2015 Crl.L.J. page 1715 in the case of C.Sukumaran V/s State of Kerala.
32. Further, the learned counsel for the accused has vehemently argued that the prosecution has relied upon the electronic evidence without certification as contemplated under section 65B of the Indian Evidence Act in view of the decision reported in 2014 AIR (SCW) page 5695 and not admissible and cannot be looked into. There is material contradictions about the 42 Spl.C.C.No.99/2013 recovery of money. Panchas have given different version before the Court and at the time of conducting Departmental Enquiry. The different statements given by panchas at different stages and before different forums makes their statement uncredible. Evidence of PW 2 cannot be accepted as he has lodged the complaint on account of animosity. He was apprehended by the Sakaleshpura police station in Crime No.217/2013. He has given statement in Departmental proceedings as per Ex D2 which shows that he has made lot of improvements and contradicted himself besides admitting lodgments of several criminal cases against him, including case of cheating and forgery. The admission of pendency of criminal cazse against him by general public and by admitting direct complicity of mine in arrest of complainant, it is proved that the complainant is having shoddy character and had animosity against him. He is interested, inimical witness whose evidence 43 Spl.C.C.No.99/2013 cannot be accepted without corroboration and relied upon the decision reported in 2000 SCC (Criminal) page 878 in Meena V/s State of Maharashtra.
33. Further the learned counsel for the accused argued that there is no case of illegal gratification either demanded by the accused or paid to him by the complainant. The learned counsel for the accused further submits that there is no demand and acceptance of bribe. The question of onus of proof to disprove the presumption arises under section 20 of the P.C.Act does not arise at. He has relied upon the decision reported in 2014 Crl.L.J page 4399 in Satvir Singh V/s State of Delhi thru CBI.
34. On the other hand, the learned Special Public Prosecutor has argued that the prosecution has proved the seizure of tainted currency notes from the right side table drawer of the accused in the police station 44 Spl.C.C.No.99/2013 and also immersion of both hands of the accused in the solution turned to pink colour. The said evidence proves the demand and voluntary acceptance of illegal gratification to do official favour. In support of the arguments relied upon the decision reported in 2015 (4) Crimes page 159 (Supreme Court) in C.Chandrashekaraiah V/s State of Karnataka, wherein their Lordships have held that the appellant not explaining circumstances of tainted money found with him, presumption under section 20 of the Act not rebutted. Prosecution case stood completely established..
35. In 2015(1) Crimes 294 (Supreme Court) in Kallappa Mallappa Kamble V/s State of Karnataka wherein their Lordships have held that once demand and voluntary acceptance of illegal gratification knowing it to be bribe is proved by the evidence, then conviction must follow. 45 Spl.C.C.No.99/2013
36. In the decision of Hon'ble Supreme Court in Crl. Appeal No. 719/2000 in Narasinga Rao V/s State of Andhra Pradesh dated 12.12.2000 wherein their Lordships have held that one of the illustration to Section 114 of Evidence Act is that the Court may presume that a person who is in possession of the stolen goods soon after theft is either the thief or has received the goods knowing it to be stolen unless he can account for his possession
37. In the decision in Hon'ble Supreme Court of India in Crl.Appeal No.554/2012 in Vinod Kumar V/s State of Punjab wherein their Lordships have held that the appellant was caught red handed with currency notes. In his statement recorded under section 313 Cr.P.C he has taken the plea that he is innocent and he has been falsely implicated due to animosity. No explanation has been given as regards 46 Spl.C.C.No.99/2013 to the recovery. Therefore, from the above facts legitimate presumption can be drawn that the accused had received or accepted the said currency notes on his on volition. The factum of presumption and testimony of witness go long way to show the prosecution has been able to prove demand, acceptance and recovery of the amount and confirmed the conviction order.
38. In AIR 2010 Supreme Court Page 166 in B.K.Kannan V/s State wherein their Lordships have held that evidence of complainant duly corroborated by independent witness. Phenolphthalein test was also positive. Conviction upheld. Thus the prosecution has proved the guilt against the accused by place corroborative and cogent evidence.
39. On careful perusal of the decisions relied upon by the learned counsel for the accused and the 47 Spl.C.C.No.99/2013 learned Special Public Prosecutor and keeping in mind the principles enunciated in the said decisions, again, I have perused the evidence on record, which proves that PW 2 complainant Basoor Nataraj has lodged a complaint with the accused police station against Ramachandra, Jayakumar, Swamy and others in crime No.148/2012 for the offence punishable under section 448, 504 and 506 read with section 34 of IPC. One Prashanth Kumar filed a complaint before the Sakaleshpura police station, Hassan district against PW 2 Basoor Nataraj complainant for the alleged offence punishable under sections 406 and 420 of IPC. Ex D1 is the copy of the FIR. It is not in dispute that the accused was arrested in the said crime by the Sakaleshpura police station on 20.09.2012 wherein he was released on bail. It is not in dispute that the said Prashanth Kumar filed private complaint under section 200 of Cr.P.C on the file of JMFC, Sakaleshpura for the offence punishable under section 138 of Negotiable 48 Spl.C.C.No.99/2013 Instrument Act in P.C.R.No.161/2012 against PW 2 complainant. Ex D4 is the copy of the private complaint. Ex D5 discloses that K.M.Uday filed a complaint under section 200 of Cr.P.C on the file of XIII A.C.M.M Bengaluru against the complainant herein Basoor nataraj for the offence punishable under section 138 of Negotiable Instruments Act. The said pendency of the criminal cases are not in dispute. In connection with the criminal case, the accused has called upon PW 2 complainant to show the official favour and demanding illegal gratification. Unwilling to pay the bribe amount PW 2 approached the Lokayuktha police station and lodged complaint and placed Rs 2 lakhs currency notes of denomination of Rs 1000/-. Phenolphthalein powder was applied to the said currency notes and the same has been placed in the suitcase of the complainant at the entrance of the Bengaluru University Campus near by Jnanabharathi police station. PW 1 alone went to the chamber of the 49 Spl.C.C.No.99/2013 accused before that PW 5 was in the police station to lodge complaint pretending that he lost his mobile. When he entered the chamber of the accused, he asked about the quantum of amount brought by him for which he told that he brought only Rs 2 lakhs. The accused told him to pay another Rs 3 lakhs on the next day and then the complainant placed the tainted currency notes on the table of the accused. Then the accused took the tainted currency notes and kept the same on the right side table drawer. After giving prescheduled signal, immediately PWs 1, 3 and 4 and raiding staff entered into the chamber of the accused and his both hands were immersed in the solution which turned to light pink colour. PW 4 Investigating Officer has stated that after immersion of the hands of the accused in the solution, both hands of the accused which turned to pale light colour and same has been seized as MOs 6 and 7. Thereafter the tainted currency notes were taken by PW 1 Nagarajaiah from 50 Spl.C.C.No.99/2013 the right side table drawer of the accused and the numbers of the said currency notes were tallied with the numbers mentioned in Ex P1. The PW 4 seized the tainted currency notes as MO 11. The accused has not disputed the presence of PWs 1 to 4 and raiding staff and PW 5 in the Rajarajeshwari Nagara Police Station. The accused has not disputed the seizure of tainted currency notes from the table drawer of the accused.
40. The learned counsel for the accused vehemently argued that the PW 1 has planned to implicate the accused in the Lokayuktha case and placed tainted currency notes on the table drawer of the accused without his presence and when the accused went to the toilet situated in his chamber. The said fact has not been elicited by the accused in the mouth of PWs 2 to 5. PW6 who is the Station House officer of Rajarajeshwari nagara police Station has not specifically stated either PW 2 or one of the 51 Spl.C.C.No.99/2013 Lokayuktha police went before arrival of the accused to the police station and went to the chamber of the accused and placed the tainted currency notes on the table. The accused has not elicited in the mouth of PWs 2 to 5 that after immersion of both hands of the accused was not turned to any colour. In the course of arguments, the learned counsel for the accused submits that after immersion of both hands it does not turned to any colour and therefore the prosecution has failed to prove the phenolphthalein test positively. The evidence of PWs 1 to 4 and 5 clearly proves the conducting of phenolphthalein test positively and seizure of tainted currency notes from the table drawer of the accused.
41. On careful reading of Ex P7 the voluntary statement given by the accused to PW 4 Investigating Officer at the time of enquiry, it reveals that PW 2 complainant Basoor Nataraj suddenly came to his 52 Spl.C.C.No.99/2013 office and kept two lakh rupees on the table. He told him that one Rangaswamy requested him to repayment of 15% of the amount with a request to withdraw the cases filed against him. Further, told him that Rangaswamy not received Rs 2 lakhs insisting 5 lakh rupees from the complainant. Then the PW 2 forcibly placed the tainted currency notes on the table. But he has not taken the amount and assured that the said amount will be given to the opposite party as there was financial transaction between PW 2 complainant and Swamy and others to the extent of Rs 3.50 crores. In this connection, in order to give trouble PW 1 with vengeance placed tainted currency notes on his table and lodged complaint against him. The said explanation given by the accused to PW 4 has to be considered by this Court. When the accused offered some explanation, it is obligatory on the part of the Court to consider the explanation under section 20 of the Act. In view of the decision reported in view of 53 Spl.C.C.No.99/2013 decision of 2013 SAR (Criminal) page 487 in the case of K.S.Panduranga V/s State of Karnataka. Explanation of the accused clearly proves that the complainant approached him and placed currency notes on his table and requested him to help in connection with the financial transaction between Swamy and others. He has not stated when his both hands immersed in the solution it does not turned to any colour. He admitted the presence of PW 2 and MO 11 currency notes of Rs 2 lakhs. The PWs 1 to 5 have not stated that the tainted currency notes were found on the table of the accused and the same has been seized by the PW 4 Investigating Officer. The evidence of PWs 1 to 5 clearly proves that the tainted currency notes was recovered from the right side table drawer of the accused. Before that both hands of the accused immersed in the solution which turned to light pink colour. The accused has not stated in his explanation Ex P7 how the tainted currency notes came into the 54 Spl.C.C.No.99/2013 right side of his table drawer. If the PW 2 complainant placed tainted currency notes on his table and requested to help him in a financial transaction with others, why he has accepted to keep the amount on his table drawer. If really he has not interested to receive the amount he could have thrown out the amount and directed the complainant to take back the amount. Further the accused has not called for any of his staff and give currency notes placed by PW 2 to pay the amount to the other party. Accused being Police Sub-Inspector of Rajarajeshwari Nagara police station, no one can thrusted or forcibly kept any tainted currency in the table drawer of the accused. Therefore, the explanation offered by the accused about the possession of tainted currency notes forcibly kept on the table is not acceptable. The accused has received the tainted currency notes as part of illegal gratification to help in a criminal case filed by other party against PW 2 complainant and the said amount 55 Spl.C.C.No.99/2013 has been kept on his table drawer. Therefore, the arguments canvassed by the learned counsel for the accused that the phenolphthalein test conducted by the prosecution is not positive and the solution does not turn to any colour and the evidence of PW 2 can be looked into with great care and caution as he has interested witnesses and lodged complaint with animosity as against the accused does not holds water and the decision relied upon by the learned counsel for the accused are not applicable to the facts of the case on hand.
42. On a reading of decision in Madan Lal V/s The State of NCT of Delhi 2010(9) AD Adlhi page 685, wherein their lordships have observed as under:
" 23.....The Courts need to appreciate that the citizens in our country are most of the times reluctant even to lodge a complaint of demand of illegal gratification from them. Most of them 56 Spl.C.C.No.99/2013 pay the illegal gratification either with a view to get done something to which they are otherwise not entitled under the Rules or in order to get their matter expedited or with a view not to antagonize the public servant dealing with their matter, lest he puts obstacle in their way by taking a view or recording a note unfavourable to them. When a person takes the step of going to the Anti Corruption Branch making a complaint, and getting a trap organized, he knows it very well that it was going to cost him a lot of inconvenience and harassment. Firstly, he has to visit the office of Anti Corruption Branch and pay the bribe money from his pocket. He has to complete a number of formalities in the office of Anti Corruption branch and then accompany the officials constituting the raiding party to the place of the accused. He then has to visit the office of the Anti Corruption Branch in connection with the investigation of the case and thereafter he has to attend the court on a number of occasions. While doing all this, the complainant has to necessarily remain away from the work or business in which he is 57 Spl.C.C.No.99/2013 engaged and thereby he sacrificies a lot of his precious time and possibly also the money which he could be earning utilizing that time. He has to withstand a grilling cross examination at the hands of the defence counsel and also face the animosity of not only the public servant got trapped by him but also of his colleagues, who will be antagonized with him. On account of his getting a colleague of theirs trapped for accepting bribe. A person making complaint against a public servant knows it very well that in the department of the accused, no one may like to deal with him in future and in fact the colleagues of the accused are only likely to put obstacles in the work which he may have in the department. Therefore, most of the time, a person, from whom bribe is demanded, either pays up the money or he simply withdraws, instead of reporting the matter to the Anti Corruption Branch and going to the extent of being member of a raiding party. It is only in extreme cases where a citizen has a strong feeling of having been wronged or where he is so much conscious of his rights that instead of 58 Spl.C.C.No.99/2013 keeping silent or paying money, he wants a bribe seeker to be punished that he goes to the Anti Corruption Branch, make a complaint and then follows that complaint to its logical conclusion. Ordinarily, the testimony of the complainant need to be believed unless there are strong and compelling reasons creating serious doubts on the truthfulness of his testimony."
43. Here in the present case, the accused has not rebutted the presumption arises under section 20 of the Prevention of Corruption Act. His explanation and evidence of PWs 1 to 6 proves the demand and voluntarily acceptance of illegal gratification of Rs two lakhs from the complainant. There is no strong and compelling circumstances placed by the accused to doubt the truthfulness of the testimony of PW 2 and also the witnesses PWs 1, 3 to 5. Admittedly there is no animosity or vengenance between the accused and PWs 1 to 5 why they are deposing falsely against the accused has not been clearly satisfactorily elicited in 59 Spl.C.C.No.99/2013 the cross examination of prosecution witnesses. Therefore, the accused has failed to prove that the PW 1 has lodged the complaint against the accused on account of animosity or vengeance. When the accused has repeatedly demanded bribe by calling upon him to the police station and accepted illegal gratification of Rs two lakhs to help the complainant in a criminal case filed by other party against PW 2. Thus, the prosecution has proved the circumstances of demanding illegal gratification demanded by the accused and also voluntarily acceptance of bribe amount from the complainant to show official favour by misusing his possession as public servant.
44. On reading of another decision reported in (1976) 3 SCC Page 46 in Chaturdas Bhagwandas Patel V/s The State of Gujarath, Their lordship of Hon'ble Supreme Court interpreting the explanation to Section 161 of the I.P.C inter alia observed and held as under: 60 Spl.C.C.No.99/2013
"21.... It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing. This is clear from the last explanation appended to Section 161, according to which, a person who received a gratification as a motive for doing what he does not intend to do, as a reward for doing what he has not done, comes within the purview of the words " a motive or reward for doing." The point is further clarified by illustration © under this Section..."
..22. Indeed, when a public servant, being a police officer, is charged under section 161 of Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification, the requirement of 61 Spl.C.C.No.99/2013 the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour."
45. On reading of another decision of the Hon'ble Supreme Court in M.Narayanan Nambiar V/s State of Kerala reported in AIR 1963 Supreme Court page 1116, wherein their lordship have observed and held that 'abuse means misuse i.e., using one's position for valuable things, for which it is not intended. The abuse of official position by a public servant may not necessarily be by use of corrupt or illegal means. If a public servant obtains valuable things or pecuniary advantage by use of corrupt or illegal means without abusing his position as public servant, that would amount to criminal misconduct in terms of sub clause (i), whereas, if he obtain valuable things or pecuniary advantage by abusing his position, 62 Spl.C.C.No.99/2013 that would constitute an offence under sub clause (ii) irrespective of whether he employs corrupt or illegal means to obtain such a valuable thing or advantage of not. The appellant abused his position as a public servant by demanding and accepting Rs 3,000/- from the complainant, on the assurance that he would make his son succeed in the compartmental examination. Had he not been holding the position of a teacher in the school, it would not have been possible for him to extend such a demand. Therefore, he abused his position as public servant in obtaining pecuniary advantage to the extent of Rs 3,000/- from the complainant. The appellant, therefore, was liable to be convicted under section 13(1)(d) read with section 13(ii) of the Act.
46. In the present case, the accused being public servant misused his position as public servant by accepting illegal gratification of Rs 2 lakhs to show 63 Spl.C.C.No.99/2013 official favour as stated supra. When the accused has not explained the possession of Rs 2lakhs from his right side table drawer the presumption arises under section 20 of the P.C.Act that he has voluntarily received the illegal gratification from the complainant to do official favour.
47. The counsel for the accused submits that there is material contradictions in recovery of panchas. Panchas have given different versions before the Court and at the time of conducting departmental enquiry. The different statements given by panchas at different stages and before different forums makes their statement uncredible and placed the statement of PW 1 V.Nagarajaiah, PW 3 M.S.Ravindranath, PW 4 the Investigating Officer Ex P6 statement given in the departmental enquiry.
64 Spl.C.C.No.99/2013
48. Learned Special Public Prosecutor submits that exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. But the principle will not apply in the case of the departmental proceedings as the criminal trial and the departmental proceedings are held by two different entities. Further they are not in the same hierarchy and the criminal case cannot be rejected on the basis of evidence in the Departmental Enquiry or report of the Enquiry Officer based on those evidence in view of the 5 Bench Decision of the Hon'ble Supreme Court of India in Criminal Appeal No.1334/2012 in State of N.C.T.Of Delhi V/s Ajay Kumar Tyagi. Therefore the statement given by PW 2 and PW 4 on the same set of facts in the Departmental Enquiry cannot be taken into consideration in the criminal case in view of the said decision.
65 Spl.C.C.No.99/2013
49. On reading of the evidence on record, it is true that there is a minor variance and contradictions occurs in the evidence of oral testimony of PWs 1 to 5. The said variance, contradictions and omissions are bound to occur when they were deposing before the Court nearly after lapse of 5 years. The said minor variance and minor contradictions which provides more credence to the credibility of the witnesses and rules out concoction and tutorism and I am therefore convince the present one is the case where the suffered complainant evidence is of sterling worth and supported by the witnesses PWs 3 to 5 and deserves to be believed in to-to. Thus the prosecution has proved that the accused being public servant holding the post of Inspector of Police, Rajarajeshwari Nagara police station demanded and voluntary accepted the illegal gratification of Rs 2 lakhs from the complainant to show an official favour, by misusing his official position as public servant without public interest by 66 Spl.C.C.No.99/2013 placing cogent and consisting and corroborative evidence. Hence, I answer point Nos 1 and 2 in the affirmative.
50. Point No 3: In the result, I proceed to pass the following:
ORDER I find the accused H. Hanumanthappa is committed the offences under Section 7, and 13(1)(d) punishable under section 13(2) of Prevention of Corruption Act, 1988.
Case is posted to hear regarding sentence.
(Dictated to the Judgment Writer, transcribed by him, printout taken, corrected, signed and then pronounced by me in open Court on this the 7th day of April, 2017) [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 67 Spl.C.C.No.99/2013 ORDER REGARDING SENTENCE Accused is present.
Sri Shankar P. Hegde, learned advocate for the accused and Sri D. Ramesh Babu, the learned Special Public Prosecutor are present.
Heard with regard to sentence.
Sri Shankar P. Hegde, learned advocate for the accused submits that the accused is in the verge of retirement. His entire family is depending upon his earnings and hence the learned counsel prayed to show lenient view while imposing sentence on him.
The learned Special Public Prosecutor submits that the prosecution has proved the case against the accused. The corruption is a cancer. Therefore no lenient view be shown to the accused while imposing sentence and prays to impose maximum sentence to the accused.
Having heard the arguments on both sides and perused the evidence on record. This Court has already held that the accused has committed the offence punishable under the Prevention of Corruption Act, 1988. The accused being public servant has not discharged his duty entrusted 68 Spl.C.C.No.99/2013 on him in accordance with law. He involved in a corruption while discharging his duties as public servant. Corruption is a violation of human rights. The said corruption as stated by the learned Special Public Prosecutor is a disease of cancer spread over to the society. Taking into consideration of nature and gravity of the offences committed by the accused, he is not entitled for any leniency from this Court. Hence, I proceed to pass the following:
SENTENCE Acting under section 248(2) Cr.P.C, the accused H. Hanumanthappa is sentenced to undergo simple imprisonment for a period of 9 months (nine months) for the offence punishable under section 7 of the Prevention of Corruption Act and to pay fine of Rs.20,000/- (Rupees twenty thousand) in default, to undergo Simple imprisonment for 1 (one) month.
The accused H. Hanumanthappa is further sentenced to undergo simple imprisonment for a term of 1½ years (one and a half) for the offence punishable under section 13(1)(d) read with 13(2) of the Prevention 69 Spl.C.C.No.99/2013 of Corruption Act and to pay fine of Rs.30,000/- (Rupees thirty thousand) in default, to undergo simple imprisonment for 2 (two) months.
The substantive sentences of imprisonment shall run concurrently.
MO.11 cash of Rs.2,00,000/- (Rs.1000/- X 200/-) shall be confiscated to the State, MOs. 1, 4, 8, 9 and 10 shall be returned to the Karnataka Lokayuktha, Bengaluru and Mos.2, 3, 4(a), 5, 6, 7, 8(a), 9(a), 10(a), 11(a) and 11(b) be destroyed after the appeal period is over.
Furnish free copy of the Judgment to the accused forthwith.
(Dictated to the Judgment Writer, transcribed by him, printout taken, corrected, signed and then pronounced by me in open Court on this the 7th day of April, 2017) [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 70 Spl.C.C.No.99/2013 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW.1: V. Nagarajaiah, PW.2: Basoor Nataraj PW.3: M.S. Ravindranath PW.4: Prasanna V. Raju PW.5: B.K. Manjaiah PW.6: H.H. Ramu
List of documents marked on behalf of prosecution:
Ex.P.1: Sheet containing details of currency notes Exs.P.1(a) & (b): Signatures of PW.1 Ex.P.1(c) & (d): Signatures of PW.2 Ex.P.1(e) & (f): Signatures of PW.3 Ex.P.1(g) & (h): Signatures of PW.4 Ex.P.2: Pre trap mahazar dated 25.9.2012 Exs.P.2(a) to (f): Signatures of PW.1 Ex.P.2(g): Signature of PW.2 Exs.P.2(h) to (m): Signatures of PW.3 Ex.P.2(n) Signature of PW.4 Ex.P.3: Trap mahazar Exs.P.3(a) to (l): Signatures of PW.1 Ex.P.3(m): Signature of PW.2 Ex.P.3(n): Signature of PW.3 Ex.P.4: Conversation transcription Exs.P.4(a) to 4(d): Signatures of PW.1 Exs.P.4(e) to (h) : Signatures of PW.3 Ex.P.4(i): Signature of PW.4 71 Spl.C.C.No.99/2013 Ex.P.5: Trap conversation transcription Exs.P.5(a) & (b): Signatures of PW.1 Exs.P.5(c) & (d): Signatures of PW.2 Ex.P.5(e): Signature of PW.4 Ex.P.6: Complaint Ex.P.6(a): Signature of PW.2 Ex.P.6(b): Signature of PW.4 Ex.P.7: Explanation of the accused Exs.P.7(a) & (b): Signatures of PW.3 Ex.P.8: Sanction order Ex.P.9: Attested copies of documents Ex.P.10: True copy of Station House Diary Ex.P.11: Specimen seal letter Ex.P.12 Acknowledgement letter Ex.P.13: Sketch Ex.P.14: ACP report Ex.P.15: Order of the SP dated 8.10.2012 Ex.P.16: Service particulars of accused Ex.P.17: Sketch of PWD Engineer Ex.P.18: Portion of statement of PW.6 List of material objects marked on behalf of the prosecution:
MO 1: Metal seal
MO.2: Sample solution bottle drawn during pre trap
MO.3: Hand wash of PW.3 Ravindranath
72 Spl.C.C.No.99/2013
MO.4: CD containing recordings of demand
MO.4(a): Cover
MO.5: Sample solution bottle drawn during trap
MO.6: Right hand wash solution
MO.7: Left hand wash solution
MO.8: Trap conversation & video CD
MO.8(a): Cover
MO.9: Trap proceedings video CD
MO.9(a): Cover
MO.10: Pre trap video recording CD
MO.10(a): Cover
MO.11: Cash of Rs.2,00,000/- (Rs.1,000 X 200)
MO.11(a): Cover
MO.11(b): Cover
List of witnesses examined on behalf of accused:
Nil List of documents marked on behalf of accused:
Ex.D.1: True copy of FIR & complaint in Cr.No.217/2012 Ex.D.2: Department enquiry depositions in D.E.1/23 Ex.D.3: Letter dated 10.8.2012 DCP (CCB), Bengaluru Ex.D.4: C.C. of PCR at Sakaleshpura Court 73 Spl.C.C.No.99/2013 Ex.D.5: C.C. of PCR & CC No.7789/14, complaint and other documents before 13th ACMM Court, Bengaluru.
Ex.D.6: CC of Statement of DE No.01/2013 [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU.