Bangalore District Court
The State Of Karnataka vs V.Ashok on 5 December, 2018
IN THE COURT OF THE LXXVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE,
BENGALURU CITY
(CCH77)
Present: Sri Sachin Kaushik R.N.,
B.Sc.,LL.M.,
LXXVI Addl.City Civil & Sessions Judge
& Special Judge, Bengaluru.
Dated this the 5th day of December 2018
Spl.C.No.210/2012
Complainant The State of Karnataka,
By Police Inspector, Karnataka
Lokayukta Police Wing, City
Division, Bengaluru.
(Rep. By Spl.Public Prosecutor)
vs
Accused V.Ashok,
Commissioner,
Karnataka State Slum Clearance
Board,
Risaldar Street,
Abhaya Bhavan, 3rd Floor,
Sheshadripuram, Bengalur.
(Rep. By Sri P.N.Hegde,
Advocate)
1.Nature of Offence Offence punishable under Section 7, 13(1)(d) R/w 13(2) of Prevention of Corruption Act, 1988.
2. Date of commission of 05.04.2008 offence Spl.C.210/2012 2
3. Date of First 05.04.2008 Information
4. Date of recording of 14.08.2018 evidence
5. Date of closing of 29.10.2018 evidence
6. Date of pronouncement 05.12.2018 of Judgment
7. Result Acting u/s 235(2) Cr.P.C., the accused is convicted for the offences punishable u/s 7, 13(1)(d)(i) R/w 13(2) of Prevention of Corruption Act, 1988.
Spl.C.210/2012 3 J U D G M E N T The case of the prosecution is that the accused, V.Ashok, being public servant, working as Commissioner in Karnataka Slum Clearance Board, Risaldar Street, Abhaya Bhavan, 3rd floor, Sheshadripuram, Bengaluru, on 5.4.2008, demanded and accepted illegal gratification of Rs.50,000/ from complainant, which he sent through his employee, CW2, Siddaraju, for clearing the bill and releasing amount of Rs.48,55,000/ of the complainant, and thereby has committed offences punishable u/s 7, 13(1)(d) R/w 13(2) of Prevention of Corruption Act, 1988, in the office of accused. The Karnataka Lokayukta Police, Bengaluru, have filed the charge sheet.
2. The accused has denied the charges and claimed to be tried.
3. The prosecution has examined in all 4 witnesses and got 27 documents and 10 materials marked.
4. The accused has denied the allegations in his S.313 Cr.P.C. statement.
Spl.C.210/2012 4
5. Heard Learned Spl.P.P and Learned Advocate for accused.
6. The points that arise for determination are as follows:
1. Whether the prosecution proves beyond reasonable doubt that the accused has committed offence punishable u/s 7 of Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond reasonable doubt that the accused has committed offence punishable u/s 13(1)(d)(i) R/w 13(2) of Prevention of Corruption Act, 1988?
3. What order?
7. The answers to the above points are:
Point No.1 : In the Affirmative
Point No.2: In the Affirmative
Point No.3: As per the final order, for the
following:
R E A S O N S
8. Points No.1 and 2: As the Points No.1 & 2 are
interconnected, they are taken together for consideration.
Spl.C.210/2012 5
9. PW1, Sri B.N.Ravindra, complainant, has deposed that, he has civil consultancy service in name of 'Ravi Associates'. He has been rendering civil consultancy services for last 28 years. He also works for Government Projects as consultant, prepares Project Reports and related works. In February 2007, he has submitted detailed Project Report to Karnataka Slum Clearance Board pertaining to JNN URM i.e., Jawaharlal Nehru National Urban Rehabilitation Mission. He had to receive consultancy fees of Rs.58,78,000/. He had received about Rs.15,00,000/ including service tax, and Rs.48,55,000/including service tax, was due.
10. PW1 further states that, he wrote letter to accused on 28.01.2008 for release of said balance amount. The amount was not released despite several reminders. On 2.4.2008, the accused telephoned him, and demanded bribe of Rs.1,00,000/. He recorded the same in his mobile and informed the S.P., Lokayukta, Bengaluru, on 4.4.2008. The S.P. gave him a Tape Recorder on 4.4.2008 and he got the same recorded again in office of accused. On 5.4.2008, he gave complaint, Ex.P1, Tape Recorder and Rs.50,000/ containing 50 notes of Rs.1,000/ each Spl.C.210/2012 6 to Lokayukta Police . The Police prepared the list of notes, applied Phenolphthalein powder to said notes and got the same kept in left side shirt pocket of CW2, Siddaraju, his Assistant Engineer, through CW4, Shivanand. CW4's hands were washed in solution, and same is marked as MO1 & 2. CW2 was instructed to wipe face with kerchief after accused demands and accepts money. The conversation in Tape Recorder was transcribed. The PreTrap Panchanama is marked as Ex.P2 and Rs.50,000/ as MO3. Photographs are marked as Ex.P3 to P6.
11. In crossexamination of PW1, Learned Advocate for accused has admitted that the bill of complainant was returned to Commissioner office, but he says there was objection. It is in 10th paragraph, 5th line. This shows that the work of complainant was with accused. He further contends that, he has got false case foisted, as his bill was pending with accused, and PW1 has denied the same. PW1 has also stated that Detail Project Report will be about 200300 pages, and has denied the suggestion that accused accepted cover having Project Report.
12. PW2, Sri Hanumantharaya, working as S.D.A. in Director of Agriculture Department then, has deposed that, on Spl.C.210/2012 7 05.04.2008, as per the directions of his superior Officer, he went to Lokayukta police station and reported before Lokayukta Inspector, Prasanna Raju, CW12. The Lokayukta Inspector introduced him to the complainant and CW2 and got the Phenolphthalein powder smeared to the notes of Rs.50,000/ and prepared the list of currency notes, Ex.P7. The cassette given by PW1 was played in which there was demand for Rs.1,00,000/ by Ashok, accused, and PW1 agreed to send Rs.50,000/ through CW2. Rs.50,000/ was kept in the pocket of CW2 by CW4, Shivanand. The hands of Shivanand were washed and the solution turned to pink colour. The cassette is marked as MO4. The police gave instructions to CW2 and him, and he was instructed to go along with CW2. PW2 identifies PreTrap Panchanama, Ex.P2. PW2 further states that all of them reached the office of accused in Seshadripuram, at about 4.15 p.m. CW2 went inside the office and after about 2 minutes, he too went inside. When he went inside, the accused was there. CW2 gave preinstructed signal by rubbing his face with kerchief and Lokayukta police came there. The police got the hands of the accused washed in solution and it turned to pink colour. The same are marked as MO5 to 7. The police recovered MO3 i.e. cash of Rs.50,000/. The cassette containing Spl.C.210/2012 8 the conversation during trap is marked as MO8. The trap panchanama is marked as Ex.P8. The police took statement of accused, Ex.P10, and recovered the documents pertaining to PW1, Ex.P11. The sketch is marked as Ex.P12.
13. PW2, shadow witness, has stated that, he entered the chamber of accused after 2 minutes and at that time, CW2, Siddaraju, was returning out. However, the accused in cross examination, has admitted that, CW2 gave the cover, MO3, and the accused thinking that it is detail Project Report, kept in the second drawer of his table. By this, the accused admits that he received MO3, and the conversion of solution into pink colour, hence, is not in dispute. The same is in page No.9, paragraph th No.11, 5 line, as " It is true that, the accused said that PW1, Ravindra, has sent Project Report, and gave the same from the drawer to the Inspector." The contention is that, the cover according to accused contained detail Project Report. However, PW1, has stated in crossexamination that, Detail Project Report would be in 200300 pages, and therefore, one cannot assume that it can come in a cover that holds currency notes. In addition, there is no scope for acceptance of any documents directly by any Government Officer. The documents may be Spl.C.210/2012 9 seen by Government Officer, but acceptance is done through office procedure. The documents are given in Tappal or Receiving/Dispatch Section. Endorsement is given to the person giving same, and thereafter, entering in the Inward Register, the said documents are sent to concerned Officer or Section. This procedure is followed to maintain transparency. Hence, for this reason too, it cannot be believed that, accused has accepted the cover thinking that it contains document. Further more to say, accused being Commissioner, GradeA Officer, no one can believe, that Officer of his rank will blindly accept a cover without confirming and knowing its contents. Even otherwise, it is the responsibility of the Officer, to accept cover only after knowing its contents. Hence, this contention, for the above reasons, shows clearly, that the accused is uttering falsehood, and he has accepted the bribe of Rs.50,000/.
14. PW3, M.Shivanand, working as S.D.A. in Commercial Tax Department, then, has deposed that, he went to Lokayukta police station on 05.04.2008, as per the directions of his superior officer. The Lokayukta police introduced him to PW2, PW1 & CW2. PW1 gave 50 notes of Rs.1,000/ each. The police applied powder to the said notes and kept the same in the shirt pocket Spl.C.210/2012 10 of CW2. His hands were washed and it turned to pink colour. PW3 identifies MO1 & 2 and pretrap panchanama, Ex.P2. All of them went to the office of accused. The police recovered the amount from the drawer of accused. Ex.P3 identifies the accused. The notes were tallied and found to be correct. PW3 identifies the list of currency notes, Ex.P7 and statement of accused, Ex.P10. The police seized the materials using seal and gave the seal to him. The seal is marked as MO9, and the acknowledgment is marked as Ex.P13. PW3 identifies the trap panchanama, Ex.P8. He states that, the contents were read over to him. The two cassettes given by PW1 are marked as MO4 & MO10. The police transcribed in pretrap panchanama, the contents of MO4 & MO10. He further states that the police had given instructions to CW2 & PW2, and identifies MO5 to 7, the solution that turned to pink colour after handwash of the accused. The police got MO3, currency notes removed through the panchas. The cassette containing the conversation during trap is identified by PW3 and marked as MO8. Witness identifies the photographs taken during trap proceedings, Ex.P14 to 21, and documents relating to PW1 were recovered from accused.
Spl.C.210/2012 11
15. Even, in crossexamination of PW3, the accused has taken the same contention, which on the face clearly appears false. The same is in page No.6, paragraph No.11, last sentence that, "It is true that the accused gave the cover sent by PW1 containing Project Report, to the Inspector."
16. PW4, Sri Prasanna V.Raju, Investigating Officer, has deposed that, he was working as Police Inspector in Karnataka Lokayukta, City Division, Bengaluru, then, and he registered the complaint, drew FIR, Ex.P24. He secured two panch witnesses, introduced them to PW1. CW1 gave copy of the complaint to them and after confirmation, he got Rs.50,000/ from PW1 which was to be paid to the accused. The list of currency notes is identified as Ex.P7, and the notes are identified as MO3. PW1 stated that as he is busy he cannot come and he directed his staff, CW2 to go and give the amount to the accused. He applied Phenolphthalein powder on both sides of the notes kept in the cover and applied powder to both sides of the cover too. He got the same put into the shirt pocket of CW2 through PW3 and got the hands of PW3 washed in solution and the solution turned to pink colour. PW4 identifies MO1 & 2. He gave instructions to PW2 & CW2. PW4 identifies Spl.C.210/2012 12 pretrap panchanama, Ex.P2. At 4.00 p.m., all of them left to the office of accused which was on the third floor of Abhay Complex, Risaladar Street, Seshadripuram, Bengaluru. At 5.00 p.m. CW2 came outside the office and gave preinstructed signal by wiping his face with kerchief. The trap team went there and after PW4 introduced him and told the purpose of coming, he got the fingers of the accused dipped in sodium carbonate solution and it turned to light pink colour. PW4 identifies MO5 to 7. PW4 then asked the accused where he has kept the amount, MO3 and he said that, he has kept in the second drawer of his table. PW4 got the same removed through PW2 and the notes were verified and found to be correct. The endorsement was done in Ex.P7. The notes were seized and the Tape Recorder was also seized and the explanation of the accused was also taken. PW4 identifies the explanation, Ex.P10, the photographs, Ex.P14 to 21, and he drew the mahazar, Ex.P8. The documents pertaining to PW1, Ex.P11 was also recovered, and he recorded the statements of witnesses and prepared the Final Report. The Chemical Examiner Report is marked as Ex.P25, the service particulars of accused, Ex.P24 & sketch of PWD Engineer, Ex.P27. PW4 identifies the accused.
Spl.C.210/2012 13
17. PW4 in crossexamination has admitted that, he did not send the Micro Cassettes, MO4, 10 & 8 to spectrography test, as it was not available. Yet, MO4, 10 and 8 are not considered, as call details, are not produced. For the reasons explained in paragraph No.13, the guilt of accused, gets established. In crossexamination of PW4, Investigating Officer, page No.10, paragraph No.16, last sentence, accused admits that he received the cover. The same is as such " It is true that the amount, MO3, was in the second drawer of the accused table, as the accused had told." In paragraph No.14, the accused also admits his explanation, Ex.P10, that states that he received the cover as Detail Project Report (D.P.R). As reasoned in paragraph No.13 of this Judgment, this defence of accused is highly improbable, and by no stretch of imagination, believable. In paragraph Nos.6 & 13 of deposition of PW4, PW4 has stated that, file of PW1, Ex.P11 was recovered from accused, and in paragraph No.13, PW4 has stated that accused had to write to State Level Empowerment committee, and get bill of PW1 approved. The recovery of file of PW1, Ex.P11, from accused, is also not denied by accused.
18. The Sanction, Ex.P23, is marked with consent on 20.9.2018, Spl.C.210/2012 14 and the court finds the same reasoned, legal and valid.
19. Learned Advocate for accused has relied upon following 8 decisions:
1. 2014 AIR SCW 2080
2. (2015) 15 Supreme Court 629
3. Criminal Appeal No.1342/2017
4. (2015) 10 Supreme Court cases 152
5. (2009)3 SCC 779
6. AIR 2013 SC 3368
7. AIR 2014 SC 3798
8. 2016 Crl.L.J.3066 The said decisions are not applicable to facts and circumstances of this case, as in this case, the accused admits that he received the bait amount of Rs.50,000/, thinking that it is Detailed Project Report, while Detailed Project Report of 200300 pages could not fit in cover containing currency notes, and there is no scope for receiving anything as per office procedure, and Commissioner cannot be believed to have accepted without confirming contents of cover.
21. The decisions reported in 2001 Crl.L.J 515, that court is under legal obligation to presume that gratification was accepted; (2007) 1 SCC (Cri), 520, that Section 7 & Section 13(1) Spl.C.210/2012 15
(d) make distinct offences; and latest one Crl.J.2018 page 3733(SC), that presumption is not rebutted, when tainted currency notes is recovered, are applicable to this case.
21. From above evidences, evidence of PW1 to 4, and admission of accused that, he received MO3, currency notes of Rs.50,000/ in cover, and kept in his second drawer of table, and his contention not believable, as reasoned in paragraph No.13, that he thought Detail Project Report was in it, shows that presumption u/s 20 of Prevention of Corruption Act, for the offence u/s 7 of Prevention of Corruption Act, is available against accused, and so also the presumption u/s 114 of Indian Evidence Act, is available against accused, when the recovery of MO3 from accused is admitted. This being so, the accused has not been able to rebut the presumption, and for the reasons narrated above, this court finds that the prosecution has proved the guilt of accused beyond reasonable doubt, that the accused has demanded and accepted bribe of Rs.50,000/ for getting bill of PW1 of Rs.48,55,000/ sanctioned, and therefore, Points No.1 & 2 are answered in the Affirmative.
22. Point No.3: For the aforesaid reasons, this court Spl.C.210/2012 16 proceeds to pass the following:
O R D E R Acting u/s 235(2) Cr.P.C., the accused is convicted for the offences punishable u/s 7, 13(1)
(d) (i) R/w 13(2) of Prevention of Corruption Act, 1988.
(Dictated to the Judgment writer, on computer, and then pronounced by me in the open court on this the 5th day of December 2018) (Sachin Kaushik R.N) LXXVI Addl.City Civil & Sessions Judge & Special Judge, Bengaluru City HEARING ON SENTENCE Accused is produced.
Ld. Spl.P.P. submits that the accused has demanded and accepted illegal gratification of Rs.50,000/, and, as the amount is more, prays for maximum sentence.
Spl.C.210/2012 17 Ld. advocate for accused submits that the accused is aged 65 years and is suffering from knee problem, due to which, he is limping, and has also heart problem, and prays for leniency.
Taking into consideration the above submissions, this court sentences the accused to undergo simple imprisonment for a period of 1 (One) year, and pay fine of Rs.30,000/ (Thirty Thousand only), in default, undergo simple imprisonment for a further period of 3 months, for the offence punishable U/s.7 of Prevention of Corruption Act, 1988.
The accused is sentenced to undergo simple imprisonment for a period of 2 (Two) years, and pay fine of Rs.40,000/ (Forty Thousand only), in default, undergo simple imprisonment for a further period of 4 months, for the offence punishable U/s.13(1)(d)(i) R/w. 13(2) of Prevention of Corruption Act, 1988.
Both the sentences shall run concurrently.
(Sachin Kaushik R.N) LXXVI Addl.City Civil & Sessions Judge & Special Judge, Bengaluru City Spl.C.210/2012 18 A N N E X U R E S List of witnesses examined on behalf of the prosecution :
PW1 B.N.Ravindra PW2 Hanumantharaya PW3 M.Shivanand PW4 Prasanna V.Raju
List of documents marked on behalf of prosecution:
Ex.P.1 Complaint
Ex.P.1(a) Signature of PW1
Ex.P.1(b) Signature of PW4
Ex.P.2 Pretrap Mahazar
Ex.P.2 (a) Signature of PW1
Ex.P.2(b) Signature of PW2
Ex.P.2(c) Signature of PW3
Ex.P2(d) Signature of PW4
Ex.P.3 to 6 photographs
Ex.P.7 Currency notes sheet
Ex.P7(a) Signature of PW2
Ex.P7(b) Signature of PW3
Ex.P7(c) Signature of PW4
Ex.P.8 Trap Mahazar
Ex.P8(a) Signature of PW2
Ex.P8(b) Signature of PW3
Ex.P8(c) Signature of PW4
Ex.P9 Statement of PW2
Spl.C.210/2012
19
Ex.P.10 Statement of accused
Ex.P10(a) Signature of PW2
Ex.P10(b) Signature of PW3
Ex.P10(c) Signature of PW4
Ex.P.10(a) Signature of PW4
Ex.P.11 Documents of PW1
Ex.P.12 Spot seal
Ex.P12(a) Signature of PW2
Ex.P.13 Acknowledgment
Ex.P13(a) Signature of PW3
Ex.P.14 to 21 Photographs
Ex.P.22 Statement of PW3
Ex.P.23 Sanction order
Ex.P.24 FIR
Ex.P.25 Chemical examiner's report
Ex.P.26 Service particulars of accused
Ex.P.27 sketch
List of materials marked on behalf of the prosecution:
MO1 Sodium carbonate solution
MO2 Solution turned to pink colour
MO3 Currency notes (Rs.1000 x 50=
Rs.50,000/)
MO4 cassette
MO5 Sample solution
MO6 Pink colour solution(hand wash)
MO7 Pink colour solution (hand wash)
MO8 cassette
Spl.C.210/2012
20
MO9 Metal seal
MO10 cassette
List of witnesses examined on behalf of the accused:
Nil List of documents marked on behalf of the accused:
Nil (Sachin Kaushik R.N) LXXVI Addl.City Civil & Sessions Judge & Special Judge, Bengaluru City