Karnataka High Court
Mr Rangaswamy D vs State Of Karnataka on 19 September, 2018
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.1347/2015
BETWEEN:
MR.RANGASWAMY D
S/O DASAIAH
AGED ABOUT 43 YEARS
ASSISTANT ENGINEER
OFFICE OF EXECUTIVE ENGINEER
D.C.WORKS NORTH, CJF PREMISES
BWSSB, 18TH CROSS, MALLESHWARAM
BENGALURU
PRESENTLY RESIDING AT NO.585
ITI LAYOUT, BEHIND "THE CLUB"
RAJARAJESHWARI NAGAR
BENGALURU - 39. ...APPELLANT
(BY SRI M.S.BHAGWAT, ADV.)
AND:
STATE OF KARNATAKA
THROUGH KARNATAKA LOKAYUKTA POLICE
BENGALURU CITY DIVISION
REPRESENTED BY SPP
M.S.BUILDING
BENGALURU- 560 001. ...RESPONDENT
(BY SRI VENKATESH S. ARBATTI, SPL.PP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 04.11.2015 PASSED BY THE XXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE,
BENGALURU IN SPL.C.NO.122/2011 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES P/U/Ss.7,
13(1)(d) R/W 13(2) OF P.C. ACT.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
ARGUMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant-accused being aggrieved by the judgment and order of conviction passed by the XXIII Addl. City Civil and Sessions Judge and Special Judge, Bengaluru dated 4.11.2015 passed in Spl.C.C.No.122/2011.
By the said judgment and order, appellant- accused has been convicted for the offences punishable under Section 7 and Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and has been sentenced accordingly.
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2. Brief facts of the prosecution case as per the complaint Ex.P1 are that one Jagadish Kumar P filed the complaint on 4.5.2011 stating that he is working as Contractor and also doing underground drainage work for East Coast Construction and Industries Limited ('ECCI' for short) at Byatarayanapura site office limits, Govindpura Nagawara Main Road. Project work of Rs.1.46 crores was sanctioned on 18.9.2010 at his service order No.7000887/1200019772. He started his work during third week of December 2010 and was inspected by Mr.Rangaswamy, Assistant Engineer, who was in-charge of the work project from BWSSB and Mr.Vijay Kumar, another Engineer from DHV for quality control. He has completed 30% of the work and has received advance payment of rupees Nine Lakhs in installments till then. For the release of rest of the payment through ECCI he need to get the checklist for 4 the work done through Mr.Rangaswamy, Assistant Engineer and to sign the said checklists Mr.Rangaswamy, BWSSB Engineer is demanding bribe of 2% of the amount to be sanctioned. He started asking for bribe from 10th February 2011 and complainant met him in this regard several times and pleaded him to sign the check list, but he did not oblige. After this he spoke to ECCI Regional Manager and Project Manager and they told him that as per the procedure he has to get the check list signed by both the Engineers of BWSSB and DHV, as per the service order terms and conditions.
After this he used to regularly ask Rangaswamy, Assistant Engineer to give the check list and help him to get his bill payment of Rs.40 lakhs approximately to clear the debts of his material suppliers and workers. But the said Rangaswamy refused to give the checklist 5 unless he pay him 2% of the bill amount as bribe. On 3.5.2011 as he was interested to pay the bribe amount, he came to Lokayuktha office to give the complaint wherein an official gave him digital recorder and asked him to get the proof of demanding bribe amount. On the same day afternoon, he met Mr.Rangaswamy, Assistant Engineer at the site office Byatarayanapura and they had conversation of the said subject and he requested him to help for the release of his bill. Accused told him to pay him as spoken initially to pay the amount of bill and that he will sign the check list. When complainant asked him as to whether he need to pay 2% of the amount, Mr.Rangaswamy acknowledged the same in front of his friend Mr.Hanume Gowda who was along with him.
On 4.5.2011 he came to Lokayuktha office along with the digital voice recorder to give complaint against 6 Mr.Rangaswamy, Assistant Engineer who demanded bribe for signing the checklist required for releasing his balance bill amount. On the basis of the said complaint, case came to be registered in crime No.19/2011 for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. After completing investigation, the Investigating Officer filed the charge sheet against the appellant-accused for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. After hearing both sides, learned Special Judge prepared the charge and when the charge was explained, accused pleaded not guilty and claimed to be tried. Accordingly, charge was framed and his plea was also recorded. Then the matter was set down for trial. In support of its case, prosecution in all examined 6 witnesses and produced 7 20 documents and also got marked 23 material objects. Then the accused has been examined under Section 313 of Cr.P.C. and the incriminating materials were read over and explained to him and answers given by the accused person were recorded in the said statement. On the side of the defence no witnesses were examined and only one document was got marked i.e., Ex.D1 during the course of cross-examination of the prosecution witness.
After hearing the arguments of both sides and after considering both oral and documentary evidence, ultimately, the learned Special Judge held the appellant-accused guilty for the said charges and convicted him for both the offences.
Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the said judgment and order passed by 8 the learned Special Judge, on the grounds as mentioned in the Memorandum of Appeal at ground Nos.14 to 28, the appellant-accused is before this Court.
3. Heard the arguments of learned counsel appearing for the appellant-accused, so also, learned Special Public Prosecutor for the respondent-accused.
4. Learned counsel for the appellant-accused submitted that prosecution has not at all proved its case beyond all reasonable doubt. He drew the attention of this Court to the charges framed and the charge sheet copy and submitted that in the charge sheet the year of alleged offence is mentioned as 2010, but in the charge framed it is mentioned that it is in the year 2011. Further, there is no consistency in the date of alleged demand of bribe amount by the appellant- accused while framing the charges and while it was read 9 over to the accused person. Learned counsel further submitted that though during the course of Entrustment Mahazar under Ex.P2, two panch witnesses were secured and it was instructed that one of the panch witnesses has to act as shadow witness and accompany the complainant to the office of the accused and observe the things happening between the complainant and the accused, but the materials produced during the course of trial shows that the panch witnesses have not at all accompanied the complainant to the office of the accused. Further, it is also mentioned in the Entrustment Mahazar proceedings that if the shadow witness, who is the panch witness, is not ready to go along with the complainant, then one Mr.Venkatesh, Police constable has to accompany the complainant to the office of the accused and has to observe the things that happen in 10 between the accused and the complainant. Even the said Venkatesh has also not accompanied the complainant in this case. But, the prosecution has set up another witness Hanumagowda as P.W.2, who was said to have been present at the spot at the time of trap mahazar proceedings. In this connection, learned counsel submitted that if at all this P.W.2 Hanuma Gowda was present at the spot at the time of trap proceedings, then something could have been mentioned in the Entrustment Mahazar Ex.P2, but there is no whisper in the Entrustment Mahzar about the said Hanuma Gowda. Further, by referring to the evidence of the Investigating Officer also, learned counsel submitted that even his evidence raises a doubt about the very presence of P.W.2 Hanuma Gowda at the spot. Admittedly, even according to the prosecution, the accused has not received the tainted currency notes and 11 that he told the complainant to keep the tainted currency notes in a bag, but according to the appellant- accused, P.W.2 Hanuma Gowda has brought the bag. Learned counsel further submitted that no work was pending with the accused person. False allegations are made in the complaint that appellant demanded bribe amount. Hence, he submitted that the demand and acceptance of the bribe amount itself is not established with cogent material on the side of the prosecution. Drawing the attention of this Court to the evidence of P.W.3 one Vijayakumar, learned counsel submitted that his evidence clearly shows that a false case has been foisted against the accused person. He submitted that the evidence of P.W.3 clearly shows that he had submitted a report to the BWSSB stating that the work of the complainant is of sub-standard quality and this is reason that the complainant was not able to get his due 12 amount and not because of any alleged demand made by the appellant for clearing his bills. Even with regard to the pending bill amount of the complainant, learned counsel submitted that there is no consistency. In the complaint it is stated that accused person demanded Rs.60,000/- @ 2% of the bill amount, but in the evidence of prosecution witnesses, it is stated that the amount due was only Rs.2,59,953/-. Therefore, an amount of Rs.60,000/- alleged to be the bribe amount @ 2% on the pending bill amount is not acceptable and worth believable. Learned counsel further submitted that even with regard to the contention that the rexin bag was on the table of the accused, there is no consistency in the evidence of the prosecution witnesses. He drew the attention to the evidence of the prosecution witness and submitted that the police inspector has stated that the bag was secured from the 13 adjoining room, but the evidence of other witnesses shows that after the pre-arranged signal was given and when all the persons rushed to the room of the accused, the bag was on the table of the accused. The explanation offered by the accused at Ex.P8 is not at all taken into consideration by the learned Special Judge. Hence, learned counsel vehemently submitted that looking to the entire material, the judgment and order of the learned Special Judge is not in accordance with the materials placed on record and the learned Special Judge has wrongly read the evidence and proceeded to convict the appellant-accused for the said offences. Accordingly, submitted to allow the appeal and to set aside the judgment and order of conviction passed by the Court below.
5. Per-contra, learned Special Public Prosecutor for the respondent-complainant submitted that so far as 14 the demand and acceptance of the bribe amount is concerned, in Ex.P1, complaint there is a mention made by the complainant that on 3.5.2011 itself he met the accused person and the conversation between the complainant and accused person was recorded in a voice recorder given by the Lokayuktha office. That on 4.5.2011 the complainant went to Lokayuktha office with the intended bribe amount of Rs.60,000/- and he lodged the complaint and produced the amount of Rs.60,000/-. He also submitted that even on the date of trap on 5.5.2011 again the voice recorder was given to the complainant and a digital button camera was also given to the complainant to record as to what is happening at the time of trap. Learned Special Public Prosecutor submitted that the CDs containing the conversation between the complainant and the accused are produced and the voice of the accused in the said 15 CD was identified by the superior officer of the accused who has been examined before the Court. Hence, the demand and acceptance of the bribe amount was established by the conversation recorded in the CD produced before the Court. However, the trial Court has wrongly mentioned that the same cannot be relied upon. In this connection, learned Special Public Prosecutor drew the attention of this Court to the decision of the Hon'ble Apex Court reported in AIR 2014 SC 3798 relied upon by the accused and submitted that the alleged incident was much earlier to the said decision, as such, the decision of the Division Bench of the Hon'ble Apex Court in the parliamentary attack case holds the field and the trial Court has wrongly rejected to rely upon the CDs containing the conversation. He submitted that the complainant and P.W.2 have consistently deposed in their evidence that the accused 16 person demanded and accepted the bribe amount. So far as the presence of P.W.2 on the spot is concerned, referring to the evidence and cross-examination portion, he submitted that suggestions made to the witness during the course of cross examination shows that even the defence has admitted his presence and as per the say of the accused person he brought the bag and the bribe amount was kept in the bag. Hence, he submitted that the evidence of P.Ws.1 and 2 coupled with the conversation recorded in the CD, it has established the case of the prosecution regarding the demand and acceptance of the bribe amount. Insofar as the contention that the shadow witness who was the panch witness has not accompanied the complainant, learned Special Public Prosecutor drew the attention of this Court to the contents of the Entrustment Mahazar and submitted that it is recorded in the Entrustment 17 Mahazar itself the complainant has stated that if the shadow witness accompanied him to the office of the accused person, the accused may raise suspicion and the trap may not materialize, as such, the panch witness has not accompanied the complainant to the office of the accused. Even if the panch witness mentioned in the Entrustment Mahazar had not accompanied the complainant, the evidence of P.W.2 Hanuma Gowda who is the independent person working under P.W.1 corroborates the evidence of P.W.1 and clearly establishes the prosecution case regarding the demand and acceptance of the bribe amount.
Regarding the quantum of amount due to the complainant is concerned, though it is the contention of the accused that there is no consistency, learned Special Public Prosecutor has submitted that even if there is some inconsistency regarding the quantum of 18 amount for which the complainant is entitled, but regarding the bribe amount demanded by the accused there is an evidence of the complainant as well as P.W.2 Hanuma Gowda, which is corroborated by the other evidence adduced by the prosecution. The trial Court has properly appreciated the material regarding the demand and acceptance of the bribe amount by the accused and has rightly come to the conclusion in convicting the accused and that no illegality has been committed in coming to the said conclusion.
So far as the sanction is concerned, learned Special Public Prosecutor submitted that it has come on record that there was a Board Resolution authorizing P.W.4 to sign the sanction order on behalf of the Board. which was a ministerial act. Drawing the attention to the provisions of Section 19(1)(3)(a) of the Act submitted that unless and until any illegality is shown by the 19 defence in the sanction order, it cannot question the said aspect before the appellate Court and in this connection, he has also relied upon the some of the decisions. Hence, submitted that the sanction order issued and signed by P.W.4 and his oral evidence makes it clear that it is a valid sanction order, issued, after considering the materials sent, with a request letter for issuance of said sanction order. Accordingly, learned Special Public Prosecutor ultimately submitted that perusing the entire materials, they clearly show that it is the accused who demanded the bribe amount and accepted the bribe amount. Therefore, there is nothing wrong in the judgment and order of conviction passed by the Court below. Accordingly, he submitted to dismiss the appeal and to confirm the judgment and order passed by the Court below.
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In support of his contentions, learned Special Public Prosecutor has relied upon the following decisions:
(1) M.Narsinga Rao -vs- State of Andhra
Pradesh reported in AIR 2001 SCC 318
(2) Hazari Lal -vs- State (Delhi Administration)
reported in (1980) 2 SCC 390
(3) State of Bihar and others -vs- Rajmangal
Ram reported in AIR 2014 SCC 1674
(4) Ashok Tshering Bhutia -vs- State of Sikkim
reported in AIR 2011 SC 1363
(5) State of Madhya Pradesh -vs- Jiyalal
reported in AIR 2010 SCC 1451
(6) Dhaneshwar Narain Saxena -vs- The Delhi
Administration reported in AIR 1962 SC 195 (7) Ranganath -vs- State of Karnataka reported in Crl.R.P.2000/2014 order dated 25.02.2015 (8) Phula Singh -vs- State of Himachal Pradesh reported in AIR 2014 SC 1256 (9) Sambhu Das alias Bijoy Das -vs- State of Assam reported in AIR 2010 SC 3300 21 (10) Sonu alias Amar -vs- State of Haryana reported in AIR 2017 SC 3441
6. I have perused the grounds urged in the Memorandum of Appeal, judgment and order of conviction passed by the Court below, the oral and documentary evidence produced by the prosecution, so also, Ex.D1 produced on behalf of the accused and also the decisions relied upon by both sides in support of their arguments. I have also considered the oral submissions made by the learned counsel on both sides at the bar.
7. Regarding the demand and acceptance of bribe amount by the appellant-accused, let me examine the relevant portion in the evidence of prosecution witnesses.
8. P.W.1-Jagadish Kumar, complainant in this case, has deposed in his evidence in the examination- 22 in-chief that he is a civil contractor. In the year 2010 he received service order for Rs.1,46,00,000/- approximately from East Coast Construction and Industries Limited. The said work was in connection with KMRP project of Byararayanapura, City Municipal Council. The accused was working as Assistant Engineer in Bangalore Water Supply and Sewerage Board (BWSSB) of that area. Accused was in-charge of the work entrusted to him by East Coast Construction and Industries Limited (ECCIL). He had employed Sri.Hanumegowda as Supervisor to supervise his work. In the month of December 2010, he commenced the work. He continued the work till the month of March 2011. Till then he received regular payments from ECCIL. By the end of May 2011, he had completed 40% of the work entrusted to him. He was submitting his bills to ECCIL. He was informed by ECCIL to get the 23 check list duly signed by the accused. In the month of February or March 2011 he along with C.W.2 went to the office of ECCIL where accused was present. When he asked the accused to subscribe signature on the check list he has not obliged. He further deposed that again he approached the accused about a week thereafter in the office of ECCIL wherein the accused demanded 2% of the total bill amount by way of bribe. That figure then worked out to around Rs.6-7 lakhs approximately. Then he went to one Nithyanand Kumar, the Regional Manager of ECCIL and told that he cannot pay the bribe amount. He told him that in the absence of the signature of the accused in the check list and the certificate by the quality control section payment cannot be made. Certificate touching quality control was under
the control of C.W.5 Vijay Kumar.T.K. He further deposed that he could not fulfill the demand of the 24 accused, he approached C.W.19 K.C.Lakshminarayana, Police Inspector attached to Karnataka Lokayuktha, Police Wing, Bangalore city on 3.5.2011. voice recorder was given to him by C.W.19. On the same day he met the accused in the office of ECCIL and requested him to subscribe the signature. The accused again demanded 2% of the bill amount. He recorded the voice of the accused and returned to the office of C.W.19. He was asked by C.W.19 to bring money. After arranging for Rs.60,000/- he went to the office of C.W.19 on 4.5.2011 and lodged a complaint consisting of three sheets which is now marked as Ex.P1. Since he was not in a position to pay at the rate of 2%, he arranged for Rs.60,000/- and placed those 120 currency notes of the denomination of Rs.500/- each at the hands of C.W.19. Note numbers were recorded on a sheet of paper by Lokayuktha staff. Some Lokayuktha staff kept those 25 tainted currency notes in his right side pocket of the pant. One button camera and digital voice recorder was given to him. During that time those proceedings were videographed. A mahazar was drawn in the office of C.W.19. The said pre-trap mahazar consisting of 5 sheets is marked as Ex.P2. They left the office of C.W.19 along with CWs.3, 4, 19 and staff of C.W.19. When they reached Hebbal which is about 2 kms. away from ECCIL office, he contacted the accused over his mobile handset. Twice the accused has not received his phone call. 10 minutes thereafter, he again called him. After that accused received his phone call and spoke to him. The accused told that due to personal inconvenience he cannot meet him on that day. They returned to the office of C.W.19. On 5.5.2011 he again went to the office of C.W.19 at about 10.00 a.m. C.W.19 was in his office. C.Ws.3 and 4 arrived at some time 26 later. Again powder was smeared on the currency notes which were given by him to C.W.19 on 4.5.2011. Voice recorder and button camera was given to him by C.W.19. Again tainted currency notes were kept by the Lokayuktha staff in the right side pocket of his pant. He along with C.Ws.3, 4, 19 and staff of C.W.19 left the office of C.W.19 in Maruthi van attached to the office of C.W.19. On the way he spoke to the accused over mobile phone. He was told by the accused that he is in ECCIL office. He contacted C.W.2 Hanume Gowda and confirmed that accused is in the office of ECCIL. He along with C.W.2 went to the cabin of ECCIL and told the accused in the cabin that amount is brought by him, he asked him to remain in the client office of ECCIL. Accordingly, he along with C.W.2 sat in 'client office'. Ten minutes thereafter the accused came there. Accused spoke to him casually for sometime. He 27 requested to receive Rs.60,000/- for which the accused agreed. He came out of the cabin and contacted C.W.19 over mobile phone that he paid tainted currency notes to the accused. Immediately, C.W.19, his staff, C.Ws.3 and 4 came to the cabin of ECCIL. He pointed out the accused and C.W.5. He told C.W.19 that as per the instructions of accused he kept the tainted currency notes in the bag after wrapping with Tamil newspaper. When he was questioned by C.W.19 the accused denied the acceptance of bribe amount. Accused admitted that the bag belongs to him. On the instructions of C.W.19 the bag was opened and above tainted notes were taken out and verified. The above currency notes were kept by the Lokayuktha staff in a paper cover and sealed. Contents of button camera and voice recorder were transmitted to compact disc and thereafter the compact disk was seized in the office of C.W.19. 28
In the cross-examination by the defence he deposed that C.W.2 Hanuma Gowda also came to the place where the accused was trapped. C.W.2 Hanuma Gowda brought the bag. After getting the bag the accused asked him to keep the amount in the bag and therefore wrapped the tainted notes with Tamil newspaper and placed in the bag. The tainted currency notes were taken out through C.W.4 L.Srinivas. He deposed that BWSSB used to release amount to M/s.ECCIL. M/s.ECCI was not releasing money in case his work was found to be of sub-standard. He denied the suggestion that on the basis of the report of P.W.3 amount was not released to him. P.W.3 and the accused were given an office room by company of M/s.ECCI. He has not mentioned the name of P.W.2 in his complaint. P.W.2 was not present at the time of conducting pre-trap mahazar. It is not true that P.W.2 29 was not present during the trap mahazar. He admitted that at the time of leaving the office of C.W.19 it was suggested that Venkatesh has to be the shadow witness. Said Venkatesha is shown as C.W.15 in the chargesheet and he is the police constable attached to the office of C.W.19. He has not told C.W.19 that P.W.2 would arrive at the office room of the company of P.W.3. According to him, C.W.15 is the shadow witness. After entering the office room P.W.3 occupied a chair. The bag was brought from the office of ECCI company. At the time of P.W.2 leaving to bring the bag, P.W.3 was not in the office room of his company. He denied the suggestion that he developed enmity towards the accused and P.W.3 on the ground that their reports were not in his favour. That bag was brought by P.W.2 from the office of the company of M/s.ECCI. The accused touched the bag. He denied the suggestion 30 that intentionally he withheld the presence of independent witnesses.
9. P.W.2-Hanuma Gowda who was said to be along with P.W.1 deposed in his examination-in-chief that the accused was not prepared to sign the check register. The accused was demanding 2% of the bill amount. He informed the same to P.W.1. Again he along with P.W.1 met the accused. The accused again demanded 2% of the bill amount. On 3.5.2011 P.W.1 recorded the voice of the accused in a voice recorder in his presence. He told him that he would lodge the complaint against the accused with Lokayuktha police. On 5.5.2011, accused came to the work spot at Nagavara at 10.45 a.m. P.W.1 spoke to him and at that time he communicated him of the arrival of the accused. P.W.1 arrived there and he along with him went to the chamber in the work spot. Accused asked P.W.1 as to 31 how much amount he has brought. P.W.1 replied that he has brought Rs.60,000/-. On the instruction of the accused, he brought a rexin bag. Accused asked to keep the cash in the bag. P.W.1 wrapped the tainted currency notes in Tamil newspaper and placed the same in the bag. At that time C.W.5 came there. Thereafter, Lokayuktha staff came there.
In the cross-examination he deposed that he does not know the outstanding bills of P.W.1 as on 5.5.2011. P.W.3 was inspecting the work for and on behalf of the company called DHV. He denied the suggestion that P.W.1 had no transaction with BWSSB. The accused was inspecting the work everyday on behalf of BWSSB. Instructions were not given by the accused to P.W.1 to execute the work as per the standard. He denied the suggestion that sub-standard work of P.W.1 was the reason behind non payment of the amount claimed in 32 the bills. It was 10.30 p.m. on 5.5.2011 when he had been to the office room of the company of ECCI. He brought the rexin bag from the nearby office of ECCI to the office room where the accused was seated. Before he brought the bag to that office room P.W.3 had not arrived there. Before entering the office of the accused he along with P.W.1 entered the ECCI office. He denied the suggestion that with sole intention of false implication of the accused he kept rexin bag on the table. He further denied that accused did not instruct him to bring the rexin bag.
10. The evidence of P.W.3-Vijaya kumar is to the effect that on 4.5.2011 at about 1.15 or 1.30 p.m. the accused contacted him over the cell phone. He told the accused that on that day he was not able to arrive at the work spot. On 5.5.2011 at 11.00 a.m. he was in ECCI office, near Nagavara Traffic junction. At that 33 time, he found P.Ws.1 and 2 and the accused in the office. He received a call to his cell phone and was responding the said call outside that office. At that time, P.Ws.1 and 2 asked him to enter that office and went out of the office. Lokayuktha police Inspector secured a bag from the nearby room attached to the office.
In the cross-examination he deposed that he was working as consultant for the company called DHVBV. That company was appointed by BWSSB for supervising and monitoring the project. His job was to place report to the said company. Afterwards, his report was being placed before the authorities of BWSSB. In the course of report he used to propose and suggest the quality of the work executed. Subsequent to his report, BWSSB authorities used to take up the matter for payment of bill amount. Earlier to 5.5.2011, he placed many log sheets stating that work executed is not satisfactory. 34 Many show cause notices were issued to M/s.ECCI stating that work executed is of sub-standard. As such, payment was not made to ECCI by BWSSB. P.Ws.1 and 2 have nothing to do with his company. M/s.ECCI was giving notices to P.W.1 touching the nature of work. Except him there is no other person by name Vijaya Kumar connected to the execution of work. Nithyanand is the Regional Manager of M/s. ECCI. Nithyananda was very often telling him to improve the quality of work. Nithyananda and P.W.1 were not happy with his reports. The accused was not in the obligation to subscribe signature on his daily reports. P.W.1 was not happy with his reports. Official work of his company pertaining to P.Ws.1 and 2 was not pending.
11. The case of P.Ws.1 and 2 is that the appellant- accused demanded bribe amount from the complainant and because of non-payment of bribe amount, he 35 withheld the bill amount. However, the suggestion put to these two witnesses that the bill amount was withheld by the accused person because the work executed by the complainant was of sub-standard quality, has been denied by these witnesses. But, however, the evidence of P.W.3 Vijaya Kumar fully supports the defence of the accused person. He consistently deposed that he was the person supervising and inspecting the work executed by the complainant- P.W.1 and he filed many reports stating that the work executed by him is of sub-standard quality. The evidence of P.W.3 clearly shows that because he filed such reports as against P.W.1, Nithyananda and P.W.1 were having enmity or dissatisfaction towards him for issuing such reports. P.W.3 is the witness examined on behalf of the prosecution. The prosecution has not treated him as hostile for a limited extent that he is 36 giving false evidence since because of his report stating that the work executed by P.W.1 was of sub-standard, payment of the complainant was withheld. However, no such suggestion was made to this evidence. In the absence of the same, the Court has to consider the evidence of P.W.3, which supports the case of the accused that the reason for withholding the bill amount of the complainant is not demanding the bribe amount, but because of the sub-standard work executed by P.W.1.
12. No doubt, prosecution has relied upon not only the oral evidence of P.Ws.1 and 2, but also the evidence of the Investigating Officer. Apart from that, in order to prove that there was a demand and acceptance of the bribe amount, it also relied upon the compact disk produced in the case taken from the voice recorder. In this connection I have considered the submission of 37 the learned Special Public Prosecutor that the decision of the Apex Court of the year 2014, referred to above, is not applicable. Even so, for compliance of Section 65B of the Indian Evidence Act, the prosecution, to show that the conversation is in between the accused and the complainant as stated that the superior officer of the accused himself has identified that it is the voice of the accused, but however, the said Superior officer is not before the Court. Therefore, the accused is not having opportunity to cross-examine his Superior Officer regarding his say that the voice in the said conversation is of the accused person. It is an admitted case of the prosecution that the voice recorded was not at all sent to the FSL for verification of its authenticity. Therefore, simply saying that the Superior Officer has identified the voice in the said recorder as that of the accused is not sufficient to come to the conclusion that it is the 38 voice of the appellant-accused, unless and until it is verified by the expert and the expert's evidence is before the Court that too after giving opportunity to the accused person to testify the said material by way of cross-examination of the said Superior Officer, which is not done in the case on hand. Though the decision of the year 2014 does not come in the way of prosecution, since the voice of the accused person is not established with worth believable material, same cannot be relied upon by this Court.
13. As per the case of the prosecution so far as Ex.P2, the Entrustment Mahazar is concerned, two panch witnesses were secured to the Lokayuktha office, one L. Srinivas and another N.Narasimhamurthy to act as panch witnesses. As per the contents of Entrustment Mahazar, one witness has to accompany i.e., one N.Narasimhamurthy, panch witness No.2 has to 39 accompany the accused person to his office and observe as to what happens between the two and tell before the Investigating Officer. However, in the Entrustment Mahazar it is mentioned that since complainant expressed apprehension that if anybody accompanies the complainant, the accused may raise suspicion, the shadow witness was not at all sent along with the complainant.
It has also come on record that one Venkatesh, Police Constable was asked to accompany the complainant. But even the materials show that he has also not accompanied the complainant to the office of the accused person. Keeping these aspects in mind, if the case of the prosecution regarding the presence of P.W.2 Hanumegowda is appreciated, firstly there is no mention about the said Hanumegowda in Ex.P2, the Entrustment Mahazar. If at all he was present at the 40 spot at the time of trap proceedings, the complainant who took P.W.2 Hanumegowda to the Lokayuktha police, at the time of lodging the complaint at Ex.P1, could have stated at the time of Entrustment Mahazar under Ex.P2 that since P.W.2 Hanumegowda is there, he would accompany him to the office of accused person to observe the demand and acceptance of the bribe amount. No such mention is made.
14. In the evidence of P.W.6-the Investigating Officer at paragraph No.10 of his deposition has stated that on 5.5.2011 after he along with his staff, P.Ws.1 and 5 and C.W.4 left his police station, P.W.1 has not contacted the accused over cell phone. There were some other structures abutting the shed in which the accused was found in the premises of the office of ECCI. Some other office buildings were also found in that compound. The next sentence in the cross-examination 41 is very important. He has stated that 'he cannot say where exactly P.W.2 was found when he entered the above premises. P.W.3 was inside the shed where accused was found. He has not examined P.W.2 in the above premises'. This evidence of the Investigating Officer if appreciated along with other material, the very presence of P.W.2 in the said place appears to be improbable and unnatural. The persons who were supposed to go along with the complainant have not gone there and the person about whom there is no whisper in the Entrustment Mahazar before they start the trap proceedings was said to be present at the spot and has observed as to what happened at the spot. Therefore, it is very difficult for this Court to accept the contention of the prosecution with regard to the presence of P.W.2 Hanumegowda at the spot. 42
15. Admittedly, it is not the case of the prosecution that the accused person demanded and received the tainted currency notes through his hands. The case of the prosecution is that when the accused asked for the bribe amount of Rs.60,000/-, the complainant has stated that he has brought the amount and the accused instructed P.W.2 Hanuma gowda to bring one rexin bag and accordingly, he brought the bag and the amount was put into the said bag. This goes to show that before the complainant gave prearranged signal after payment of the said amount the bag should have been on the table when the Investigating Officer along with other panch witnesses and his staff rushed to the room of the accused person, as deposed by other witnesses. But, in this connection the evidence of P.W.3 is very important who has deposed in his evidence in paragraph No.4 of the examination-in chief that 43 'Lokayuktha Police Inspector secured the bag from the nearby room attached to that office'. This clearly shows that when the Investigating Officer has entered into the chamber of the accused person, the bag was not there on the table. Otherwise, there was no reason for P.W.3 to depose that Lokayuktha Police Inspector secured the bag from the nearby room, which raises a reasonable doubt in the mind of the Court as to whether the bag containing tainted notes was already there on the table of the accused person before the Investigating Officer entered into the office immediately before giving pre- arranged signal, regarding which, there is no explanation by the prosecution. In view of this material it is difficult for this Court to accept the case of the prosecution that accused demanded Rs.60,000/- and when the complainant tendered the amount of Rs.60,000/- the accused told that it is to be kept in the 44 bag and got secured the bag from P.W.2 Hanumagowda and thereafter, amount was kept in the said bag. In this regard, there is no worth believable material on the side of the prosecution.
16. Looking to the evidence of the Investigating Officer also in the examination in chief, he has deposed in detail about the investigation that he has conducted in the matter. But, in the cross-examination, he deposed that he has received a letter dated 03.06.2011 from ECCI in which it was mentioned that as on 03.06.2011, a sum of `2,59,953/- was pending. He also deposed that he has not enquired any staff of ECCI to ascertain whether accused was empowered to subscribe the signature on the check list. Therefore, this piece of evidence on the side of the prosecution also goes to show that the Investigating Officer has not at all made his efforts during the investigation to ascertain whether 45 the accused was empowered to subscribe the signature on the check list. So far as the conversation in the voice recorder is concerned in paragraph 12 of his cross- examination, PW-6, Investigating Officer deposed that he has not obtained any sample voice of the accused. This also goes to show that he has not made any efforts to ascertain whether the voice in the voice recorder said to be the real voice of the accused or not.
17. I have also observed above that to ascertain whether the voice recorded in the voice recorder which was subsequently taken into the compact disc is real voice of the accused or not, no such test was conducted with the help of experts. It is only mentioned in the mahazar as per Ex.P3 drawn in the police station of PW6 subsequent to Ex.P2, pre trap mahazar and trap mahazar as per Ex.P.4. There was a voice of the accused person and it is also mentioned in both the mahazar 46 about the conversation which is a transcript. Therefore, only on the basis of such material, it cannot be said that prosecution established with cogent and worth believable material that the voice said to have been recorded in the voice recorder is that of the accused person.
18. Apart from that, even with regard to the due amount which is said to have been with held by the accused person without putting the signature on the check list, there is no acceptable material placed by the prosecution.
19. Looking to the complaint averments under Ex.P1 wherein it is mentioned by the complainant that he used to regularly ask the Assistant Engineer to give the check list and help him to get bills of `40,00,000/- (Rupees Forty Lakhs only) approximately and in the 47 next paragraph it is mentioned that accused is demanding to pay 2% of the said amount. But if the amount of `40,00,000/- is said to be the due amount to be payable to the complainant, if the contention of the complainant is accepted that accused was demanding 2% of the said amount, it becomes `80,000/- (Rupees Eighty Thousand only).
20. Looking to another document i.e., the sanction order under Ex.P5, it goes to show that the due amount to be payable by ECCI Company to the complainant for the work that he has executed is about `30,00,000/- and it is mentioned that accused accepted `60,000/- (Rupees Sixty Thousand only) as bribe amount. Therefore, looking to the averments in the complaint Ex.P1 and the sanction order Ex.P5 also, there is no consistency with regard to what was the amount due to the complainant from ECCI Company. Not only that, if 48 we consider the evidence of the very Investigating Officer who has deposed in paragraph 9 of his cross examination that the amount due was in a sum of `2,59,953/- was pending. Therefore, if this amount is taken into consideration, as deposed by the Investigating Officer and if 2% of this amount is calculated, it cannot be `60,000/- as contended by the complainant. Therefore, regarding the due amount to be payable to the complainant is concerned, there is no worth believable evidence on the side of the prosecution.
21. Looking to the evidence of PW.3, it further goes to show that official work of his Company pertaining to PW.1 and PW.2 was not pending. Therefore, the appellant was able to establish before this Court that the prosecution evidence with regard to the due amount is concerned, there is no worth believable material produced by the complainant.
49
22. Even looking to the evidence of the very complainant himself in paragraph No.3 of his deposition, wherein he has deposed that when he again approached the accused about a week thereafter in the office of ECCI company, the accused demanded 2% of the total bill amount by way of bribe. That figure approximately then worked out to `6,00,000/- or `7,00,000/-. Therefore, even this deposition of the complainant is contrary to his own contention that he has mentioned in Ex.P1. Therefore, the contention of the respondent/complainant with regard to the due amount is concerned, cannot be accepted at all. This fact was not properly considered and appreciated by the learned Special Judge.
23. Even looking to the prosecution material, whether the complainant paid that tainted currency notes to the accused or kept in leather bag, again there 50 is no acceptable material. Even in cross-examination, so far as PW.1 is concerned, in paragraph 5 of his deposition wherein he has deposed that he came out from the cabin and contacted CW-19 over mobile phone and informed that he paid tainted currency notes to the accused. This goes to show that the tainted currency notes were handed over to the accused himself. Whereas, the other contention is that when he wanted to give the amount to the accused, accused told that it is to be kept in the leather bag and he directed CW-2 to bring leather bag.
24. I have already referred to the evidence of PW- 6, Investigating Officer with regard to the leather bag. Apart from that the evidence of PW.5 is also relevant to be mentioned regarding leather bag.
51
25. In paragraph No.8 of his deposition, PW.5 deposed that after he entered the office of the accused, he could not know as to whom the leather bag belonged. He could notice that the book which was seized was pertaining to East West Company. After he entered the office of the accused, he came to know that the accused is employee of Bengaluru Water Supply and Sewerage Board. The evidence of PW.5 who said to have entered the office of the accused along with other trap parties and the Lokayukta Police Inspector wherein his evidence is to the effect that he found a leather bag on the table of the accused. Whereas the evidence of PW.3 is quite contrary to this evidence who deposed that the Lokayuktha Police Inspector has secured the leather bag from the neighboring room. Hence, it is rightly contended by the learned counsel for the appellant/accused that even with regard to the case of 52 the prosecution as told by the accused, the amount was kept in the leather bag is also not acceptable.
26. So far as the sanction letter is concerned, it is contended by the learned Special P.P., that its validity cannot be questioned before this Court in the appeal proceedings. In this connection, I refer to Section 19(3)(a) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act' for short) which reads as under:
"19(3)(a): No finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;" 53
27. In this connection, I have also perused the decision relied upon by the learned Special P.P reported in AIR 2010 SC 1451 rendered in the case of State of M.P. vs. Jiyalal.
28. Paragraph Nos.7 to 9 of the said decision are relevant which reads as under:
"7. In the case before us, even if it were to be accepted that there has been an 'error, omission or irregularity' in the passing of the sanction order, the learned single judge of the High Court has not made a finding which shows that a serious failure of justice had been caused to the Respondent. In the absence of such a finding it was not correct for the High Court to set aside the conviction and sentence given by the Special Judge.
8. It was also not justified for the learned single judge to hold that the District Magistrate who had passed the sanction order should have been subsequently 54 examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the Respondent to question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution.
9. It is apparent that the High Court has not considered the appeal on merits to decide whether a failure of justice had been occasioned in the present case. Therefore, we set aside the judgment of the learned single judge of the High Court and direct that the appeal filed by the Respondent before the High Court be considered on merits and disposed of accordingly."55
29. I have also perused the relevant paragraph relied upon by the learned Special P.P reported in AIR 2014 SC 1674 rendered in the case of State of Bihar and others vs. Rajmangal Ram:
"Even if there is an error in competence of the sanctioning authority it is still necessary to contend and prove that there is a failure of justice due to the error or irregularity in the grant of sanction."
30. P.W.4-A.R.Panduranga, the Sanctioning Authority of the BWSSB at the relevant point of time, has deposed in his evidence at paragraph No.3 that, the Chairman of Bengaluru Water Supply and Sewerage Board was authorized to look into the records and to accord sanction. He placed the above documents before the Chairman, who in turn ordered that permission can be accorded for prosecution of the accused. The 56 Chairman also ordered that the matter is placed before the Bengaluru Water Supply and Sewerage Board authorities for approval. He was authorized by Bengaluru Water Supply and Sewerage Board to subscribe signature on the sanction order. On 29.6.2011 he issued sanction order. He saw the sanction order consisting of three sheets, marked as Ex.P5 and his signature is at Ex.P5(a).
Even in the cross-examination he denied the suggestion that he has not verified any documents and denied further suggestion that he has merely signed Ex.P5. He denied the suggestion that he was not empowered and authorized to sign the sanction order.
Therefore, looking to the sanction order, the oral evidence of P.W.4 and also the decision relied upon by the learned Special Public Prosecutor, referred above, the prosecution was able to establish the fact that the 57 sanction order is by the competent authority and the accused has not established the prejudice caused to him because of such sanction order. Therefore, the contention of the accused regarding the validity of the sanction order cannot be accepted. Therefore, I hold that the prosecution has placed satisfactory material to show that the sanction order is valid and it is in accordance with the requirements of Section 19 of the Prevention of Corruption Act, 1988.
31. With regard to the contention of the learned Special Public Prosecutor regarding the presumption under Section 20 of the Prevention of Corruption Act, 1988 he relied upon the decision reported in AIR 2001 SC 318 rendered in the case of M.Narsinga Rao Vs. State of Andhra Pradesh. I have perused the principle enunciated in the said decision and also the 58 factual matrix involved in the said decision. Paragraph No.25 of the said judgment reads as under:
"25. We, therefore, agree with the finding of the trial Court as well as the High Court that prosecution has proved that appellant has received gratification from P.W.1. In such a situation the Court is under a legal compulsion to draw the legal presumption that such gratification was accepted as a reward for doing the public duty. Of course, the appellant made a serious endeavour to rebut the said presumption through two modes, one is to make P.W.1 and P.W.2 speak to the version of the appellant and the other is by examining two witnesses on the defence side. True P.W.1 and P.W.2 obliged the appellant. The two defence witnesses gave evidence to the effect that the appellant was not present at the station on the date when the alleged demand was made by P.W.1. But the trial Court and the High Court have held their evidence unreliable and such a finding is supported by sound and formidable reasoning. The concurrent finding made by the two Courts does not require any interference by this Court."
Coming to the case on hand, so far as the recovery of the amount is concerned, I have already observed 59 that it is not the case of the prosecution that the amount was paid into the hands of the accused person. It is their own case that when P.W.1-complainant tendered the amount to the accused person, the accused asked the complainant to put the same into the leather bag and instructed P.W.2 Hanuma Gowda to bring the leather bag and accordingly, leather bag was brought by P.W.2 and then complainant put the tainted currency notes of Rs.60,000/- by wrapping it into Tamil Newspaper and then kept into the said leather bag. Therefore, the accused has not received the tainted currency notes and so far as keeping the amount in the leather bag is concerned, who has brought this leather bag and the said leather bag belong to whom, I have already made detailed discussion in the previous paragraphs. Further, whether the said bag was on the table of the accused as deposed by some of the 60 prosecution witnesses or it was secured by Lokayuktha Police Inspector from the nearby room after they all entered into the chamber of the accused, I have discussed in detail and held that the evidence on the side of the prosecution in this regard does not inspire the confidence in the mind of the Court and it is difficult for the Court to accept the contention of the prosecution that the accused directed P.W.2 Hanuma Gowda to bring the leather bag and after the leather bag was brought, the accused directed the complainant to put the amount into the said leather bag and accordingly after wrapping the amount in the Tamil newspaper, it was put into the leather bag, is not worth believable. When that is so, raising presumption under Section 20 of the Prevention of Corruption Act, does not arise.
32. I have also perused the explanation offered by the accused as per Ex.P8. Looking to his explanation, 61 the accused has stated in detail that there is no any sort of relationship between himself and the complainant. The complainant himself has kept the amount in his bag without bringing it to his knowledge and then he has informed the Lokayuktha police. He has also mentioned that in connection with the execution of the work, number of times there was quarrel between himself and the complainant with regard to the sub-standard quality of work done by the complainant. Himself and P.W.3 Vijayakumar have number of times quarreled with the complainant. Even though the work executed was of a sub-standard quality, P.W.1 pressurized them to sign the checklist and when they opposed the same, then he made false allegations of demanding bribe amount before the Lokayuktha police. He has not received the amount from the complainant and he has also requested to 62 verify about the sub-standard quality work done by the complainant and thereby justice may be done to him.
33. The explanation offered by the accused clearly shows that he has not received the bribe amount and without bringing to his knowledge the said amount was kept in the leather bag. Even he has stated the reasons for not signing the checklist that the work executed by complainant was of sub-standard quality. The explanation offered by the accused under Ex.P8 gains support from the oral evidence of P.W.3 Vijayakumar, the consultant whose name is also mentioned by the accused in his explanation Ex.P8. The oral evidence of P.W.3 Vijayakumar about which also I have made reference shows that, since June 2005 he is the consultant for Bengaluru Water Supply and Sewerage Board (BWSSB), Bengaluru. In the month of May 2011 he was supervising the Sewage work of Nagawara and 63 Hennuru within the limits of Byatarayanapura Town Muncipality, Bengaluru. After going through the quality of the work he used to report the same everyday to the concerned Engineers of BWSSB and also to the Team leader of the company in which he was working. At that time, the accused was working as Assistant Engineer, BWSSB, Byatarayanapura, Bangalore North Division. Accused was looking after the quality of the work. He further deposed that, on 5.5.2011 at about 11.00 a.m. he was in ECCI office, near Nagawara Traffic Junction. At that time he found P.Ws.1 and 2 and the accused in that office. He received a call to his cell phone and he was responding the said call outside that office. At that time, P.Ws.1 and 2 asked him to enter that office and went out of that office. He was in the process of entering the office. A person not known to him entered the office. Accused was inside that office. About 4-5 64 unknown persons also entered that office. He came to know that those unknown persons are Lokayuktha police staff.
34. In the cross-examination he deposed that, in the course of report he used to propose and suggest the quality of work executed. Subsequent to his report BWSSB authorities used to take up the matter for payment of bill amount. Earlier to 5.5.2011 he placed many log sheets stating that work executed is not satisfactory. Many show cause notices were issued to M/s. ECCI stating that work executed is of sub- standard. Since the work was of sub-standard payment was not made to ECCI by BWSSB. P.Ws.1 and 2 having nothing to do with his company and M/s. ECCI. M/s. ECCI was issuing notices to P.W.1 touching the nature of work. His evidence also shows that except him there is no other person by name Vijaya Kumar connected to 65 the execution of work. Nithyananda is the Regional Manager of M/s.ECCI. He was very often telling him to improve the quality of work. Nithyananda and P.W.1 were not happy with his reports. The accused was not in the obligation to subscribe signature on his daily reports. P.W.1 was not happy with his reports.
35. The evidence of P.W.3-Vijaya kumar supports the defence of the accused which he has offered in his explanation under Ex.P8 and his evidence also show that payment was withheld to P.W.1, because the work executed by him was of sub-standard quality. Therefore, looking to both oral as well as documentary evidence, the contention of P.W.1-complainant that the accused demanded bribe amount to sign the checklist cannot be accepted.
36. All these aspects were not properly considered and appreciated by the learned Special Judge in proper 66 perspective. The learned Special Judge has wrongly proceeded in the matter holding that the prosecution proved the charges beyond all reasonable doubt. The learned Special Judge has not taken into consideration the defence of the accused under Ex.P8. So far as the degree of proof of defence by the accused is concerned, it is not beyond reasonable doubt, but preponderance of probabilities is sufficient.
37. After looking to the evidence of P.W.3-Vijaya Kumar and considering the document Ex.P8, the explanation of the accused, I am of the clear opinion that the appellant-accused establish his defence by cogent and satisfactory material and made it clear to the Court that the accused never demanded bribe amount, but it is because of the sub-standard quality of work executed by the complainant, the payment of bill amount to him was withheld. The judgment and order 67 of conviction passed by the learned Special Judge is not in accordance with the oral and documentary evidence placed on record and as such, the same is not sustainable in law.
Accordingly, appeal is allowed. Judgment and order of conviction passed by the learned Special Judge in Spl. C.C.No.122/2011 is hereby set aside and the appellant-accused is acquitted of all the charges leveled against him. Bail bonds executed by him stands cancelled. The fine amount, if any, deposited by him, be refunded to him.
Sd/-
JUDGE Bkp/MDS/BKP