Bangalore District Court
Cbi/Acb vs No.1 Sri. Narasimha Swamy S.G on 21 January, 2023
1
SPl.C.C.No:18/2017
KABC010007462017
IN THE COURT OF THE XXI ADDITIONAL CITY CIVIL & SESSIONS
JUDGE AND PRINCIPAL SPECIAL JUDGE FOR CBI CASES,
BANGALORE CITY, CCH.NO.4
Dated this the 21st day of January, 2023
Present:
Sri.K.L.ASHOK, B.Com, LL.B.,
XXI Additional City Civil and Sessions Judge
& Principal Special Judge for CBI Cases,
Bengaluru.
SPL.C.C.No:18/2017
Complainant CBI/ACB, Bengaluru.
(By Sr.Public Prosecutor.)
Vs
Accused No.1 Sri. Narasimha Swamy S.G.
S/o Sri.K. Gopalaiah
Aged about 45 years
Superintendent of Customs
Import Section of Customs
Air India Sats, Air Cargo Complex
Bengaluru International Airport,
Bengaluru.
R/o. 1487, 3rd Main, 5th Cross,
Vijayanagar, 2nd Stage,
Mysore- 570 017.
2 Spl.CC.No:18/2017
Accused No.2 Sri. N.Sundaram
S/o.Late Sri.Narayanaswamy
Aged about 52 years
Superintendent of Customs
Import Section of Customs
Air India Sats, Air Cargo Complex
Bengaluru International Airport,
Bengaluru.
R/o 72-B, 3rd Cross, Amar Regency
Layout Horamavu Main Road,
Bengaluru- 43.
(A1 & A2 - By Sri.Shivaji H. Mane,
Advocate)
Date of offence 16.03.2016
Date of report of offence 16.03.2016
Date of arrest of accused 19.03.2016 (A1 & A2)
Date of release of accused on 24.03.2016 (A1 & A2)
bail
Total period of custody 6 days
Name of the complainant CBI/ACB/BLR
Date of commencement of 14.11.2017
recording evidence
Date of closing of evidence 14.12.2020
Offences complained of under Section 120-B of IPC, under
section 7 and 13(2) /w 13(1)(a) and
under section 13(2) r/w.13(1) (d) of
Prevention of Corruption Act, 1988.
Opinion of the Judge Not Guilty
3 Spl.CC.No:18/2017
JUDGMENT
PW.38 Sri.A.V.S.Sai, Inspector of Police, CBI/ACB/BLR, has submitted charge sheet against the accused No.1 and 2 for commission of the offences punishable under Section 120-B of IPC, under section 7, and 13(2) /w 13(1)(a) and under section 13(2) r/w.13(1) (d) of Prevention of Corruption Act, 1988.
2. The brief facts of the prosecution case are that, the instant case was registered based on the source information that Shri.Narasimha Swamy.S.G. and Shri.N.Sundaram, both Superintendents of Customs of the Import Section of the Customs Department, Air India Sats, Air Cargo Complex, Bengaluru International Airport, Bengaluru conspired with Shri.Shivamurthy.S.K., Sr.Executive of M/s.DHL and Shri Keshava Murthy.P., Sr.Executive of M/s.Capital Shipping and in pursuance of the said conspiracy, they indulged in collecting bribe money from the Clearing House Agents (CHA) by abusing their official position as Public Servants in the matter of clearing files for release of imported goods. Based on the said reliable information, a Joint Surprise Check was conducted jointly by the CBI and the Customs Vigilance. The said JSC revealed that Shri Narasimha Swamy.S.G. and Shri.N.Sundaram, both Superintendents of Customs of the Import Section of the Customs Department, Air India Sats, Air Cargo Complex, Bengaluru International Airport, Bengaluru conspired with Shri.Shivmurthy, S.K., Sr.Executive of M/s.DHL and Shri Keshava Murthy.P., Sr.Executive of 4 Spl.CC.No:18/2017 M/s.Capital Shipping and in pursuance of the said conspiracy, they indulged in collecting bribe money from the Clearing House Agents (CHA) by abusing their official position as Public Servants in the matter of clearing files for release of imported goods.
3. That Shri S.G.Narasimha Swamy (A-1) and Shri N.Sundaram (A-
2) both Superintendents of Customs were working in the Import Shed of Air India SATS and that they were demanding and collecting an amount of Rs.50/- per each bill of Entry they are passing. Investigation has revealed that they were mostly collecting he said amount through one Shri Arjun, Executive of M/s. Jeena & Company, a CHA and through Shri.P.Shivamurthy, Sr.Executive of M/s.DHL. It has further been revealed that if both Arjun and Shivamurthy are not available, they were collecting the said amount of Rs.50/- per bill through Shri Keshava Murthy, Executive of M/s.Capital Shipping.
4. That Shri Narasimha Swamy.S.G. and Shri N.Sundaram were demanding payment of Rs.50/- per each Bill of Entry Passed by them for Out of Charge. It has further been revealed that if the CHAs were not paying the said amount, the accused officials were causing undue delay in Passing the Bills for out of Charge and thus forcing them to shell out the said sum of Rs.50/- per Bill. It has also been revealed that the accused officials were collecting the said amount through Shri Arjun, Executive of M/s.Jeena & Company or in his absence, through Shri Shivamurthy, Executive of M/s.DHL or in the absence of both, through Shri Keshava Murthy, Executive of 5 Spl.CC.No:18/2017 M/s.Capital Shipping Services. It has also been revealed that the accused officials were directly taking the aforesaid amount of Rs.50/- per bill directly from some of the CHA executives who were paying on a weekly basis on the demand of the accused officials.
5. Further that Shri S.G.Narasimha Swamy (A-1) was noting down the names of CHAs whose Bills he had cleared and also the number of Bills cleared by him. It has also been revealed that he rounded off the number of Bills for which he had received payment of Rs.50/- per bill. The said papers on which he had written the aforesaid details were recovered during the Joint Surprise Check Proceedings. That the aforesaid acts of Shri Narasimha Swamy S.G. and Shri N.Sundaram constitute the offence punishable under section 120-B r/w.Section 7 and Section 13(2) r/w.13(1)(a)(d) of PC Act, 1988.
6. On receipt of the charge sheet, this Court perused the same and took cognizance for the offences punishable under Section 120- B of IPC, under section 7, 13(2) r/w 13(1)(a) and under section 13(2) r/w.13(1) (d) of Prevention of Corruption Act, 1988 and summoned the accused. The accused appeared before the Court through their counsel and were enlarged on bail. Thereafter, copies of prosecution papers were furnished to the accused. The accused were heard regarding charge and as there was a prima-facie case that required trial, charges were framed against the accused No.1 and 2 for the offences punishable under Section under Section 120-B of IPC, 6 Spl.CC.No:18/2017 under section 7, 13(2) r/w 13(1)(a) and under section 13(2) r/w.13(1)
(d) of Prevention of Corruption Act, 1988. The accused pleaded not guilty and claimed to be tried for the said charges.
7. In order to prove their case and guilt of the accused, prosecution examined PW1 to P395 and got marked Ex.P1 to P60 along with MO.1 to MO.5 as documents. The defense side got marked Ex.D1 & D2 in the cross examination of witnesses. After prosecution closed their evidence, the accused were examined under Section 313 Cr.P.C. and the answers given by the accused were recorded. In their examination the accused denied the incriminating circumstances against them and has submitted that they had no defence evidence. Hence, the arguments were heard.
8. The learned Sr. Public Prosecutor has vehemently argued that, the prosecution had proved the charge beyond all reasonable doubts. That the evidence of hostile witnesses can not be discarded in toto and is to be considered by the Court. That P.W.1 to 3 have implicated the accused that Pw.1 & PW.2 were collecting the illegal gratification for and on behalf of the accused. PW.3 has identified the handwriting of the accused on Ex.P6 & P7. That the accused have not disputed the collection of the money. But, it is their defence that it was contribution towards Ugadi festival. But since the collection was over a period of time, it cannot be towards the festival. And under Section 7 of Prevention of Corruption Act, even a third person can collect money on behalf of the accused. That all the 7 Spl.CC.No:18/2017 accused need not participate in every act towards criminal conspiracy. That, the presumption under Section 20 of Prevention of Corruption Act is to be drawn which is to be rebutted by the accused. That joint surprise check is preventive in nature and is a preliminary enquiry as permitted in Lalitha Kumari's case. Since, the FIR was not registered, the I.O. was not seized any item at the time of joint surprise check. Though, the accused have been exonerated in the departmental enquiry it is due to lack of evidence and hence the benefit of the same cannot be given to the accused in this case. Further, the evidence of the Investigating Officer is clear unambiguous and points to the guilt of accused. Accordingly, has sought a conviction. He has further filed written arguments in support of the case of prosecution.
9. Sri.Kiran S.Javali, the learned Senior counsel appearing on behalf of Sri. Shivaji H Mane, the learned counsel for the accused No.1 and 2 has argued that, the burden to prove the charge beyond all reasonable doubt is on the prosecution. Merely because the prosecution has examined number of witnesses by itself would not amount to proof. While the evidence of hostile witnesses need not be discarded, the Court is bound to see whether it is acceptable. He has argued that, there was no FIR prior to the joint surprise check and as such the Ex.P.12 mahazer conducted is inadmissible. That the joint surprise check itself is illegal in view of Girish Chandra's case. That none of the employers of CHAs have been examined to prove the payment of money. That there is no evidence of demand. That 8 Spl.CC.No:18/2017 these accused have been prosecuted by their department on the very same material and have been exonerated. As such, the criminal prosecution cannot be sustained. Accordingly, has sought for an acquittal.
10. For disposal of this case, following points arise for consideration:
1) Whether the prosecution prove the valid sanction under Section 19(1)(c) of Prevention of Corruption Act, 1988 to prosecute the accused No.1 and 2 ?
2) Whether prosecution prove that accused No.1 and 2 being Superintendents of Customs of Import Section of Customs Department at Air India SATS, Air Cargo Complex, Bengaluru International Airport, Bengaluru during the period 14.3.2016 to 20.3.2016 have entered into criminal conspiracy with pardoned accused Sri. Shivamurthy S.K. (PW1) and P. Keshavamurthy (P.W.2) were collecting illegal gratification amount of Rs.50/-
for passing bills through Sri. Shivamurthy S.K. (PW1) and P. Keshavamurthy (P.W.2) on behalf of accused 1 and 2 and thereby accused No.1 and 2 have committed criminal misconduct as public servants working as Superintendents of Customs and Inspectors of Customs respectively of Import Section of Customs Department at Air India Sats, 9 Spl.CC.No:18/2017 Air Cargo Complex, Bengaluru International Airport, Bengaluru and thereby have committed an offence punishable under Section 120-B of IPC beyond all reasonable doubts?
3. Whether prosecution further proves that accused No.1 and 2 being Superintendents of Customs of Import Section of Customs Department at Air India SATS, Air Cargo Complex, Bengaluru International Airport, Bengaluru during the said period by abusing and misusing their authority and power as public servants working as Superintendents of Customs of Import Section of Customs Department at Air India Sats, Air Cargo Complex, Bengaluru International Airport, Bengaluru along with pardoned accused 3 and 4 were collecting illegal gratification of Rs.50/- for passing the bills from Clearing House Agents and thereby have committed an offence punishable under Section 7 of Prevention of Corruption Act, 1988 beyond all reasonable doubt ?
4. Whether prosecution further proves that accused No.1 and 2 being Superintendents of Customs of Import Section of Customs Department at Air India SATS, Air Cargo Complex, Bengaluru International Airport, Bengaluru during the said period have indulged in collecting illegal gratification other than 10 Spl.CC.No:18/2017 legal remuneration from CW12 to 36 through CW11, 37 and 38 by abusing official position as public servants in order to do illegal favour to said CW12 to 36 in the matter of clearing of files relating to imported goods and thereby have committed an offence punishable under Section 13(2) r/w 13(1)(a) of Prevention of Corruption Act, 1988 beyond all reasonable doubts ?
5. Whether prosecution further proves that accused No.1 and 2 being Superintendents of Customs of Import Section of Customs Department at Air India SATS, Air Cargo Complex, Bengaluru International Airport, Bengaluru during the said period have indulged in illegal acceptance of illegal gratification other than legal remuneration from CW12 to 36 CHAs through CW11, 37 and 38 by abusing official position as public servants in order to do illegal favour to said CW12 to 36 in the matter of clearing of files relating to imported goods and thereby have committed an offence punishable under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 beyond all reasonable doubts ?
6. To what order?
11 Spl.CC.No:18/2017
11. Having heard the arguments on both side and on appreciating the oral and documentary evidence or record, My findings on the above points are as under :
Point No.1: In the affirmative;
Point No.2: In the negative;
Point No.3: In the negative;
Point No.4: In the negative;
Point No.5: In the negative;
Point No.6: As per final order for the following:
REASONS
12. Point No.1 :- Section 19 of Prevention Corruption Act mandates that, unless there is a valid sanction, cognizance cannot be taken. Therefore, a valid sanction is a pre condition to prosecute a public servant. In this case, accused No.1 and 2 are the employees of the Customs Department. Therefore, in order to prosecute them a valid sanction is necessary. In order to prove the sanction, prosecution have examined Sri Rajiv Bhushan Tiwari as P.W.36. He was the Chief Commissioner of Customs at the relevant period of time. He has testified that during June 2016 the CBI Officials had sought sanction to prosecute the accused No.1and 2. That they had 12 Spl.CC.No:18/2017 submitted the statement of the witnesses, requires during the investigation, cash recovered during the investigation and panchanama in respect of those recoveries along with investigation report. That he has sent those records to the Vigilance Section for verification. Thereafter, when the file was put up before him, he has examined all the documents along with the investigation report and came to conclusion that there was a prima facie case to prosecute the accused No.1 and 2. Accordingly, he has accorded sanction to prosecute the accused No.1 and 2 as per Ex.P.53 to Ex.P.54 respectively. He has also identifiled Ex.P.55 as the copy of orders dated 13.07.2010 issued by the under Secretary to the Government of India, Ministry of Finance, Central Board of Excise and Customs showing schedule of powers. Said documents reflects that P.W.36 being the Chief Commissioner of Customs had the power to accord sanction to prosecute the accused No.1 and 2.
13. P.W.36 was cross-examined in length by the learned Counsel for the accused. Though, the cross-examination is in detail, nothing to discredit his testimony could be elicited. Though, it was suggested that P.W.36 had no authority to accord the sanction, same does not 13 Spl.CC.No:18/2017 inspire confidence in view of Ex.P.55. Though, Ex.P.55 does not specifically mention Section 19(1)(c) of Prevention of Corruption Act, nevertheless it indicates that the P.W.36 had the power and authority to accord sanction to prosecute accused No.1 and 2. At the same time, there is no suggestion to show who else if not P.W.36 had the power to accord such sanction. Therefore, it is evident that the denial of the authority of P.W.36 is made just for the sake of denial and as such it is devoid of merits.
14. Evidence of P.W.36 coupled with Ex.P.55 establishes his authority to accord sanction to prosecute accused No.1 and 2. His evidence clearly reflects that the CBI authorities have placed the relevant materials for his consideration and he has gone through the material and has applied his mind to accord the sanction. As such, there are no grounds to invalidate the sanction Ex.P.53 and Ex.P.54 and same has to be upheld. Thus, it is held that there is a valid sanction to prosecute accused No.1 and 2. Accordingly, Point No.1 is answered in the affirmative.
15. Points No.2 to 5 :- As these points are interconnected, are interdependent and arise out of the same incident, they are taken 14 Spl.CC.No:18/2017 together for discussion in order to avoid repetition and for the sake of convenience. The entire case of the prosecution hangs around the joint surprise check hereinafter referred to as 'JSC' conducted on 16.03.2016. Admittedly, said JSC was conducted based upon source information received by the CBI. As such, there was no FIR registered prior to conducting the JSC. Therefore, the defence side have assailed the validity of JSC.
16. Here it is necessary to refer the case of Lalitha Kumari Vs. Government of U.P. and others reported in (2014) 2 SCC 1. In the said case, the validity and necessity of conducting a preliminary enquiry upon receipt of a complaint was considered by the Hon'ble Supreme Court. The Hon'ble Supreme Court was pleased to hold that if the information received did not disclose the commission of a cognizable offence, the investigating authority was at liberty to conduct a preliminary enquiry to ascertain commission of such offence. On the other hand, if the information disclosed commission a cognizable offence then the investigating authority had to registered an FIR without any preliminary enquiry. 15 Spl.CC.No:18/2017
17. While a preliminary inquiry is desired in corruption cases, the scope of a preliminary inquiry is highly restricted in nature. It is only to ascertain whether the information reveals any cognizable offence. The Constitutional Bench of the Hon'ble Supreme Court in the decision reported in (2014) 2 SCC 1 in the case of Lalita Kumari v. Government of Uttar Pradesh was pleased to hold that:
"120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4.The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5.The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
..... "
16 Spl.CC.No:18/2017
Similarly in the decision reported in (2021) 5 SCC 469 in the case of Charansingh vs. State of Maharashtra, the Hon'ble Supreme Court was pleased to hold that :
"10.1 ...... However, as observed hereinabove, such an enquiry would be conducted to ascertain whether a cognizable offence is disclosed or not. As observed hereinabove, even at the stage of registering the first information report, the police officer is not required to be satisfied or convinced that a cognizable offence has been committed. It is enough if the information discloses the commission of a cognizable offence as the information only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law."
18. Therefore, the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Therefore the scope of the JSC ought to have been restricted to ascertaining the commission of a cognizable offence and nothing further.
19. The objective of preliminary inquiry into a complaint of corruption is only to examine whether the complaint actually discloses any cognizable offence against any particular person or persons and not to collect evidence in support of the complaint. The collection of evidence can be undertaken by the 17 Spl.CC.No:18/2017 investigating machinery only during investigation. If a complaint did not disclose any cognizable offence punishable under law, the prosecuting agency cannot collect materials to supply the deficiency in the complaint and to register a crime. Once the investigating machinery comes to know about the commission of a cognizable offence, it is bound to register an FIR and commence investigation as per the provisions of the Code of Criminal Procedure thereafter.
20. In the light of the decision of the hon'ble Supreme Court in H.N.Rishbud and Another -vs- State of Delhi reported in AIR 1955 SC, the collection of evidentiary material is necessarily to be treated as investigation and not a preliminary inquiry. In the terms of the the hon'ble Supreme Court in the said case, investigation is "under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of 18 Spl.CC.No:18/2017 evidence relating to the commission of the offence which may consist of (a) examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing a charge sheet under Section 173". Hence, by necessary implication in this case, the investigation commenced prior to registration of the case with conducting of Ex.P.12 panchanama.
21. Further, the Division bench of the hon'ble High Court of Karnataka in Girishchandra -vs- The State by Lokayuktha Police reported in ILR 2013 KAR 983(DB) which is relied upon by the defence was pleased to hold that, in all trap cases, it is just and necessary that recording of the complaint/registration 19 Spl.CC.No:18/2017 of crime and submission of the FIR to the jurisdictional Court before embarking upon the protocol of raid is mandatory. The hon'ble High Court was pleased to hold that:
"8. In trap cases, the question of surprise raid is not conceivable and tenable unlike investigation in 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. As we could see 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.
9. Therefore, 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 Lokayuktha 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 action.
10. 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 20 Spl.CC.No:18/2017 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 an 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.
11. In the context of facts of the case on hand, the conduct of investigation by surprise raid in the absence of FIR is untenable. "
22. The said decision is followed in the later case of Sri.Ratnakar Shetty -vs- State through Lokayuktha Police and Another dated 3.12.2015 in Criminal Petition No.2812/2013. In the light of the decision of the hon'ble Supreme Court in H.N.Rishbud and Another -vs- State of Delhi reported in AIR 1955 SC, the collection of evidentiary material is necessarily to be treated as investigation and not a preliminary enquiry. The preliminary enquiry is intended to avoid unnecessary harassment to citizens and also to ensure that public time and money is not unworthily spent. In the light of 21 Spl.CC.No:18/2017 the above decision, the realm of investigation begins after the preliminary enquiry ends.
23. Ex.P.12 is the proceedings of the JSC conducted on 16.03.2016. While the investigating authority is not empowered to conduct an investigation without registering the FIR, the JSC team herein have conducted a mahazar or a panchanama in the form of the proceedings of JSC. They have seized cash and incriminating scribblings from the possession of Pw.1 Sri.Shivamurthy and PW.2. Sri. P Keshavamurthy and also from the premises of Air India SATS, Air Cargo Complex, Bengaluru International Airport. PW.4 Mr.Naveen at para 4 of his testimony on page 3 has stated that the CBI officers have searched the tables of the customs officials and have also searched the personnel by checking their shirt and pant pockets. He has also deposed regarding the seizure carried out by the CBI. This suggests that it was indeed an investigation carried out by the CBI. The process of search and seizure certainly evolves beyond the scope of preliminary inquiry.
22 Spl.CC.No:18/2017
24. Having seized the currency notes and incriminating scribblings, the investigating authority has proceeded to hand them over to PW.4 Mr.Naveen for further verification. This is found at para 10 of the testimony of PW.4 Mr.Naveen wherein he speaks about handing over the currency notes and bunch of papers under Ex.P13 production memo. Having received the currency notes and incriminating scribblings, PW.4 has handed them over to the CBI officials on 26.04.2016 that is more than a month after the JSC as per his testimony at para 10 on page 5. This is a procedure unknown to law. Having seized the currency notes and incriminating scribblings,the investigating authority had no power to hand them over to PW.4 either for verification or for safe keeping. If at all these were to be seized, it ought to have been done in accordance with the procedure and law. This itself raises serious doubts regarding Ex.P.12 proceedings of JSC.
25. Initially, the case was registered against accused Nos.1 to
4. Out of that accused by name Sri P. Shivamurthy S.K and Sri. P. 23 Spl.CC.No:18/2017 Keshavamurthy sought pardon under Section 307 of Cr.P.C., which was granted to them subject to conditions. Accordingly, Sri P. Shivamurthy S.K and Sri. P. Keshavamurthy were pardoned and they were cited as witnesses for the prosecution as C.W.37 and C.W.38. They were examined in the trial as PW.1 & P.W.2. At the stage of arguments, the prosecution moved an application under section 308 of Cr.P.C., claiming that C.W.37/P.W.1 and C.W.38/P.W.2 had violated the terms of pardon. Said application was registered as a separate miscellaneous case in Crl.Misc.No:7812/2022. Said petition was heard and was dismissed on 7th day of November, 2022 by rejecting the claim of prosecution. Therefore, there is no impediment to consider the testimony of PW.1 and P.W.2.
26. The learned Sr.Public Prosecutor has argued that, since this court has already held on the application filed under section 308 of Cr.P.C. that PW.1 and PW.2 have supported the case of prosecution, their evidence are to be accepted. 24 Spl.CC.No:18/2017 Supporting the case of prosecution is entirely different from the evidence being acceptable. A person can testify completely in consonance with his earlier statement under section 161 of Cr.P.C. Said testimony would undoubtedly be in support of the case of prosecution. But his cross examination may reveal that, what he has stated in his examination in chief is not credible and not reliable. Therefore, merely because a person has supported the case of prosecution need not necessarily mean that his evidence is reliable. Therefore, it is necessary to consider whether the evidence adduced by PW.1 and PW.2 have withstood the rigor of cross-examination and inspire confidence. Further, Under Indian Evidence Act Section 133 it is contemplated that one person accomplice shall be competent witness against accused person and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Though Sec.133 expressly provides that an evidence of accomplice can be considered to base conviction against accused, but as a rule of prudence it is unsafe to place 25 Spl.CC.No:18/2017 reliance on the uncorroborated testimony of an approver as required by illustration (b) of Section 114 of the Evidence Act As laid down by the hon'ble Supreme Court in the case of S.C.Bahri Vs State reported in AIR 1994 SC 2420 : 1994 Crl.L.J.3271. At the same time, under illustration-B of Section 114 of Evidence Act provides that "an accomplice is unworthy or credit, unless he is corroborated in material particulars", meaning thereby accomplice evidence cannot be the sole basis of conviction of unless it is corroborated in material particulars because an accomplice is one person he has betrayed his own men while participating in the crime. So, though an uncorroborated testimony of accomplice can be basis for holding accused guilty, but as a rule of prudence it is unsafe to rely on such testimony without corroboration. So, approver evidence must pass two test like reliability and corroboration in material particular as contemplated in Sec.114 and Sec.133 of Evidence Act.
26 Spl.CC.No:18/2017
27. PW.1 Shiva Murthy in his examination in chief at paras 3 and 4 has testified regarding the demand by accused No.1 and 2 to collect the sum of Rs.50/- per bill from the CHAs. At para 5, he has testified that he had returned Rs.5,000/- collected by him to accused No.1 on 14.03.2016. Though this appears to be a testimony regarding demand and acceptance of bribe, it is pertinent to note that on 14.03.2016, no raid was conducted nor this alleged amount has been recovered and seized from the possession of accused No.1. Further, PW.10 to PW.12 and PW.15 to PW.35 CHAs, who allegedly had paid the bribe amount have not supported the case of prosecution. In fact, they have denied payment of any amount to accused No.1 and 2 through PW.1 and PW.2. Since PW.1 and PW.2 are approvers, their evidence being weak can be accepted only with corroboration. But no such corroboration is available in the present case.
28. PW.1 at para No.7 of his testimony has testified that, he has collected Rs.50/- per bill from the CHAs. But in the very next 27 Spl.CC.No:18/2017 breath, he has testified that the amount of Rs.10,000/- recovered by the CBI officials is his personal money. If that is so, then what has happened to the bribe amount of Rs.50/- per bill collected from the CHAs has not been explained in the evidence. Added to this, the CBI officials have returned the said amount of Rs.10,000/- to PW.1 which also raises doubts regarding the case of prosecution.
29. It is the testimony of PW.1 that, he was asked to collect the bribe amount from the CHAs in the absence of PW.3 Mr.Arjun. He has stated so at para 4 of his evidence on page No.3. Per contra, Ex.P12 the proceedings of JSC indicates that PW.3 Arjun was very much present at the spot during the JSC. If that is so, then there is no scope for PW.1 or PW.2 to collect the bribe amount from the CHAs. There is no explanation from the prosecution regarding this aspect.
30. The cross-examination of PW.1 raises serious material doubts regarding his testimony. While PW.1 has testified that 28 Spl.CC.No:18/2017 on 14.03.2016, the accused No.1 and 2 had directed him to collect the amount on their behalf, para No.19 of his cross- examination reveals that he had no work with accused No.1 and 2 on 14.03.2016. If that is so, then his testimony that the accused No.1 and 2 had promised to clear the 40 to 50 bills pertaining to the company of PW.1 cannot be accepted. PW.1 has further testified that on 16.03.2016, he was not on duty. This testimony conflicts with his chief examination and they raised material doubts regarding the case of prosecution.
31. While PW.1 Mr.Shiva Murthy has turned approver and has supported the case of prosecution, it appears that his support was obtained under duress. Para No.20 of his cross- examination reveals that PW.1 had been harassed by the CBI officials to such an extent that he had even attempted suicide. That he has given the statement as per the say of CBI officials. Though it was argued by the prosecution that if PW.1 had been harassed, he could have brought the same to the knowledge of 29 Spl.CC.No:18/2017 the learned Magistrate, who recorded his statement under section 164 of Cr.P.C. But this argument cannot be accepted because, different people react in different manner under stress. The fact that PW.1 had gone to the extent of attempting suicide itself speaks volumes regarding the harassment suffered by him. Further, he has testified at para No.22 of his cross- examination that, he had given the statement under the assurance that he would not be made an accused and would be set free in the case. That for this reason, he has not disclosed the harassment before the learned Magistrate and has given the statement as per the say of CBI. This testimony also raises serious doubts regarding the case of prosecution as to whether the I.O. in his zeal has pushed PW.1 to make a statement to suit the convenience of CBI.
32. PW.2 Mr.Keshava Murthy is another approver, who has also testified regarding Ex.P4 sheets. He has also testified that on 16.03.2016, the CBI officials had seized a sum of Rs.12,040/- 30 Spl.CC.No:18/2017 during JSC, but have returned the same to him. This also is not in accordance with procedure of any mahazar. Further, PW.1 at para No.2 of his testimony has stated that, accused No.1 and 2 have not asked him to do any other work. In his cross- examination at para No.10 he has stated that, he has not given any amount to the accused on 16.03.2016 and has also not seen any amount recovered from accused No.1 and 2. He has also testified at para No.12 that, he has not collected any amount relating to this case. At the earlier part, at para No.11 he has stated that due to the pressure of CBI officials he has given his statement accordingly. This is also corroborated by later part of his testimony on page No.7, where he has stated that if he is involved in any other case, he would not get any work with the CHA and as such has given such a statement. Further, at para No.13 he has testified that he as not met the accused from 14.03.2016 to 16.03.2016. If it so, then there is no possibility of accused No.1 and 2 demanding PW.2 to collect the bribe money 31 Spl.CC.No:18/2017 on their behalf. These facts elicited in the cross-examination also go to the root of the prosecution case.
33. Prosecution side have argued that, they did not get an opportunity to treat the witness PW.2 as hostile as per the rejection made at para No.16 of testimony. While it is true that the initial request of the prosecution to treat the witness as hostile was not accorded, the situation was remedied on 24.11.2020, wherein PW.2 was recalled. On 24.11.2020, the court examined the statement of PW.2 and permitted the prosecution to cross examine PW.2. Therefore, prosecution cannot claim that they were denied the opportunity to cross examine PW.2. But the fact remains that the cross-examination of PW.2 by the defence side has raised serious doubts regarding his testimony.
34. PW.3 Mr.S.Arjun is another CHA who has partly supported the case of prosecution. His evidence can be looked into to the extent that PW.1 and PW.2 were also customs clearance agents 32 Spl.CC.No:18/2017 like him. That he has identified the hand writing of accused No.1 and 2 on Ex.P6 and Ex.P7. These Ex.P6 and Ex.P7 are the loose sheets, secured from the possession of accused No.1 and
2. While Ex.P6 and Ex.P7 contain several names along with some numbers, there is no evidence to show that it pertains to collection of bribe money. Especially when PW.10 to PW.12 and PW.15 to PW.35 have not supported the case of prosecution. Further, para No.15 of the cross-examination of PW.1 Shiva Murthy reflects that the Asst. Commissioner and Dy. Commissioner of Customs used to visit the customs office and would enquire with the accused regarding the statistics of the cleared bills. That in order to convey the information relating to the bill of entry and number of files attended by the accused, they used to write the same in a slip of paper and submit them to the Customs Officers. This explanation brought out from PW.1 appears to be more probable regarding Ex.P6 and Ex.P7, which contain the handwriting of these accused. Therefore, in the absence of cogent and credible evidence, it is not possible 33 Spl.CC.No:18/2017 to hold that, Ex.P6 and Ex.P7 are the incriminating material that reflect the collection of bribe amount by accused No.1 and 2.
35. Ex.P1 and Ex.P4 were the chits that allegedly were prepared by PW.1 Sri.Shivamurthy S.K and Sri. P. Keshavamurthy to note down the bribe amount collected. Here also it is relevant to note that these chits were seized by the JSC but were not sealed nor were submitted to the court with any property challan. On the other hand, these Ex.P1 and Ex.P4 were handed over to the custody of PW.4 Mr.Naveen, who has at his own leisure has produce them before the investigating authority on 26.04.2016 after lapse of more than a month. Therefore, the evidentiary value of Ex.P1 and Ex.P4 comes under serious doubt.
36. The major piece of evidence relied upon by the prosecution are Ex.P1 and Ex.P4 scribbling in which names of customs officials is allegedly mentioned. Such scribbling cannot be considered as books of accounts maintained in the ordinary course of business to attract section 34 of Indian Evidence Act. it is open to any unscrupulous person to make any entry any time against anybody's name 34 Spl.CC.No:18/2017 unilaterally on any sheet of paper or computer excel sheet. There being no further corroborative material with respect to the payment, no case is made out so as to direct an investigation, and that too against large number of persons named in the documents. The Hon'ble Supreme Court in the case of Common Cause (A Registered Society) and Others vs. Union of India and Others in Writ Petition Civil Appeal No. 505 of 2015 on Interlocutory Application Nos. 3 And 4 Of 2017 dated 11.01.2017, has observed as under:-
19. With respect to evidentiary value of regular account book, this Court has laid down in V.C. Shukla, thus:
"37. In Beni v. Bisan Dayal it was observed that entries in books of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. In Hira Lal v. Ram Rakha the High Court, while negativing a contention that it having been proved that the books of account were regularly kept in the ordinary course of business and that, therefore, all entries therein should be considered to be relevant and to have been proved, said that the rule as laid down in Section 34 of the Act that entries in the books of account regularly kept in the course of business are relevant whenever they refer to a matter in which the Court has to enquire was subject to the salient proviso that such entries shall not alone be sufficient evidence to charge any person 35 Spl.CC.No:18/2017 with liability. It is not, therefore, enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person relying upon those entries to prove that they were in accordance with facts."
20. It is apparent from the aforesaid discussion that loose sheets of papers are wholly irrelevant as evidence being not admissible under Section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. The entire prosecution based upon such entries which led to the investigation was quashed by this Court.
37. As held by the Hon'ble Supreme Court, the loose sheet of papers are wholly irrelevant as evidence being not admissible u/s. 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. Therefore Ex.P1 and P4 do not come to the aid of prosecution.
38. PW.4 Mr.Priyadarshini Naveen is the inspector of customs and was working in vigilance section at that time. He has also testified regarding the JSC. This is not the only case where JSC had been conducted. While this JSC was being conducted at the premises of Air India SATS terminal Another JSC was simultaneously conducted at Menzies Aviation Bobba Air Cargo Terminal . It is interesting to note that PW.4 is a common witness to both the JSCs. Para 16 of his 36 Spl.CC.No:18/2017 testimony reflect this situation. Para 17 of his testimony indicates that, these two were independent JSCs having independent witnesses. It is also elicited at para 13 that these two premises are separate. Ex.P.12 does not reflect that PW.4 had left the JSC of this case in the middle. Whereas testimony of PW.4 at paras 17 and 19 indicate that he was shuffling in between the two JSCs. This raises the serious doubt as to how much of the JSC was actually witnessed by PW.4. Since Ex.P.12 does not make a mention of PW.4 having left in between, it also creates a doubt regarding the veracity of Ex.P.12 and the testimony of PW.4. Further P.W.4 Mr. Naveen himself has admitted at para 19 of his testimony that the recitals of the Ex.P.12 regarding the proceedings being prepared in the presence of the witnesses is not correct.
39. Testimony of PW.4 Mr. Naveen at para 22 reflects that no money was recovered from the possession of the accused. He has further deposed at para 22 that the chits recovered had been handed over to him, which he later on handed over to the CBI officials. While Ex.P.12 narrates the same, PW4 has testified to the contrary at para 24. While the document prevails over the oral 37 Spl.CC.No:18/2017 testimony, it still raises a doubt that PW.4 was not aware of the contents of Ex.P.12, which corroborates his earlier testimony that he was shuffling between the two JSCs. Therefore, the participation of PW.4 in the JSCs does not inspire confidence.
40. PW.4 Mr. Naveen at para 4 has deposed that, the CBI officials had caught hold of a CHA and told him that said CHA was collecting money. This means PW.4 was informed by the CBI about the alleged collection of bribe amount. If PW.4 was part of the JSC, there is no necessity for the CBI to inform him. This also establishes the fact that, PW.4 has perceived the entire incident as per the say of CBI. This also raises the material doubts regarding the case of prosecution.
41. The learned Sr.Public Prosecutor has argued that PW.1 has also made an extra judicial confession in the presence of PW.13 regarding the collection of bribe amount. At para 2 of the testimony of PW.13, he has stated that Sri.Shivamurthy S.K informed them that he was collecting Rs. 50 to Rs.100 per movement of the fule and was paying the same to the customs officers in the evening. Here , name 38 Spl.CC.No:18/2017 of any individual customs official is not forthcoming. Whether it is anyone among accused No.1 and 2 or was it any other customs official has also not been mentioned. At the same time, even if this is taken as extra judicial confession, it can bind PW.1 Sri.Shivamurthy S.K alone. Since he has already been pardoned, this confession would not bother him much. In the absence of implicating any specific accused, this admission would not help the prosecution to prove the charges against accused No.1 and 2.
42. Prosecution side have also produced the CCTV footage pertaining to the JSC under M.O.1 to M.O.5 along with Certificate under section 65 -B of Indian Evidence Act. They have also examined PW.14 Mr.M Suresh Kumar in order to prove the same. Though the defence side have disputed the capacity of PW.14 to issue 65-B Certificate, it is pertinent to note that the CCTV footage has been downloaded under the supervision of P.W.14. He has also stated at para 2 of the deposition that he along with his team are controlling and monitoring the CCTV systems. And that the entire server is 39 Spl.CC.No:18/2017 under their control. That makes him competent to issue the required certificate under section 65-B of the Indian Evidence Act. Therefore, there are no reasons to hold the CCTV footage as inadmissible.
43. The CCTV footage between shows the presence of PW.1 and PW.2. Even if the CCTV footage is accepted in its face value, it still does not connect the same with accused No.1 and 2. As discussed earlier, there is no credible evidence Orders establish that accused No.1 and 2 had directed PW.1 to collect the bribe amount on their behalf. Admittedly, there are many customs officials working in the Airport. Therefore, without there being proof beyond reasonable doubts, it cannot be presumed that it was these accused No.1 and 2, who had directed PW.1 to collect the bribe amount on their behalf.
44. In this case, the defence have not seriously disputed the collection of amount by PW.1. and P.W.2. But they have disputed the purpose for which said amount was allegedly collected. While according to prosecution it was the bribe amount, according to defence, it was collection towards celebration of a festival. At paras 40 Spl.CC.No:18/2017 14 of the testimony of PW.1, it was elicited that the workers of Air Cargo Complex were collecting amount for celebrating festivals. It was further elicited even in the event of any accident tr death of a worker, they collect funds to help the family . Though it was argued by the prosecution that the collection was not done on a single day, there is no material to show that the collection had been done on any other day than 16.03.2016. Further, the defence side have countered that collection for the festival need not be restricted to a single day or on the day of festival which would be impracticable. This admission of PW.1 raises a material doubt that whether the alleged collection made by PW.1 was towards Ugadi festival. This also goes to the root of the prosecution case.
45. PW.5 Smt.V.Malarkodi is the Chief Accounts Officer, who has produced the service books of accused No.1 and 2 as per Ex.P14 and Ex.P15. PW.6 Mr.D.Anil is the Additional Commissioner of Customs, who has produced the procedure/rules/regulations towards clearance of bills of entry as per Ex.P19 to Ex.P21. PW.7 Mr.S.Devarajan is the Deputy Commissioner of Central Tax and has produced the duty roaster of accused No.1 and 2 as per Ex.P22. 41 Spl.CC.No:18/2017 These documents are formal in nature. Admittedly, Ex.P14 to Ex.P22 are the photostat copies attested by PW.5 to 7 respectively. Since they are attested copies, the learned counsel for the accused objected for marking of the same due to absence of certificate under section 65-B of Indian Evidence Act. This objection is totally devoid of merits. Section 65-B certificate would be required for production of electronic evidence as secondary evidence. Here admittedly, the primary evidence of Ex.P14 to Ex.P22 is not in electronic form. The copies made of non electronic evidence by an electronic means and produced before the court is not the same as electronic or digital evidence. Therefore, there is no requirement of section 65-B of Indian Evidence Act for producing the photostat copies the originals of which are in a printed non electronic form. As such, these documents can be admitted as secondary evidence. However, these documents do not incriminate the accused in any particular manner. Since the posting and duty of the accused is not in dispute, the above documents become formal evidence in nature. 42 Spl.CC.No:18/2017
46. Evidence of PW.8 Ahok Kumar Yadav and PW.9 Krishna Kant Verma who are customs officials are formal in nature and they do not incriminate the accused in any manner.
47. PW.13 R Padmanabha is an independent witness to the JSC. While he has testified about the JSC in detail, it was elicited that the CBI officials have not seized any documents under Ex.P12. Though he has volunteered that the CBI officials have collected some currency notes and paper slips from PW.1 and PW.2, in view of failing to follow the proper procedure by the IO, this testimony does not merit. At the same time, a comprehensive reading of this witness makes this court to view his evidence doubtfully because as per Ex.P12 pardoned accused 3 and 4 were enquired and were examined and they were searched physically and found to be in possession of slips containing scribblings, notes, names of parties, but in examination-in-chief witness do not speak about pardoned accused no.4 PW2 being enquired, physical search being conducted on him. Further this witness has admitted certain facts, which are contradicted to the basic allegations of prosecution. So, the credibility of this witness is to be viewed doubtfully and it is 43 Spl.CC.No:18/2017 necessary that the evidence of PW13 requires to be corroborated by other witnesses.
48. PW.10 to PW.12 and PW.15 to PW.35 are the CHAs who had allegedly paid the bribe money. But none of them have supported the case of prosecution. All of them turned hostile and have denied the case of the prosecution in toto. Nothing remotely incriminating against accused No.1 and 2 could be elicited through these witnesses. In fact they have denied having paid any amount as bribe. As such, their evidence is not of any use to the case of prosecution.
49. P.W.37 Mr.E.P.Suresh Kumar is the I.O., who has conducted the JSC. He has testified in detail regarding the JSC. He has testified that they have found PW.1 Mr.Shiva Murthy and PW.2 Keshavamurty in the import section and speaks about recovery of currency notes and paper slips from their possession. He has further testified regarding recovery of amount from accused No.1 and 2 and PW.8 and PW.9. As discussed earlier, this amounts to investigation prior to registration of the FIR and hence, is bad in law. Added to this, PW.37 had handed over the currency notes and paper slips found in the possession of PW.1 and PW.2 and accused No.1 and 2 to PW.4 44 Spl.CC.No:18/2017 Mr.Naveen for verification, which is not proper. Further, he has handed over the currrency notes found in possession of all the officials back to them and no explanation regarding these anomalies is supplied by the prosecution. As discussed earlier, PW.4 Mr.Naveen is a witness to the mahazar or the proceedings conducted at two different places and as such, Ex.P12 panchanama or mahazar or proceedings of JSC with the testimony of PW.37 fail to inspire confidence.
50. The testimony of PW.37 even regarding the procedure adopted for conducting the investigation more particularly the JSC is also not in accordance with law. First of all, he ought not to have conducted any investigation without registering an FIR as investigation would exceed the scope of any preliminary inquiry. Having conducted the JSC, PW.37 again gave a go bye to the procedure. Having seized the scribbled chits and cash from the possession of PW.1 and PW.2, PW.37 did not keep them in proper custody. On the other hand, Ex.P.12 reflects that he handed them over to PW.4 Mr.Naveen for further verification. Nor such seizure 45 Spl.CC.No:18/2017 was reported to the court. This itself defeats the purpose of conducting the panchanama.
51. PW.38 Mr.A.V.S.Sai is the Inspector of Police, CBI/ACB Bengaluru is the I.O., who has conducted the investigation. He has testified in detail regarding the receipt of FIR, searching of the residence of accused No.1 arresting and producing accused No.1 and 2 before the court and collection of other evidence. When the investigation itself has commenced prior to registration of the FIR, the testimony of PW.38 the I.O. certainly does not improve the case of prosecution.
52. It is pertinent to note that the I.O. has not inquired the employers of CHAs regarding the payment of bribe money. Though it was argued by the prosecution that, no one keeps records for payment of bribe, said answer is not good enough to cover this lapse in the investigation. Admittedly, even according to prosecution, PW.1 and PW.2 had kept records as per Ex.P1 and Ex.P4 towards collection of bribe amount. Thus, I.O. ought not to have assumed that there would not be any vouchers for payment of the bribe amount. 46 Spl.CC.No:18/2017 Further, the CHAs definitely would not pay the bribe amount out of their pocket. Said amount would be provided by their employers. Which means the employers would account for the same, though not under any specific head that would disclose the nature of transaction. But it would be accounted in one or other form which could have been revealed by a deep and in depth investigation. Failure to inquire the employers of CHAs leaves behind a weak link in the chain of circumstances that goes to the root of prosecution case.
53. PW.39 Sri.J.B.Shivapuji is the learned 17th ACMM, Bengaluru, who has been examined to prove the statement given by PW.1 & PW.2 under section 164 of Cr.P.C. As the statement has not been denied by PW.1 and PW.2 and their evidence is more or less in consonance with said statement , evidence of PW.39 is formal in nature.
54. Both side have relied upon the decision of hon'ble Supreme Court in the case of Neeraj Dutta vs. State (Govt. of N.C.T. of Delhi) reported in 2022 SCC Online SC 1724. In this decision, the Constitutional Bench of the hon'ble Supreme Court has enunciated that conviction under the provisions of 47 Spl.CC.No:18/2017 the prevention of corruption act, 1988 is not bad in the absence of direct evidence and the guilt could be brought home in the presence of circumstantial evidence. The main question which was there before Constitutional Bench of the hon'ble Supreme Court was "in the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence". And the hon'ble Supreme Court has answered the same saying that "In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 70 Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution."
55. The prosecution side have relied upon the above decision in Neeraj Dutta's case that the charges in the present case can be proved by circumstantial evidence. That even if the evidence of PW.1 and P.W.2 are not reliable, the charges are proved by way of circumstantial evidence. He has also relied on the presumptions under section 20 of the Prevention of Corruption Act to bring home the charges against accused No.1 and 2.
48 Spl.CC.No:18/2017
56. As against this, the defence have relied upon the above decision to hold that in the absence of proof of demand, the case is not sustainable. Though the defence have relied upon other decisions which are on the same point, Neeraj Dutta's case being rendered by the constitutional bench prevails over them.
57. As held by the Hon'ble Supreme Court, the charges under sections 7 and 13 of Prevention of Corruption Act can be proved by way of circumstantial evidence. But the basic rule in relying upon circumstantial evidence is that, the chain of circumstances must be complete without there being any weak links in between. In this case, there is nothing to connect Ex.P1 and Ex.P4 with accused No.1 and 2. Evidence of PW.1 and P.W.2 is not credible enough to be accepted in this regard . Such being the case, it cannot be held that the evidence brought on record by the prosecution is of sterling quality to prove the charges.
58. The prosecution side have further relied upon the presumption under section 20 of Prevention of Corruption Act to argue that, it is the burden of the accused to prove their innocence. Here it is necessary to refer to section 20 of Prevention of Corruption Act, 1988 for easy reference which reads as:
49 Spl.CC.No:18/2017
20. Presumption where public servant accepts gratification other than legal remuneration.--
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause
(b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-
sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
59. A bare reading of the above section 20 of Prevention of Corruption Act, 1988 reflects that it is a presumption of law and hence is mandatory in nature. But there is a pre-condition for drawing said presumption. Above section 20 mandates that, 50 Spl.CC.No:18/2017 said presumption shall be raised only when the first limb of section 20 is satisfied. The first limb of above section 20 as it stood prior to amendment prior to drawing the presumption the proof of acceptance is mandatory. Only when it is proved that the accused person has obtained or has agreed to obtain or has agreed to accept or attempted to obtain for himself or any other person any gratification then it shall be presumed that such shall be the motive or reward as mentioned in section 7 of Prevention of Corruption Act, 1988. But in this case, the prosecution have failed to prove the above factual aspects. Therefore, there is no scope to raise the presumption under section 20 of Prevention of Corruption Act, 1988. Therefore, arguments of prosecution in this regard do not hold good.
60. The defence side have argued that the prosecution have failed to prove the demand. Prosecution have replied that for an offence punishable under section 13(1)(d) of Prevention of Corruption Act, 1988, demand is required. But since the charge 51 Spl.CC.No:18/2017 in the present case is under section 13(1)(a) of Prevention of Corruption Act, 1988 proof of demand is not required. While this was argued vehemently, there is no evidence on record to prove that accused No.1 and 2 had accepted any gratification from CW.12 to CW.36. There is also no credible evidence to show that, the accused No.1 and 2 had directed PW.1 Sri.Shivamurthy S.K or PW.2 Sri. P. Keshavamurthy to collect illegal gratification on their behalf. Therefore, even this argument of the prosecution side does not hold good.
61. The learned counsel for the accused has argued that, the departmental inquiry against the accused ended in exonerating the accused. Therefore, by necessary implication these accused are also entitled for acquittal. As against this, the learned Senior Public Prosecutor has argued that the departmental enquiry so ended due to lack of evidence and it was not an honourable acquittal for the accused. Therefore, according to him, the result of the departmental inquiry has no bearing on the present case. The learned counsel for the accused has produced the copies of charge memorandum and 52 Spl.CC.No:18/2017 the orders passed by the disciplinary authority. On going through the same, it is found that the departmental enquiry came to conclusion that there was no evidence to prove the charge memorandum against the Delinquent Government official therein. In this regard, the defence have relied upon the decision of Hon'ble Supreme Court in the case of Ashoo Surendranath Tewari -Vs- the Dy.Superintendent of Police EOW,CBI & ANR rendered in Crl.Appeal No.575/2020 dated 08.09.2020 and in the case of P.S.Rajya -Vs- State of Bihar reported in (1996) 9 SCC 1, wherein it is held that if the accused are exonerated in the departmental enquiry on merits on the identical facts then trial of said accused in the criminal case would be an abuse of the process of court.
62. In this case, these accused were charged by their department to face an enquiry. The copy of charge memorandum and the findings have been made available to this court by the accsued and are not disputed by the prosecution. A perusal of the same reflects that the charges in the departmental enquiry are identical to present case on hand. The witnesses examined in the departmental inquiry are also the witnesses of the present case. Even PW.38 Mr. 53 Spl.CC.No:18/2017 A.V.S. Sai, the I.O. has admitted having given evidence against these accused in their departmental inquiry. Such being the case, the argument of the defence side has to be accepted. Though it was argued by the prosecution that the departmental enquiry was decided due to lack of evidence, the findings therein speak that, it was a finding on merits. The Inquiry officer came to conclusion that inspite of having oral and documentary evidence, it was lacking in nature to prove the charges. It is not that the departmental enquiry was dropped for lack of evidence. But it was a finding on the merit that the charges were not proved due to lack of evidence. As both these circumstances are totally different, it cannot be accepted that the findings against these accused in the departmental inquiry cannot be looked into.
63. The first charge against the accused No.1 and 2 is that of criminal conspiracy punishable under section 120-B of IPC with CW.37 and CW.38 to collect the bribe money from CW.12 to CW.36. The evidence on record as discussed earlier fails to connect the accused with PW.1 Sri.Shivamurthy S.K and Sri. P. Keshavamurthy. There is no evidence to show that, Sri.Shivamurthy S.K and Sri. P. 54 Spl.CC.No:18/2017 Keshavamurthy had met the accused on they being deployed for duty at Air India SATS terminal, Bengaluru International Airport. There is no evidence to show that these accused had directed Sri.Shivamurthy S.K and Sri. P. Keshavamurthy to collect any bribe amount on their behalf. As such it is to be held that the prosecution have failed to prove the charge for the offence punishable under section 120-B of IPC.
64. Charges No.2 to 4 are regarding the acceptance of illegal gratification or the bribe amount from CW.12 to CW.36 through CW.37 Sri.Shivamurthy S.K and C.W.38 Sri. P. Keshavamurthy which are punishable under section 7, 13(1)(a), 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988. U/Sec.13(1)(a) and 7 of Prevention of Corruption Act, 1988, a public servant must receive gratification other than legal remuneration to show some official favour or receive reward is not established. As discussed earlier, when the case of prosecution is considered as a whole, it is found that the Joint Surprise Check exceeded the scope of preliminary inquiry. The Panchanama which is investigation prior to the registration of the FIR is unsustainable. Proper procedure was not 55 Spl.CC.No:18/2017 followed during the panchanama and the seized materials were not properly handled. Coming to the evidentiary value of Ex.P1 and P4 loose sheets, such entries have been held to be prima facie not even admissible by the hon'ble Supreme Court in the case of C.B.I. -Vs- V.C.Shukla reported in 1998 (3) SCC 410. Further PW.10 to P.W.12 and PW.15 to PW.35 who are the CHAs who had allegedly paid the bribe money have denied any such payment. No amount has been recovered from the accused No.1 and 2. The chain of circumstances is fraught with weak links. There is nothing to connect accused No.1 and 2 with the alleged bribe amount. The accused No.1 and 2 have already been exonerated in the departmental proceedings on the similar charges. As such it is to be held that the prosecution have failed to prove any of the charges for the offences punishable under section 7, 13(1) (a), 13(1) (d) and 13 (2) of Prevention of Corruption Act, 1988 beyond reasonable doubts. Accordinfly points No.2 to 5 are answered in the nagative.
65. Point No.6:- In the light of above discussions, I proceed to pass the following:
56 Spl.CC.No:18/2017
O RDER Acting under section 235(1) of Cr.P.C., the accused No.1 Mr.Narasimha Swamy S.G. and accused No.2 N.Sundaram are acquitted of the charges for the offences punishable under section 120-B of I.P.C. along with sections 7, 13(1) (a), 13(1) (d) and 13 (2) of Prevention of Corruption Act, 1988 and are set at liberty.
The bail bond and surety bond executed by accused under section 437-A of Cr.P.C. shall continue for a further period of six months pending appeal, if any.
MO. 1 to 5 DVDs though are marked as material objects, are documents in nature. And hence are ordered to be preserved along with exhibits.
(Typed my dictation by the Judgment Writer directly on computer, corrected and then pronounced by me in open Court on this the 21 day of January 2023.) st (K.L. ASHOK), XXI Addl City Civil & Sessions Judge & Prl. Spl. Judge for CBI cases, Bengaluru.57 Spl.CC.No:18/2017
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW1 Shivamurthy.S.K. PW2 P.Keshavamurthy PW3 S.Arjun PW4 Priyadarshini Naveen PW5 Smt.V.Malarkodi PW6 D.Anil PW7 S.Devarajan PW8 Ashok Kumar Yadav PW9 Krishna Kant Verma PW10 Abhilash V.Nair PW11 Mahesha.P. PW12 R.Mallikarjuna PW13 R.Padmanabha PW14 M.Suresh Kumar PW15 Basavaraju S.M. PW16 Ganesha.H.S. PW17 Raja K.M. PW18 Kariyappa.S. PW19 Kumar.H.S. PW20 Lokesha.H.R. PW21 Mahesha.P.B. 58 Spl.CC.No:18/2017 PW22 T.Manjunath PW23 Niranjan H.B. PW24 Pramod.K. PW25 Ravi K.G. PW26 Ravindra.C. PW27 S.Raju PW28 Sadanand Biradar PW29 Santhosha.M.D. PW30 Shankare Gowda PW31 Shiva Kumara H.B. PW32 Srinatha.K. PW33 Srinivasa.M. PW34 Sudheepa.K.M. PW35 Supriya.D.H. PW36 Rajiv Bhushan Tiwari PW37 E.P.Suresh Kumar PW38 A.V.S.Sai PW39 J.B.Shivapuji LIST OF DOCUMENTS MARKED FOR PROSECUTION : Exhibit Description Number Ex.P1 One bunch of papers containing scribbling notes etc. (6) sheets Ex.P1(a) to Sheet no.1 to 6 P1(b) 59 Spl.CC.No:18/2017 Ex.P1(a-1) Signature of PW4 Ex.P1(a-2) Signature of PW13 Ex.P2 Original 164(1) Cr.P.C. statement given by PW1 (2) sheets Ex.P2(a) Signature of PW39 Ex.P3 Original order sheets in Crl.Misc.8412/16 (5) sheets Ex.P3(a) Signature of PW39 Ex.P4 Contains names etc Ex.P4(a)&(b) Sheet No.1 & 2 Ex.P4(a-1) Signature of PW4 Ex.P4(b-1) Signature of PW13 Ex.P5 Original 164(1) Cr.P.C. statement Ex.P5(a) Signature of PW39 Ex.P6 One bunch of sheets contains scribblings consisting
of various names, dates, numerals etc. (8 sheets) ExP6(a) to Relevant portions of pages 6(d) Ex.P6(e) Signature of PW4 Ex.P6(f) Signature of PW13 Ex.P7 One bunch of loose sheet containing scribblings consisting of various names, dates, numerals etc. (7 sheets) Ex.P7(a) to
(c) Relevant portion of pages contains handwritings of Ex.P7(d) A2 Signature of PW4 Ex.P8 to P11 Relevant portions of 161 Cr.P.C. statement of PW3/CW11 Ex.P12 Surprise Check Proceedings dt.16.3.2016 (6 sheets) Ex.P12(a) Signature of PW4 (last page) ExP12(b) Relevant portion at last page Ex.P12(c) Signature of PW13 60 Spl.CC.No:18/2017 Ex.P12(d) Signature of PW37 Ex.P13 Production memo dt.26.4.16 Ex.P13(a) Signature of PW4 Ex.P13(b) Signature of PW38 Ex.P14 Attested copy of extract of SR of S.G.Narasimha Swamy (36 sheets) Ex.P15 Attested copy of SR of A2 N.Sundaram (27 sheets) Ex.P16 Attested copy of office order No.1/2015 dt.13.5.15 of Addl. Commissioner (Adm) of Prl. Commissioner of Customs, BLR, reg. Work allocation (3 sheets) Ex.P17 Establishment Order No:2/15 dt.30.4.15 relating to transfer 8 postings of A1 & A2 (attested copies) (3 sheets) Ex.P18 Attested copy of establishment Order No:6/15 dt.12.5.15 inrespect of transfer and postings of A! And A2 (3 sheets) Ex.P19 Letter dt.17.6.16 of Addl. Commissioner, Customs to CBI (1 sheet) Ex.P20 Letter dt.21.6.16 of Addl. Commissioner, Customs to CBI enclosed with details of bills of entry cleared by accused along with certificate u/s 65-B of Evidence Act (30 sheets) Ex.P21 Attested copy of procedure for clearance of Import and Export goods (21 sheets) Ex.P22 Attested copies of weekly duty rosters/work allotment orders at Air Cargo Complex, BIAP, BLR (29 sheets) Last page of Ex.P29 Ex.P22(a) Ex.P23 Relevant portion of 161 Cr.P.C. statement of PW10/CW12 61 Spl.CC.No:18/2017 Ex.P24 Relevant portion of 161 Cr.P.C. statement of PW11/CW19 Ex.P25 Relevant portion of 161 Cr.P.C. statement of PW12/CW21 Ex.P26 Letter dt.15.4.16 of PW14 addressed to CBI along with certificate u/s65-B ......... (2 sheets) Ex.P26(a) Signature of PW14 Ex.P26(b) Signature of PW14 Ex.P27 Relevant portion of 161 statement of PW15/CW13 Ex.P28 Relevant portion of 161 statement of PW16/CW14 Ex.P29 Relevant portion of 161 statement of PW17/CW15 Ex.P30 Relevant portion of 161 statement of PW18/CW16 Ex.P31 Relevant portion of 161 statement of PW19/CW17 Ex.P32 Relevant portion of 161 statement of PW205/CW18 Ex.P33 Relevant portion of 161 statement of PW21/CW20 Ex.P34 Relevant portion of 161 statement of PW22/CW23 Ex.P35 Relevant portion of 161 statement of PW23/CW23 Ex.P36 Relevant portion of 161 statement of PW24/CW25 Ex.P37 Relevant portion of 161 statement of PW25/CW26 Ex.P38 Relevant portion of 161 statement of PW26/CW27 Ex.P39 & 40 Relevant portions of 161 statement of PW27/CW28 Ex.P41 Relevant portion of 161 statement of PW28/CW29 Ex.P42 Relevant portion of 161 statement of PW29/CW30 Ex.P43 One long note book Ex.P44 Production memo dt.21.6.16 Ex.P44(a) Signature of PW30 Ex.P45 & 46 Relevant portions of 161 statement of PW30 62 Spl.CC.No:18/2017 Ex.P47 Relevant portion of 161 statement of PW31/CW32 Ex.P48 & 49 Relevant portions of 161 statement of PW32/CW33 Ex.P50 Relevant portion of 161 statement of PW33/CW34 Ex.P51 Relevant portion of 161 statement of PW34/CW35 Ex.P52 Relevant portion of 161 statement of PW35/CW36 Ex.P53 Original sanction order dt.30.6.16 in respect of A1 (4 sheets) Ex.P53(a) Signature of PW36 ExP54 Original sanction order dt.30.6.17 in respect of A2 (4 sheets) Ex.P54(a) Signature of PW36 Ex.P55 Schedule of powers vide order dt.13.7.10 issued by Govt. of India, Ministry of Finance, Central Board of Excise & Customs (1 sheet) Ex.P56 Covering letter dt.1.7.16 (1 sheet) Ex.P57 Original search list and investigation dt.18.2.16 Signature of PW38 Ex.P57(a) Ex.P59 Original FIR LIST OF MATERIAL OBJECTS:
Mo.1 One DVD contains CCTV footage pertaining to 14.3.16 Mo.2 One DVD contains CCTV footage pertaining to 15.3.16 Mo.3 One DVD contains CCTV footage pertaining to 16.3.16 Mo.4 One DVD contains CCTV footage pertaining to 17.3.16 Mo.5 One DVD contains CCTV footage pertaining to 18.3.16 63 Spl.CC.No:18/2017 (K.L. ASHOK), XXI Addl City Civil & Sessions Judge & Prl. Spl. Judge for CBI cases, Bengaluru.64 Spl.CC.No:18/2017
Judgment pronounced in the open court vide separate Judgment.
ORDER Acting under section 235(1) of Cr.P.C., the accused No.1 Mr.Narasimha Swamy S.G. and accused No.2 N.Sundaram are acquitted of the charges for the offences punishable under section 120-B of I.P.C. along with sections 7, 13(1) (a), 13(1) (d) and 13 (2) of Prevention of Corruption Act, 1988 and are set at liberty.65 Spl.CC.No:18/2017
The bail bond and surety bond executed by accused under section 437-A of Cr.P.C. shall continue for a further period of six months pending appeal, if any.
MO. 1 to 5 DVDs though are marked as material objects, are documents in nature. And hence are ordered to be preserved along with exhibits.
(K.L.ASHOK), XXI Addl.City Civil & Sessions Judge & Prl. Spl.Judge for CBI cases, Bengaluru.