Bangalore District Court
State By Lokayukta Police vs Basavaraju Menasinakayi S/O. Late on 27 November, 2019
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Spl.C.C.No.272/2016
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
CCH-78)
PRESENT: SRI MALLIKARJUNAGOUD,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: This the 27th day of November 2019
Spl. C.C.No.272/2016
COMPLAINANT State by Lokayukta Police,
Represented by:
Public Prosecutor, Special Court,
Prevention of Corruption Act,
Bangalore City.
(Represented by Sri. S.P.Hubballi,
Public prosecutor)
- V/s -
ACCUSED Basavaraju Menasinakayi S/o. Late.
Malleshappa, 57 years, FDA, Office of the
Assistant Commissioner, Excise
Department, Bengaluru South,
Bengaluru.
Residing at No.22, 1st Floor, Poornima
Building, 1st Cross, J.C.Road, Bengaluru.
(By Sri. P.N.Hegde, Adv.)
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Spl.C.C.No.272/2016
1. Nature of Offences: Offences punishable under
Sec. 7, 13(1)(d) & 13(1)(e)
R/w Sec.13(2) of Prevention
of Corruption Act, 1988.
2. Date of Commission Before 02-08-2013
of offence:
3. Date of First Information 02-08-2013
Report:
4. Date of Arrest: -
5. Date of Commencement 07-04-2018
Of recording of evidence:
6. Date of Closing of evidence: 12-10-2018
7. Date of Pronouncement of 27-11-2019
Judgment.
8. Result of the case : Accused is convicted .
JUDGMENT
In this case, the Deputy Superintendent of Police, Karnataka Lokayukta, Bengaluru City Division has filed charge sheet against the accused for the offence punishable under Sec. 7, 13(1)(d) & 13(1)(e) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
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2. The charges leveled against the accused are that:
On 02-08-2013 the complainant CW-1 V.P.M. Swamy Dy.
Superintendent of Police, Karnataka Lokayukta, Bengaluru City Division has received a reliable information stating that, the Excise Officials in Bengaluru city at various stages are demanding and accepting illegal gratification from the liquor shop owners for renewal of their licence and for issuance of fresh licence. On such information he has conducted secret enquiry and received a reliable information in that regard. On that basis, on that day he authorized CW-11 T.Sanjeevarayappa, Police Inspector, Karnataka Lokayukta, Bengaluru City Division to visit the Office of the Deputy Commissioner, Excise, Bengaluru South. On that authorisation he has secured the presence of two panch witnesses namely CW-2 V.Vasudeva Reddy and CW-3 Thippeswamy B. In their presence on that day, around 4 p.m., he had visited to that office and conducted search in that office. During search, when he came near the table of this accused, at that time, the CW-11 noticed the cover containing the bundle under his 4 Spl.C.C.No.272/2016 almira. After taking out that bundle and inspecting the same, CW-11 noticed currency notes of Rs.2,79,500/-. In that regard the CW-11 called upon the accused to submit his explanation.
This accused has failed to give satisfactory explanation about the said amount. However, he has stated that, he has received the amount from his relative CW-4 Veerabhadrappa Angadi @ Babu. The explanation given by the accused and the explanation given by CW-4 are contrary to each other and their statements are not satisfactory to CW-11 to accept the same as true and correct. As the accused has failed to give satisfactory explanation about the same and as CW-11 has received a reliable information stating that, the Excise Officials at various stages in the Excise Office are collecting bribe from the liquor shop owners for renewal and issuance of fresh licence, so he held that, the amount found under the almira of this accused is the same and he has committed the offences punishable U/s. 7, 13(1)(d) & 13(1)(e) R/w. Sec.
13(2) of Prevention of Corruption Act, 1988.5
Spl.C.C.No.272/2016
3. After registering the case the I.O investigated into the matter and submitted charge sheet before the court. The presence of accused was secured before the court by issuing summons. The accused appeared before this court through his counsel, copy of charge sheet was supplied to him U/s. 207 of Cr.P.C., and he was enlarged on bail.
4. Heard the Spl. Public Prosecutor and the counsel for the accused on hearing before the Charge. After hearing on HBC, after perusal of the charge sheet this court held that, there is a prima-facie case against the accused for having committed the offences punishable U/s. 7, 13(1)(d) & 13(1)(e) R/w 13(2) of the Prevention of Corruption Act, 1988.
5. The charges against accused for the offence punishable under Sections 7, 13(1)(d) & 13(1)(d) R/w. 13(2) of the Prevention of Corruption Act are read over and explained to him in the language known to him, for that, he pleaded not guilty and claims to be tried.
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6. In all the prosecution has cited as many as 14 witnesses in the charge sheet. Out of them the prosecution has examined CW.1-V.P.M.Swamy-the informant is examined as PW-1. CW.2- Vasudeva Reddy and CW-3 Thippeswamy.B the panch witnesses are examined as PW-2 & 3. CW-5 Jagadish Nayak, Dy. Commissioner, Excise, Bengaluru South is examined as PW-5. CW-6 Stanley the Nodal Officer, Bharati Airtel is examined as PW-4. CW-7- Venugopal, Excise Inspector is examined as PW-6. CW-9 Umashankar.S.R., Excise Commissioner, who issued sanction order to prosecute the accused for the offences alleged against him is examined as PW-9. CW-11 T.Sanjeevarayappa, Excise Inspector, CW- 13 M.Jagadish, Dy. S.P. and CW-14 K.Ravishankar, Dy. S.P. Karnataka Lokayukta, Bengaluru City Division, I.O's are examined as PW-7, 10 & 8, got marked the documents at Exs.P-1 to Ex.P-17 and MO.1 & 2 are marked. Special Public Prosecutor submitted that, he has given up other witnesses and closed his side.
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7. Statement of the accused Under Section 313 of Cr.P.C. is recorded and he denies the incriminating evidence against him. Enquired the accused about his defence evidence. He examined his relative CW-4 Veerabhadrappa Angadi @ Babu as DW-1, no exhibits are marked and closed his side.
8. Heard the arguments of both the sides.
9. After hearing the arguments, after perusal of the charge sheet and evidence of the prosecution witnesses examined before the court and the documents got marked in their evidence, the following points arise for consideration of this court:-
1. Whether the prosecution proves that, the sanction order obtained for prosecuting this accused is a valid sanction ?
2. Whether prosecution proves its case against the accused beyond all reasonable doubt that, the accused being a public servant working as a FDA in the Office of the Dy. Commissioner, 8 Spl.C.C.No.272/2016 Excise, Bengaluru South, on 02-08-2013 he has demanded and accepted illegal gratification of Rs.2,79,500/- from the owners of liquor shops for renewal and issuance of fresh licence to their shops thereby he has committed committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
3. Whether the prosecution proves its case against the accused beyond all reasonable doubt that, this accused being a public servant working as a FDA in the Office of the Dy.
Commissioner, Excise, Bengaluru South has misused his official position while holding the office as a public servant has demanded and accepted illegal gratification of Rs.2,79,500/- from the owners of liquor shops for the renewal and issuance of fresh licence thereby he has committed the offence punishable under Section 13(1)(d) R/w. Sec. 13(2) of the Prevention of Corruption Act, 1988?
4. Whether the prosecution proves its case against the accused beyond all reasonable doubt that, on 02-08-2013 at about 4 p.m., when the Inspector of Karnataka Lokayukta, Bengaluru City 9 Spl.C.C.No.272/2016 Division namely CW-11 T.Sanjeevarayappa has raided on the office of the Dy. Commissioner, Excise, Bengaluru South in the presence of CW-2 & 3 and searched that office. At that time, this accused who was discharging his duty as a FDA in that office, at that time CW-11 noticed a cover containing covered bundles under the almirah of this accused, after verifying the same, he found cash of Rs.2,79,500/-, on enquiry to the accused about the said currency notes bundles he failed to account for said amount satisfactorily. same was disproportionate to his known source of income thereby he has committed the offence punishable under Section 13(1)(e) R/w. Sec. 13(2) of the Prevention of Corruption Act, 1988?
5. What Order?
10. My findings on the above points are as follows;
POINT No.1: In the affirmative.
POINT No.2: In the Negative POINT No.3: In the Negative POINT No.4: In the Affirmative POINT No.5: As per final order for the following...
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Spl.C.C.No.272/2016 REASONS
11. POINT No.1: Hereafter considering the evidence of PW-9 S.R.Umashankar, the then Excise Commissioner, Bengaluru and the sanction letter marked at Ex.P-13 the point remain for consideration of this court is whether the said sanction order is valid or not? Under Section 19 of Prevention of Corruption Act, 1988 obtaining of previous sanction from the competent government or authority to prosecute a public servant for the offences punishable U/Ss. 7, 10, 11, 13 & 15 is mandatory. In Clause a to c of Section 19 it is specifically stated as to who are the competent authorities for issuing the same. Lastly it is stated that government or authority who is competent to remove the public servant from his office for committing criminal misconduct at the time of commission of offence is the competent authority. Hereby considering the evidence of PW-9 S.R.Umashankar and the sanction order marked at Ex.P-13 it indicates that, he being the competent authority to remove this accused from his service for any of his 11 Spl.C.C.No.272/2016 criminal misconduct has issued the sanction order.
12. It is true that, issuance of sanction order is not a mechanical process. The sanctioning authority has to scrutinize all the materials placed by the investigation officer, apply his mind and issue sanction order only on his satisfaction stating that, there is a prima-facie case against the public-servant to accord sanction for prosecution before the jurisdictional court. Herein this case, PW-9 has stated in his examination-in-chief stating that, on 01-12-2015 ADGP, Karnataka Lokayuktha has sent a requisition along with the charge sheet papers like complaint, FIR, search mahazar, statement of witnesses and seized documents. After verifying all the records he noticed that, on the date of search this accused was found in possession of illegal gratification and he has failed to account for the said huge amount satisfactorily, so the Lokayuktha Police have investigated the matter and found him guilt. On verifying the charge sheet papers, the sanctioning authority PW-9 has 12 Spl.C.C.No.272/2016 also satisfied that, there is a prima-facie case against the accused to prosecute him for the offences alleged, so he accorded sanction as per Ex.P-13 and sent the same along with his covering letter marked at Ex.P-14. This evidence of PW-9 given on oath before the court is not denied or disproved by accused counsel by cross-examining him, so by considering the unchallenged evidence of PW-9 along with Ex.P-13 this court held that, the sanction order issued by PW-9 for prosecution of this accused for the offences alleged against him is valid. Hence, this court answered point No.1 in the affirmative.
13. POINTS NO.2 & 3 :: For giving findings of this court on point No.2 & 3, common discussion of the oral and documentary evidence placed before the court are necessary, so both the points are taken up for common discussion.
Herein this case, the Lokayuktha Police have filed charge sheet against the accused for the offfences 13 Spl.C.C.No.272/2016 punishable U/s. 7, 13(1)(d) & 13(1)(e) R/w. Sec. 13(2) of Prevention of Corruption Act. The offences U/s. 7 & 13(1)(d) and 13(1)(e) are distinct offences. For prosecuting the accused for the offence punishable U/s. 7 of P.C. Act, there shall be an allegation of demand and acceptance of illegal gratification amount by a public servant to do or not to do his official favour by mis-using his official position must be proved. For prosecuting a public servant for the offence punishable U/s. 7 & 13(1)(d) there should be a specific allegation against particular public servant stating that, he being a public servant for doing particular official favour or dis-favour to a particular person has demanded and accepted illegal gratification.
14. In support of the case of the prosecution learned Public Prosecutor submitted before the court stating that, the very fact of nature of work of the accused in that office and the amount found in his possession clearly establish the fact that, it is the illegal gratification amount collected by 14 Spl.C.C.No.272/2016 him from the Liquor shop owners for renewal and issuance of fresh licence to them. Regarding seizure of amount from the custody of the accused the panch witnesses have supported. By considering the writings on the notes and notes cover it indicates that, it is the illegal gratification demanded and accepted by the accused so, he requested the court to convict the accused.
15. Contrary to this, the learned counsel for the 15 submitted before the court stating that, for constituting the offence punishable U/s. 7 & 13(1)(d) of P.C Act, the prosecution has to prove the pendency of work of liquor shop owners with the accused and demand and acceptance of illegal gratification by the accused from the liquor shop owners is must. By looking into the evidence of prosecution witnesses it is clear that, this accused was not entrusted with the renewal of licence of liquor shop owners. There is no evidence to show that, from whom this accused has demanded and accepted illegal gratification. In the absence 15 Spl.C.C.No.272/2016 of the fatal ingredients of demand and acceptance of illegal gratification, the accused shall not be convicted. In support of that contention he relied on two decisions reported in 2014 Crl.L.J 2433 and AIR 2016 SC Page 298. Further he has submitted that, mere possessing of amount by the accused will not constitute an offence of demand and acceptance as stated in the Supreme Court decisions reported in 2009 (3) SCC 779 and AIR 2013 SC 3368. In view of all these reasons he requested the court to acquit the accused for the alleged offences.
16. Herein this case, no complaint is filed against the accused stating that, the accused has demand bribe from particular person. However, the PW-1 V.P.M. Swamy, the Deputy Superintendent Police, Karnataka Lokayuktha, Bengaluru City Division has registered a case against the accused on the credible information received by him stating that, the officials in Excise Department pertains to Dy. Commissioner of East, West, North, South and the Dy. 16
Spl.C.C.No.272/2016 Superintendent of Police of Excise Office and their staff are demanding and accepting illegal gratification for renewal of aspirants of Excise licnece and existing licences. When the PW-1 V.P.M. Swamy has alleged that, he has received that credible information, he has not stated the mode of such information and he has not stated that, whether such informant is from a private person or the liquor shop owner. When the evidence of PW-1 is silent and no complaint is filed by any of the aggrieved liquor shop owners by making the allegations of demand and acceptance of bribe amount by the accused for doing any official favour, under such circumstances, prosecuting this accused for the offences punishable U/s. 7 & 13(1)(d) of Prevention of Corruption Act do not holds good. Because in a decision reported in ILR 2013 KAR 983 (Between Sri Girishchandra and Another Vs. The State by Lokayuktha Police, Yadgir.) in Head Note-A & B their lordships held as follows;
A) Criminal Procedure Code, 1973- Section 482- Petitioners have sought for quashing 17 Spl.C.C.No.272/2016 the FIR - Recording of complaint and registration of the FIR is a condition precedent to embark upon investigation in trap cases - HELD, In trap cases, the question of surprise raid is not conceivable and tenable unlike investigation I the case of an offence relating to assets which are disproportionate to known source of income.
The method of surprise raid is totally impertinent and irrelevant in a trap case. Otherwise, the Investigating Officers would become arbitrary and could create unwarranted commotional atmosphere in the public offices. - on facts, further held- In the present case, there is no complaint from the person giving illegal gratification. No evidence is conceivable regarding demand and acceptance of bribe. The mere possession of some money in the hands of document writers would not suggest or substantiate the offence of demand and acceptance of illegal gratification by the Sub-Registrar and the Officials of the office of the Sub-Registrar.
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Spl.C.C.No.272/2016 B) TRAP CASES - SURPRISE RAID IN THE ABSENCE OF COMPLAINT AND FIR - Legality of - Procedure to be followed - Written guidelines to be laid down and to be followed in protocol of investigation in a trap case. HELD, In all trap cases, it is just and necessary that recording of complaint and submission of FIR to the Jurisdictional Court before embarking upon the protocol of raid is mandatory. If this type of investigation by surprise raid in trap cases is permitted, it would demoralize the public administration and the SHOs of Lokyuktha Police Stations would tend to misuse the powers of investigation. It is therefore necessary that the Director General of Police shall properly educate all SHOs of Lokayuktha Police Stations in the State about the legal requirements of investigation to be complied in trap cases. Besides, written guidelines be laid down to be followed in the protocol of investigation in a trap case. Non-adherence to protocol of investigation by the Investigating Officer should necessarily result in disciplinary 19 Spl.C.C.No.272/2016 action. - Further held, With regard to the question whether registration of FIR should precede the investigation or that FIR could be registered under the midst of the process of investigation would always depend upon the facts and circumstances of each case. In a situation where an offence is committed right in the presence of a Police Officer, it would be imprudent to insist that he should rush to the Police Station to record the FIR. The Police Officer should immediately act, like apprehending the accused sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other type of cases, registration of FIR is mandatory since and FIR is to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible. If the FIR is sent to the Court all further investigation should necessary be consistent with the FIR.- In the context of facts of the case on hand, the conduct of investigation by surprise raid in the absence of FIR is untenable.
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17. Hereby looking into the charge sheet papers it indicates that, there is no complaint from any person regarding demand of illegal gratification. No evidence is conceivable regarding demand and acceptance of bribe so, in the absence of any such complaint, only on the basis of surprise raid by the Lokayukta Police and seizure of the amount mentioned in MO-1 & 2 do not constitute the offences punishable U/s. 7, 13(1)(d) R/w. Sec.13(2) of P.C. Act alleged to have been committed by the accused.
18. In that decision their lordships have considered as to what are the procedures to be adopted by Lokayuktha Police after receiving the information with regard to cognizable cases. Further in that decision their lordships have also relied on a decision of Supreme Court reported in 2012(4) SCC Page-1 (Between Lalita Kumari Vs. State of U.P. and Others). In that decision Hon'ble Supreme Court has given certain guidelines to the police as to how they have to investigate into the matter immediately after receiving 21 Spl.C.C.No.272/2016 information about the cognizable cases.
19. Herein this case, the IO has not complied the provisions of Section 7 & 13(1)(d) to register a case against him and to prosecute him for the aid offences. By considering all these facts into consideration, this court held that, in the absence of any complaint from the persons regarding demand of illegal gratification and as there is no evidence of demand and acceptance of illegal gratification by this accused from any person for doing any official favour, under such circumstances, this court held that accused shall not be prosecuted for the offences punishable U/s. 7 & 13(1)(d) R/w. 13(2) of Prevention of Corruption Act and prosecution has miserably failed to prove the fact of demand and acceptance of bribe amount by this accused.
20. Apart from it, in other decisions of Supreme Court reported in 2014 CRI.L.J. 2433 Supreme Court (Between B.Jayaraj Vs. State of A.P.) and AIR 2016 Supreme Court 298 22 Spl.C.C.No.272/2016 SC (Between Krishan Chander Vs. State of Delhi)- their lordships have held that, demand and acceptance of illegal gratification by the accused from the complainant is sine qua non to constitute the offence U/s. 7 & 13(1)(d) of P.C. Act. Further their lordships held that, Mere recovery of currency notes does not constitute the offence under Section 13 of P.C. Act unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe".
21. In this case, no such facts are proved by the prosecution to establish its case against the accused for prosecuting him for the offences punishable U/s. 7 & 13(1)
(d) R/w. Sec. 13(2) of P.C. Act. Hence, this court answered point No.2 & 3 in the negative.
22. POINT NO-4 :: Herein this case, learned Public Prosecutor submitted before the court stating that, the court 23 Spl.C.C.No.272/2016 held that, no ingredients of Section 7 & 13(1)(d) are fulfilled against the accused for conviction, but by considering the over all evidence of the prosecution witnesses examined before the court it clearly establish that, he has committed an offence punishable U/s. 13(1)(e) of Prevention of Corruption Act. That, Section 13(1)(e) of P.C. Act, 1988 states that, a public servant is said to have committed the offence of criminal misconduct, if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
23. Herein this case, it is not the defence of the accused that, the amount found in his possession is out of his salary savings or his personal income from other sources. However, in his explanation marked at Ex.P-7 he has stated that, on 02-08-2013 after his arrival to office his relative one Mr.Babu came to his office and paid a sum of 24 Spl.C.C.No.272/2016 Rs.2,00,000/- to him and balance amount of Rs.37,000/- was carried by him from his residence. To substantiate this fact, accused has examined DW-1 Veerabhadrappa Angadi as his witness. The explanation given by the accused in Ex.P-7 do not corroborates with the evidence of DW-1. Because in his examination-in-chief he has stated that, he has paid Rs.2,50,000/- to him. If that fact is considered and the fact that the accused has brought Rs.37,000/- from his house, then the total amount possessed by the accused ought to be Rs.2,87,000/-. In the seizure mahazar marked at Ex.P-4 a total sum of Rs.2,79,500/- was seized. By considering this contradiction in the evidence of accused and his witness it indicates that, he is not fair and trustworthy. That, every public servant, when he enters into his office for duty is bound to mention in cash declaration register with regard to the amount carried by him before attending his official work. If he made such declaration in the cash declaration register, then his explanation would have been considered that, that amount is not his disproportionate asset. 25
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24. Herein this case, this accused has not declared about that amount in cash declaration register either with regard to the amount carried by him from his house or with regard to receiving of Rs.2,50,000/- from DW-1. Usually, no public servant use to receive lakhs of rupees while he is in duty. Whenever any public servant wants to borrow loan from the public or Financial Institutions he is duty bounded to obtain prior permission of his higher authority and after receiving that amount he is duty bounded to intimate the same to his higher authority. Herein this case, no such permission or intimation letter are furnished by this accused before the court. This conduct of the accused goes to show that, he is untrustworthy and the evidence of DW-1 do not holds good. That, the explanation given by the accused and the statement of DW-1 are of after thought. If really, the accused has received Rs.2,50,000/- from DW-1 on the date of raid, then why he has submitted his explanation stating that, he has received only Rs.2,00,000/- from DW-1 and amount possessed by him was only Rs.2,37,000/-. 26
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25. Learned Public Prosecutor submitted that, for undertaking any investigation with regard to offence U/s. 13(1)(e) of P.C. Act, the authorization letter from the competent authority U/s. 17 of P.C. Act, is must, but it is not so at all the times.
26. Herein this case, initially PW-1 V.P.M.Swamy has received a reliable information stating that, in Excise Department pertains to Deputy Commissioners of East- West, North, South and the Deputy Superintendent of said Excise offices and their staffs are collecting illegal gratification for renewal and issuance of fresh licence to the bar and liquor shop owners. On the basis of that report, he filed complaint as per Ex.P-1 and registered the same in his PS Cr.No.49/2010, issued search warrant to PW-7 as per Ex.P-3. After receiving the same, PW-7 has secured the presence of two panch witnesses namely PW-2 & 3 and in their presence he raided the Excise Office and conducted search in that office. At that time, this accused was throwing 27 Spl.C.C.No.272/2016 a plastic cover under his almira. By seeing the same, when PW-7 went to that spot along with the panch witnesses and higher officer of the accused namely PW-5 Jagadeesh Naik, Dy. Commissioner of Excise, Bengaluru South and taken out the cover. He noticed three bundles containing of currency notes. When he enquired about the said amount the accused did give satisfactory answer to the same, so he has seized the same in the presence of panch witness under mahazar Ex.P-4 and returned to his office along with the seized articles by collecting the explanation of accused as per Ex.P-7.
27. By considering the said evidence of PW-7 it indicates that, the amount possessed by this accused while he was on duty was disproportionate to his known sources of income and explanation submitted by him was not satisfactory, so he has seized the same. The evidence of PW-7 corroborates with the evidence of PW-1 to 3 & 5. 28
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28. It is true that, PW-1 has recorded the statement of DW-1 and he was examined by the accused before the court. The accused has not stepped into the witness box for giving his proper explanation with regard to the contradictions appearing in his explanation marked at Ex.P-7 and evidence of DW-1.
29. Under Section 106 of Indian Evidence Act the burden of proof is on the accused to prove his contention- That Section 106 of I.E. Act states that, when any fact is establishes within the knowledge of any person, the burden of proof that fact is coside............. Here in this case, the purpose for which he borrowed loan from DW-1 is on the accused. Whether he has obtained any prior permission from his authority for borrowing such loan or not, why he has not mentioned the amount possessed by him on that day in the cash declaration register are on the accused, but the alleged doubts, which are to be clarified by the accused are not clarified by him by stepping into the 29 Spl.C.C.No.272/2016 witness box, so, the evidence of DW-1 is not sufficient to disbelieve the prosecution case for the acquittal of this accused. Apart from it, he has further submitted that, even if there is any defect in the investigation of police it is not a ground for acquittal of the accused. By considering all these facts into consideration he requested the court to convict the accused by awarding maximum sentence.
30. Contrary to this, learned counsel for the accused Sri. P.N.Hegde submitted before the court stating that, merely because the accused has failed to satisfactorily account for the amount found in his possession itself is not sufficient to hold that, he is the guilty of the offence p/u/sec. 13(1)(e) r/w. 13(2) of P.C Act, 1988. First of all, for conducting investigation into disproportionate assets case, the concerned Police Officer must be authorized by the competent authority as required u/sec. 17 of P.C. Act. Here in this case, there is no such earlier authorization letter produced by the prosecution before the court. To consider 30 Spl.C.C.No.272/2016 the disproportionate assets of the accused, the I.O ought to have generate the known source of income of the accused and his family members with respect to their assets, expenditure and income. In this case such generated source report is not produced before the court, so under such circumstances, accused cannot be convicted for the offence p/u/sec. 13(1)(e) r/w. 13(2) of P.C. Act.1988.
31. This accused has never denied seizer of Rs.2,79,500/- from his possession. In his explanation given in writing to the I.O., he has accounted for the said money. It is true that, there is some variation with regard to the amount seized from the possession of the accused and the amount stated by the accused in his explanation. However, on 5-8-2013 when the accused was examined by the I.O, at that time he has satisfactorily explained about the seized amount from his custody on 2-8-2013. The said explanation of the accused is corroborated with the evidence of DW-1 Veerabhadrappa Angadi. Further in the cross-examination 31 Spl.C.C.No.272/2016 of PW-1 Sri V.P.M. Swamy, he has admitted about the fact of giving of statement by the accused and DW-1 before him has admitted in his cross-examination. When the explanation given by the accused with regard to the seized amount from his custody on 2-8-2013 by PW-7 Sanjeevarayappa.T, Police Inspector, then the question of prosecuting this accused for the offence p/u/sec. 13(1)(e) of P.C. Act does not arise. Apart from it, by looking into the documents marked at Ex.D.1, it indicates that, during investigation, the investigating agency was not happy to say that, there is a evidence against the accused for prosecuting him for the offence p/u/sec.7 and 13(1)(d) of P.C. Act. Only after taking opinion from the Law Officer, it revealed that, this accused can be prosecuted for the offence p/u/sec.13(1)(e) r/w. 13(2) of P.C. Act, 1988, apart from the offence p/u/sec. 7 and 13(1)(d) r/w. 13(2) of P.C. Act, 1988.
32. By considering the earlier case of the prosecution against the accused and by considering the allegations in 32 Spl.C.C.No.272/2016 the charge sheet against the accused about the offence p/u/sec. 13(1)(e) r/w. 13(2) of P.C. Act, 1988, it goes to show that, there is a suspicion in the mind of the I.O as to what actual offence this accused has committed for prosecuting him for the offences alleged against him in the charge sheet. There are so many conjecture and surmises in the evidence of all the prosecution witnesses and such conjecture and surmises in their evidence itself create doubt in the mind of the court about prosecution case. When the actual case of the prosecution against actual offence committed by accused itself is suspicious, under such circumstances, such suspicion creates doubt in the mind of the court state as to for what offence accused shall be convicted and that is material evidence in that regard. Such suspicion gives scope to the court to hold the actual guilt of the accused. In this regard, he relied on a decision reported in (2015) 10 SC 152.
33. The counsel for the accused submitted that, by 33 Spl.C.C.No.272/2016 looking into the FIR, it indicates that, initially the case against accused was only for the offence p/u/sec. 13(1)(d) r/w. Sec.13(2) of P.C. Act, 1988, but under the changed circumstances other 2 sections i.e., Section 7 and 13(1)(e) r/w. 13(2) of P.C. Act, 1988 are inserted. For insertion of such sections the I.O has not obtained permission of the court or produced any evidence in that regard.
34. In view of the same, the investigation done by the I.O itself is also bad-in-law as held by Hon'ble High Court of Karnataka reported in ILR 2003 KAR 3589 (Head Note A) between State of Karnataka, by Chief Secretary, Bangalore and others -V/s- Basavaraj Guddappa Maliger, their lordships held that, "(A) The first information report was registered against the public servant under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988---Secretary to Government, PWD, made reference under Section 7(2A) of Karnataka Lokayukta Act for an investigation by the Upalokayukta against 34 Spl.C.C.No.272/2016 the public servant regarding his assets and liabilities. The Upalokayuktha, on the said reference directed the Lokayukta police to hold enquiry and give report. The Police Wing of the Lokayukta on registration of the FIR filed the charge sheet before the competent Court.--- Aggrieved by the registration of the competent Court.---Aggrieved by the registration of the FIR, the public servant filed the Writ Petition. Learned Single Judge relying on the decision reported in AIR 1998 SC 3047---Quashed the proceedings. Writ Appeal against the order of the learned Single Judge by the state."
35. When the accused has satisfactorily accounted for the amount found in his possession on 2-8-2013, then said explanation do not call for any further investigation. In this case, though the said amount was seized from the possession of accused on 2-8-2013 till 6-8-2013 this accused was not arrested or interrogated. However, only after recording the evidence on 5-8-2013, the I.O has arrested the accused and produced him before the court. Even by considering said act of the I.O, it indicates that, the I.O has committed mistake in arresting the accused and 35 Spl.C.C.No.272/2016 producing him before the court despite the satisfactory explanation given by the accused.
36. Here in this case, wantonly the prosecution has left-out some material witnesses, whose evidence are against the prosecution case. Non-examination of material witness by the prosecution is fatal to its case. Viewed from any angle with the admissions of I.O and the punch witnesses, it indicates that, this accused has not committed offences u/sec. 13(1)(e) r/w. 13(2) of P.C. Act, 1988. In the cross-examination of PW-2 and PW-3, they admitted that, they do not know the contents of seizure mahazar and they do not know actual quantum of the amount seized by the I.O from the possession of accused. Their evidence given before the court on outh also creates doubt in the mind of the court about actual seizure of the said amount by the I.O in their presence. PW-4 Stanley is a Nodal Officer, Bharathi Airtel, Bangalore, in his examination-in-chief nothing has been elicited as to how the evidence of that witness is 36 Spl.C.C.No.272/2016 helpful to the prosecution case. Like so, evidence of PW-5 Jagadish Nayak, Deputy Commissioner of Excise, Bangalore South, is also of no use for his admissions in his cross- examination.
37. PW-6 Venugopal has stated about allotment of additional charge to this accused in the Dy.S.P. office of Excise, South and he has admitted that, this accused was not having any independent right to renew or issue fresh licence to the customers. The evidence of other prosecution witnesses are also of no use to consider the prosecution case with regard to the offence p/u/sec. 13(1)(e) r/w. 13(2) of P.C. Act, 1988 as alleged against the accused. In view of all these reasons and in view of the reasons stated in his written argument, learned counsel for the accused requested the court to acquit the accused.
38. Here after considering the evidence of all the prosecution witnesses along with the documents placed 37 Spl.C.C.No.272/2016 before the court, now the points remains for consideration of this court is, whether the amount of Rs.2,79,500/- found in possession of this accused on 2-8-2013 was satisfactorily accounted by this accused to the court or not is the fact to be considered by the court.
Section 13(1)(e) of P.C. Act, 1988 reads as follows:-
"13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,--
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation:- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."
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39. By looking into bare reading of the said provision, it is clear that the Public servant shall satisfactorily account for pecuniary resources possessed by him and such possession should be through his known source of income. Whether in this case this accused has satisfactorily accounted about the seize money by fulfulling the conditions of Sec.13(1)(e) of P.C.Act, 1988 or not is the fact to be considered by the court. Here in this case, this accused is not deny or disputing his presence in the office Deputy Commissioner, Excise, Bangalore South situated in Poornima Complex of 1st Cross of J.C. Road, Bangalore is not in dispute. Further he is not denying the fact of seizure of said Rs.2,79,500/- by PW-7 in the presence of PW-2 and PW- 3 under Ex.P.4 is not in dispute. Further he is not denying the fact of submitting his explanation as per Ex.P.4. However, he is stating that, through oversight and due to some pressure he has written it like, but on 5-8-2013 he has given his statement satisfactorily before the I.O. 39
Spl.C.C.No.272/2016 Whether such statement of the accused is sufficient or not is the fact to be considered by the court with the oral and documentary evidence placed before the court.
40. It is true that, for supporting the defence of the accused, he has examined a witness by name Veerabhadrappa Angadi as DW-1 and he has supported the accused stating that, on 2-8-2013 in the morning he had been to the office of this accused and gave a cash of Rs.2,50,000/- to undertake his additional construction over his residential building. Whether his evidence is satisfactory for believing the case of the accused or not the fact to be considered by the court. In his cross-examination, he has stated that, the cash of Rs.2,50,000/- given to the accused was kept in a plastic cover and there was no any separation of notes in the same. He has not stated about the denomination of the notes given to the accused. However, he has stated the said notes consisting of denomination of Rs.1,000/- and Rs.500/- notes. He has stated that, on the said notes he has not written anything on any notes or on 40 Spl.C.C.No.272/2016 the cover. The said statement of the DW-1 is on page No.4 of his cross-examination and it reads as follows:-
"I had not written anything on the said cover. The written white cover now shown to me is not the cover in which I had kept the said notes."
41. By considering this statement of DW-1 in his cross-examination it is clear that, the amount kept in the cover marked at Ex.P.5 is not the amount given by him to this accused. When the accused asserts that, out of the seized amount, sum of Rs.2,50,000/- was given by D.W.1 to the accused as a loan and the amount seized by I.O under Ex.P.4 consist of said notes, under such circumstances, it is the accused who is suppose to come before the court for satisfy as to whether the amount kept marked at Ex.P.5 was the amount given by DW-1 or not ? But he did not come forward to account for the same satisfactorily. 41
Spl.C.C.No.272/2016
42. Section 106 of Indian Evidence Act states as follows:-
"106. Burden of proving fact especially within knowledge---When any fact is especially within the knowledge of any person, the burden of proving that facts is upon him."
43. As per that provision it is the accused, who is within the personal knowledge of the actual currency notes given by DW-1 to him in the cover marked at Ex.P.5.
44. Here by considering the evidence of I.O., PW-7 panch witnesses PW-2 and PW-3 all the said notes of Rs.2,79,500/- are not in one bundle, but the said notes are separately bundled by putting rubber band. In the examination in chief of I.O. PW-7 Sanjeevarayappa T. on page No.2, he has stated as follows:-
"During my search while I was entering in to the office room situated towards the northern side. By seeing as 42 Spl.C.C.No.272/2016 a person sitting in that office thrown a cover under his almera by seeing us. The said person is the accused present before the court today. There after I went along with the panch witnesses, verified the same and taken that cover from the place where the accused has thrown. After opening that cover, I noticed 3 bundles in the same. One bundle was covered with a envelope and some currency notes were kept in the same. Another bundle was rolled with white paper and same was binded with elastic rubber. Third bundle was currency notes binded with elastic rubber. After verifying the said bundles, on the first bundle cover it was written as "1,25,000" and in English letter it was written as "North-West". Now the cover shown to me is the same and same is already marked as Ex.P-5. I have taken out the currency notes kept in the said bundle and noticed that there was 100 currency notes of Rs.1,000/- denomination and on the first note, it was written as '100 North-West". In another bundle there was a currency notes Rs.12,500/- and on the first note it was written as "12.5 North". In second bundle there was a cash of Rs.1,25,000/-. In third bundle there was a cash of Rs.42,000/-."
45. Evidence of PW-7 is corroborated with the 43 Spl.C.C.No.272/2016 evidence of PW-3 B.Thippeswamy on page No.2 and the evidence of PW-5 on page 1 and 2. By looking into the said evidence of PW-3, PW-5 and PW-7, it indicates that said amount of Rs.2,79,500/- was not the currency notes of a single bundle. The said notes are separated in three bundles and on the said notes it was specifically stated the names of Excise wing. If the said amount consisted of Rs.2,50,000/- paid by the DW-1 and balance amount was brought by him from his house, then why the notes in the said plastic cover are separated into 3 bundles as stated by PW-7 in his examination-in-chief is to be satisfactorily accounted by the accused. When a person who is within the personal knowledge of all these facts failed to appear before the court for accounting for the same, then it creates doubt in the mind of the court about the defence taken by the accused and an adverse inference can be drawn against the accused.
46. Section 4 of Indian Evidence Act states about, 44 Spl.C.C.No.272/2016 "4. "May presume"---Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:
"Shall presume"---Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
"Conclusive proof"---When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it."
47. By considering the said provisions into consideration it is clear that, when the amount seized from the possession of this accused kept in the cover marked at Ex.P.5 and seized under Ex.P.4 by PW-7 in the presence of PW-2, PW-3 and PW-5 shall presume to be the unaccounted money possessed by this accused. In the examination-in- chief of PW-5 Jagadish Nayak, Deputy Commissioner of Excise, Bangalore South, he too stated about the seizure of 45 Spl.C.C.No.272/2016 amount of Rs.2,79,500/- by PW-7 from the possession of this accused and the description of each bundles on the same. The said statement of PW-5 in his examination in chief reads as follows:-
"During the search when they entered into the northern room they noticed that this accused was keeping a white plastic cover under his almera. By seeing the same, the said Police Inspector Sanjeevarayappa went along with the panch witnesses and his staff and taken out that cover from the place where this accused had placed it. After opening that cover he noticed 2 bundles of currencies and one envelope. Over that envelope it was written that a cash of Rs.1,12,500/-. Before it, it was written as "North, West". Said I.O opened that cover and removed two bundles of currency kept in the same. Now the envelope cover shown to me is the same, same is already marked as Ex.P.5. Out of the same, one bundle was consisting of Rs.1,000/- currency notes of Rs.100/- denomination and on the first currency note it was written as "100 North, West". In the second bundle total amount of Rs.12,500/- was kept. On the first note of that bundle there was mention of "12.5 North". In other two currency notes bundles, 46 Spl.C.C.No.272/2016 one bundle was wrapped with the white paper and it was consisting of Rs.1,25,000/-. Another bundle was consisting of Rs.42,000/-. The total amount of all the 3 bundles was of Rs.2,79,500/-. The I.O seized the said amount in my presence. On enquiry to the accused about the said amount, he told the I.O stating that he borrowed Rs.2,00,000/- from his friend Babu and Rs.37,000/- from his house."
48. Even though he was cross-examined by the counsel for the accused at length nothing has been elicited in his cross-examination to disbelieve the fact that, the seized amount of Rs.2,79,500/- is the illegal gratification of the accused. In his cross-examination on page No.5 he has denied the suggestions of the accused counsel stating that, he was not present on the scene of offence at the time of search of this accused in that office, seizure of the amount and conducting of panchanama marked at Ex.P.4.
49. PW-6 Venugopal has stated in his examination-in- chief that at the time of raid on the office of Deputy Commissioner of Excise, Bangalore South by the PW-7, this 47 Spl.C.C.No.272/2016 accused was allotted with additional charge and his work allocation is as mentioned in Ex.P.10. Though the said witness is cross-examined by the counsel for the accused nothing as been elicited in his cross-examination to disbelieve any fact, except fact that the accused was not authorize to collect the applications directly from the applicants. However, in his cross-examination at para No.2 he has stated that, this accused use to collect applications submitted by liquor sellers of Basavanagudi, Adugodi and Shanthinagar for renewal of their licence and fresh licence to forward the same to Deputy Commissioner of Excise. This evidence of PW-6 also goes to show that, this accused was handling renewal of their earlier licence and fresh licence of the liquor sellers. When the evidence of PW-5 and PW-6 states about nature of work of this accused in that excise office and PW-2 and PW-3 states about the seizure of cash of Rs.2,79,500/- from the possession of this accused in that office and same is corroborated with the evidence of PW-7 Sanjeevarayappa, Police Inspector, under such 48 Spl.C.C.No.272/2016 circumstances, the court shall presume that, said amount as illegal gratification of accused unless that presumption is rebutted by the accused with cogent evidence.
50. Section 114 of Indian Evidence Act states about presumption and it reads as follows:-
"114. Court may presume existence of certain facts:-
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
In illustration 'A', it is stated that,
a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession"
So, here in this case, similar situation is arise about the seized amount of Rs.2,79,500/- from the possession of the accused.
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51. It is true that to rebut presumption the accused has examined his relative DW-1 Veerabhadrappa Angadi. Whether his evidence is satisfactory to rebut the presumption of the prosecution case or not is the fact to be considered by the court. By looking into the evidence of DW-1, it indicates that, he is not a trustworthy man to believe his evidence. In his examination-in-chief, he has stated that, the alleged amount of Rs.2,50,000/- given by him to this accused was collected by him from his friends Kumar and Ramakrishna for his family necessity. The question of borrowing any loan from the third person to a middle class or poor people arises only when he is in necessity of that amount for his personal use. Usually no person use to give such borrowed amount to third person or his relatives for his greatness. Because the amount alleged to have been borrowed by him from his friends was for the purpose of his daughter's education and if she did not get the seat, for which he propose to send her then he use to 50 Spl.C.C.No.272/2016 return that amount to his friends. Here in this case, the alleged amount demanded by this accused from DW-1 was for additional construction of his residential building. By considering the same, it indicates that, this accused is residing with his wife and a daughter only. When he is having a own residential building for his residence and if he was intending to undertake any further construction he ought to have obtain the permission of his higher authority by submitting his application and informing the said authority has to out of what funds he undertake that construction. Further for undertaking any additional construction over the existing building he ought to have obtain the sanction and permission of the concerned Municipality or Corporation by paying prescribed fee. Here in this case, no such licence are sanction is obtain by this accused from any competent authority and produce the same before the court to believe the stand taken by him in his evidence. In the cross-examination of DW-1, he has unequivocally admitted that, he has not written anything on 51 Spl.C.C.No.272/2016 the cover or the notes given to the accused. But amount seized from this accused kept in a white cover marked at Ex.P.5 and other bundles are mentioned with amount and to whom the said amount to be paid. By considering that fact into consideration it is clear that the amount of Rs.2,79,500/- seized from the possession of this accused is not the alleged amount of Rs.2,50,000/- given by DW-1 to him. However, by considering the statement of accused and DW-1 recorded by I.O on 5-8-2013 appears to be after thought. Because in the statement of this accused recorded by the I.O., there are so many inconsistent pleas.
52. On page No.2 of his statement he has stated that, on 2-8-2013 while he was coming over to his office from residence he carried Rs.660/-, but through oversight he did not mention the same in the cash declaration register.
53. However in the 3rd para he has stated that on 2-8- 2013 at about 10-30 or 11-00 a.m. DW-1 came near his office and secured his presence in the ground floor of that 52 Spl.C.C.No.272/2016 office by giving a phone call and handed over the plastic cover, in which he had kept the amount. Usually a public servant who is on duty will not accept such a huge amount while he was on duty. If he had asked any loan, he use to collect the same after his office hours either by going to the residential houses of DW-1 or by securing his presence in his residence. Admittedly, the DW-1 is close relative of the accused, so he ought to have direct him to go and pay the said amount to his wife, who is in his residence. There is no satisfactory explanation from the accused to the same. Further the seized amount are separated in three bundles consisting of Rs.1,25,000/-, Rs.1,12,500/- and Rs.42,000/-, the total amount was Rs.2,79,500/-. On a white cover marked at Ex.P.5 the amount of Rs.1,12,500/- is written and below that 'North-West' is written. Like so, on other bundles also the word of excise range are written. When the DW-1 has stated that, he has not separated the amount given to the accused and he has not written anything on the cover or notes, under such circumstances, it is the accused who 53 Spl.C.C.No.272/2016 ought to have satisfactorily state before the court stating as to who has written the same and why the alleged amount of Rs.2,50,000/- collected by him from DW-1 and the amount brought by him are separated into three bundles. The accused has hesitate to appear before the court to give satisfactory explanation as a grave mistake is crept in his statement given before the I.O.
54. In para No.4 of statement of accused on page No.2, he has stated that, on the date of incident he carried Rs.30,000/- from his house and received Rs.2,50,000/- from DW-1, out of his Rs.30,000/- he spend Rs.500/- for filling fuel to his two wheeler and retained balance amount along with the alleged amount given by DW-1. There is no any explanation by this accused about his earlier statement given before the I.O. On the same day stating that, while he was going to office and he carried Rs.660/-, so this statement of accused in his evidence and the evidence of 54 Spl.C.C.No.272/2016 DW-1 are inconsistent and create doubt in the mind of the court to believe the defence set up by the accused. Because in the mahazar marked at Ex.P.4 the said amount of Rs.660/- was found in the possession of the accused at the time of his search and same is appearing on page No.3 of Ex.P.4 and it reads as follows:-
"ನನತರ, ಸದರ ಬಸವರರಜಜ ರವರ ಅನಗಶಶಶಶಧನಶ ಮರಡಲರಗ ಅವರ ಬಳ ರಶ.660/- ನಗದಜ ಕನಡಜಬನದದಜದ , ಅದನಜನ ಪಲಶಸಸಇನಸನ ಪಶಕಕರಸ ರವರಜ ಅವರ ವಶಕಶಕ ಹನದರಜಗಸಕಶಶನಡರಜ."
55. There is no satisfactorily explanation from the accused with regard to this amount as to why he kept this amount separately from the above said total amount of Rs.2,79,500/- in a three bundles. If this fact is considered, then it indicates that, the accused was possessing more than Rs.2,80,000/-. By considering the inconsistent pleas taken by the I.O with regard to the seized amount fails to account for the same satisfactorily, under such circumstances, this court held that, the prosecution case is 55 Spl.C.C.No.272/2016 more probable then the defence set up by the accused.
56. Non-appearance of the accused for giving satisfactorily explanation with regard to his statement given before the I.O and his inconsistent defence create doubt in the mind of the court to accept the explanation given by the accused marked at Ex.P.7 or his statement given before the I.O. about seized amount of Rs.2,79,500/- is satisfactory.
57. U/sec.8 of Indian Evidence Act, conduct is also relevant fact is to be considered by the court. When the accused takes a certain defence in support of his case to disbelieve the prosecution case and failed to appear before the court for give his satisfactorily explanation to that defence, under such circumstances, an adverse inference can be drawn against the accused.
58. It is true that, in this case counsel for the accused has taken a stand, stating that, to prosecute the accused for the offences p/u/sec. 13(1)(e) r/w. 13(2) of P.C. 56 Spl.C.C.No.272/2016 Act 1988, the I.O ought to have obtain earlier authorization letter from the S.P. U/s. 17 of P.C. Act and generate all the assets, family expenditure and the income of the accused and his family members. Whether said contention taken by the accused counsel is sustainable for adjudication of this case or not is the fact to be considered by the court. Here in this case PW-1 has received reliable information about acceptance of illegal gratification by Excise officials from the licence holders for renewal of licence and for issuance of fresh licence. On such information PW-1 obtained search warrant from the court and authorised his officials to conduct trap separately. When they had been for trap so, at that time, PW-7 has noticed the possession of illegal gratification of Rs.2,79,500/- by this accused as stated supra.
59. Since the explanation given by the accused with regard to the seized amount was not satisfactory, so the I.O proceed with further investigation collected other 57 Spl.C.C.No.272/2016 documents and submitted the papers before the S.P. On the basis of such investigation said S.P placed all the papers before the Chairman of Legal Cell for his opinion by verifying all the records. The said Chairman opined that though there is no direct evidence against accused for having committed offence p/u/sec. 7 and 13(1)(d) r/w. 13(2) of P.C. Act, 1988. There is a evidence against him to prosecute him for the offence p/u/sec. 13(1)(e) r/w. 13(2) of P.C Act, 1988. The very act of S.P in placing said investigation papers before the Chairman, Legal Cell and seeking his assistance in the matter goes to show the investigation agency was sure that, though there is no direct evidence against this accused for the offence p/u/sec. 7 and 13(1)(d) r/w. 13(2) of P.C. Act, 1988. There is evidence against the some other offence under P.C Act, so further investigation was done. After taking legal opinion the then S.P. Smt. Sonia Narang has authorized PW-10 M.Jagadish to further investigation to the matter by exercising her powers u/sec. 17 of P.C. Act by issuing authorization letter marked at Ex.P.15. After his 58 Spl.C.C.No.272/2016 transfer, the then S.P Viz., Smt.Seema Anil Latkar has authorized PW-8 K.Ravishankar to further investigate this case by issuing authorization letter marked at Ex.P.11. By looking into said documents, it indicates that, there is no any illegality on the part of said S.Ps in authorizing their officials to investigate into the matter after noticing the actual offence committed by the accused.
60. Usually when we are traveling on a vehicle, if that vehicle hits to a person either due to negligence act of the rider of the vehicle or the injured, who was moving on that road, such injured person will be first taken to the hospital for treatment rather than filing the complaint first. Like so here in this case though the Excise officials went for trap, they did not find any demand and acceptance of bribe amount by the Excise officials from the public. However, by seeing the conduct of this accused in thrushing a plastic cover under a almira kept beside his table the PW-7 suspected about him went near that almira taken out that 59 Spl.C.C.No.272/2016 plastic cover in the presence of panchas and Excise Deputy Commissioner PW-5 taken out the currency notes kept in the same, verified it and seek explanation of the accused. When the explanation given by the accused about the said amount was not satisfactory, so he seized that amount and proceeded with further investigation. There is no any illegality or irregularity on the part of investigating officers in investigating this case against the accused for the offences alleged.
61. In a decision reported in AIR 2001 Sureme Court 142 (Head Note A) between State of U.P. -V/s- Hari Mohan and others, their lordships held that, "(A) Criminal P.C. (2 of 1974), S. 156---Investigation--- Defective in nature---cannot be made a basis for acquitting accused---More so when a case is made out against all or any one of the accused persons."
62. By considering the ratio involved in that decision, it is clear that, even there is any defect on the investigation 60 Spl.C.C.No.272/2016 agency the court has at liberty to find-out the truth and decide the matter. Here in this case, by looking into the defence set-up by the accused with regard to the seized amount and his statement, it indicates that, he is trying to prove his innocence, but he failed in proving the same. The defence set up by the accused for proving his case was just like proving his lie as true. Since his lie was not believable, so he made all soughts of efforts, but failed in the same.
63. I have gone through the decesions relief upon by the counsel for the accused reported in ILR 2003 KAR 3589 (Head Note A) between State of Karnataka, by Chief Secretary, Bangalore and others -V/s- Basavaraj Guddappa Maliger. The ratio involved in that decision is entirely different from the case on hand, so he cannot take the benefit of the same for the acquittal of the accused.
64. Here by considering the overall evidence of all the prosecution witnesses examined before the court on oath and the documents got marked as exhibits in the 61 Spl.C.C.No.272/2016 examination of prosecution witnesses, this court held that, the accused has failed to satisfactorily account for the seized amount of Rs.2,79,500/- as his personal amount as the defence set up by him. The prosecution has proved its case against the accused beyond all reasonable doubt that, the amount of Rs.2,79,500/- seized from the custody of this accused under Ex.P.4 is his disproportionate income. In view of all these reasons this court answered point No.4 in the Affirmative.
65. POINT No.5: In view of all the reasons, this court proceed to pass the following :
ORDER Acting under Sec.235(1) of Cr.P.C., this accused is acquitted for the offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
Acting u/sec. 235(2) of Cr.P.C., this accused is held guilty for the offences 62 Spl.C.C.No.272/2016
punishable under Sec. 13(1)(e) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
For hearing on sentence.
(MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78) Heard the arguments on sentence.
Heard the accused and his counsel on sentence.
The counsel for the accused submitted that, he is a age old and retired public servant suffering from age old ailments having dependents. This accused is a first offender having good character and conduct in the society. Since he is a first offender and as he is a retired public servant suffering from age old ailments lenient view to be taken for imposing sentence.
Contrary to this learned Public Prosecutor submitted before the court stating that, the offence alleged against the accused is heinous in nature and against the interest of the society. If lenient view is shown to the accused in imposing sentence, it may not give a good verdict to the society, so for 63 Spl.C.C.No.272/2016 giving good verdict to the society and to the public servants, he shall be punished by imposing maximum sentence prescribed under the Law. After considering the submissions of both sides and after considering the offence alleged against the accused, it is true that said offence is heinous in nature and against the society. However, punishing the accused by awarding maximum sentence will not suffies the purpose of sentence. The very object of convicting the accused by imposing sentence of imprisonment is to teach him a lesson about the consequences of his act and to reform himself to lead a good life in the society. Further the object of imposing sentence is to given verdict to the society stating that, if any public servant is found guilty of criminal misconduct he will be punish with imprisonment and fine and he cannot escape from the clutches of the guilt.
I have gone through the provisions of section 13(2) of P.C. Act, 1988 and prescribed sentence as on the date of commission of offence was imprisonment not less than 1 year and which may be extended to 7 years and shall also be liable to fine. As per amended Act of 2014 the imposing prescribed for the said offence is imprisonment for a term not less than 4 years, which may extend to 7 years and also with fine. Now the said period is enhanced to 10 years. By considering the same, it is clear that, the amendment to sec.64
Spl.C.C.No.272/2016 13(2) of P.C. Act with regard to minimum imprisonment of 1 year to 4 year was enhanced on 16-1-2014. The offence committed by the accused is on 2-8-2013. By considering the same, this court held that, the earlier Act is applicable to the accused for imposing sentence, but not the amended Act. By considering the reasons assigned for the counsel for the accused for taking lenient view this court held that, lenient view can be taken. With these observations this court proceed to pass the following:-
ORDER Acting u/sec. 235(2) of Cr.P.C accused is convicted for the offence p/u/sec. 13(1)(e) r/w. 13(2) of P.C. Act, 1988 and he is sentence to undergo simple imprisonment for 3 years and to pay a fine of Rs.2,80,000/-, in default of payment of fine he shall undergo simple imprisonment for 1 year.
Acting u/sec.428 of Cr.P.C set-off is given to the accused for the period for which the accused was in J.C. during trial.
Seized amount of Rs.2,79,500/- is confiscated to the state.
Supply the free copy of Judgment to the accused.65
Spl.C.C.No.272/2016 (Dictated to the Judgment writer, after transcription, corrected by me and then pronounced by me in the open court on this the 27th day of November 2019.) (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78) ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 :: V.P.M.Swamy PW.2 :: Vasudeva Reddy PW.3 :: B.Thippeswamy PW.4 :: Stanley PW.5 :: Jagadish Nayak PW.6 :: Venugopal PW.7 :: Sanjeevarayappa.T PW.8 :: K.Ravishankar PW.9 :: S.R.Umashankar PW.10 :: M.Jagadish
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
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Ex.P.1 :: Complaint
Ex.P.1(a) :: Signature of PW-1
Ex.P.2 :: First Information Report
Ex.P.2(a) :: Signature of PW-1
Ex.P.3 to :: Authorization Letter U/s. 165 of Cr.P.C. Ex.P.3(a) :: Signature of PW-1 Ex.P.3(b) :: Signature of PW-7 Ex.P.4 :: Office Mahazar dated 02-08-2013 Ex.P.4(a) :: Signature of PW-1 Ex.P.4(b) :: Signature of CW-3/PW-3 Ex.P.4(c) :: Signature of CW-5 Ex.P.4(d) :: Signature of accused Ex.P.4(e) :: Signature of PW-7/CW-11 Ex.P.5 :: Envelope Cover Ex.P.6 :: Letter from Excise Commissioner Ex.P.6(a) :: Signature of PW-1 Ex.P.7 :: Statement of accused Ex.P.7(a) :: Signature of PW-3 Ex.P.7(b) :: Signature of PW-2/CW-2 Ex.P.7(c) :: Signature of accused Ex.P.7(d) :: Signature of PW-7 Ex.P.8 :: Cell details Ex.P.8(a) :: Signature of PW-4 Ex.P.9 :: Certificate U/s. 65-B of Indian Evidence Act Ex.P.9(a) :: Signature of PW-4 67 Spl.C.C.No.272/2016 Ex.P.10 :: Work allocation details Ex.P.10(a) :: Signature of PW-6 Ex.P.11 :: Order of S.P. to PW-8/CW-14 Ex.P.11(a) :: Signature of PW-8 Ex.P.12 :: Memo of AGP Lokayukta Ex.P.12(a) :: Signature of PW-8 Ex.P.13 :: Sanction Order Ex.P-13(a) :: Signature of PW-9/CW-9 Ex.P.14 :: Covering letter by PW-9 to ADGP Lokayukta Ex.P.14(a) :: Signature of PW-9 Ex.P.15 :: SP Order dated 30-09-2015 Ex.P-15(a) :: Signature of PW-10 Ex.P-16 :: Service particulars of accused Ex.P.16(a) :: Signature of PW-10 Ex.P.17 :: Letter from Deputy Commissioner of Excise Ex.P.17(a) :: Signature of PW-10 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1 :: Currency Notes (North-West) MO.2 :: Currency notes (12.5 North)
LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1 :: Veerabhadrappa Angadi
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LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1 Intimation of S.P. with Legal Cell opinion (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & PECIAL JUDGE, BENGALURU (CCH-78)