Bangalore District Court
The State Of Karnataka Represented vs ) Shivakumar V on 16 March, 2022
KABC010064282021
IN THE COURT OF THE XXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE ( P.C. Act) BENGALURU
(C.C.H.No.24)
Dated: This the 16th day of March, 2022
:PRESENT:
LAKSHMINARAYANA BHAT K.
XXIII Additional City Civil and Sessions Judge
and Special Judge ( P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.221/2021
Complainant: The State of Karnataka represented
by the Police Inspector, Anti
Corruption Bureau,
Bengaluru Urban Police Station,
Bengaluru.
(By the Public Prosecutor)
V/s
Accused : 1) Shivakumar V.
S/o.Veerabhadraiah,
Aged 35 years,
Police Sub-Inspector,
BMTF Police Station, Bengaluru.
R/a.No.155, AGS Colony, 1st Main,
Ananda Nagar,
Bengaluru-560 004.
Permanent r/o.Adakadala,
Bhaktarahalli Post,
Doddaballapura Taluk,
Bengaluru Rural District.
2 Spl.C.C.221/2021
2) Chetan K.N.
S/o.Late Narasappa,
Aged 28 years,
Clerk (Contract employee),
R/o.Kodigehally village,
Thyamagondlu hobly,
Nelamangala Taluk.
(A-1 by Sri K.B.K.Swamy, Advocate
A-2 by Sri Honnappa S., Advocate)
JUDGMENT
The Police Inspector, Anti Corruption Bureau (in short the 'ACB'), Bengaluru Urban has laid the charge sheet against the accused No.1 and 2 for the offences punishable under Sections 7(a) and 12 of The Prevention of Corruption Act, 1988 (in short the "PC Act").
2(a). The factual background of the prosecution case is that, accused No.1 was working as the Sub- inspector of Police in the B.M.T.F. police station Bengaluru and the accused No.2 was working as a Clerk on contract basis in the said police station. The complainant Mr. Rahul S. has claimed he is the owner of site property situated at Arehally, Bengaluru North Taluk. He had proceeded to put up the compound wall around the said property, and at that time, the villagers and residents of the locality have raised their objection alleging that the construction is made by encroaching the public road. The complainant admitted that in this connection he had received notice from the B.M.T.F. Police station. In 3 Spl.C.C.221/2021 pursuance of the notice, he has appeared before the accused No.1 and had produced the relevant documents relating to his site property and also copy of the interim order of injunction passed by the Civil Court. According to the complainant, the accused No.1 alleged to have demanded illegal gratification of Rs.1,25,000/- and after negotiation, the demand was reduced to Rs.70,000/-. The Complainant has alleged that on 2.11.2018 he had paid a sum of Rs.20,000/- to accused No.1 through accused No.2. It is stated that he has recorded the audio conversation and video recording in his mobile phone when he had approached the accused.
2(b). It is the further case of the prosecution that on 5.11.2018, the accused No.1 further demanded the balance gratification amount. But the complainant declined to part with the payment, approached the ACB Police on 7.11.2018 and lodged the first information statement. The ACB Police registered the case against the accused and after completion of the pre-trap formalities, laid the trap and arrested both the accused. The tainted bribe amount of Rs.50,000/- was recovered from the possession of accused No.2. After completing the post-trap formalities both the accused were produced before the court and they were enlarged on bail. After completion of the investigation and on securing the 4 Spl.C.C.221/2021 required sanction, the concerned police have filed the charge sheet against the accused.
3. After taking cognizance of the offence, the presence of the accused were secured. After complying with Section 207 of the Cr.P.C. the charge was framed. Both the accused have pleaded not guilty and claimed to be tried.
4. The prosecution, in order to bring home the guilt of the accused has examined the sanctioning authority, the Additional Director General of Police Sri. Seemanth Kumar Singh as PW-1 and produced Ex.P1 sanction order. PW2 Siddaramappa is working as the Managing Director, Karnataka State Electronics Development Corporation (in short the KEONICS) and he has accorded Ex.P2 sanction order to prosecute the accused No.2. PW 3 - Rahul S. is the complainant and he has lodged Ex.P3 first information statement and in pursuance, the concerned police have registered the case against the accused. PW 4 - N.M.Mujahid and PW 5- Smt.Shashikala are the pancha witnesses to the trap proceeding and signatories to Ex.P4 and P5 pre-trap and post-trap panchanamas. PW 6 - Balaraju B is the Deputy Superintendent of Police who has registered the case after receiving Ex.P-3 first information statement from the complainant. PW 7 - Smt. Chandrika G. is the Assistant Director of FSL, Bengaluru and she has issued Ex.P31 voice analysis 5 Spl.C.C.221/2021 report. PW 8 - Sadiq Pasha has completed the investigation and has obtained Ex.P2 sanction order and filed the charge sheet against the accused. PW-9
-Krishnamurthy is the Police Inspector and the investigating officer who has conducted the entire pre- trap and post-trap invesigation proceedings. PW 10 - Praveen Chidambar Yaligar is the Police Inspector who secured Ex.P1 sanction order. The prosecution has produced Ex.P1 to P45 documents and M.O.1 to M.O.10 properties were identified during the trial.
5. After completion of the prosecution side evidence, the accused were examined under Section 313(1)(b) of the Cr.PC. regarding the incriminating circumstances brought out against them. During the cross-examination of the prosecution witnesses, the accused got marked Ex.D1 to D5 documents. Accused No.1 has filed separate written statement of his defence. Accused No.2 has orally submitted his defence and his statement was recorded.
6. Heard the arguments of both sides.
6(a) The learned Public Prosecutor has relied upon the following reported decisions.
1) (2016) 13 Supreme Court Cases 258 - S.C.Goel Vs. State through Central Bureau of investigation 6 Spl.C.C.221/2021
2) (2010) 15 Supreme Court Cases 1 - C.M.Sharma Vs. State of Andhra Pradesh 6(b). The learned counsel appearing for the accused has relied on the following reported decisions in support of their defence.
1) (2009) 3 Supreme Court Cases 779 C.M.Girish Babu Vs. CBI, Cochin, High Court of Kerala
2) (2012) 13 Supreme Court Cases 552 Rakesh Kapoor Vs. State of Himachal Pradesh
3) (2013) 14 Supreme Court Cases 153 State of Punjab Vs. Madan Mohan Lal Verma
4) (2014) 13 Supreme Court Cases 55 B.Jayaraj Vs. State of Andhra Pradesh
5) 2014 AIR SCW 5740 - M.R.Purushotham Vs. State of Karnataka
6) (2015) 16 Supreme Court Cases 350 Khaleel Ahmed Vs. State of Karnataka
7) (2016) 3 Supreme Court Cases (Cri) 316 - T.K.Ramesh Kumar Vs. State through Police Inspector, Bengaluru
8) (2021) 3 Supreme Court Cases 687 N.Vijayakumar Vs. State of Tamil Nadu
9) 1993 Supp (3) Supreme Court Cases 745 - Varkey Joseph Vs. State of Kerala
7 Spl.C.C.221/2021
10) (1976) 1 Supreme Court Cases 727 - Sat Paul Vs. Delhi Administration
7. After analyzing the documentary and oral evidence and the other materials placed on record, on hearing the arguments of both the sides, at this stage, the points that would arise for the determination of this court are:
1. Does the prosecution proves the fact that it has obtained a valid sanction order as per Ex.P1 to prosecute the accused No.1 and Ex.P-2 to prosecute the accused No.2 as required under Section 19 of the P.C. Act?
2. Does the prosecution beyond reasonable doubt proves the fact that accused No.1 a public servant working as the Sub-Inspector of Police in the BMTF Police station has demanded Rs.70,000/- an undue advantage from PW3 - Rahul S. and accepted Rs.20,000/- on 2.11.2018 and Rs.50,000/- on 7.11.2018 for himself through accused No.2 and
8 Spl.C.C.221/2021 thereby committed the offence punishable under Section 7(a) of the P.C. Act?
3. Does the prosecution beyond reasonable doubt proves the fact that accused No.2 a public servant working as Clerk in the BMTF Police station has accepted Rs.20,000/- on 2.11.2018 and Rs.50,000/- on 7.11.2018 an undue advantage from PW3 Rahul S. on behalf of accused No.1 and thereby committed the offence punishable under Section 7(a) of the P.C. Act?
4. Does the prosecution beyond reasonable doubt proves the fact that accused No.2 abetted accused No.1 to demand and accept undue advantage of Rs. Rs.20,000/- on 2.11.2018 and Rs.50,000/- on 7.11.2018 and accepted the amount from PW3 on behalf of accused No.1 and thereby committed the offence of abetment under Section 12 of the P.C. Act?
9 Spl.C.C.221/2021
5. What order?
8. My findings on the aforesaid points are:
Point No.1 : in the affirmative Point No.2 : in the affirmative Point No.3 : In the negative Point No.4 : in the affirmative Point No.5 as per final order for the following REASONS Point No.1 :
9.(a) The undisputed fact of the case is that at the given point of time on 7.11.2018, the accused No.1 was working as the Sub-inspector of Police in the BMTF Police station. Secondly, accused No.2 has also not disputed as on the date of incident i.e. on 7.11.018, he was working in the BMTF Police station. Therefore, both the accused are the public servants within the definition of Section 2(c)(1) and they were discharging their public duties as defined under Section 2(b) of the PC Act are proved. Therefore, it is incumbent upon the prosecution to prove that it has secured valid sanction as per Ex.P1 and Ex.P2 to prosecute the accused.
9(b). In order to prove the factum of sanction, the prosecution has examined Seemant Kumar Singh, the Assistant Director General of Police, Bengaluru as PW1 and produced and got marked Ex.P1 the sanction order. It 10 Spl.C.C.221/2021 is the evidence of PW1 that he had received requisition letter along with FIR, first information statement, pre-trap and post-trap panchanama, scientific examination report, statement of witnesses, explanation submitted by the accused and other documents. He further deposed that after verifying all the above referred documents, he has decided to accord the sanction and accordingly issued Ex.P1 order.
9(c). The contention of the accused No.1 during cross-examination of PW1 is that he is not having independent authority to receive, to inquire or to decide any complaint. Secondly, PW-1 alleged to have passed Ex.P1 order mechanically without application of mind. It is suggested to PW1 that without verification of the documents he has passed Ex.P-1 the sanction order. Lastly, as on the date of issuing Ex.P1 order, on 3.7.2020, the accused No.1 was working as the Police Inspector and hence, the Director General and Inspector General of Police is the competent authority to accord the sanction. For the aforesaid reasons, the learned advocate appearing for the accused No.1 has submitted that PW1 is not the competent authority to accord the sanction and in consequence Ex.P1 order is not legally sustainable under law.
9(d). PW1 during his cross-examination has specifically stated that the accused No.1 is authorized to 11 Spl.C.C.221/2021 conduct inquiry in the BMTF police station with intimation to his higher officer. Therefore, the argument of the accused No.1 that he is not authorized and empowered in the BMTF Police station to conduct any inquiry cannot be accepted. Accused No.1 was authorized to conduct inquiry and required to submit the report itself amounts to public duty.
9(e). In the case on hand, the incident occurred on 7.11.2018 and as on the date of offence, the accused No.1 was working as the Sub-inspector in BMTF Police station. The accused has not disputed the fact that PW-1 being the ADGP is the competent authority to accord the sanction to the officer working in the cadre of the sub- inspector of police. The argument of the defence is that as on the date of passing Ex.P1 sanction order, on 3.7.2020, accused No.1 was working as the Police Inspector and hence the sanction ought to have been accorded by the DG and IGP is not sustainable. The office misused relating to the case on hand is the office of Sub- Inspector of Police in BMTF Police station and not the office of the Police Inspector. Hence, the argument of accused No.1 that PW1 is not the competent authority to accord the sanction is not legally sustainable. The typographical error in Ex.P1 order is not material which require any serious consideration. It is the definite evidence of PW1 that as per his dictation, the subordinate officials have prepared Ex.P1 order and after 12 Spl.C.C.221/2021 verification he has affixed his signature to the said order. Accordingly the contention raised by the 1st accused in this regard is also rejected. PW-1 being the ADGP is the competent authority to accord the sanction and hence Ex.P-1 is held as valid sanction.
10(a). In order to prove Ex.P-2 the sanction order secured to prosecute the 2nd accused, the prosecution has examined PW2 - Siddaramappa. As per his evidence, he is working as the Managing Director of KEONICS and the appointing authority of accused No.2. He further deposed that he has received the requisition from the DGP, ACB, Bengaluru seeking to accord the sanction to prosecute the accused No.2. As per his evidence, the concerned police have sent the documents i.e. FIR, first information statement, panchanama, statement of the witnesses and transcript of conversation etc. After verification of the documents, he deposed he was prima- facie satisfied that the 2nd accused was involved in demanding and accepting the bribe and hence he has issued Ex.P2 the sanction order.
10(b). During the cross-examination of PW2 it is contended that Ex.P2 order does not contain the details regarding the date of appointment and the date of dismissal of the 2nd accused from the service. The other contention is that the investigating officer has not placed 13 Spl.C.C.221/2021 the statement of witnesses by name Amaresh Gowda, Sumithra, Yogananda Sonar and Raghavendra V.K. before the sanctioning authority. Hence, Ex.P2 order is defective, not legally sustainable and liable to be rejected.
10(c). The accused No.2 has not disputed the fact that PW-2 being the Managing Director of KEONICS is his appointing and removing authority. From the evidence of PW2 and Ex.P2 it is proved that the 2nd accused was working as clerk in BMTF police station. It is much argued that in Ex.P-2 order it is wrongly shown the sanctioning authority has referred the statement of PW8
- the Police Inspector even though such statement of the witness was not available before the said authority. PW8 is the investigation officer and it is not in dispute that his statement under Section 161 of the Cr.P.C. was not recorded. Therefore mere absence of statement of the witness or making note of reference in ExP-2, does not vitiate the entire sanction order. The 2nd accused was examined under Section 313 of the Cr.P.C. and to Question-132, he has specifically admitted that he was working as 'D' group employee in BMTF Police station as on 7.11.2018. The evidence of PW2 as elicited during his cross-examination show that before according Ex.P2 sanction, he has obtained legal opinion. Therefore, it is sufficient to arrive to the conclusion that there was proper application of mind by the sanctioning authority and Ex.P-2 is not a mechanical order as contended by 14 Spl.C.C.221/2021 the accused. Accused No.2 has admitted he was working as a D group employee. But as per the evidence of PW-2 the accused No.2 was working as a clerk. However the evidence let in by the prosecution is sufficient to establish that the accused No.2 was a public servant under the ambit of the P.C. Act.
11(a). In order to arrive an appropriate conclusion regarding validity of Ex.P-1 and 2 order, it is apposite to refer few decisions of the Apex court. In the judgment reported in (2012) 3 SCC 64 in Subramanian Swamy Vs. Dr.Manmohan Singh case in para-44 the Hon'ble Supreme Court held;
"grant or refusal of sanction is not a quasi
-judicial function. What is required to be seen by the competent authority is whether the facts placed before it by the investigating agency prima-facie disclose commission of an offence by a public servant. If the competent authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the competent authority is otherwise, then it can refuse sanction. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true".
15 Spl.C.C.221/2021 11(b). In the decision reported in (2013) 8 SCC 119 in State of Maharastra v/s. Mahesh G Jain the Apex court held that the adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and that an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.
11(c) The Hon'ble Supreme Court in the decision reported in (2007)1 SCC 1 in the case of Prakash Singh Badal vs State of Punjab has held that the sanction is an administrative act to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The sanctioning authority was only to see whether the facts would prima-facie constitute the offence.
12. In the case on hand, the evidence of PW-1 and 2 and Ex.P-1 and 2 sanction orders show that the sanctioning authority after verifying the documents placed before it by the investigation agency, they have proceeded to accord the sanction. In view of the ratio of the decision in Mahesh G. Jain case referred supra, if the sanctioning authority has perused all the materials placed before it and some of them have not been proved 16 Spl.C.C.221/2021 that would not vitiate the order of sanction. It is settled law that a mere error, omission or irregularity in sanction is not fatal unless it has resulted in failure of justice. Hence the contention of the accused that all the statement of the witnesses were not placed before the sanctioning authority and hence ExP-1 an 2 orders are defective is rejected.
13. In the light of the above facts of the case on hand, from the oral evidence of PW1 and PW2 and Ex.P1 and P-2 the sanction order, the prosecution has made out that they have placed all the relevant materials before the sanctioning authority. The oral evidence of PW1 and PW2 reflect that before passing the order, they have applied their mind and after conscious scrutiny of the documents produced by the prosecution and recording satisfaction in respect of the allegations made against the accused, proceeded to issue sanction as per Ex.P1 and Ex.P-2. In the above circumstances, the contentions taken by the accused during the cross-examination of PW1 and 2 and argument addressed in this regard challenging the validity of sanction are not legally sustainable. The law presumes that until the contrary is established, the sanctioning authority has acted fairly, objectively and recorded its satisfaction based on materials placed before it by the investigating agency.
17 Spl.C.C.221/2021 Hence, this Court arrived to the definite conclusion that, the prosecution, from the evidence of PW1 and PW2 and Ex.P1 and P2 documentary evidence has obtained valid sanction as required under Section 19 of the PC Act. Therefore, point No.1 is answered in the 'affirmative'.
Point No.2 to 4:
14. In order to avoid the repetition of the reasons and for brevity, all these points are taken up together for determination.
14(a). Amongst the prosecution witnesses examined, PW3 Mr. Rahul S. is the first informant and he deposed as to the lodging of Ex.P3 first information statement. He further deposed that he is the owner of a site situated at Arehalli village and in the year 2018 he started constructing the compound wall and at that time, the residents of the locality have raised their objection alleging that the construction is made by encroaching upon the public road. The witness further stated that the villagers have approached the Subramanyapura police station and in pursuance he had appeared and produced the relevant documents before the said police station.
14(b). It is the further evidence of PW3 that the aforesaid residents have also approached the BMTF police station and in pursuance, he received a notice dated 16.10.2018 and when he went to the police station ascertained that the accused No.1 was working as sub-
18 Spl.C.C.221/2021 inspector of police in the said police station. PW-3 deposed that he had produced the relevant documents, and copy of the temporary injunction order obtained by him relating to the said property before the accused No.1. He further deposed that after 2-3 days, along with one Umesh, he went to the ACB Police station and the police have obtained his signature in Ex.P-3 statement. However he is not aware of the contents of the said statement. He has specifically denied that the accused No.1 has demanded bribe or he has paid Rs.20,000/- to accused No.2. or recording of the conversation made with the accused.
14(c). In his examination-in chief PW-3 has further deposed that he has produced Rs.50,000/- currency notes before the ACB police on 7.11.2018 and they have smeared phenolphthalein powder to the said currency notes. Thereafter, they went to the BMTF Police station and he met the 1st accused and when he came out from the police station, he deposed that he had kept the tainted currency notes of Rs.50,000/- in the tray kept on the table inside the police station. He further deposed that immediately the ACB police came to the place, and they have recovered Rs.50,000/- cash. He has admitted his signature appearing in Ex.P4 pre-trap panchanama and Ex.P5 trap panchanama.
14(d) PW-3 in his evidence further deposed that in the BMTF police station, the accused were subjected to 19 Spl.C.C.221/2021 chemical hand wash and the police have seized the trouser of accused No.2 and a piece of cotton was rubbed on the tray kept on the table. Since the witness has turned hostile to the case, the learned Public Prosecutor with the leave of the court has cross examined PW-3 regarding pre-trap and post-trap proceeding and the witness has denied almost all the suggestions tendered to him.
15. PW6 - Balaraju B. is the Deputy Superintendent of Police, ACB, Bengaluru and in his evidence he deposed that on 7.11.018 at about 1.00 p.m. PW3 the complainant appeared before the ACB police station and has lodged Ex.P3 first information statement. After receiving Ex.P3 statement, PW-3 deposed that he has registered Ex.P30 FIR and handed over the case file for further investigation to PW9.
16. PW4 - Mr. N.M.Mujahid and PW5 -
Smt.Shashikala P. are the witnesses to Ex.P4 and 5 pre- trap and post-trap panchanama. PW-5 has deposed regarding the production of M.O.3 metal seal before the court and issuance of Ex.P29 endorsement to the police.
17(a). PW9 - Krishnamurthy is the Police Inspector and the investigation officer and he deposed regarding the entire process of pre-trap and post-trap proceedings.
20 Spl.C.C.221/2021 It is the evidence of PW9 that on 7.11.2018 he had secured presence of P.W.4 and P.W.5 officials as independent panchas to the trap proceedings. PW9 further deposed that he had introduced PW3, the complainant to the panchas and they were informed about Ex.P3 first information statement lodged by the complainant.
17(b). It is the evidence of PW4 and PW9 that as directed by PW9, PW3 has produced a DVD said to contain the recorded conversation and PW9 got prepared Ex.P38 the transcript of conversation contained in the said DVD and seized the article as per M.O.1. PW-4 and PW9 have deposed that when PW-9 has directed PW3 to produce the bribe amount, he has produced Rs.50,000/- currency notes (Rs.2,000 x20 and Rs.500 x 20) and the list of those currency notes was prepared as per Ex.P23. Both the witnesses have deposed that as per the instruction of PW-9 his investigating assistants have smeared the phenolphthalein powder to those currency notes. Thereafter, as directed by PW-9, PW5 pancha witness Smt.Shashikala has kept those currency notes in the trouser pocket of PW3.
17(c). PW9 further deposed that he has directed PW5 to dip her hands in the sodium carbonate solution and at that time the colourless solution was turned to pink colour. PW9 has further deposed that by practical demonstration he has explained to PW-3 to 5 the 21 Spl.C.C.221/2021 complainant and panchas regarding the use of phenolphthalein powder and chemical reaction with sodium carbonate. PW4 and PW9 have deposed that thereafter PW-9 has given instructions to PW3 to PW5 regarding the trap proceedings and nominated PW4 as the shadow witness. In this regard, PW9 has deposed that he has drafted Ex.P4 pre-trap panchanama in the presence of the complainant and PW4 and PW5 pancha witnesses.
17(d). It is the evidence of PW4 and PW9 that at about 4.50 p.m. the entire trap team headed by PW-9 went near the BMTF Police station and he has again given further instruction to PW3 and PW4 to approach the accused and only on demand, PW-3 was informed to pay the tainted currency notes. PW4 has deposed that along with PW3 he went to the BMTF police station and he has noticed that there were no other public persons inside the office room and hence he did not go inside the office and instead he was standing near the door in order to avoid any suspicion of his presence. As per the evidence of PW4 and PW9, within few minutes, PW3 gave the pre-instructed signal to the trap team. After receiving the signal from PW3, the entire trap team went inside the BMTF Police station where accused No.1 was standing with PW3, in the entrance of the police station.
17(e). PW4 and PW9 in their evidence further deposed that PW3 has informed them that accused No.1 22 Spl.C.C.221/2021 has directed him to keep the bribe amount in the tray kept on the table. As per their evidence, when they went inside the BMTF police station, the cash was not found in the said tray. PW9 has further deposed that PW3 has informed him that at the time when accused No.1 came out of the office/room, he has by gesture directed the accused No.2 to collect the cash kept in the tray.
17(f). PW4 and PW9 have deposed that the accused No.2 was in the abutting room in the police station. PW4 and PW9 deposed that when PW9 has questioned the accused No.2, he has admitted that as per the direction of accused No.1, he has collected the cash found on the tray and the said amount is in his trouser pocket.
17(g). As per the evidence of PW4 and PW9, they have further deposed that as per the direction of PW9, the accused No.2 was subjected to undergo chemical hand wash test and when he dipped his right hand fingers, the sodium carbonate solution turned to pink colour but when he dipped his left hand fingers in the solution, there was no chemical reaction. PW9 has deposed that he has collected the sample hand wash for scientific examination.
17(h). PW4 and PW9 have further deposed, as directed by PW9, PW4 has collected the cash from the trouser pocket of accused No.2 and it was tallying with Ex.P-23 the list prepared during the pre-trap 23 Spl.C.C.221/2021 panchanama. PW9 has deposed that he has seized the cash and it was identified during the trial with consent as M.O.9. It is the evidence of PW4 that the investigating officer has also seized the trouser of accused No.2 as MO.No.2 and PW9 has rubbed small cotton piece in the tray where the tainted currency notes shown to have been kept.
17(i). PW9 has deposed that he has collected the audio conversation recorded in the mobile phone of PW3 and prepared Ex.P39 transcript and got copied the copy the said conversation in CD marked as Ex.P33. He further deposed that he has collected the sample voice of the accused No.1 and 2 and PW3 in CD marked as per Ex.P34 to P36. PW9 further deposed that he has obtained Ex.25 file pertaining to PW3 from the BMTF police station. PW4 and PW9 have deposed that both the accused have voluntarily submitted their explanation statement as per Ex.P27 and Ex.P28. As per the evidence of PW9, Ex.P6 to 22 the photos were taken during the pre-trap and post trap and he has drafted Ex.P5 trap mahazar in the place of incident in the presence of the panchas and the complainant.
18. PW7 Ms. Chandrika is the Senior Scientific Officer, FSL, Bengaluru. During her examination-in-chief, she deposed that on 28.11.2018 received five sealed articles for voice examination and she has conducted the 24 Spl.C.C.221/2021 detail analysis through the perception/aural method, used the digitalized speech signals for further analysis using computerized speech laboratory model 4500 instrument. As per her opinion, the respective speeches of accused No.1 and 2 found recorded in DVD marked as article No.1 and sample speeches found recorded in the CD marked as article No.11 and 12 are similar. Ex.P31 is the report issued by PW8 was got marked in evidence.
19. PW8 - Sadiq Pasha is the Police Inspector and it is his evidence that he has collected Ex.P2 the prosecution sanction order and thereafter he has filed the charge sheet against the accused. PW10 - Praveen Chidambar Yaligar, the Police Inspector has deposed that he has secured Ex.P1 order.
20(a).The Prosecution side argument:
PW3 has partly supported the case of the prosecution and to that extent his evidence is admissible and can be accepted. The evidence of PW3 shows that he has joined hands with the accused to bail them out from the charges and hence he turned hostile to the prosecution case.
25 Spl.C.C.221/2021 PW4 the shadow witness has fully supported the prosecution case and he is the witness to the entire pre-trap and post-trap proceedings.
The evidence of PW4 is independent and it is sufficient to establish the demand and acceptance of the bribe by the accused and recovery of the said amount from the possession of the accused No.2. In corroboration to the evidence of PW4, the prosecution has placed on record evidence of PW9 the investigation officer, PW-8 voice analyst and chemical examiners report as ExP-44.
Even though the complainant has partly turned hostile to the prosecution case, the evidence of PW4 and PW9 is sufficient and there is circumstantial evidence to prove the demand and acceptance of illegal gratification. Accordingly prayed for judgment of conviction against both the accused.
20(b) The Argument of the Defence PW3 the complainant has not supported the prosecution case and he was treated as hostile and hence the prosecution has failed to place any evidence to prove the demand and acceptance of bribe and the contents of Ex.P-3 first information statement is not proved.
26 Spl.C.C.221/2021 The evidence of PW3, Ex.P3 first information statement, Ex.P-25 document seized during the investigation show that the complainant has suppressed the material facts.
PW-3 has illegally encroached the public road while constructing the compound wall and thereafter lodged a false first information report before the ACB police against the accused to prevent them from taking of any legal action.
The documents produced by PW3 before the BMTF police station and Ex.P25 document seized during the investigation reveal that the complainant has suppressed the date of grant of temporary injunction order by the court and the civil suit filed is a collusive suit.
Accused No.1 is not the decision taking authority in the BMTF police station relating to the complaint received against PW3. Accused No.1 is only required to submit the report to the ADGP and therefore there was neither any occasion nor any possibility of demanding and accepting the bribe.
PW4 the shadow witness in his evidence has specifically admitted that he did not enter the BMTF Police station along with PW3 and therefore his evidence cannot be accepted to arrive conclusion 27 Spl.C.C.221/2021 regarding the demand and acceptance of the illegal gratification by the accused.
The evidence of PW3 shows that at the instance of his friend by name Umesh, he went to the ACB police station and has lodged Ex. P-3 report against the accused. In this regard the document is produced during the examination of the accused under Section 313 Cr.P.C.
PW6 did not verify the contents of DVD produced by the complainant and original source of the record, such as the mobile phone has not been seized nor produced during the trial. Hence, the electronic evidence produced by the prosecution and expert report are not admissible in the evidence.
M.O.9 cash was planted in the pocket of accused No.2 by threat at the instance of PW6 Dy.S.P. Mr. Balaraju and he has also directed the accused to submit the ExP-28 explanation as instructed by him and hence the said explanation is not voluntary.
Accused No.2 was working as group 'D' employee and he is not having the basic knowledge of reading and writing either in Kannada or in English.
During the trap, the tainted cash was not found in the BMTF Police station and all the officers of the said police station were subjected to personal search and 28 Spl.C.C.221/2021 thereafter PW6 has planted M.O.9 cash in the trouser pocket of the accused No.2 The evidence of PW8 and Ex. P-31 voice analysis report is not admissible, because the witness has admitted there was no audio authentication software and hence there is every possibility of tampering of the digital evidence produced by the prosecution.
The prosecution has not examined any of the villagers who have lodged the report against PW3 and also the other officers who were present during the trap in the BMTF Police station. For the above reasons both the accused have prayed for an order of acquittal.
21. Before touching the merits of the case, it is to be noted that the accused No.1 has admitted that as on the date of alleged incident on 7.11.2018, he was working as the Sub-Inspector of Police in the BMTF Police station. Similarly the accused No.2 has also admitted that he was working as group 'D' employee in the said police station. Accused No.1 has not disputed that as on the date of incident i.e. on 7.11.2018, PW-3 came to the BMTF police station and at that time the ACB Police conducted the raid and arrested them.
29 Spl.C.C.221/2021
22. Accused No.1 and 2 are charged for the offence punishable under Section 7(a) of the PC Act and in addition accused No.2 is also charged under Section 12 of the PC Act. In order to bring home the guilt of the accused under Section 7(a) of the ( amended) PC Act, the prosecution is required to prove the following ingredients:
i) the accused was a public servant,
ii) the accused accepted, or obtained or attempted to obtain undue advantage from any person ,
iii) with the intention to perform or cause performance of public duty,
(iv) improperly or dishonestly or
(v) to forbear or cause forbearance to perform such duty,
(vi) either by himself or by another public servant.
The ingredients of Section 12 is whoever abets the commission of any offence punishable under the PC Act, whether or not that offence is committed in consequence of that abetment.
23(a). The first and foremost aspect to be determined is whether evidence of PW3 the complainant is acceptable and if so, to what extent. Admittedly, PW3 30 Spl.C.C.221/2021 has not supported the prosecution case in its entirety and he was treated as hostile and cross-examined by the learned Public Prosecutor. PW3 in his evidence has specifically stated that he had received notice from the BMTF police station and in pursuance he appeared before accused No.1 and has produced the documents relating to his site property. He further deposed that he visited the ACB police station, but has denied lodging of Ex.P-3 the first information report but has admitted his signature appearing in the document. He has stated regarding production of Rs.50,000/- cash before the investigating officer, smearing of the phenolphthalein powder to those currency notes by the ACB police and thereafter the trap team went to the BMTF Police station and presence of accused No1 and 2 during the trap in the said police station. He has specifically stated keeping of the tainted cash of Rs.50,000/- in the tray kept on the table of the BMTF police station in the presence of accused No.1.
23(b). During cross-examination of PW-3, the accused has challenged the discrepancy in the date of passing of the interim injunction order and date as shown in Ex.P3 first information statement. The witness was cross-examined regarding encroachment of the public road. Therefore, evidence of PW3 as deposed in his examination-in-chief and during cross-examination by the Public Prosecutor regarding production of cash and 31 Spl.C.C.221/2021 keeping of the tainted amount in the tray in the BMTF police station during the trap remains unchallenged.
23(c). PW3 is a B.Com., graduate and during his cross-examination he has admitted that he knows to read and write kannada language. The evidence of PW3 in its entirety shows that he has deliberately and intentionally resiled from his Ex.P3 statement in order to bail out the accused from the prosecution. The intention can be gathered from the evidence of PW3 as he has deposed in his examination-in-chief that accused No.1 has not demanded the bribe and he has not paid Rs.20,000/- to accused No.1 through accused No.2 as narrated in Ex.P3 statement.
23(d). The accused No.1 when he was examined under Section 313 of Cr.P.C. has produced the first information statement of Umesh in Special C.C.No.653/2018. The said statement was lodged by one Umesh against Venkatesh and Srinivas for the offences under the provisions of the PC Act. It appears to assist the accused, PW3 in his examination-in-chief itself has deposed that along with aforesaid Umesh he went to the ACB Police station. But in any of the prosecution documents including Ex.P-30 first information statement, there is no reference regarding presence of Umesh or he has accompanied with the complainant to the ACB Police station at the time of lodging Ex.P3 report. The 32 Spl.C.C.221/2021 aforesaid evidence of PW-3 show that only with an intention to assist the accused, in his examination-in- chief brought the role of Umesh in lodging Ex.P-3 first information statement. PW-3 has acted to the tune of the accused can be inferred from his entire evidence.
23(e). During the cross-examination it is not the defence of the accused that PW-3 has lodged several other complaints or he is in the habit of implicating the public servants. If the accused No.1 had not demanded illegal gratification, there was no necessity or occasion for PW3 to appear before the ACB police station and to affix his signature to Ex.P3 first information statement or accompany with the ACB Police during the trap on 7.11.2018 to the BMTF police station. Even to the Court questions put to the witness during his cross- examination, PW3 has stated that he is not in the habit of affixing signature to the document tendered by an unknown person. The witness has denied any threat from the accused to depose the evidence in their favour in such manner as directed by them. He has shown ignorance regarding the consequences of deposing false evidence, or implication of any public servants in criminal prosecution. The witness in unequivocal terms has admitted that he has deposed evidence voluntarily out of his free will. Hence this court finds it necessary to initiate separate proceedings against PW-3 Mr. Rahul S for giving 33 Spl.C.C.221/2021 false evidence punishable under Section 193 of the Indian Penal Code.
24(a). The learned Public Prosecutor has relied upon the judgment referred supra in S.C.Goel case. In the said decision in para-5 and 7, the Hon'ble Supreme Court held that merely because a witness was declared as hostile with regard to certain aspects of evidence tendered by him, the entire evidence cannot be discarded.
24(b) In the other decision relied by the prosecution referred supra in C.M.Sharma case, in para- 18 the Hon'ble Supreme Court held, "corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorised in 3 categories viz., unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe."
24(c) As per the facts of the said judgment, the shadow witness did accompany with the complainant but the accused did not allow him to be present in the 34 Spl.C.C.221/2021 chamber and hence the Apex Court held that seeking corroboration in such case will encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such a situation. The Apex court held, it is not necessary that evidence of a reliable witness is necessarily to be corroborated by another witness. The law laid down in the above referred decisions are aptly applicable to the facts of the case in hand, because PW3 the complainant has partly turned hostile and PW4 pancha and the shadow witness has supported the case of prosecution.
25. During the cross-examination of PW4, it is elicited that he was not present at the time of drawing Ex.P45 sketch. But the oral evidence of PW4 regarding place where he was standing during the trap is admissible. It is vehemently contended by the defence that PW4 is not the witness to the demand and acceptance of the bribe. As per the defence argument, evidence of PW4 show that during the trap, the witness has followed the complainant up to the BMTF Police station but he did not enter premises instead he was standing outside the police station. Therefore he has not witnessed or over heard regarding the alleged demand and acceptance of the bribe. But the evidence of PW4 35 Spl.C.C.221/2021 show the otherwise and he has categorically stated that he had followed PW3, noticed that except the officers there were no other public persons inside the room/office, and in order to avoid the accused suspect his presence, he opted to stand near the door. In this regard, the explanation forwarded by PW4 is reasonable, acceptable and probable. Moreover, during the cross-examination of PW4 the accused have not disputed the immediate presence of PW4 in the BMTF Police station along with PW-3. Hence this court is of the definite opinion that PW- 4 was present along with PW-3 when he entered the BMTF police station and he was standing near the door wherein he could witness the transaction between PW-3 and accused No.1 and also could hear their conversation. In this regard it is necessary to refer the decision reported in (1998)1SCC 557 in the case of State of U.P. Vs Zakaulla, the Apex court in para 14 held "nobody over heard the demand made by the respondent for bribe and that the amount was found not in the right pocket but only in the left pocket, are flippant grounds which should never have merited consideration". The above observation is applicable to the facts of the case and it is an answer to the defence of the accused.
26. As per the evidence PW-4 as deposed during his cross-examination, in BMTF police station in the office 36 Spl.C.C.221/2021 room where accused No.1 has received the gratification, no other officers were present. Hence the contention of the accused that Amaresh Gowda, Sumithra, Yogananda Sonar and Raghavendra V.K. were present and they could have become the best witnesses to the demand and acceptance of bribe cannot be accepted. The argument addressed on behalf of the accused that all the three Sub-Inspectors including the accused No.1 were used to sit in the same room may be true, but the evidence of PW4 and PW9 show that at the time of trap, except the accused No.1 other officers were not present in the place/room of the offence. During cross-examination of PW4, the witness has catagorically denied the suggestion put to him that he was standing at a distance of 15-20 feet from PW3 at the entry door of the BMTF Police station. Therefore, the evidence of PW4 in its entirety show that he was standing near the door and where he could see the accused No.1 and PW-3 inside the police station, he could hear the conversation and see the transaction in between PW3 and accused No.1 regarding the demand and acceptance of illegal gratification. In Ex.P45 sketch, it shown PW4 was standing near the door and PW5 was standing near the entrance door of the BMTF police station.
37 Spl.C.C.221/2021
27. PW4 and 9 have specifically stated that PW3 the complainant has informed PW-9 that accused No.1 has directed him to keep the amount in the tray kept on the table. This part of the evidence of PW4 and 9 is admissible, even though PW3 has not deposed evidence in this regard. PW-9 has also deposed that PW-3 has informed him regarding the demand and acceptance of undue advantage by accused No.1 and keeping of the tainted amount in the tray kept on the table in the BMTF police station.
28. The other defence of the accused is that PW3 and PW6 have planted M.O.9 tainted cash in the pocket of accused No.2 in order to implicate them to show that it is a genuine trap. This defence has not been raised during the cross-examination of PW-3. PW4 during his cross- examination has specifically denied this aspect. As per his evidence, when accused No.1 has shown ignorance regarding the tainted cash, PW9 had asked all the inmates of the BMTF Police station regarding the tainted cash and informed them that he will conduct their personal search. In Ex.P-5 trap panchanama, page No.4 there is a reference that on inquiry by PW-9 regarding the tainted cash, accused No.1 did not co-operate. The statement recorded during the course of investigation under section 161 of the Cr.P.C. shows Amaresh gowda 38 Spl.C.C.221/2021 and other 3 police officers who were present inside the police station were also subjected to personal search and cash was not found with them. There is nothing wrong in the procedure adopted by the police. The reason behind either for PW6 or PW9 to falsely implicate the accused in the criminal prosecution is not made out. PW4 has specifically denied the suggestion tendered to him that when the cash was not found on the tray kept on the table, PW3, PW 6 with accused No.2 went outside the police station and after few minutes they came inside, in the intervening duration, PW6 had planted the tainted cash in the trouser pocket of accused No.2. PW4 has specifically stated that after they entered the BMTF Police station, either themselves or any other officer did not went out from the police station. PW-3 in his evidence has stated regarding the seizure of cash found on the tray in the BMTF police station. Therefore, the story built up by the accused that PW-6 has planted the tainted M.O.9 cash in the trouser pocket of accused No.2 is totally false, imaginary and unbelievable.
29. In the decision of the Hon'ble Supreme Court in the case of State of U.P. Vs Dr. G.K. Ghosh reported in (1984) 1 SCC 254 held that the police officer leading the raid party may be said to be an interested witness to a very limited extent. He is interested in the success of 39 Spl.C.C.221/2021 trap to ensure protection to the harassed citizen and vindication of the role of his department. A police officer, himself being a Government servant, would rarely resort to perjury and concoct evidence in order to rope an innocent Government servant. In the present case on hand, the presence of PW-6 during the trap in the place itself is doubtful. Even if it is presumed for the sake of argument that he was a member of the raiding party, under the aforesaid circumstances, planting of cash in the pocket of accused No.2 at the instance of PW-6 is hard to accept.
30. In Ex.P45 sketch, adjoining the place of offence, it is shown that there is a computer room and it appears at the relevant time of trap, accused No.2 was present in the said room. As per the evidence of PW4, when PW3 along with accused No.1 came out of the police station, PW3 has informed PW-9 that the accused No.1 by gesture has asked accused No.2 to collect the amount. This aspect also finds reference in Ex.P5 trap panchanama that PW3 had suspected that accused No.2 might have collected the tainted bribe amount.
31. The other defence of the accused No.2 is that he has been compelled and threatened by PW6 to give Ex.P28 explanation statement as instructed and 40 Spl.C.C.221/2021 otherwise to face the serious consequences. During the cross-examination of PW4 and PW6, the witnesses have denied this aspect. The accused have not made out any grounds to show that PW-6 had interest or any motive in implicating them. Moreover, during the cross-examination of PW6, the accused has failed to elicit any admission to establish the presence of said witness or his participation in the trap proceedings. PW4 being the witness to the trap proceeding has specifically deposed that the accused No.2 has admitted that the tainted cash is in his pocket. The evidence further show that thereafter as directed by PW9, PW-4 has collected the said tainted M.O.9 cash from the trouser pocket of accused No.2. PW4 has specifically denied that PW3 and PW6 have planted the cash in the pocket of accused No.2 and therefore the accused have failed to establish their aforesaid defence during the cross-examination of PW4 and PW-9. The accused have also failed to put forward the above referred defence during the cross-examination of PW3.
32. The aforesaid defence of the accused is also false even viewed in another angle, because it is the definite evidence of PW3 that along with accused No.1 when he came out of the BMTF police station, he had kept the cash in the blue colour plastic tray. After receiving the pre-determined signal, PW9 along with the 41 Spl.C.C.221/2021 panchas went inside the police station and at that time the cash was not found in the said tray. It is not the evidence of PW3 that since the accused No.1 has refused to receive the amount, he had brought back the said amount in his pocket. Therefore, the argument of the accused that after the intervention of PW6, he had planned to keep the cash in the trouser pocket of accused No.2 or they went outside the police station along with PW3 and planted the cash and projected the trap as genuine is also contrary to the evidence and circumstances of the case. It is well said principle that the witness may lie but not the circumstances. In the above referred facts and circumstances, the defence of the accused looks apparently imaginary.
33. In order to ascertain the truthfulness or otherwise of the defence of the accused, it is necessary to refer Ex.P28 explanation - statement of accused No.2. The relevant portion of the document reads as under:
" I am working in BMTF as a D group employee in contract basis.
Today my sir toled (told) in hall something is here go and get it Chethu (Chethan) My Surkumar (Shivakumar) sir toled (told) to me. After police tarpe (trap) me and sir, that is and in my packed (pocket) same got in my packed 42 Spl.C.C.221/2021 (pocket). that all. Same money in paked (pocket) police arrest me.
It contins (contains) 2000 Rs. & 500 Rs many currency note."
34. From the aforesaid explanation what the accused No.2 was intended to convey can be gathered. It is his explanation that as directed by accused No.1, he has collected the cash and was keeping the said amount in his pocket, the police trapped him and accused No.1, the currency notes of Rs.2,000/- and Rs.500/- found in his pocket. The above explanation of accused No.2 is contrary to the defence of the accused during the trial. The contention of the accused during the cross-examination PWs.4, 6 and 9 show that in order to overcome the explanation given by accused No.2 as per Ex.P-28, they have made allegations against PW6 the police officer that he has planted the cash in the trouser pocket of the accused No.2. Accused No.2 has not made any such allegations in his Ex.P28 statement against PW-
6. Ex.P-28 statement gains much importance because it was submitted to PW-9 at the earliest point of time immediately after the accused were trapped.
35. It is also relevant to make note that in Ex.P27, the explanation statement of the accused No.1, he has not made any reference regarding the recovery of tainted 43 Spl.C.C.221/2021 cash from the possession of accused No.2. There is also no reference that PW-6 has planted the tainted cash in the pocket of accused No.2. During the entire trap proceeding accused No.2 was present in the BMTF police station. The relevant portion of his statement reads as under:
ದದ 7-11-2018 ರರದದ ಸದಮಮರದ ಸರಜಜ 5-00 ಗರಟಜಗಜ ನಮನದ ನಮಮ ಹರಯ ಅಧಕಮರಗಳ ಕಛಜಛರಗಜ ಕಜಲಸದ ನಮತತ ಹಜಹಛಗದತತದಮದಗ ಯಮರದ ಇಬಬರದ ಬರದದ ಹಡದರತಮಯತದ. ನಛನದ ಯಮರಜರದದ ಕಜಛಳದಮಗ ನಮವವ ಎ.ಸ.ಬ. ಪಲಛಸರದ ಎರದದ ನನನನದನ ಹರತರದಗ ನನನ ಕಛಜಛರಗಜ ಹಡದದಕಜಹರಡದ ಬರದರದ. ತದನರತರ ನನನ ಕಛಜಛರಗಜ ಹರತರದಗ ಬರದಮಗ ಎ.ಸ.ಬ. ಯ ಹರಯ ಅಧಕಮರಗಳದ ಹಮಜರದದದ ನನಗಜ ಒಬಬ ವವಕತಯನದನ ತಜಹಛರಸ ಈ ವವಕತಯನದನ ನಜಹಛಡದದಛಯಮ? ಈತನದ ಕಜಹಟಟ ಹಣವಜಲಲ ಎರದದ ಕಜಛಳದರದ. ನಮನದ ಒರದದ ಕಕಣ ತಬಬಬಮಬದಜ. ಯಮವ ಹಣ & ಈ ವವಕತ ಯಮರದ ನನಗಜ ಗಜಹತತಲಲವಜರದದ ತಳಸದಜ.
In the event accused No.2 was called out of the police station along with PW3.,4 and PW6 or if PW-6 had planted the currency notes in the pocket of accused No.2, accused No.1 being the Police sub-inspector could have disclosed this fact in his Ex.P27 explanation. Moreover, when both the accused were produced before the Court, they did not make any such allegations against PW9 the investigating officer or PW6 - the Police officer regarding the alleged planting of the tainted currency notes. Even the contents of the bail application also do not contain
44 Spl.C.C.221/2021 the aforesaid allegation against the police officers. Hence the explanation of accused No.1 as per Ex.P-27 is false and unbelievable and explanation of the accused No.2 is the correct version of the entire incident.
36. In the above circumstances, it is incumbent on the part of the accused No.2 to explain how the cash kept in the tray on the table came to his trouser pocket. In the absence of plausible explanation, the defence of the accused taken during the cross-examination of Pws.4, 6 and 9 has to be considered as imaginary and hyper technical and the said defence is apparently unbelievable. It is not the defence of accused No.1 in Ex.P27 explanation that he was not aware of the fact that PW3 had kept the tainted currency notes in the tray kept on the table or it was dropped without his knowledge or against his instruction. The failure of accused No.1 to explain this aspect also leads to an inference that he was aware of the fact that PW3 has kept the currency notes or as per his direction PW3 has kept the said amount and all the developments took place in his office room was within his knowledge.
37. The defence of the accused that PW6 has planted currency notes in the trouser pocket of accused No.2 is an afterthought defence taken during the trial. Therefore, on this ground also the defence of the accused 45 Spl.C.C.221/2021 is deserves to be rejected. As per the evidence of PW3 when he was about to come out from the police station, he had kept the amount on the tray kept on the table. As per the evidence of PW4 and PW9 immediately after receiving pre-determined signal along with trap team, 2 pancha witnesses they went inside the police station but the cash was not found in the tray. Therefore, the inference to be drawn by this court is that as directed by accused No.1, accused No.2 had collected the said amount.
38. The prosecution has placed on record and it is also necessary to refer Ex.P44 report of the Assistant Chemical Examiner, Public Health Institute, Bengaluru. The relevant portion of the document reads;
Sl. Article Physical Appearance Test for Test for
No. No. Phenolph Sodium
thalein Carbonate
4 5 Light pink colour Positive Positive
solution (Accused -2-
RHFW)
5 6 Colourless solution Negative Positive
(Accused -2-LHFW)
6 7 Cover with currency Positive Negative
(Currency notes)
7 8 Cover with pant Positive Negative
(Accused-2 - Pant)
8 9 Cover with Cotton Positive Negative
swab
46 Spl.C.C.221/2021
The accused No.2 has collected the tainted currency notes and was keeping the amount in his trouser pocket is proved from Ex.P-44 report as corroborative evidence. The aforesaid chain of circumstances clearly show that PW3 had kept the tainted currency notes inside the chamber of accused No.1 in the tray on the table and the accused No.2 has collected the said amount in his right hand and was keeping the amount in his trouser pocket. Ex.P44 report further reveal that accused No.2 has touched the tainted currency notes in his right hand and therefore as per the aforesaid report, test for phenolphthalein (RHFW) shown as positive and (LHFW) as negative. After careful analysis of evidence of Pws4, 6 and 9 and the chances of planting the tainted currency notes in the trouser pocket of the accused No.2 is highly improbable and unbelievable and therefore the aforesaid defence of the accused is rejected.
39. The learned advocate appearing for the accused has argued that the demand of undue advantage has to be proved with cogent evidence and mere recovery of the tainted money from the possession of accused No.2 is not sufficient. In this regard, they have relied upon the judgment of Hon'ble Apex Court referred supra in C.M.Girish Babu case. As per the facts of the said judgment, substantive evidence was not reliable and in the absence of demand Hon'ble Supreme Court 47 Spl.C.C.221/2021 proceeded to allow the appeal. But in the case on hand, substantive evidence of PW4 coupled with the evidence of PW9 the investigating officer there is direct evidence and other circumstantial evidence to prove the factum of the demand and acceptance.
40. The prosecution has produced Ex.P33 CD containing the conversation between the complainant and the accused and Ex.P34 to 36 sample voice of both the accused and PW3. Ex.P41 and 42 are the certificates issued by PW3 and PW9 under Section 65(B) of Evidence Act. During the evidence, PW3 has specifically denied recording of the conversation with the accused on 31.10.2018 or 2.11.018. Moreover, PW3 has also denied that he has issued Ex.P41 certificate. The specific admission of PW9 is that he is not aware of the procedure to make copy of any information contained in an electronic record stored, recorded or copied in optical or magnetic media produced by a computer. Hence, Ex.P42 certificate issued by PW9 under Section 65B of the Indian Evidence Act is inadmissible because the said certificate is not inconsonance with the requirement of Section 65B(4) of the Act. In the result, the electronic evidence produced by the prosecution, testimony of PW8 and the voice analysis report at Ex.P31 are inadmissible for non-compliance of Section 65B of the Evidence Act.
48 Spl.C.C.221/2021
41. The learned Counsel appearing for the accused has vehemently argued that the failure of the Investigating Officer to seize the blue colour tray kept on the table but the said article is not having any relevance because the tray is not the subject matter of the offence. PW9 has collected the cotton swab rubbed in the place where the tainted cash was kept and Ex.P44 report shows a cover with cotton swab was tested positive for phenolphthalein. Moreover, PW9 during his cross- examination has deposed that the entire table is not covered in Ex.P 15 to 22 photos and therefore it is not possible to ascertain from the photos the tray kept on the said table. The aforesaid contention of the accused does not go to the root of the prosecution case.
42. The learned Advocate appearing for the accused has further argued that accused No.1 being the Sub- Inspector of Police is not the decision taking authority and hence there was neither any occasion nor possibility to demand undue advantage from the complainant. In Ex.P25, the villagers have submitted the petition before the BMTF Police station and the ADGP of the BMTF has directed accused No.1 to inquire and report. The said work of submitting the report was pending with the accused No.1. As per Section 7 of the PC Act any public servant who obtains, accepts or attempts to obtain an undue advantage with the intention to 49 Spl.C.C.221/2021 perform public duty improperly or dishonestly is guilty of the offence. As per Explanation 1 of the said provision, the obtaining, accepting, and attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. As per explanation-2 it is immaterial whether a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party. In the case on hand, evidence on record shows accused No.2 has collected the tainted cash for accused No.1 and the act committed by them falls under the ambit of Section 7 of the PC Act. During the trial, accused No.1 has not disputed that he has issued notice to PW3 regarding the alleged construction of compound wall by encroaching upon the road.
43(a). The learned defence counsel has argued that the each and every doubts created in the prosecution evidence will favour the accused and they are entitled for those benefit of doubt. In this connection this court referred the decision reported in (1972)1SCC 249 in the case of H.P. Admn. vs Om Prakash explaining the expression "reasonable doubt "
the Apex Court observed as under :
" It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the
50 Spl.C.C.221/2021 prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt - the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy - though - unwittingly it may be - or is afraid of the logical consequences, if that benefit was not given.... It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether ". In the case on hand, the accused has failed to make out any such reasonable doubt in the prosecution evidence to show that there are two views are possible and one benefit the accused has to be accepted.
43(b).In the decision reported in (2015)3 SCC 220 between Vinod Kumar vs State of Punjab, the complainant resiled from his previous statement and was cross-examined by the prosecution. But independent witness supported the recovery in entirety and stood firm and remained unshaken in the cross-examination and nothing has been elicited to dislodge his testimony and the Apex court upheld the conviction. In the case on hand also even though PW-3 has not supported the prosecution case, PW-4 has withstood the searching cross-examination and he has fully supported the 51 Spl.C.C.221/2021 prosecution case. Therefore there is no impediment to rely upon his evidence.
43(c). In the decision reported in (2001)1 SCC 691 in the case of M. Narsinga Rao Vs State of A.P. the three judge Bench of Hon'ble Supreme Court observed though there was no direct evidence to show that the accused had demanded and accepted the money, yet the rest of the evidence and the circumstances were sufficient to establish that the accused had accepted the amount and that gave rise to a presumption under section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth was not accepted. In para 21 held as follows:
"From those proved facts the Court can legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witness cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by then Court that the prosecution has proved that the appellant received the said amount".
In the above referred decision PW-1 and 2 made a volte- face in the trial and denied having paid any bribery to the accused and also denied that the accused demanded the bribe amount. In the case on hand the facts and circumstances are also similar. PW-3 the complainant has denied the demand and acceptance of bribe by the accused 52 Spl.C.C.221/2021 No.1 or he has paid the amount but the evidence of PW-4 the independent witness, PW-9 the IO, and all the other circumstances of the case supports the charge framed against the accused and hence the ratio is aptly applicable to the facts of the case.
43(d) In the decision reported in (1980)2SCC 390 in Hazari Lal vs State of Delhi as per the facts, the informant had resiled from his previous statement and was declared hostile by the prosecution. The official witnesses had supported the prosecution version. The trial court convicted the accused and which was affirmed by the Hon'ble High Court. The Apex Court in para 10 observed:
"It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW-.3. Under Section 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of particular case. "
In the case on hand on the facts and circumstances applying the above ratio, the court may presume that the 1st accused demanded the bribe directed PW-3 to keep the amount in the tray kept on the table, the 2nd accused collected and was keeping in his pocket, had obtained it from PW-3, who a few minutes earlier was shown to have been in possession of the notes. Once the court arrive at the finding that the accused 53 Spl.C.C.221/2021 have obtained the money from PW-3, the presumption under section 20 of the PC Act is immediately attracted. The aforesaid ratio is applicable to the facts of the case.
43(e) In the case of Nayankumar Shivappa Waghmare vs State of Maharastra reported in (2015)11 SCC 213, the complainant has stated that the accused did not demand the amount and the Hon'ble Suprme court found that the witness had lost interest and he was won over by the accused but confirmed the conviction.
44. There is a presumption under Section 20 of the PC Act and since the prosecution has proved the demand and acceptance, it is for the accused to rebut the presumption. In the case on hand, the accused have failed to place any probable defence and their defence taken during the trial and explanation submitted during their examination under section 313 of the CrP.C. are not plausible.
45. The accused have relied on the following reported decisions in support of their case and the ratio of the decisions and its application to the facts of the case are discussed as hereunder.
(i) In C.M.Girish Babu case the Apex Court found that the prosecution failed to establish its theory that there was a demand of gratification by the accused and in the evidence of official witness does not establish that 54 Spl.C.C.221/2021 there was any demand of gratification, trap mahazar does not record the factum of any demand of gratification by the accused. Hence the Hon'ble Court held that prosecution failed to establish guilt of the accused beyond reasonable doubt and accused has proved his case by test of preponderance of probability. As per the facts in the said decision the evidence suggested that PW-10 had given money to the accused stating that it was a loan repayable by PW-2 to accused.
(ii) In the decision of Rakesh Kapoor case the Hon'ble Supreme Court on facts observed that no charge was framed for the offence under section 13(1)(a) of the P.C. Act. The alleged demand was made over telephone and no call details were produced and in the absence of demand and acceptance by giving benefit of doubt the accused came to be acquitted.
(iii). In State of Punjab v/s. Madan Mohan Lal Verma decision the Hon'ble Supreme Court held that PW.2 is a witness only to recovery and not of accepting bribe money, the positive nature of phenolphthalein test due to shaking of hands by the accused, the prosecution has not disclosed the genesis of the case correctly. But in the case on hand, there is evidence of PW 4 placed by the prosecution and there are no allegations against the prosecution that it has suppressed the real facts.
55 Spl.C.C.221/2021
(iv) In B.Jayaraj v/s. State of AP decision, the Hon'ble Supreme Court held that the complainant turned hostile and did not support the demand made by the accused, no other witnesses were present at the time of transaction, when the complaint turned hostile, the contents of the complaint cannot be relied. The plea of the accused was that the complainant had put the currency notes in his pocket with a request to deposit in the bank for renewal of licence and hence Hon'ble Court held mere possession and recovery of currency notes is not sufficient in the absence of proof of demand. But in the present case on hand, PW-4 has supported the prosecution case and there are sufficient evidence to prove the demand and acceptance. The ratio is not applicable because accused have not accepted amount was paid by PW-3 for any other purpose instead they were aware of the fact that it is an undue advantage.
(v) In Khaleel Ahmed decision, as per the facts the complainant admitted in anger he gave complaint and accused was not authorised to estimate the rental value of building of complainant and proof of demand was not established.
(vi) In N. Vijaya Kumar case demand for and acceptance of bribe amount was not proved beyond reasonable doubt. The Apex court held acquittal of the accused by the trial court is a possible view and if 56 Spl.C.C.221/2021 another view is possible, no ground to interference by the Hon'ble High court.
(vi) In T.K.Ramesh Kumar decision the Hon'ble Supreme Court held that the demand made by the accused with the complainant and his father was not corroborated and there were material contradictions in the evidence.
(vii) In M.R. Purushotham decision the complainant did not support prosecution case in so far as demand by the accused and held mere possession and recovery without proof of demand will not bring home the offence of bribery.
(viii). In Varkey Joseph decision, the charge was under section 302 of IPC and leading questions were asked to the witness on material part of the evidence. In the case on hand, a single leading question tendered to PW-4 regarding display of audio-video will not effect the entire case and moreover this court has not considered the electronic evidence for non compliance of section 65B of Evidence Act.
(viii) In Sat Paul decision, the Hon'ble Court held that there is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. But where the witnesses have poor moral fibre and bad antecedents having possible motive to 57 Spl.C.C.221/2021 harm the accused not proper to accept testimonies of such witness. In the case on hand the accused have failed to make out any such allegations against PW-4 instead he is a public servant having no grievance against the accused in their conviction in the case.
46. As per the entire prosecution evidence, and documents, at the time of trap, the accused No.1 was in his room before and at the time PW-3 entered the office room. It is not the defence of the 1st accused that there was possibility that in his absence, PW-3 has dropped the tainted cash in the tray kept on the table. It is not the defence of the 2nd accused that he was not aware of the fact that the MO NO.9 cash he collected as directed by the 1st accused was the bribe amount and for the said reason he did not seek his acquittal. There was no enmity between PW-3 to implicate the accused in false prosecution. It is not the defence of the accused that the amount received by them was legally entitled to receive. PW-3 has not deposed that he has voluntarily paid the bribe amount to the accused without demand from the accused. The accused have failed to discredit the testimony of PW-4 pancha and PW-9 investigating officer. The accused have failed to make out that PW-4 is not a truthful witness instead he withstood the lengthy and searching cross-examination. As per evidence of PW-3 he had kept the tainted cash in the tray, then it is the 58 Spl.C.C.221/2021 burden of the accused to explain satisfactorily how the said cash went to the trouser pocket of accused No.2 .
47. After considering the evidence, this court can hold that the accused have not succeeded in discharging their onus of proof and to explain the circumstances appearing against them in the prosecution evidence to rebut the presumption under section 20 of the PC Act. It is the duty of the accused No.2 to forward plausible explanation to show how MO 9 the tainted cash of Rs.50,000/- was found in his possession.
48. In regard to the drawing of the presumption under section 20 of the PC Act, it is proper to refer the judgment reported in (2000) 8 SCC 571 in Madhukar Bhaskar Rao Joshi vs State of Maharastra. In the said case the Hon'ble Supreme Court held that the premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act.
49. In the decision referred supra in the case of M. Narasinga Rao vs State of A.P. the Hon'ble Supreme Court held that section 20(1) of the PC Act deals with the legal presumption, it has to be presumed that the 59 Spl.C.C.221/2021 accused accepted the gratification as a motive or reward for doing or forbearing to do any official act. The only condition for drawing such legal presumption is that it should be proved that the accused had accepted or agreed to accept gratification. It is a rebuttable presumption, but if the accused fails to disprove the presumption, then it can be held that the prosecution had proved that the accused received the amount.
50. In the judgment of Kali Ram Vs State of HP reported in (1973)2 SCC 808, the Apex Court observed that the rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy, on grounds which are fanciful or in the nature of conjectures. The guilt of the accused has to be adjudged by the evidence brought on record. The wrongful acquittals are undesirable and shake the confidence of the people in the judicial system. In the case on hand the evidence of PW.4 shadow pancha and PW-9, the IO is consistent with the guilt of the accused and inconsistent with their innocence. The minor discrepancy and contradictions as pointed out by the accused did not affect the substratum of the prosecution case or impact on the core issue and 60 Spl.C.C.221/2021 for the aforesaid reasons the minor discrepancy could be ignored.
51. In the case of M.O. Shamsuddin Vs State of Kerala reported in 1995(3) SCC 351 the Hon'ble Supreme Court has held as under:-
'As a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon' As per Section 134 of Indian Evidence Act, no particular number of witnesses shall in any case be required for the proof of any fact. It is quality and not the quantity, which determines the adequacy of evidence. Conviction can be based on solitary witness if testimony found trustworthy and reliable. In the case on hand evidence of PW-4 shadow pancha is reliable.
52. In this case, the prosecution has proved by placing sufficient evidence against the accused No.1 for the demand and acceptance of illegal gratification, and hence the presumption as contemplated under section 20 of the PC Act is drawn. But the benefit of the presumption can be extended when the prosecution discharges its initial burden of proof that the accused has demanded and accepted illegal gratification and thereafter the onus shifts to the accused to prove his 61 Spl.C.C.221/2021 defence by placing plausible explanation by way of cross- examination of the witnesses or by any other evidence. After considering the entire oral evidence of the prosecution witnesses and the documentary evidence on record, this court arrived to the definite conclusion that the prosecution has proved from the evidence of PW-3,4 and PW9 that the accused No.1 has demanded and accepted a sum of Rs.50,000/- undue advantage from PW-3 through the accused No.2 on 07-11-2018 at about 5.10 p.m. in his office in the BMTF police station NR Circle, Bengaluru. The prosecution has further proved from the evidence of PW-4 and 9 that the accused No.2 was found in possession of MO.9 tainted cash of Rs.50,000/- in his trouser pocket. The prosecution has proved by cogent evidence that in the presence of PW4 and 5, the I.O. has recovered the said amount from the trouser pocket of the 2nd accused and thereby he has abetted the accused No.1 to commit the offence of demand and acceptance of the undue advantage. The prosecution by producing Ex.P-44 chemical analysis report and from the evidence of PW 3 and 4, has proved that the accused No.2 was subjected to chemical hand wash and in the said process, sodium carbonate liquid turned to pink colour and thereby beyond doubt it is established that the accused No.2 has handled M.O.9 the tainted currency notes. As per Section 114 of Indian Evidence Act, this court drawn an inference that the 62 Spl.C.C.221/2021 accused No.2 had the knowledge and he has collected the tainted currency notes for and on behalf of accused NO.1, and he had kept those notes in his pocket. The accused have failed to create any doubt during the cross- examination of PW.4 in order to substantiate their defence. Therefore from the evidence of PW. 3,4, and 9 the prosecution has proved the charge against the accused. From the aforesaid evidence, this Court has arrived to the definite conclusion that the accused No.1 has demanded and accepted bribe of Rs.50,000/- through accused No.2. Accused No.2 has abetted accused No.1 in collecting the said amount knowing it to be undue advantage and thereby accused No.1 is guilty of demand and acceptance of undue advantage as per Section 7(a) of the PC Act. Accused NO.2 is guilty of the offence punishable under section 12 of the PC Act.
53. In the case on hand the charge is framed against the accused No. 2 both under Section 7(a) and 12 of the P.C. Act. As per the prosecution evidence, there are no allegations against the accused No.2 that he has demanded or obtained or attempted to obtain undue advantage from PW-3. The required evidence is available only against the accused No.1. The evidence on record show that the accused No.2 has facilitated the accused No.1 in accepting the undue advantage from PW-3. From the evidence placed on record, the prosecution has failed 63 Spl.C.C.221/2021 to prove the charge against the accused No.2 for the offence under section 7(a) of the PC Act. The evidence on record show that he has abetted accused No.1 in committing the offence. Hence the charge against accused No.2 under section 12 of the P C Act is proved. In the result my findings on the point No.2 and 4 are in the affirmative and point No.3 is in the negative. Accordingly this court proceed to pass the following:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973, the accused No.1 is convicted of the offence punishable under Sections 7(a) of The Prevention of Corruption Act, 1988.
Acting under Section 248(2) of the Code of Criminal Procedure 1973, the accused No.2 is convicted of the offence punishable under Sections 12 of The Prevention of Corruption Act, 1988.
Acting under Section 248(1) of the Code of Criminal Procedure 1973, the accused No.2 is acquitted for the offence punishable under Sections 7(a) of The Prevention of Corruption Act, 1988.
Office is directed to register a separate Criminal Misc. case against PW-3 Rahul S. and
64 Spl.C.C.221/2021 issue notice to show cause why he should not be prosecuted for the offence punishable Section 193 of the IPC for giving false evidence before this Court on 13-09-2021 and direct him to appear before this court on 30-3- 2022 without fail.
The bail bond and surety bond executed by the offenders and their surety are hereby stand discharged.
M.O.No.9 cash of Rs. 50,000/- (fifty thousand) is confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.3. metal seal to the ACB Bengaluru Urban police.
Office is directed to keep M.O. No. 1, Ex.P-33 to 36 CD and DVD along with the case file.
Office is directed to destroy M.O. No.2 pant 4to 8 sodium carbonate liquid bottle and MO 10 cotton swab as the same are worthless after the appeal period.
(Dictated to the judgment-writer, transcribed by him, corrected, signed and then pronounced by me in the open Court on this the 16 th day of March, 2022.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge Bengaluru.
65 Spl.C.C.221/2021 ORDERS Judgment is pronounced finding the offender No.1 is guilty of the offence punishable under Section 7(a) and offender No.2 is guilty of the offence punishable under Section 12 of The Prevention of Corruption Act, 1988.
2. On the quantum of sentence to be imposed, heard the learned Sri K.B.K.S., Advocate on behalf of the offender No.1. He has produced copy of the documents relating to the medical treatment of patient by name Nagaraj Yadav A.V. It Is submitted that the offender No.1 is aged 39 years and he came from poor agricultural family. His father is no more and mother is suffering from the age related ill-health. He is recently married and having a baby aged 15 months. His brother by name Nagaraj Yadav A.V. is suffering from lungs cancer, 4th stage and counting his last days. The offender No.1 is taking care of his elder brother and for the aforesaid reasons he has prayed this court to take a generous and lenient approach while imposing the sentence of imprisonment and fine.
3. The learned Sri H.S. Advocate submitted that offender No.2 is the only bread earner of the family and his widowed mother is depending upon him. Offender No.2 is not educated and he has been dismissed from his service. He has also submitted the court to take a lenient approach.
4. It is well settled law that as held in the judgment of the Hon'ble Supreme Court reported in AIR 2004 SC 2317 in the case between N Bhargavan Pillai vs State of Kerala and in 66 Spl.C.C.221/2021 2006 AIR SCW 5267 in the case of the State V/s A Parthiban rules out the application of the provisions of The Probation of Offenders Act to the cases covered under the PC Act.
5. In the case on hand, the offence was committed on 07-11-2018 after coming into force of the amended Act No.16 of 2018 (w.e.f. 26-7-2018). Thus, the offence under section 7(a) and 12 of the PC Act as on the date of offence was punishable with imprisonment which may extend to seven years and with fine and the minimum punishment shall be not less than three years.
6. The offender No.1 was working as the Sub-inspector of Police in the BMTF police station. In the light of the facts and circumstances of the case, with particular reference to the nature and conduct of the offender in committing the offence, the quantum of sentence to be imposed has to be determined. By committing the offence he has invited the risk to himself, and now he cannot plead for leniency in the sentence to be imposed. On the other hand, the facts and circumstances of the case, the conduct of offender No.1 in demanding Rs.70,000/- illegal gratification from PW-3 do demand that he be punished by appropriate sentence of imprisonment, after taking into consideration the aforesaid submission made on his behalf.
7. Offender NO.2 as on the date of offence was a contract employee working as Clerk in the BMTF Police station. As per the evidence of PW2, the offender No.2 was already 67 Spl.C.C.221/2021 dismissed from the service after his involvement in the present case. From the evidence on record it is proved that the offender No.2 as a facilitator has collected the bribe amount on behalf of offender No.1 and thereby he is found guilty of abetment. Hence, it is necessary to take a lenient view while imposing punishment against offender NO.2.
8. In AIR 2013 SC 1682 Niranjan Hemchandra Sashittal case the Apex court held that the gravity of the offence under the PC Act is not to be judged on the quantum of bribe, as corruption is not to be justified in degree.
9. In the decision reported in AIR 2015 SC 2678 in the case of Shanthilal Meena vs State of NCT Delhi, the Hon'ble Supreme Court exhaustively dealt with penological philosophy behind sentencing under the PC Act. It is held that the punishment for the offences under the PC Act there is any scope for reforming the convicted public servant. Unless the courts awards appropriately deterrent punishment taking note of the nature of the offence and the status of the offender, people lose faith in justice delivery system and very object of the legislation will be defeated. The court has thus a duty to protect and promote public interest and build up public confidence. Misplaced sympathy or unwarranted leniency will send a wrong signal to the public giving room to suspect the institutional integrity affecting the credibility of its verdict. As per the facts of the said judgment also as the case on hand, the sub-inspector of police was convicted while receiving Rs.25,000/-. Therefore while awarding sentence, this court 68 Spl.C.C.221/2021 should bear in mind the expectation of the people to prevent corruption in the police department by providing prompt conviction and stern sentence. The above referred law laid down by the Apex court is aptly applicable to the facts of the case in hand.
10. As per section 16 of the P C Act where a sentence of fine is to be imposed under section 7 of the PC Act, the court shall take into consideration the amount or value of the property the offenders have obtained by committing the offence. In the case on hand, the offender No.1 has demanded undue advantage of Rs.70,000/- and has received an amount of Rs.50,000/- from PW-3. Having regard to the amount of demand of bribe and on considering the family responsibility of offender No.1 to meet the medical expenses of his elder brother, this court finds imposing fine of Rs. 25,000/- is just and proper and reasonable. The offender No.2 was a contract employee as on the date of offence and hence it is just and proper to impose nominal fine of Rs.5,000/-. As per Section 7(a) and 12 of the PC Act, there is a statutory direction to impose minimum sentence of imprisonment for three years. After considering the facts and circumstances of the case and for the reasons stated herein above, it is just and proper to sentence simple imprisonment for three years and to pay fine of Rs.25,000/- for offender No.1 and simple imprisonment for three years and to pay fine of Rs.5,000/- for offender No.2 would meet the ends of justice. Accordingly this court proceed to pass the following:
69 Spl.C.C.221/2021 ORDER The offender No.1 by name Shiva Kumar is sentenced to undergo simple imprisonment for a period of three years and also to pay a fine of Rs.25,000/- (twenty five thousand only ) for the offence under section 7(a) of The Prevention of Corruption Act 1988. In default of payment fine of Rs.25,000/-, he shall undergo simple imprisonment for a further period of three months.
The offender No.2 by name Chethan K.N. is sentenced to undergo simple imprisonment for a period of three years and also to pay a fine of Rs.5,000/- (five thousand only ) for the offence under section 12 of The Prevention of Corruption Act 1988. In default of payment fine, he shall undergo simple imprisonment for a further period of one month.
Acting under section 428 of the Code of Criminal Procedure, the period of detention undergone by the offenders during investigation from 07-11-2018 to 14-11-2018 shall be given set off against the sentence of imprisonment.
Free copy of the judgment be furnished to both the offenders forthwith.
(Dictated to the judgment writer directly on computer, typed by him, corrected, signed and pronounced by me in the open Court on this the 16th day of March, 2022.) (LAKSHMINARAYANA BHAT K.), XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
70 Spl.C.C.221/2021 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Seemanth Kumar Singh PW 2 : Siddaramappa PW 3 : Rahul S. PW 4 : N.M.Mujahid PW 5 : Smt.Shashikala PW 6 : Balaraju B. PW 7 : Chandrika G. PW 8 : Sadiq Pasha PW 9 : Krishnamurthy PW 10 : Praveen Chidambar Yaligar
List of documents marked on behalf of prosecution:
Ex P1 : Sanction order dt.3.7.2020 Ex P1(a) : Signature of PW 1 Ex P2 : Sanction order dt.29.12.2020 Ex P2(a) : Signature of PW 2 Ex P3 : Complaint Ex P3(a) : Signature of PW 3 Ex P4 : Pre-trap mahazar Ex P4(a) : Signature of PW 3 Ex P4(b) : Signature of PW 9 Ex P5 : Trap mahazar Ex P5(a) : Signature of PW 3 Ex P5(b) : Signature of PW 4 Ex P5(c) : Signature of PW 9 Ex.P6 to : Photographs P22 (17 Nos.)
71 Spl.C.C.221/2021 Ex P23 : Sheet containing currency No. Ex P24 : Statement of complainant Ex P25 : Attested copy of case file of complainant Ex P26 : Copy of extract of attendance register Ex P27 : Written explanation of A-1 Ex P28 : Written explanation of A-2 Ex P29 : Seal Acknowledgment Ex P30 : FIR Ex P31 : FSL Report dated 14.6.2019 Ex P31(a) : Signature of PW 7 Ex P32 : Sample seal of FSL Ex P33 : CD contains conversation between complainant and accused Ex P33(a) : Cover Ex P34 : CD containing sample voice of A-1 Ex P34(a) : Cover Ex P35 : CD containing sample voice of A-2 Ex P35(a) : Cover Ex P36 : CD containing sample voice of complainant Ex P36(a) : Cover Ex P37 : Letter dt.7.11.2018 of PW9 Ex P38 : Sheet containing transcription of Audio in MO1 (pre-trap) Ex P39 : Sheet containing transcription of Audio in MO1 (during trap) 72 Spl.C.C.221/2021 Ex P40 : 65-B Certificate given by Suresh Ex P41 : 65-B Certificate given by PW3 Ex P42 : 65-B Certificate given by PW9 Ex P43 : Letter dt.9.11.2018 Ex P44 : Chemical examiner report Ex P45 : Sketch List of material objects marked on behalf of the prosecution:
MO 1: DVD MO 2: Pant MO 3 : Brass seal MO 4 : Bottle containing clear Sodium Carbonate solution MO 5 : Bottle containing handwash of Smt.Shashikala MO 6 : Bottle containing clear Sodium Carbonate solution (Trap time) MO 7 : Bottle containing right handwash of A-2 MO 8 : Bottle containing left handwash of A-2 MO 9 : Cash of Rs.50,000/-
MO 10 : Cotton swab List of witnesses examined on behalf of defence side:
- Nil -
73 Spl.C.C.221/2021 List of document marked on behalf of defence side Ex.D1 to D3 - Photos Ex.D4 - Copy of acknowledgment given by FSL Ex.D5 - Copy of request letter in Crime No.8/2021 (LAKSHMINARAYANA BHAT K.), XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.