Bangalore District Court
Central Bureau Of vs Manda Varaprasada Rao on 9 July, 2018
IN THE COURT OF THE XLVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI
CASES, BENGALURU.
HOLDING CONCURRENT CHARGE OF XLVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE
FOR CBI CASES, BENGALURU.
Dated 9th day of July, 2018.
PRESENT:
Smt. S.H.PUSHPANJALI DEVI, B.A. LL.B.,
XLVI Additional City Civil and Sessions
Judge & Special Court for C.B.I.Cases,
Bengaluru.
Holding Concurrent Charge of XLVII
Addl.City Civil and Sessions Judge and
Spl.Judge for CBI Cases, Bengaluru.
SPECIAL CRIMINAL CASE No.74/2005
COMPLAINANT: Central Bureau of
Investigation,
A.C.B., Bengaluru.
(By Public Prosecutor)
-VERSUS-
2 Spl.C.C.No.74/2005
ACCUSED : Manda Varaprasada Rao,
S/o.M.V.A.Ganeshwar Rao,
R/o. Flat FD/77,
HAL Senior Officers Enclave,
C.V.Raman Nagar,
Bengaluru.
C/o.J.Lakshmi Narayana,
MIG-II-97, Sector VI,
M.V.P. Colony,
Vishakapatnam,
Andhra Pradesh.
Chief Manager,
M/s.Hindustan Aeronautics
Ltd., LCA-LSP Dvn.
Bengaluru Complex,
Bengaluru.
(By Sri S.G.Bhagwan,Advocate)
Tabulation of Events
1. Date of Commission of : 26.10.2004
Offence
2. Date of Report of Offence : 26.10.2004
3. Date of Arrest of accused : 27.10.2004
3 Spl.C.C.No.74/2005
4. Date of release of accused : 30.10.2004
on bail
5. Period of undergone in : For four days, from
custody
27.10.2004 to
30.10.2004
6. Name of the complainant : C.Venkateshwarulu,
Manager, Technical
Department,
M/s.Radiant Cables
Pvt.Ltd.,
Sanat Nagar,
Hyderabad.
7. Date of commencement of : 27.1.2010
Evidence
8. Date of closing of Evidence : 9.1.2013
4 Spl.C.C.No.74/2005
9. Offences complained of : Under Section 7 and
13 (2) r/w.13 (1)(d) of
Prevention of Corru-
ption Act, 1988.
10. Opinion of the Judge : As per final order
(S.H.PUSHPANJALI DEVI)
XLVI Addl. City Civil and Sessions Judge
and Special Judge for C.B.I. Cases,
Bengaluru.
Holding Concurrent Charge of XLVII
Addl.City Civil and Sessions Judge and
Spl.Judge for CBI Cases, Bengaluru.
5 Spl.C.C.No.74/2005
JUDGMENT
The accused has been charge-sheeted by the Superintendent of Police, Anti Corruption Bureau, Bengaluru, for the offence punishable under Section 7 and 13(2) r/w.13 (1)(d) of Prevention of Corruption Act, 1988.
2. The brief facts of the prosecution case are that a written complaint dated 26.10.2004 was given by Sri.C.Venkateshwarulu, Manager (Technical Department), M/s.Radiant Cables Pvt.Ltd., (hereinafter called as 'Company') Industrial Estate, Hyderabad had been received by Superintendent of Police, CBI/ACB/ Bengaluru, in connection with demand made by the accused for bribe of Rs.50,000/- as illegal gratification for showing official favour to the Complainant for stopping invocation of the Bank Guarantees furnished by the Company to H.A.L., Bengaluru.
6 Spl.C.C.No.74/2005
3. The allegation made in the complaint that the Company had supplied electrical cables to H.A.L. Bengaluru on 22.12.2003 for a total value of Rs.1,60,00,000/-. The vendor Company had supplied 50% of the materials under the Purchase Order to the LCA-LSP Division of HAL, Bengaluru, during the period March-April, 2004. Due to some defects found in those cables, Company decided to take back all the stocks supplied for carrying out the inspection and rectification of the same to the factory premises in Hyderabad. Therefore, vendor Company furnished three Bank Guarantees for total sum of Rs.69,00,000/-.
4. The allegations made against accused - Manda Varaprasad Rao (herein afterwards called as M.V.Rao) he being Chief Manager (Integrated Materials Management), LCA-LSP Division, in-charge of the Purchase Department, during the period July-August 2004, repeatedly called upon the vendor Company and insisted Managing Director to talk to him. The Quality Control 7 Spl.C.C.No.74/2005 Department of LCA-LSP Division, had inspected the cables on 20.10.2004, and only a small portion of the entire stock was found to be defective and the remaining were found with quality standards of HAL. However, accused had recommended for invocation of Bank Guarantees furnished by the Company on 15.10.2004, even though inspection of the stocks supplied by Company was taken place on 20.10.2004.
5. The prosecution has alleged that accused being in-charge of Materials Management Department, prior to invoking Bank Guarantees contacted the Complainant through telephone on 22.10.2004 to discuss about the invocation of Bank Guarantees furnished by Company to HAL. During the conversation the accused promised the Complainant that he would take up the matter with HAL to stop invocation of the Bank Guarantees. In order to do the said favour, he had demanded bribe of Rs.1,50,000/- out of which, asked to pay Rs.50,000/- as initial amount and remaining amount to be paid at later stage. Further, 8 Spl.C.C.No.74/2005 accused asked the Complainant to pay said amount of Rs.50,000/- on 26.10.2004 or on 27.10.2004 at his residence. However, since the Complainant did not want to give bribe to the accused, contacted the Managing Director of the Company and as per his instructions gave written complaint to the S.P., CBI on 26.10.2004.
6. On the basis of written complaint, CBI has registered a case against the accused in R.C.No.15(A)/2004 for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 and forwarded FIR before XXI Addl.City Civil and Sessions Judge, Bengaluru.
7. Afterwards, on the same day of giving complaint, S.P./CBI/ACB Bengaluru, called Dy.S.P./CBI to his chambers and asked him to lay the team of trap, after handing over written complaint given by the Complainant. The bribe amount of Rs.50,000/- was to be paid to the accused taken from the Company towards expenses of travel to Bengaluru in connection with the complaint given 9 Spl.C.C.No.74/2005 to S.P. with the advice of Managing Director of the Company and it was kept separately. The Complainant was instructed by Dy.S.P. (hereinafter called as 'Trap Laying Officer' - TLO) that if any demand made by accused, then only to pay the bribe amount. Two independent witnesses, Madhusudhan and Peter were also called upon to present at the time of trap proceedings and both of them were employees of Public Sector Banks. The TLO explained the contents of complaint to both witnesses and they were asked to co-operate during the trap of the accused. Further, a sum of Rs.50,000/- was handed over by the Complainant to TLO, in turn, it was given to independent witnesses for counting, which was in the denomination of Rs.1,000/- each. The independent witnesses after counting the currency notes, listed the serial numbers of the currency notes and given back to TLO. Thereafter, the TLO explained the procedure of trap to the Complainant and witnesses, thereafter demonstrated about preparation of solution by using Sodium Carbonate in plain water, phenolphthalein powder was smeared on the 10 Spl.C.C.No.74/2005 currency notes. Later they were told that if their fingers are dipped into the sodium carbonate solution, that solution would turn into pink colour. Later, phenolphthalein powder smeared only on the currency notes and witness Madhusudhan Rao was asked to count notes. After he counted the notes, he was asked to dip his fingers into the sodium carbonate solution which was colourless. When the witness dipped his fingers into the said solution it turned into pink. Further, TLO has disclosed about if the accused received the bribe amount, the Phenolphthalein Powder smeared on the currency notes would stick to his fingers and when his asked to dip fingers into said solution it would turn into pink colour. After they washed off their hands, witness Madhusudhan Rao kept the bundle of Rs.50,000/- smeared with phenolphthalein powder into the left pocket of the shirt of the Complainant, as instructed by TLO The witness Peter was asked to accompany the Complainant to the place where accused instructed him to meet him and TLO instructed the Complainant to give signal by combing his hair after accepting bribe amount by the accused. 11 Spl.C.C.No.74/2005
8. On the same day, at about 4.45 p.m., after confirming with the accused through land line telephone from the office of CBI, it was made known by the Complainant that the accused asked him to go to his house at about 9.00 p.m. on the same day. The Complainant was said to be informed the accused that his Colleague Peter brought the money from Hyderabad and he would also accompany him to his house. The telephonic conversation between them was recorded by using digital voice recorder and it was transferred to micro cassette recorder. The conversation was in Telugu version translated to English.
9. Afterwards, the Complainant, TLO and independent witnesses along with officials of CBI left in two vehicles to the residence of accused, where he was asked to meet the Complainant at 9.00 p.m. After reaching the house of accused situated at HAL, Sr.Officer's quarters, Bengaluru at about 8.30 p.m., both the Complainant and witness Peter went together to his house. The other 12 Spl.C.C.No.74/2005 officials including another independent witness Madhusudhan Rao as well as TLO were waiting near ground floor watching towards the house of accused and for signal of the Complainant. The digital voice recorder was kept in the pocket of Complainant before he went to the house of accused. After they entered into the premises of accused, the digital voice recorder switched on and the Complainant knocked the door and accused after opening it asked him to come inside. Thereafter, both Complainant and Peter were sat on the chairs opposite to each other. At that time, the accused asked the Complainant to send the witness out of the house by way of gesture. Accordingly, the witness - Peter was sent out from his house. Afterwards Complainant gave the bribe amount of Rs.50,000/- to the accused bound in a Telugu newspaper and it was received by the accused, and he kept it below the rack of table. Subsequently, the Complainant came out of the house and gave signal by combing his hair as instructed by TLO. Immediately, the TLO with his officials and another independent witness rushed towards the house of the 13 Spl.C.C.No.74/2005 accused. After opening the door by accused, TLO has shown his identity card to the accused and told him the purpose of their visit. Thereafter, he asked about bribe amount received from the Complainant, for which, accused has not properly answered. Therefore, witnesses asked to search the house for bribe amount and a bundle of amount kept in a newspaper was taken out. Afterwards, TLO and other team members prepared Sodium Carbonate Solution and asked the accused to dip his both hand fingers into the solution. After he dipped his right hand and left hand separately, the solution did not change the colour, the same was seized in two separate bottles. The currency notes of Rs.50,000/- also seized, after comparing numbers of the currency notes with separate note already prepared earlier as they were tallied each other. Apart from said Cash of Rs.50,000/- another cash was found in the house of accused approximately Rs.6,50,000/-, 500 euros and 100 dollars also seized from his house. Afterwards, Investigating Officer has conducted Entrustment Mahazar in presence of witnesses and seized the solution of hands 14 Spl.C.C.No.74/2005 fingers wash of accused, Phenolphthalein Powder currency notes, E-Nadu Telugu Newspaper, Sony Micro Cassette and obtained signatures of Complainant and independent witnesses. The copy of Entrustment Mahazar given to the accused and he was arrested and produced before the Court.
10. After production of the accused before XXI Addl.City Civil and Sessions Judge, Bengaluru, he was taken into police custody on 27.10.2004 for four days and after three days he was produced before the Court on 30.10.2004 and enlarged on bail.
11. The Investigating Officer has conducted investigation and collected relevant documents and recorded statements of witnesses. After completing investigation, he has filed charge sheet against the accused for the offence punishable under Section 7 and 13(2) r/w.13 (1)(d) of Prevention of Corruption Act, 1988 along with Sanction issued by Sanctioning Authority to prosecute 15 Spl.C.C.No.74/2005 the accused as required under Section 19(1) (c) of Prevention of Corruption Act, 1988 for the above-said offences.
12. After hearing both learned Public Prosecutor and learned Counsel for accused, the then Presiding Officer of XXI Addl.City Civil and Sessions Judge, Bengaluru, has framed the charge against accused for the offence punishable under Section 13(2) r/w.13 (1)(d) of Prevention of Corruption Act 1988, read over and explained to him. He has denied the charge leveled against him and claimed to be tried.
13. The prosecution examined in total 12 witnesses as PWs.1 to 12. The documents are marked as Exs.P1 to P60. In the cross-examination of prosecution witnesses the documents in support of the accused marked as Exs.D1 to D6. The Material Objects are marked as 1 to 9. After closure of prosecution evidence, the statement of accused recorded under Section 313 Cr.P.C. The accused has 16 Spl.C.C.No.74/2005 denied entire evidence of prosecution and has not chosen to lead any defence evidence. He has filed written statement (explanation) under Section 313 Cr.P.C.
14. Subsequently, as per the Notification No.PSJ(CBI)/AOW/16/12 dtd.9.10.2013 the case was withdrawn from XXI Addl.City Civil and Sessions Judge, Bengaluru, and made over to this Court for disposal in accordance with law.
15. At the time of hearing arguments on merits, it is noticed that the charge under Section 7 of Prevention of Corruption Act, 1988 has not been framed by the then learned Presiding Officer of XXI Addl.City Civil and Sessions Judge by oversight, even though the said charge mentioned in the charge sheet. Hence, this Court has framed the charge under Section 7 of Prevention of Corruption Act, 1988, read over and explained to the accused. He has not pleaded guilty and claims to be tried. The learned Public 17 Spl.C.C.No.74/2005 Prosecutor and learned Counsel submitted no further evidence on the said additional charge.
16. Heard, arguments of learned Public Prosecutor for prosecution and learned Counsel for accused.
17. Perused the records.
18. The points that would arise for my consideration are:-
1) Whether the prosecution is able
to prove that Sanction obtained to
prosecute against accused for the offence punishable under Section 7 and Section 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988 is valid?
2) Whether the prosecution is able to prove that accused being public servant, in-charge of Integrated Materials 18 Spl.C.C.No.74/2005 Management, HAL, Bengaluru, on 26.10.2004 at his residence, demanded and accepted bribe of Rs.50,000/- from the Complainant, to do an official act of stopping of invocation of Bank Guarantee given by M/s.Radiant Cables Pvt.Ltd., Hyderabad and has committed the offence punishable under Section.7 of Prevention of Corruption Act, 1988?
3) Whether the prosecution is able to prove that the accused being public servant has accepted bribe amount of Rs.50,000/- from the Complainant as illegal gratification and committed the offence of criminal misconduct punishable under Section.13(2) read with Sec.13(1)(d) of Prevention of Corruption Act, 1988?
4) What Order?
19 Spl.C.C.No.74/2005
19. My findings on the above points are as follows:-
Point-1: In the Affirmative Point-2: In the Affirmative Point-3: In the Affirmative Point-4: As per final order for the following:-
REASONS
20. Point No.1 :- The CBI has alleged that the accused being public servant worked as Chief Manager, Integrated Materials Management, (hereinafter called as IMM) Hindustan Aeronautics Limited (hereinafter called as HAL), on 26.10.2004 had demanded and accepted the bribe of Rs.50,000/- as illegal gratification for doing an official act and has committed criminal misconduct by abusing his official position. On the same day, 26.10.2004 trap was conducted by TLO, who is examined as PW3 with the assistance of independent witnesses and other subordinate officials after receiving the complaint given by 20 Spl.C.C.No.74/2005 the Complainant - C.Venkateshwarulu, marked under Ex.P27 and his signature as Ex.P27(a).
21. The Investigating Officer has obtained Sanction issued by competent authority to prosecute accused and produced along with the charge sheet. The validity of the Sanction has been strongly objected by the accused on the ground that it was not issued by his higher authority. The prosecution to prove the validity of the Sanction, has relied on the evidence of PW11 - Ashok K.Bawaja, who is said to be the Sanctioning Authority of accused to accord Sanction. He was Chairman of HAL, Bengaluru during December-2004 till the retirement on 31.3.2009. During the said period, accused was an employee working in HAL as Chief Manager Grade-VI and this witness was said to be competent authority to remove him from office. After going through the file forwarded by Vigilance Department of HAL and other documents, requesting to accord sanction to prosecute, he has accorded sanction as per Ex.P57 and identified his signature marked as Ex.P57(a). He has 21 Spl.C.C.No.74/2005 clearly stated the said file contained copies of FIR, complaint, the documents relating to trap proceedings, statements of witnesses, documents of purchase order, mahazar etc. were perused by him before according sanction.
22. It is important to point out the Sanction accorded under Ex.P57 reveals about the accused being the Chief Manager, IMM, Light Combat Aircraft, Limited Series Production Group, HAL, had demanded an illegal gratification of Rs.50,000/- from Complainant C.Venkateshwaralu, Manager, M/s.Radiant Cables (Pvt.) Ltd., on 26.10.2004, for showing official favour to the Company to stop the invocation of Bank Guarantees, furnished by the Company in favour of HAL, Bengaluru through State Bank of Hyderabad, Hyderabad as security. The written complaint given by PW1 also refers about the telephonic conversation between the accused and Complainant, who asked him to pay the bribe of Rs.50,000/- as initial payment either on 26.10.2004 or on 22 Spl.C.C.No.74/2005 27.10.2004 at his residence and balance was to be paid at later date, if not paid the Complainant would face the consequences. However, three Bank Guarantees for Rs.69,00,000/- furnished by M/s.Radiant Cables Pvt.Ltd., for taking back electrical cables, delivered under Purchase Order dated 22.12.2003 also mentioned and the said materials were taken back for rectification of certain snags observed by Quality Control Department of HAL. The Sanction Order further reveals that the accused attempted to contact Managing Director of M/s.Radiant Cables Pvt.Ltd., over telephone on many occasions prior to making demand for bribe. The letter written by accused on 15.10.2004 communicating about Bank Guarantees furnished by the Company forwarded to Finance Department for further action in connection with invoking Bank Guarantees also mentioned. Further mentioned about accused had asked the Complainant to meet him at his official residence Quarter No.77, FD Block, HAL Senior Officers Enclave, C.V.Raman Nagar, Bengaluru, when the Complainant informed him about his Assistant had brought 23 Spl.C.C.No.74/2005 the bribe amount and he had also came to Bengaluru to discuss the matter regarding invocation of Bank Guarantees. On 26.10.2004 at about 9.00 p.m. the accused at his residence has demanded and accepted the bribe from the Complainant, to do an official favour of helping stop the invocation of Bank Guarantees. On the same day, trap was laid by the Trap Laying Officer along with Complainant, independent witnesses and other officials of CBI. On 27.10.2004, the invocation of Bank Guarantees was ordered to be kept in abeyance by HAL, thereafter, they were returned to Bank on 4.11.2004. Therefore, it is alleged that accused being public servant has committed criminal misconduct for doing official act without any public interest and with a motive for gaining pecuniary advantage for himself to show official favour to M/s.Radiant Cables Pvt.Ltd. Therefore, as required under Section 19(1) (c) of Prevention of Corruption Act, 1988, he has accorded sanction to prosecute the accused for the offence punishable under Section 7 and 13(2) read with 24 Spl.C.C.No.74/2005 13(1) (d) of Prevention of Corruption Act, 1988. He has identified his signature in Sanction marked as Ex.P57(a).
23. In the cross-examination PW11 has clearly stated that due to lapse of time cannot say as to how many days prior to Sanction, the records were placed before him. He was not sure about draft Sanction forwarded along with file, and also not remember to say who had prepared the draft Sanction, but affirmed that he himself accorded Sanction as per Ex.P57. Further he has stated about on the basis of information gathered from the materials available in the file he has mentioned the facts narrated in the Sanction. The suggestion put regarding Sanction has not issued on the basis of materials or any documents furnished by Vigilance Department , however is denied.
24. The question put to PW11 as to the transparency said to be maintained by the accused as per Ex.P23 dated 5.10.2004 answered as 'no comments'. The said letter is no way concerned or reported to the 25 Spl.C.C.No.74/2005 Sanctioning Authority. Because the said letter refers Bank Guarantees dated 26.7.2004, 27.7.2004 and 31.7.2004 for total value of Rs.69,00,000/- informed to the Company as going to be encashed if the cables withdrawn from HAL, are not acceptable by HAL inspectors to be re-supplied on or before 14.10.2004, they are going to encash the Bank Guarantees. Therefore, it can be said that the question itself not related either to the witness or Sanction accorded by him.
25. The document Ex.D3 dated 16.10.2004 confronted to him and asked whether it has contained any file forwarded by the Vigilance Department. The witness has answered affirmatively and said definitely he has gone through the said document. Other contents of the Sanction also put to this witness and he has stated those averments were based on the report available in the file forwarded by the Vigilance Department. The document found in Annexure to the Sanction Order is marked as Ex.D5 which relates to Disciplinary/Appellate Authorities 26 Spl.C.C.No.74/2005 under the HAL CDA Rules 1984 for division(for all Divisions/Offices). In the said document, it has been referred that the Disciplinary Authority for the Grade of concerned Divisional Head in respect of Divisions and concerned HOD in respect of Complex Offices and Corporate Office for I to V grade of the Officer, the Appellate Authority was concerned Director. Likewise, for the VI Grade Officer Disciplinary Authority was concerned Director and Appellate Authority was Chairman. For the VII/VIII Chairman Grade of the Officer Disciplinary Authority was Chairman and Board of Directors was Appellate authority. For the Grade of IX and above Officers Board of Directors was both Disciplinary Authority and Appellate authority. For the officers appointed by the President of India, both the Authorities were As per the Terms of Appointment. However, the Explanation-1 says, if the Disciplinary Authority or Appellate Authority not available in respect of any Officer, the Authority next above of said authority will exercise powers. Explanation-2 says, with respect to the cases for 27 Spl.C.C.No.74/2005 dismissal as a punishment, if the Disciplinary Authorities proposed are not the Appointing Authorities for the respective Grades, the concerned appointing Authorities (as per Delegation of Powers) on considering the entire case shall pass orders as Disciplinary Authority. In such an event, the next higher authority will be the Appellate Authority. Explanation-3 says, in respect of Officers Grade I to VI of the Vigilance Department, CVO would be the Disciplinary Authority and Chairman would be the Appellate Authority.
26. PW11 is not aware of Disciplinary Authorities and Proceedings as mentioned above and the charge sheet issued against the accused. But he has admitted that as per the letter Ex.D5, Managing Director (LCA-LSP) being the concerned Director was the Authority competent to remove Grade-VI Officer from his service. He has affirmed that no other higher Authority of accused is competent to accord Sanction, but he alone is the competent authority to accord Sanction.
28 Spl.C.C.No.74/2005
27. The learned Counsel for accused has relied on the following citations:
1) 2014 AIR SCW 472 in the case of C.B.I. Vs. Ashok Kumar Aggarwal.
The Hon'ble Supreme Court of India under Head Note-A discussed that "while granting Sanction to prosecute the accused, by his Sanctioning authority, it has to do complete and conscious scrutiny of whole record placed before it. Sanction Order should to show that authority has considered all relevant facts and applied its mind. Prosecution is under obligation to place entire record before sanctioning authority and satisfy Court that Authority has applied its mind. There is an obligation on the authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. The prosecution must, therefore, send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis 29 Spl.C.C.No.74/2005 of which, the competent authority may refuse sanction. --------The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought."
Further under Head Note-B discussed as
"the power of competent authority to accord
sanction to prosecute cannot be delegated and sanction cannot also be granted on basis of report given by some other officer or authority."
2) AIR 1997 SUPREME COURT 3400 in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat.
The Hon'ble Supreme Court of India have discussed the validity of the Sanction depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any 30 Spl.C.C.No.74/2005 quarter nor should any external force be acting upon it to take a decision one way or the other.
3) AIR 2012 SUPREME COURT 858 in the case of Dinesh Kumar Vs. Chairman, Airport Authority of India and Anr.
The Hon'ble Supreme Court of India has held that the question of validity of sanction open for consideration in the course of trial.
28. The prosecution has relied on the following rulings:
1) Supreme Court of India - Romesh Lal Jain Vs. Naginder Singh Rana and Others in Appeal (Crl.) 691/2003 decided on 28.10.2005, the discussion made that, "Sanction required under Section 197 Cr.P.C.
and sanction required under the 1988 Act, stand on different footings. Whereas sanction under the Indian Penal Code in terms of the Code of Criminal Procedure is required to be granted by the State; under the 1988 Act it can be granted also by the authorities specified in Section 19 thereof." 31 Spl.C.C.No.74/2005
Further discussed as the question has to whether the sanction is necessary or not, may have to be determined at different stages.
2) C.S.Krishna Murthy Vs State of Karnataka (2005) Insc 199 (29 March 2005) (Arising out of SLP (Crl.) No.4330/2004).
The observation made about when sanction order itself shows that there is something to be accounted by the accused and sanction itself is very expressive. The validity of the sanction by the sanctioning authority for according sanction cannot be raised and the contention raised as to no application of mind by the sanctioning authority while according sanction becomes unsustainable.
3) Sampuran Singh Vs. State of Punjab decided on 17th August 1982.
The Hon'ble Supreme Court of India held that the question whether the authority according Sanction was competent to do so with in the meaning of Section 6(c) of Prevention of Corruption Act, 1988, which contemplates that the Sanctioning Authority must be competent to remove the person from his office.
32 Spl.C.C.No.74/2005
29. The learned Counsel for accused has vehemently argued that P.W.11 is not the competent authority to remove the accused from his office and to accord Sanction to prosecute as the document Ex.D5 shows that Disciplinary Authority to the officer of Grade-VI is "Concerned Director". However, PW11 was Chairman of HAL, Bengaluru from Deceber-2004 till 2009. Therefore, as per the details of Disciplinary Authority and Appellate Authority of grade-VI officer though the concerned Director shown as Disciplinary Authority, Chairman was the Appellate Authority as per Explanation-3 of Ex.D5 mentioned above. Therefore, PW11 was the Appellate Authority being Chairman he is the only higher authority to remove the accused from his office is to be accepted and also is the competent authority to accord Sanction to prosecute against him.
30. The learned Counsel further pointed out that the prosecution has not produced the draft Sanction said to be 33 Spl.C.C.No.74/2005 enclosed with the records submitted to the competent authority to accord Sanction, therefore it creates suspicion regarding alleged Sanction accorded by the PW11 as per Ex.P57. However PW11 has categorically stated that there may be draft Sanction enclosed in the records, but he was not particular about draft Sanction and stated that he himself had gone through entire records submitted before him along with documents and accorded Sanction to prosecute accused as per Ex.P57. Therefore, the alleged point of draft Sanction is to be ignored.
31. The observation made in the above Rulings also says about application of mind by Sanctioning Authority while according Sanction. PW11 has stated about the perusal of all the documents sent by Vigilance Department before according Sanction. Moreover, the Sanction issued under Ex.P57 itself is explanatory regarding the demand and acceptance of illegal gratification by the accused from the Complainant as on 26.10.2004 and the entire facts involved in the allegation made in the case are properly 34 Spl.C.C.No.74/2005 explained by the witness. Therefore, considering all these aspects, I am of the opinion that the prosecution has proved that the Sanction obtained under Ex.P57 to prosecute against accused is proper and in accordance with Section 19 (1) (c) of Prevention of Corruption Act, 1988. Hence, I answer point No.1 in Affirmative.
32. Point Nos.2 and 3 :- These points are taken together for common discussion to avoid repetition. The prosecution has alleged the case against accused that, he being public servant worked as Chief Manager, IMM, HAL, LCA-LSP Division, being in-charge of the Purchase Department, has demanded and accepted bribe of Rs.50,000/- from the Complainant - C.Venkateshwarulu, Manager (Technical Department), M/s.Radiant Cables Pvt.Ltd., Hyderabad. Therefore, the allegation made against the accused that he has committed the offence of demand and acceptance of bribe under Section 7 of Prevention of Corruption Act, 1988 and criminal 35 Spl.C.C.No.74/2005 misconduct under Section 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988.
33. The brief facts narrated in the charge sheet that the Complainant was Manager (Technical Department), of M/s.Radiant Cables Pvt.Ltd., Hyderabad, which had supplying electrical cables to H.A.L., Bengaluru, through purchase order dated 22.12.2003 for Rs.1,60,00,000/-. The supply was made only for 50% of the material as per purchase order during March-April, 2004. But due to some snags found in those cables, M/s.Radiant Cables Pvt.Ltd., had decided to take back the stocks supplied for inspection and also for rectification to the factory premises of Hyderabad. Thereafter, they inspected the cables and during July-August 2004, the accused being in-charge of Purchase Department, H.A.L., has repeatedly called the Managing Director of M/s.Radiant Cables Pvt.Ltd., and insisted he should speak to him. Thereafter, the accused got the Bank Guarantees furnished by M/s.Radiant Cables Pvt.Ltd., invoked on 15.10.2004 itself, even though 36 Spl.C.C.No.74/2005 inspection of stocks supplied was made on 20.10.2004. However, the accused had demanded bribe and asked them to pay initial amount of Rs.50,000/- on 26.10.2004 or 27.10.2004 at his residence. Since the Complainant was not intended to pay bribe to the accused, after consulting with MD of Company, gave written complaint to CBI against the accused.
34. The prosecution in proof of demand and acceptance of bribe of Rs.50,000/- by accused as on 26.10.2004, has placed the evidence through the Complainant C.Venkateshwarulu examined as PW1. He was the Manager(Technical) of M/s.Radiant Cables Pvt.Ltd., has deposed about the HAL, Bengaluru being one of its customers, for which they used to supply of aircraft wires and cables, as per the Rate Contract Agreement entered between the Company and HAL on 8.6.2001, marked as Ex.P5, the Xerox copy of the same marked as Ex.P1. The purchase order dated 22.12.2003 came to be issued for supply of cables worth Rs.1,56,06,704/- and photocopy of 37 Spl.C.C.No.74/2005 the purchase order marked under Ex.P2, the original of the same marked as Ex.P6. According to him, different materials were supplied to HAL during March-2004. However, the defects in those goods was informed by HAL through letter, in response to the same, Complainant being Manager of M/s.Radiant Cables Pvt.Ltd., had discussion with accused, who was Chief Manager, Integrated Material Management and the Engineer of Looms Department. He has identified the original of minutes of the discussion prepared under Ex.P7 and copy of the same marked as Ex.P4. The currency notes containing denomination of Rs.1,000/- in 50 numbers are identified as M.O.1. He has identified the Entrustment mahazar conducted before trap and after Recovery mahazar under Exs.P29 and 30.
35. PW1 has further deposed about the snags were observed in the cables supplied to HAL as per the purchase order Ex.P6 and the same was noted in the meeting convened for discussion, under Ex.P7. However, according to him, after discussion, the Company decided to take back 38 Spl.C.C.No.74/2005 the cables for snag analysis and remedial action. Accordingly, the Bank Guarantees of equal amount including taxes and freight charges also informed by HAL, thereafter Bank Guarantees provided as on 27.7.2004. However, afterwards, the goods were taken back, inspected and re-supplied after rectification of defects. The Bank Guarantees of Rs.22,45,000/- and Rs.1,55,000/- of State Bank of Hyderabad, furnished in favour of HAL, as per Exs.P.8 and 9. He has also identified another Bank Guarantee for Rs.45,00,000/- furnished to the HAL, as per Ex.P12. The Xerox copy of the Report prepared after observations and findings of snags cables marked as Ex.P15. According to him, the Bank Guarantees furnished in favour of HAL under Exs.P8, P9 and P12 for Rs.69,00,000/-. The Company undertook to supply the material after rectification of the defects on or before 23.10.2004 through letter dtd.5.10.2004 is marked under Ex.P24. However, he has stated about information given by accused on 16.10.2004 that the Bank Guarantees were extended from 23.10.2004 to 23.1.2005. Thereafter, third 39 Spl.C.C.No.74/2005 Bank Guarantee was extended from 30.10.2004 to 30.01.2005. The letter relating to the same marked under Ex.P25. However, the Fax message received from accused on 18.10.2004 informed about non-extension of Bank Guarantees from October-2004 to January-2005 and they are going to invoke the Bank Guarantees and they will make fresh payment only on the supply of cables as per fax message Ex.P26.
36. PW1 has further deposed that the attempt made by the accused to contact Managing Director of the Company over phone and it was answered by P.A. - Unnikrishnan of M.D. Thereafter, accused repeatedly tried to contact M.D. thrice and afterwards, he has demanded bribe of Rs.1,50,000/- with the Complainant for not invoking Bank Guarantees and insisted for initial advance of Rs.50,000/-, at earlier stage. Therefore, PW1 informed the same to his M.D. over phone and thereafter as per his instructions, he gave complaint to the CBI in respect of demand made by the accused for bribe amount. 40 Spl.C.C.No.74/2005 Afterwards, P.W.1 took an amount of Rs.50,000/- from Company to meet the expenses of attending the said work and reached Bengaluru on 26.10.2004. He had contacted the accused over phone and enquired about status of the Bank Guarantees. The accused affirmed the Bank Guarantees would be invoked and insisted to pay bribe as demanded by him. However, PW1 had disclosed about the amount of Rs.50,000/- brought by him, as accused asked him to meet at his residence on the same day evening.
37. However, the S.P./CBI/ACB, Bengaluru after receiving complaint, instructed Mr.S.S.Giri, Dy.S.P. to do needful after handing over the complaint to him. Thereafter, Dy.S.P. as a TLO called upon two independent witnesses - Madhusudhan Rao and Peter, the employees of Public Sector Bank and explained about the contents of complaint given by the Complainant. Subsequently, PW1 has handed over amount of Rs.50,000/- to TLO and it was counted by one of the witnesses and the same currency notes identified as MO-1. He has further deposed about the 41 Spl.C.C.No.74/2005 demonstration of preparation of Sodium Carbonate Solution and use of Phenolphthalein Powder smeared on the currency notes, as per the say of TLO. Initially, the solution was colourless, the currency notes after counting were smeared with Phenolphthalein Powder by one of the witnesses and when the fingers of the said witness dipped into the solution it turned into pink. The TLO has explained if the accused receives the currency notes smeared with Phenolphthalein Powder with his hand and his hand fingers if dipped into Sodium Carbonate Solution, then it would turn into pink. After explaining said procedure to the witnesses they were asked to wash off their hands and thereafter one of the witnesses had kept currency notes of Rs.50,000/- smeared with Phenolphthalein Powder in his left pocket of the shirt. Subsequently, the Complainant was instructed to give signal by combing his hair after accepting bribe amount by the accused. One of the independent witnesses namely Peter was asked to accompany the Complainant, when they went to the house of accused. 42 Spl.C.C.No.74/2005
38. According to PW1, the conversation between himself and accused in Telugu language was recorded by TLO by using digital voice recorder, later, it was transferred into the micro cassette recorder. The conversation took between him and accused identified as Ex.P28 and Entrustment proceedings identified as Ex.P29, which bears his signature as per Ex.P29(a). However, the procedure of entrustment was completed at about 8.00 p.m. Thereafter, they left the CBI office and reached the house of the accused at 8.50 p.m. PW1 along with witness Peter together went to the house of accused, knocked the door, the accused himself had opened the door and both of them called inside the house. When the Complainant disclosed about Rs.50,000/- brought as demanded by him, the accused made gesture to send the witness Peter out, therefore, he asked him to go out. After he went out from the house, accused himself closed the door and returned, sat by the side of the Complainant. Afterwards the Complainant took out the amount of Rs.50,000/- from his pocket and given to the accused. The accused had taken 43 Spl.C.C.No.74/2005 the Telugu news paper and asked him to put cash into that paper. Therefore, as per his say, the Complainant put the cash into the newspaper. The accused folded it and kept it below the table into a rack. The Complainant asked about stopping of invocation of Bank Guarantees and let him know about when the balance amount is to be paid. However, the accused told about the requirement of the cables of value of Rs.3.5 crores and order of the same will be placed with M/s.Radiant Cables Pvt.Ltd., and asked him to stay back home for dinner. However, the Complainant told him that he was in hurry, came out and gave signal to TLO by combing his hair.
39. After seeing signal given by PW1, TLO along with his team members and independent witnesses rushed to the house of accused and knocked the door, accused himself opened the door and TLO asked him about acceptance of bribe from the Complainant. Since the accused has denied it, the Complainant himself has made known about what had happened in the house of accused. 44 Spl.C.C.No.74/2005 After Complainant has explained about bribe of Rs.50,000/- received by accused in a folded newspaper and kept in the rack of table, the witnesses Madhusudhan Rao and R.Peter were instructed to take out the newspaper with currency notes. Thereafter, bundle of notes kept in a newspaper was taken out by them. After seeing the same, the accused became panic and did not answer properly when TLO asked about the source of said amount. Later, the TLO got prepared Sodium Carbonate Solution, which was colourless, both hand fingers of accused were dipped into solution separately and seized in separate bottles. The currency notes also marked as M.O.1 identified by him and the solution of both hand fingers of accused identified as Mos.2 and 3. The E-Nadu Telugu newspaper kept in a sealed cover was marked as M.O.4 and the said newspaper is marked as M.O.5. PW1 has particularly stated that accused had himself asked him to put cash into the said paper and after currency notes put to it, it was kept under the table after folding it. However, the telephonic conversation recorded by him also played in front of all the witnesses of 45 Spl.C.C.No.74/2005 the team members as well as accused. The same marked as M.O.6 and micro cassette marked as M.O.7. The conversation between accused and Complainant at his residence also marked as M.Os.8 and 9. The recovery proceedings written by the TLO on the same day marked as Ex.P30, it bears signatures of Complainant, independent witnesses and other team members, identified by him. PW1 has identified the English version of conversation between himself and the accused inside his house, is marked as Ex.P31.
40. In the cross-examination of PW1, nothing is elicited to disprove the demand made by the accused to pay total bribe of Rs.1,50,000/- and advance amount of Rs.50,000/- accepted from the Complainant as on 26.10.2004 at his residence at about 9.00 p.m. However, the currency notes taken in the news paper marked under M.O.5, and he has demonstrated how the accused had received the currency notes of Rs.50,000/- in the Telugu newspaper, which was half folded and kept in his left hand 46 Spl.C.C.No.74/2005 and asked him to put it in the table. PW1 has also affirmed the conversation between accused and himself after cables found snags and Bank Guarantees insisted as those cable wires were taken out for rectification. Further he has denied for the suggestion that no bribe amount demanded by the accused, particularly Rs.50,000/- as an advance on 26.10.2004. He has reiterated the evidence deposed in the chief-examination and affirmed the say of accused about requirement of cables with value of Rs.3.5 crores, M/s.Radiant Cables Pvt.Ltd., should get the said order.
41. It is true, the suggestion put to PW1 that he was frustrated as accused and other officials of HAL have not inspected the goods of Company on the ground it was sub- standard and the same returned back to the Company for rectification. He has also further denied the suggestion that Bank Guarantee insisted by HAL before he lifted the goods of sub-standard quality as well as accused was a strict officer, recommended for invoking Bank Guarantees. The said suggestions are denied by PW1. The learned Counsel 47 Spl.C.C.No.74/2005 for accused relied on Ex.D4, which is the copy of ONE DAY PASS ENTRY REGISTER obtained through R.T.I., reveal that his entry inside the office of HAL at about 8.33 a.m. and came out at 6.27 p.m. Therefore, according to accused, there was no occasion for Complainant to call him from CBI Office at 4.45 p.m. as alleged in the evidence. However, the difference in the timings of calling the accused by the Complainant whether at 4.45 p.m. or 6.30 p.m. it will not disprove the bribe amount of Rs.50,000/- received by accused at his residence on the same day at about 9.00 p.m.
42. The shadow witness DJKM Peter is examined as PW2. He was working as Marketing Officer, UCO Bank, Regional Office, Bengaluru from March-2004 to April-2006. According to him, he was called by his DGM and asked him to go to CBI Office as requirement of Telugu knowing people for some confidential proceedings. Accordingly, he had been to CBI Office on 26.10.2004 and met Dy.S.P., the Trap Laying Officer and saw another witness Madhusudhan 48 Spl.C.C.No.74/2005 Rao and Complainant. Both of them introduced by Dy.S.P. and informed about complaint given by the Complainant against accused - M.V.Rao, alleging that he being official of HAL demanded some money as bribe from the Complainant, in connection with stop of invocation of Bank Guarantees given by the Company in favor of HAL. Afterwards, the procedure of trap explained by TLO and asked the Complainant to contact accused once again, if he demand money as bribe, he is going to trap him. Later, the accused was informed to meet the Complainant at his residence at about 9.00 p.m. The amount which was to be given as bribe to the accused Rs.50,000/-brought by the Complainant containing denomination of currency notes of Rs.1,000/- each. The said Cash had been counted by the witness Madhusudhan Rao and noted serial numbers of currency notes separately as instructed by TLO. Afterwards, TLO has conducted Entrustment Mahazar as per Ex.P29 and obtained his signature. Later, the TLO had prepared Solution by using Sodium Carbonate and the Phenolphthalein Powder smeared on the currency notes to 49 Spl.C.C.No.74/2005 demonstrate the trap procedure. He has explained as to if the Phenolphthalein Powder came into contact with fingers of a person, if fingers dipped into Sodium Carbonate Solution, it will turn in to pink colour. The witness Madhusudhan Rao has touched the currency notes, smeared with Phenolphthalein Powder and dipped his fingers into the Solution, then solution turned into pink colour. Thereafter TLO gave instructions to the Complainant to give bribe amount to the accused only if he demands.
43. PW2 has also deposed about he along with Complainant asked to go to the house of accused and they reached the house of accused at about 8.45 p.m. After the Complainant knocked the door, accused has opened the door and asked them to come inside, after verifying about the witness. However, Complainant had disclosed accused that this witness is colleague has brought Rs.50,000/-, but the accused by gesture asked him to send out. Accordingly, Complainant sent out the witness out of the 50 Spl.C.C.No.74/2005 house. However, after sometime the Complainant came out and gave signal by combing his hair. After receiving signal, Dy.S.P. and another witness along with team members rushed into the house of accused and disclosed about their intention to trap and made known their identity to the accused. The witness has deposed about seizure of currency notes of Rs.50,000/- given by Complainant to the accused which was kept under the table folding in a Telugu newspaper. The serial numbers of currency notes tallied with the previous writings and found correct. Thereafter, the recovery mahazar drawn by TLO in the presence of Complainant, witnesses, accused and other officials of CBI, as per Ex.P30. He has identified his signature Ex.P30(b) and signature of Complainant at Ex.P30(a).
44. He has identified the voice recorder containing the conversation between Complainant and accused in Telugu language was played in his presence, later it was translated into English and marked as Ex.P31. The 51 Spl.C.C.No.74/2005 specimen seal identified by him marked as Ex.P33. The original search list in Spl.C.C.No.45/2007 marked as Ex.P34 and his signature marked as Ex.P34(a) and copy of the same in the present case marked as Ex.P34(A) and signature of the witness marked as Ex.P34(A-a). It is made out from the records available in the office that said Spl.C.C.45/2007 was registered against the accused for the offence punishable under Section 13(2) read with 13(1) (e) of P.C. Act, in which, he has been convicted on 21.7.2017.
45. In the cross-examination PW2 has admitted that he came to know about the accused only on 26.10.2004. He has deposed about distance between CBI office and the house of accused and location of his house at Quarters of HAL. He is aware of the difference between mike and digital voice recorder and also admitted that both mike and cassette are different. The suggestion put regarding M.Os.7 and 8 do not contain any conversation is denied. In the cross-examination nothing elicited to disprove the trap by TLO with team members and he himself 52 Spl.C.C.No.74/2005 accompanied with Complainant to the house of accused as on 26.10.2004 at about 9.00 p.m. He has affirmed every aspect of Trap proceedings deposed in chief-examination and his evidence is not discarded in the cross-examination.
46. The Trap Laying Officer, Dy.S.P. - S.S.Giri is examined as PW3 and deposed about complaint given by Complainant, who was Chief Manager, IMM Department, HAL, Bengaluru and has identified the said complaint Ex.P27. On the basis of which, case registered against accused by S.P. in R.C.15(A)/2004 under Section 7 of the Prevention of Corruption Act, 1988. The FIR marked as Ex.p36 and he has identified the signatures of S.P. marked as Ex.P36(a) and (b). In the FIR it is mentioned that S.P. has entrusted the investigation to this witness.
47. He has further deposed about trap explained to the independent witnesses and the Complainant. His evidence is similar to the evidence of PWs.1 and 2 regarding demonstration of trap procedure shown to the 53 Spl.C.C.No.74/2005 Complainant and witnesses in presence of other team members. The currency notes of Rs.50,000/- in denomination of Rs.1,000/- each is identified by him. The telephonic conversation in Telugu between the Complainant and accused reduced into writing as per Ex.P58 and his signature marked as Ex.P58(b).
48. Further PW3 has deposed about the Entrustment Mahazar drawn under Ex.P29 and Recovery mahazar conducted in the presence of Complainant and witnesses as per Ex.P30. It is made out from his evidence that Recovery Mahazar conducted after trap of the accused from his house when the Complainant gave the bribe amount of Rs.50,000/- as demanded by him, which was said to be received in Telugu E-Nadu news paper and kept under the table. He has deposed about signal given by the Complainant by way of combing his hair after bribe amount of Rs.50,000/- accepted by accused in his house as per his instructions given prior to the trap of accused. The reason for demand of bribe made by the accused has been already 54 Spl.C.C.No.74/2005 discussed to stop the invocation of Bank Guarantees given by Company in favour of HAL. Thereafter accused being Chief Manager, in-charge of Purchase Department, LCA- LSP Division, HAL, demanded bribe of Rs.1,50,000/-, out of which, Rs.50,000/- to be given as advance amount as on 26.10.2004 or 27.10.2004.
49. As per the evidence of PW3, the Complainant has brought the amount of Rs.50,000/- to be paid to the accused as bribe shown in the Company registers towards travel expenses from Hyderabad to Bengaluru in connection with supply of cable wires from Company to HAL. The said amount was taken by the Complainant as instructed by Managing Director, and it was handed over to TLO, on which Phenolphthalein Powder was smeared and the demonstration of trap shown by him, as deposed by PWs.1 and 2.
50. PW3 further deposed about the Entrustment Mahazar drawn under Ex.P29 after demonstration of trap in 55 Spl.C.C.No.74/2005 the CBI Office and got confirmed from accused about giving of bribe amount on 26.10.2004 at his residence at about 9.00 p.m. He gave instructions to Complainant and shadow witness to give the bribe amount, only if demanded by accused, afterwards to give signal by way of combing hair of the Complainant. Accordingly, they went to the house of accused and only Complainant and shadow witness - Peter asked to go to the house of accused. Thereafter, all of them including another independent witness were waiting outside the house of the accused and Complainant went to the house of accused and knocked the door which was opened by accused himself and both Complainant and shadow witness entered inside. After some time, the witness came out from the house. After Complainant gave bribe of Rs.50,000/- to the accused, came out from the house and gave signal by combing his hair with hands as instructed by TLO.
51. However, after seeing signal, PW3 along with team members went inside the house of the accused and 56 Spl.C.C.No.74/2005 made known to him about the trap and asked about the bribe amount received from the Complainant. Initially, the accused refused to say about bribe received by him and as Complainant confirmed about bribe amount given to him, the witnesses were asked to search the amount received by the accused. PW3 has deposed about the facts made known by him as amount received accused in a newspaper when he told that he has not brought cover. Complainant himself has disclosed about the place where accused kept cash along with newspaper, therefore, he asked the witnesses to trace out that amount. Accordingly, the witness Peter took out bundle from the bottom rack of the table and found Rs.50,000/- notes of denomination of currency notes of Rs.1,000/- each. Afterwards, he has prepared Sodium Carbonate Solution and asked the accused to dip his fingers of both hands into it separately. The solution not changed the colour which was seized in bottles separately are identified before the Court as M.Os.2 and 3. The Telugu newspaper is marked under M.O.5 and digital voice recorder given to the Complainant played in 57 Spl.C.C.No.74/2005 the house of the accused in the presence of all including the accused. Thereafter, the search list prepared as per Ex.P34 produced in Spl.C.C.No.45/2007, copy of the same for reference in this case marked as Ex.P34(A). He has clearly deposed that during the search in the house of accused, certain documents found along with Cash of Rs.6,30,040/-, 100 US $ and 500 British Pounds which were also seized separately. He has further conducted Recovery mahazar, for which all of them including Complainant have affixed their signatures. Thereafter, case file handed over by him to Dy.S.P. for further investigation.
52. In the cross-examination he has stated about necessity of registration of a preliminary enquiry case after registering the case as Regular Case (RC). According to him, it is not necessary for the S.P. alone to convert the PA case into RC case. He has admitted that the preliminary enquiry has to be reported by way of enquiry conclusion report by officer who conducts such enquiry, is admitted. 58 Spl.C.C.No.74/2005 It is true he has stated that after receiving the complaint FIR has registered as per Ex.P36 and the same has been received by him for the purpose of investigation on 26.10.2004, after 5.30 p.m. He is very particular about after receiving both complaint and FIR, arranged for laying a trap as instructed by S.P. He has clearly mentioned every aspect of laying trap and enquiry conducted in the case noted in the case diary. He has identified the conversation between Complainant and accused in Telugu language translated into English and reduced into writing as per Ex.P31. He has denied for the suggestion that Complainant had disclosed him that no demand and acceptance of bribe amount by the accused after laying the trap procedure as on 26.10.2004. The portion in the statement of PW3 that say of Complainant who said to be told the accused did not demand or accept any bribe amount is marked as Ex.D6. He has clarified the said aspect by deposing as accused himself told the TLO and others that he did not demand or accept any bribe amount. 59 Spl.C.C.No.74/2005
53. However, the evidence deposed by this witness is corroborated by the evidence of PWs.1 and 2 which supports demand and acceptance of bribe amount by the accused. The trap procedure followed by TLO as deposed by himself is corroborated with the evidence of PWs.1 and 2 which will clearly establish that the trap was conducted in accordance with law and as per the procedure. The evidence of TLO deposed in the chief-examination has been affirmed in the cross-examination also. Therefore, it is to be believable and acceptable as corroborated with the evidence of Complainant and shadow witness as well as other witnesses for prosecution.
54. PW4 - Subash Chakraborthy was working as Manager (Personnel and Administration), Project Group of HAL, Bengaluru, during 2004 to 2010 and he was in-charge of the Personnel and Administration Section of LCA & LSP project group and he was custodian of the service records of all the officials and officers worked in that project group. He knew accused present before the Court was working as 60 Spl.C.C.No.74/2005 Chief Manager, IMM, LCA/LSP project group, HAL. He has identified the notification dated 30.1.2004 issued by the Corporate Office, HAL, as per Ex.P37, which shows that accused being Senior Manager (IMM) SLRDC, Hyderabad was appointed as Chief Manager(IMM) Grade-VI, LCA-LSP, Bengaluru. The appointment/transfer order dated 3.2.2004 issued as per Ex.P38 is relating to accused was relieved from SLRDC, HAL, pending clearances from the concerned departments. The prosecution to prove the residential address of the accused where he was caught hold with bribe amount has produced the document Ex.P39 dated 21.2.2004 under which, accused was allotted D type Flat behind Sr.Officers' enclave, Sudagunda Palya, Old Madras Road, Bengaluru. The Flat No.FD 77 allotted to accused as per the letter dated 13.2.2004 marked as Ex.P40. The order of suspension dated 29.10.2004 under which the accused was suspended for demand and acceptance of bribe of Rs.50,000/- is marked as Ex.P41. 61 Spl.C.C.No.74/2005
55. PW5 - S.A.Hassan, working as Chief Manager (Finance) has deposed that his duty was to look after financial administration of the project and reporting the same to the General Manager of the project group. He has identified three Xerox copies of the Guarantee bonds under Exs.P8, 9 and 12, the originals of the same marked under Exs.P10, 11 and 13. According to him, the Bank Guarantee period mentioned in Exs.P8, 9 and 12, after expiry renewed by way of executing fresh Guarantee bonds with the same numbers 10251, 10252 and 10260 on 16.10.2004 identified as per Exs.P42 to 44. The extension of said Guarantee period was intimated by the HAL to State Bank of Hyderabad through the letters dated 16.10.2004 marked under Ex.P45 to 47 and the period extended 23.1.2005 to 23.1.2005 and 30.1.2005, respectively. During the said period accused was the Chief Manager of the said Commercial Branch in HAL. Subsequently, the accused has not made known about renewal of the Bank Guarantees for the extended period to the Finance Department, but the letter dated 15.10.2004 as per Ex.P48 62 Spl.C.C.No.74/2005 sent to Chief Manager, Finance, and other sections shows that he has recommended for encashing Bank Guarantees for Rs.69,00,000/- given by Company as they have not supplied the rectified goods.
56. PW5 has identified the letter dated 15.10.2004 with reference to the subject invoking the Bank Guarantee No.10252 dated 27.7.2004 for Rs.1,55,000/- sent by HAL to State Bank of Hyderabad and marked as Ex.D1. He has clearly stated that came to know about renewal of Bank Guarantee deeds during enquiry by the CBI officer after registering the case. The correspondence letters in connection with Bank Guarantees for the total value of Rs.78,00,000/- intimated to the Finance Department by Chief Manager, IMM, HAL, marked as Ex.D2. The signature of the accused in Ex.P48, copy of the letter dated 15.10.2004 is identified by him along with the initials of Mr.Elangovan and Kumaresan are also put below the signature of accused. He has admitted that the computer typed portion of Ex.D3 is in italics is of a different font in 63 Spl.C.C.No.74/2005 the rest of the computer portion in that letter. However, it is clarified in the further cross-examination that he had computer knowledge and aware of different fonts and different types in computer.
57. PW6 - Ashok Kundalia - Managing Director of Radiant Corporation Pvt.Ltd., formerly called as M/s.Radiant Cables Pvt.Ltd., has deposed that he knew the Complainant C.Venkateshwaralu, who was working as Manager in the said Company since 2003. According to him, HAL used to call the tender for supply of special cables and there was contract entered between HAL and the Company M/s.Radiant Cables Pvt.Ltd., as per Ex.P5. He has deposed about supply of cables as per the order placed by HAL and defect found in some of the quantity of cables supplied on 23.10.2004. The copies of Bank Guarantees marked under Exs.P8, 9 and 12 enclosed with covering letter Exs.P10, 11 and 13 are identified by him. The validity of the guarantee period was from 24.10.2004 and extended till 23.1.2005. The same are identified under 64 Spl.C.C.No.74/2005 Exs.P42 to 44. He has further stated about inspection conducted in the month of October-2004 for clearance of rectification of the defective goods and it would given by HAL Head Office, before that HAL invoked Bank Guarantees without rejecting the products by the team or by HAL. Therefore, he sent PW1 to HAL for enquiry as to why Bank Guarantees were invoked when the products were not rejected either by inspecting team or by HAL. Thereafter, the cables supplied on 23.10.2004 after receipt of the clearance by HAL. However, PW1 informed him over telephone that demand of some amount by accused to stop invocation of Bank Guarantees. However, he has made known by others that during his absence his Secretary had received calls from accused and information given that he wanted to speak only to the Managing Director in connection with some confidential and urgent matter. But either PW6 call accused and accused call him over telephone. Afterwards, since paying bribe amount is against the principles of the company, he informed PW1 to return to Hyderabad. After his return, both of them 65 Spl.C.C.No.74/2005 discussed and he told again to request the concerned not to invoke Bank Guarantees. However, the Complainant after return to Bengaluru requested the accused not to invoke the Bank Guarantee, but since accused did not willing to stop invocation of Bank Guarantee, till money was paid, the same instructed to this witness. Therefore, on his instructions, the Complainant gave complaint to CBI. However, he has authorized the Complainant to take the amount of Rs.50,000/- to be given as bribe to the accused by showing tour advance to facilitate laying trap.
58. PW6 has affirmed about the amount of Rs.50,000/- referred in the Accounts Book of Company and extract of the same furnished to the CBI officer. The documents Exs.48 to 52 duly certified true copies are Tour Programme Slip / Tour Advance Requisition given by Complainant, authorized by Chandra Mohan and approved by PW6 is marked as Ex.P49. The payment voucher marked as Ex.P50 authorized by AGM (Finance) and the receipt of the amount was also acknowledged by 66 Spl.C.C.No.74/2005 Complainant. The document Ex.P51 referred in connection with payment of Rs.50,000/- as purpose of tour - visit to HAL. The details of other expenses column of Ex.P51 shows that towards fare received, HAL letter dtd.25.10.2004 and amount paid to Mr.M.V.Rao, HAL, Rs.50,000/-. The cash book extract of Company from 25.10.2004, marked as Ex.P52 shows the amount of Rs.50,000/- paid to Complainant on 25.10.2004 towards additional tour advance for his tour to Bengaluru. The ledger account extract of the Complainant marked as Ex.P53 discloses about payments made to him towards tour to Bengaluru, Traveling expenses etc.
59. However, in the cross-examination he has denied for the suggestion that those documents Exs.P49 to 53 have been fabricated by the Company to file a false complaint against the accused. However, the evidence deposed by this witness is also corroborates with the evidence of PWs.1 to 3 and establish the case of 67 Spl.C.C.No.74/2005 prosecution regarding bribe of Rs.50,000/- given by Complainant to accused as on 26.10.2004.
60. PW7 - Anjaneya Sharma, worked as Chief Manager in State Bank of Hyderabad, Hyderabad from 2003-2008 has deposed about Bank Guarantees issued by said Bank under Exs.P8, 9 and 12 along with covering letters Exs.P10, 11 and 13. He has stated about Bank Guarantee invoked by HAL and credit proceeds to its account by sending fax message. Since reasons assigned by HAL for invocation of Bank Guarantees were not in accordance with the terms of the Bank Guarantees, said Bank had requested HAL to send the proper reasons to invoke Bank Guarantees. The fax message with reasons sent by HAL also did not proper, therefore, on 16.10.2004 M/s.Radiant Cables Pvt.Ltd., requested Bank to extend the validity of the Bank Guarantee by three months and send them back to HAL. According to him, Bank Guarantees were extended by three months and the Bank Guarantees 68 Spl.C.C.No.74/2005 already sent by HAL to return back to it. He has identified Bank Guarantees under Exs.P42 to 44.
61. In the cross-examination he has explained as to cannot say about whether messages were sent by Mr.H.A.Hassan (Finance) LCA, LSP Project Group of HAL, Bengaluru without verifying fax messages sent to the Bank by HAL. According to him, the intimation given to Chief Manager of Finance, LCA, LSP Project group of HAL, Bengaluru regarding reasons assigned for invoking the Bank Guarantees were not in accordance with the terms of the Bank Guarantees.
62. PW8 - S.M.Kapoor, who joined HAL during December-1969 as Management Trainee has worked in HAL upto February-2008 and retired as Executive Director. He was working as General Manager, LCA, HAL, Bengaluru during 2004 and know the accused, who was then working as Chief Manager, Integrated Materials Management, HAL, Bengaluru. He has identified the accused who was present 69 Spl.C.C.No.74/2005 before the Court and stated the responsibilities of the accused relating to procurement of materials involved in purchase functions. He has further stated about the Company was one of the suppliers supplying electrical cables for the Aircraft, which was supposed to supply Aircraft cables as per the Rate Contract Agreement and orders placed during October-2003. However, during the inspection of the lot of Aircraft cables supplied by Company in the month of July-2004, some defects were found relating to de-lamination of the insulation of the cable and same were reported by one Angappan, the Functional Head, who wrote a letter to the Company informing defect in the cables and the said letter identified as Ex.P3. He has also identified Minutes of Meeting marked as Ex.P4 and Bank Guarantee insisted by the accused as Chief Manager, IMM, before lifting the cables and it was inspected by the Company. He was said to be on foreign study tour from 14.8.2004 to 23.9.2004 and during his absence one Mr.A.K.Agarwal, who was the Addl.General Manager was in-charge of his post. After he returned from foreign study 70 Spl.C.C.No.74/2005 tour came to know about the dispute with the Company was not resolved. The inspection of the defect materials supplied by said Company was taken place in Hyderabad between 19th and 21st of October-2004 and cleared the cables for transshipment to HAL subject to further test and confirmation by the concerned department in HAL. However, on 26.10.2004 letter dated 25.10.2004 was shown to him by ED Vigilance, HAL and asked him about the said letter, which was purported to be written by Mr.Elangovan, Sr.Manager, IMM, HAL, since he was not aware of the said letter informed the same to ED, Vigilance. Afterwards, he had come to know about the trap of accused by CBI.
63. In the cross-examination he has stated about knowledge of correspondence made between himself as General Manager (LCA) and M/s.Radiant Cables Pvt.Ltd., in connection with supply of materials. He was confronted the letter written by M/s.Radiant Cables Pvt.Ltd., addressed to the General Manager, LCA and the same 71 Spl.C.C.No.74/2005 marked as Ex.D3. The note made in the said letter as to 'the original amendments to the BGs extending validity along with PCC of this message has been sent by courier to your office'.
64. P.W.9 - Elangovan, worked as Manager in Engine Division, HAL, was transferred to Aircraft Division in the year 2000 and again in the year 2002 he was transferred as Manager to LCA, Project group. He has deposed about order issued in favour of M/s.Radiant Cables Pvt.Ltd., in the year 2003 for supply of Radiant cables and they supplied the said materials. Since some snags noticed by them when he was Manager of LCA, Project group and accused was the Chief Manager and departmental head under whom he was working. This witness has deposed about accused was the overall in- charge of Department and he being Manager for the persons who are looking after the said department. The snag found in the cables supplied by M/s.Radiant Cables Pvt.Ltd., was intimated to the supplier and it was intimated 72 Spl.C.C.No.74/2005 to the General Manager. After receiving the information, officials of M/s.Radiant Cables Pvt.Ltd., came to the department and taken back all the materials for rectification. He has identified order dated 22.12.2003 for supply of cables for a sum of Rs.1,56,06,704/- under Ex.P6 and identified his signature as Ex.P6(a). According to him, the quality chief Mr.Angappan has reported the matter to General Manager and then chief of IMM. The file containing the said information is marked as Ex.P54.
65. Further, PW9 has deposed about Bank Guarantee insisted in favour of HAL while had taken the materials for rectification. Prior to that, the team from HAL went to the Company, and inspected whether the defect had been rectified or not. However, after inspection, the team was satisfied that the defects were already rectified, therefore, those cables were again sent back to HAL by the Company. He has identified the letter in the file Ex.P54 bears signature of one Kumareshan, who has signed on his behalf. and the said letter dated 23.7.2004 only for 73 Spl.C.C.No.74/2005 reference of this case marked as Ex.P54(B). He had gone through the contents of document and found correct and the same letter is marked as Ex.P54(C).
66. PW9 partly turned hostile, therefore, permitted to cross-examination by learned Public Prosecutor. In the cross-examination, he has deposed about motive of the accused to do the alleged act was not known to him and the relevant portion in his statement marked as Ex.P56. He has denied the contents of statement given by him s per Ex.P55 and 56.
67. Further in the cross-examination on behalf of accused, he has admitted that he was in-charge of IMM department before accused took charge as Chief Manager of IMM department. After accused vacated the said post, he was placed incharge during the period of six months. The letter confronted to him in the cross-examination addressed to the accused signed by one Mr.Joshi, Public Information Officer, marked as Ex.D4.He has denied for 74 Spl.C.C.No.74/2005 the suggestion that a false case foisted by Complainant is denied.
68. PW10 - P.Kumaresan, joined HAL as Assistant Engineer (Purchases) in the year 2003 and he was in- charge of purchase of cables, bought out items and line replaceable units. Apart from that, he was looking after planning and purchase activities and has joined LCA-LSP project group. His duty was to receive the material purchase requirements from various departments of HAL, LCA group, process the same, sending enquiries to the various vendors. The quotations used to be received by vendor and on the basis of technical recommendations of the concerned department, he was reporting to Elangovan, Sr.Manager He has clearly stated that accused was overall in-charge of the department and the contract entered between HAL and Company, Hyderabad for supply of cables. He has identified the document Ex.P54(C) prepared by him over the computer as dictated by accused and identified signature of Elangovan in the said document. 75 Spl.C.C.No.74/2005 Since he was not authorized to sign the letter typed as per the dictation of accused, on the direction of accused he has wrote the name of Mr.Elangovan as signatory. However, the said Elangovan after raising objection and resistance has signed in the document. The letter dt.23.7.2004 identified as Ex.P54(B) and signature of PW10 'put as for Mr.Elangovan' marked as Ex.P54(B-a). Further in the cross-examination he has admitted since the accused was strict to the rules Ex.P54(C) was typed by him on the computer during office hours.
69. PW12 - Y.Hari Kumar, worked as Dy.S.P., CBI, ACB, Bengaluru has took up further investigation from PW3, and continued investigation, after receiving Central Government Notification dated 11.1.2005. He has deposed about Notifications issued by Government of Karnataka under Section 6 of the DSPE Act and by Central Government under Section 5 of the DSPE Act marked as Exs.P58 and 59 respectively. During the investigation, he has recorded statements of PW2, another witness 76 Spl.C.C.No.74/2005 Madhusudhan Rao and collected material objects seized during the Recovery mahazar. He has also recorded statement of Complainant and contacted Personnel Department of HAL and recorded names of officers working in Administrative Department, IMM, Stores Department, Finance Department and Quality Control Department. Afterwards, he has recorded statements of witnesses PWs.4 and 5 and others and collected the letters in connection with invocation of Bank Guarantees by HAL. Further he had also visited the office of Company, and recorded statements of PW6 and other witnesses. Further recorded statements of PW7, the then Manager of State Bank of Hyderabad PW10, who was Assistant Engineer, LSP Division, IMM, HAL, working under Elangovan and collected the letter dated 25.10.2004, he had also interrogated the accused in the office. Afterwards, he had received Chemical Examination Report from FSL, Bengaluru, and the same is identified as Ex.P60. Thereafter, he had requested the Chairman, HAL, Bengaluru, the competent and higher authority of accused to issue Sanction to prosecute him, who was a public 77 Spl.C.C.No.74/2005 servant and obtained Sanction on 6.6.2005 as per Ex.P57. He has completed the investigation and filed charge sheet against the accused for the offence punishable under Section 7 and 13(2) r/w.13 (1)(d) of Prevention of Corruption Act, 1988.
70. In the cross-examination he has confronted CBI Manual and made known about Chapter XVI refers Central Forensic Science Laboratory, New Delhi. He is aware of the Chemistry Division in the laboratory and well-equipped to test the article in order to note the presence or otherwise of Phenolphthalein Powder. He has deposed about material objects seized by the Trap Laying Officer on 26.10.2004 were kept in the CBI office and non- examination of material objects is denied. The bottles containing colourless Sodium Carbonate Solution identified and marked as Exs.P2 and 3. Further he has identified the currency notes with cover and signature as well as initials found on the cover. The Telugu newspaper identified as M.O.5 consists of four pages and not aware whether that 78 Spl.C.C.No.74/2005 paper was published in Andhra Pradesh or not. He has not collected any document to show that accused has subscribed to that newspaper. However, he has denied for the suggestion that newspaper M.O.5 did not belong to the accused and it was produced only to implicate the accused in false case.
71. After perusal of entire records, it has become necessary to point out that the admitted facts are; the accused was a public servant, an agreement had entered between HAL and Company as per Ex.P1, the cables supplied by said Company to HAL as per Purchase Order dated 22.12.2003 and some of the cables found defective and the same had taken back by the Company for rectification after offering three Bank Guarantees for total sum of Rs.69,00,000/-. It is elicited in the evidence of prosecution witnesses that there was recommendation by accused to invoke the Bank Guarantees as the Company failed to return the rectified cables within time. However, the defence of the accused is the Bank guarantees were 79 Spl.C.C.No.74/2005 invoked by Finance Department, HAL and he was not concerned with the invocation of Bank Guarantees. However, PW1 has categorically stated about demand of bribe by the accused over phone at initial stage before invoking Bank Guarantees by the Finance Department of HAL. Subsequently, on 26.10.2004 when he visited the house of accused, again at his residence, he has demanded and accepted the bribe of Rs.50,000/- during Trap laid by PW3.
72. It is true the suggestions to PW1 that accused was a strict officer and used to inspect the goods supplied by the Company and he himself recommended for insisting Bank Guarantees from the Company, the same will not establish the animosity with the Complainant. Because, there was no personal grudge between them. Moreover, no trustworthy evidence elicited in the cross-examination of PW1 as to ill will or enmity with him for the alleged strictness of accused. There is no presumption as to strictness of the accused which leads to Trap by the TLO 80 Spl.C.C.No.74/2005 with shadow witness, PW2 who was unconcerned to accused with other team members who were also no way related either to the accused or to the business transitions entered by the Company. Therefore, the alleged strictness of the accused cannot be said the reason for fixing in alleged false case, that too, demand and acceptance of bribe of Rs.50,000/- by the accused from the Complainant, if really no demand for bribe amount made by him.
73. The learned Counsel for accused pointed out that for the charge under Section 7 of Prevention of Corruption Act, 1988 demand and acceptance is required and for the offence 13(2) read with read with 13 (1) (d) of the Act requires the meaning of 'obtained' . Therefore, it is relevant to point out those sections reads as follows:
Section-7 Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or excepting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, 81 Spl.C.C.No.74/2005 as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the legislature of any State or with any local authority, corporation or government, company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
Explanations: (a) "Excepting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word 'gratification' is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but 82 Spl.C.C.No.74/2005 include all remuneration which he is permitted by the Government or the organization, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant includes a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
Section 13(1) Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct-
(a)-----------
(b)----------
(c)----------
(d) if he-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or 83 Spl.C.C.No.74/2005
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if -------------
Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four year but which may extend to ten years and shall also be liable to fine.
74. The ingredients of above sections are placed by the prosecution through examining the Complainant and shadow witness along with the Trap Laying Officer as PWs.1 to 3. Their evidence is corroborated with the evidence of other witnesses who were also stated about nature of work of accused in HAL and his powers of inspecting the materials supplied by Company. The 84 Spl.C.C.No.74/2005 important ingredient for demand and acceptance of bribe by accused which was obtained for himself at his residence has been proved by prosecution by corroborative evidence of PWs.1 to 3. The evidence of prosecution clearly establishes that there was demand of bribe by the accused and he himself accepted the bribe amount of Rs.50,000/- at his residence as on 26.10.2004. therefore, the same will amount illegal gratification obtained by him for himself for doing an official act of stopping of invoking Bank Guarantees provided by Company. Even if it is accepted that only the Finance Department of HAL got powers to invoke the Bank Guarantees, it is important to consider the attempt made by the accused being in-charge of Integrated Material Management to get bribe from the Complainant to stop from invoking Bank Guarantees by the Finance Department. Therefore, the facts and circumstances of the prosecution case placed through oral and documentary evidence certainly establish the ingredients for the offence punishable Section 7 and 13(2) read with 13 (1)(d) of Prevention of Corruption Act, 1988 . 85 Spl.C.C.No.74/2005
75. The learned Counsel for accused relied on the following rulings:-
1) 2016-CriLJ-3066-Kar.
in the case of R.Srinivasan Vs. State by Police Inspector.
The Hon'ble High Court of Karnataka held that no acceptable evidence to prove the alleged demand for bribe in terms of Section 7 of P.C.Act, and consequential receipt of money preceded by demand by another accused will not leads to conviction.
Further held that presumption under Section 20 of Prevention of Corruption Act, 1988 - Mere possession of money would not be adequate to raise a presumption.
There is no demand and acceptance under Section 7 of Act, when shadow witness not stated anything about demand made by the accused.
2) AIR 2007 SUPREME COURT 3213 in the case of Ganapathi Sanya Naik Vs. State of Karnataka.
86 Spl.C.C.No.74/2005
The Hon'ble Supreme Court of India held that "when the trap laid on the charge of demand of illegal gratification for doing an official act, the currency notes recovered from table of accused from beneath files, there is no proof of criminal misconduct."
However, in the said case there was plea of Complainant had serious animosity with accused and currency notes had been put surreptitiously on his table. Under such circumstances, the accused was acquitted.
But in the present case there is no plea or proof of serious animosity towards accused by the Complainant, even though the accused has contended since he was strict officer a false complaint of demand and acceptance of bribe against him by the Complainant.
3) (2015) 10 Supreme Court Cases 152 in the case of P.Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and another.
The Hon'ble Supreme Court of India discussed that mere acceptance of any amount allegedly by way of illegal gratification or recovery 87 Spl.C.C.No.74/2005 thereof, dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge under Section 7 and 13 of 1988 Act.
It is further discussed that if the prosecution had failed to prove any demand for the alleged illegal gratification and essential ingredient of the offences under Section 7 and 13 of the Act being conspicuously absent, the accused is entitled for acquittal for both charges.
4) ILR 2017 KAR 5591 in the case of N.A.Suryanarayana @ Suri Vs. State by Inspector of Police.
The Hon'ble High Court of Karnataka held that when the accused was not the competent authority to do an official favour to the Complainant, then no scope for demanding bribe.
76. The observation made in the said ruling is not helpful to the case of accused in view of discussion made by Hon'ble Supreme Court of India in the case of Mahesh Prasad Vs. The State of Uttar Pradesh. On 29th October 1954.
88 Spl.C.C.No.74/2005Equivalent Citations: 1955 AIR 70, 1955 SCR (1) 965 cited for prosecution Wherein the Hon'ble Supreme Court of India observed as the motive of the public servant who receives illegal gratification for doing or procuring an official act, whether or not he is capable of doing it or whether or not he intends to do it he is quite clearly within the ambit of Section 161 of the Indian Penal Code.
77. The contention raised by accused that prosecution has not placed any proof relating to M.O.5 Telugu E-Nadu newspaper. Whether he was the subscriber of said paper, therefore, the alleged bribe amount received in the said paper cannot be believable.
78. The prosecution case is the accused and Complainant were made conversation in Telugu language known to each other and the same recording translated into English as per Ex.P28. Therefore, since the accused is aware of Telugu language might have kept Telugu newspaper at his residence and asked put the bribe 89 Spl.C.C.No.74/2005 amount when Complainant said that he did not bring the cover, after his visit to the residence of accused as on 26.10.2004.
79. Another contention raised by accused that chemical hand wash of the accused after trap had failed as colour not changed. Therefore, no demand and acceptance of bribe amount as alleged by the Complainant.
80. It is true, PWs.1 and 2 being Complainant and shadow witness have stated in their evidence that the Sodium Carbonate Solution, in which the hand fingers of accused dipped, did not change the colour into pink. But the Chemical Examination Report given under Ex.P60 shows the Result of the Articles as follows:
Article No.1 : Light pink colour solution (after either extract) Article No.2 : Colourless liquid (after either extract) Article No.3 : Cover with Telugu newspaper 90 Spl.C.C.No.74/2005
81. The Test for both Phenolphthalein and Sodium Carbonate in all the above Articles found 'positive'. Therefore, the evidence of PWs.1 and 2 deposed in respect of Sodium Carbonate Solution remained without change of colour after hand fingers of accused dipped into it, cannot be taken into consideration. Because, the documentary evidence prevails over the oral evidence. Further, at this stage, it is relevant to point out that non-examination of Chemical Examiner whose name is not mentioned as a witness in the charge sheet, is not at all fatal to the case of prosecution. Because, as per law, there is no bar referring material objects to the Chemical Examiner of Government of Karnataka and also law permits to get the examination of chemicals by any Chemical Examiner or Asst.Chemical Examiner to Government. Therefore, Ex.P60 the Report of Chemical Examiner is to be taken into consideration in proof of result of positive test for accepting the bribe amount of Rs.50,000/- by the accused.
91 Spl.C.C.No.74/2005
82. However, the important aspect is amount of Rs.50,000/- had been recovered from the house of accused on 26.10.2004 therefore it amounts the accused caught red handed. Moreover, PW1 has explained and demonstrated in the open court which is mentioned in his deposition as to the bribe amount of Rs.50,000/- received by the accused who was said to be folded Telugu newspaper and asked PW1 to put cash into it, thereafter, folded the newspaper and kept in the drawer of the table. At the cost of repetition, it is to be seriously noted that the accused has failed to establish valid and strong reasons to implicate him in false case of bribe, that too, when he has alleged not demanded or accepted the bribe amount from the Complainant. The accused has not placed any reliable proof regarding ill-will or grudge or enmity by the Complainant against him to file false case. Therefore, there is no probabilities of defence of accused that due to his strictness in the office of HAL, while purchasing the cable wires from the Company, a false complaint given by the Complainant alleging bribe amount demanded by him. 92 Spl.C.C.No.74/2005
83. Considering all the above discussed facts in detail, I come to conclusion that prosecution has proved that accused being public servant, as a Chief Manager in- charge of IMM, HAL, Bengaluru, has demanded and accepted the bribe amount of Rs.50,000/- from the Complainant as on 26.10.2004 at his residence for doing an official act of stopping of invocation of Bank Guarantees given by Company, Hyderabad and he has committed the offence punishable under Sections 7 and 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988. Hence, I answer point Nos.2 and 3 in Affirmative.
84. Point No.4 :- For the above discussed reasons, I proceed to pass the following:
: ORDER :
Acting Under Section 235(2) of Cr.P.C., accused - Manda Varaprasada Rao is hereby convicted for the offence punishable under 93 Spl.C.C.No.74/2005 Section 7 and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
The bail bonds executed by accused are hereby stands cancelled.
To hear regarding sentence.
(Dictated to Judgment Writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open court today on 9th day of July, 2018.) (S.H.PUSHPANJALI DEVI) XLVI Addl. City Civil and Sessions Judge and Special Judge for C.B.I. Cases, Bengaluru.
Holding Concurrent Charge of XLVII Addl.City Civil and Sessions Judge and Spl.Judge for CBI Cases, Bengaluru. Dt.9.7.2018 Order on sentence.
Heard, accused and arguments of learned Public Prosecutor and learned Counsel for accused on sentence.
The accused has submitted that he has not committed any offence, he is having aged parents, mother is aged about 87 years and father is aged about 90 years. Both of them are residing with him since 2005 and he has to look 94 Spl.C.C.No.74/2005 after them as no others to take care of his old aged parents. His wife is suffering from illness and he himself is a diabetic patient and already removed from the service. Hence, prayed to show leniency while awarding sentence.
The learned Public Prosecutor has submitted that the accused being responsible officer in HAL has committed the serious offence of demand and acceptance of bribe. Therefore, no leniency should be shown to him and prays for maximum sentence in the interest of justice.
The learned Counsel for accused submitted that since the accused and his wife are suffering from illness, nobody to take care of aged parents of accused, as they are depending on him. They are having voluminous documents in proof of their illness, therefore leniency should be shown to him while awarding sentence.
Perused the records maintained in the Court and found that the accused has already convicted in Spl.C.C.45/2007 for the offence committed under Section 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988. It shows that after registering the present case, the 95 Spl.C.C.No.74/2005 said case has been registered by CBI for possessing property disproportionate to his known sources of income. Therefore, it infers that accused is in the habit of demand and accepting bribe from the various persons in the Society, who were having business transaction with the HAL and committed criminal misconduct on one or another ground.
After going through the Amended Prevention of Corruption Act, 1988, it is important to point out that, the punishment prescribed for the offence under Section 7 of the Act, is shall not be less than three years, which may extend to seven years and shall also be liable to fine.
The punishment prescribed for the offence u/S.13(2) r/w. 13(1) (d) of Prevention of Corruption Act, 1988 shall be imprisonment for a term which shall not be less than four years but may extend to ten years and shall also be liable to fine.
Therefore, considering the serious nature of offences committed by the accused, which will definitely have impact on the entire society, I am of the opinion that accused is 96 Spl.C.C.No.74/2005 not entitled for any leniency in sentence. The reasons submitted by the accused as to his illness, to take care of his old aged parents as well as illness of his wife are no way be considered by this Court. Because those aspects are to be ignored as the offence committed by the accused is serious in nature, which has affected the entire society and made the people to loose their faith having towards public servants day-by-day due to this type of nature of public servants who are demanding and accepting bribe. Therefore, the courts should not encourage this type of illegal practice of demanding and accepting bribe by the public servants and shall curtail it by awarding proper and appropriate sentence. Otherwise, the entire society will loose the faith in the courts.
Hence, I am of the view that, if the accused is sentenced for four years each for the offences punishable under Sections 7 and Section 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988, it will meet the ends of justice and also it is appropriate sentence. 97 Spl.C.C.No.74/2005 Hence, I proceed to pass the following sentence:-
ORDER
Accused shall undergo Simple
Imprisonment for four years and to pay fine of Rs.1,00,000/-, for the offence punishable under Section 7 of Prevention of Corruption Act, 1988.
In default to pay the fine amount, he shall further undergo simple imprisonment for one year.
He shall further undergo Simple Imprisonment for four years and to pay fine of Rs.1,00,000/-, for the offence punishable under Section 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988. In default to pay the fine amount, he shall further undergo simple imprisonment for one year.
Both the sentences shall run concurrently. M.Os. 1 to 9 shall be preserved till the appeal period is completed.98 Spl.C.C.No.74/2005
Accused is entitled for set off u/S.428 of Criminal Procedure Code, for the period already undergone in Custody.
Supply free copy of judgment to the accused immediately.
(Dictated to Judgment Writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open court today, 9th day of July, 2018.) (S.H.PUSHPANJALI DEVI) XLVI Addl. City Civil and Sessions Judge and Special Judge for C.B.I. Cases, Bengaluru.
Holding Concurrent Charge of XLVII Addl.City Civil and Sessions Judge and Spl.Judge for CBI Cases, Bengaluru. ANNEXURE
1. List of witnesses examined for the prosecution :-
PWs. Name of the witnesses CWs.
PW-1 C.Venkateshwaralu C.W.-1
PW-2 DJKM Peeter C.W. 3
PW-3 S.S.Giri C.W. 4
PW-4 Subash Chakraborthy C.W. 9
PW-5 S.A.Hassan C.W. 10
PW-6 Ashok Kundalia C.W. 16
PW-7 Anjaneya Sharma C.W. 19
PW-8 S.M.Kapoor C.W. 15
99 Spl.C.C.No.74/2005
PW-9 C.E.Elangovan C.W. 13
PW-10 P.Kumareshan C.W. 14
PW-11 Ashok K. Bawaja Addl Witness
PW-12 Y. Hari Kumar C.W. 20
2. List of witnesses examined for the accused :-
- NONE -
3. List of documents exhibited for the prosecution :-
Exhibits Documents
Ex.P 1 Xerox copy of contract Agreement
Ex.P 2 Xerox copy of purchase order dated
22.12.2003
Ex.P 3 Xerox copy of letter dated 22.07.2004
Ex.P 4 Xerox copy of Minutes
(2 sheets)
Ex.P 5 Original of Ex.P 1
(10 sheets)
Ex.P 5(a) Signature of V.Sreedharan
Ex.P 6 Original of Ex.P2
(6 Sheets)
Ex.P 6(a) Signature of PW 9
Ex.P 7 Original of Ex. P 4
Ex.P 7(a) Signature of PW 1
Ex.P 7(b) Signature of Smt. Roopa
Ex.P 7(c) Signature of Accused
Ex.P 7(d) Signature of Angappan
100 Spl.C.C.No.74/2005
Ex. P 8 Xerox copy of Bank Guarantee (5 sheets)
Ex. P 9 Xerox copy of Bank Guarantees (5 sheets)
Ex.P10 Xerox copy of Covering letter dated
26.07.2004
Ex.P11 Xerox copy of covering letter
Ex.P12 Xerox copy of Bank Guarantee (5sheets)
Ex.P13 Xerox copy of covering letter dated
31.07.2004
Ex.P14 Letter dated 11.09.2004
Ex.P15 Xerox coy of the Report
(2 sheets)
Ex.P16 Xerox copy of the letter dated 22.09.2004
Ex.P17 to Annexures
Ex.P 21
Ex.P22 Letter dated 30.09.2004
Ex.P23 Xerox copy of letter dated 05.10.2004
Ex.P24 Letter dated 05.10.2004
Ex.P24(a) Signature of Sri Anupam Nathaniel Ex.P25 Xerox copy of letter dated 16.10.2004 Ex.P26 Fax Message dated 18.10.2004 Ex.P27 Complaint Ex.P27(a) Signature of PW 1 Ex.P27(b) Endorsement and Initial of Supdt. of Police Ex.P28 English Translated Version of Telugu 101 Spl.C.C.No.74/2005 Conversation between accused and Complainant Ex.P28(a) Signature of PW-2 Ex.P28(b) Signature of PW-3 Ex.P28(c) Signature of Purushotham Ex.P29 Entrustment Mahazer (5 pages) Ex.P29(a) Signature of PW-1 Ex.P29(b) Signature of PW-2 Ex.P29(c) Signature of PW-3 Ex.P30 Recovery Mahazer (9 sheets) Ex.P30(a) Signatue of PW-1 Ex.P30(b) Signature of PW-2 Ex.P30(c) Signature of Purushotham Ex.P31 Transcription of conversation Ex.P31(a) Signatue of PW-1 Ex.P31(b) Signature of PW-2 Ex.P32 Arrest Cum Personal Search Memo Ex.P32(a) Signature of PW-2 Ex.P32(b) Signature of PW-3 Ex.P33 Sheet Containing Specimen seals Ex.P33(a) Signature of PW-2 Ex.P33(b) Signature of PW-3 Ex.P34 Original Search List in Spl.C.C.45/07 Ex.P34(a) Signature of PW-2 in Ex.P34 of Spl.C.C.45/07 Ex.P34(A) Copy of Ex.P34 Ex. P 34 (A-a) Signature of PW 2 Ex. P 34 Signature of PW-3 A(ab) Ex.P 35 Search list produced in Spl.CC 45/07 dated 27.10.2004 102 Spl.C.C.No.74/2005 Ex.P35(A) Copy of Search list Ex. P 35 (A-a) Signature of PW-2 Ex. P 35 Signature of PW-3 A(ab) Ex.P36 FIR Ex. P 36 (a) & Signature of Superintendent of police
(b) Ex.P 37 Copy of Notification dated 30.01.2004 Ex.P38 Copy of Relieving Letter dated 03.02.2004 Ex.P39 Letter date 21.02.2004 Ex.P40 Office Note dated 13.02.2004 Ex.P41 Copy of Order dated 29.10.2004 Ex.P42 to Bank Guarantor dated 16.10.2004 Ex.P44 Ex.P 45 to Letters Ex.P 47 Ex.P48 IOM letter dated 15.10.2004 Ex.P 49 Attested copies Tour Advance requisition Ex.P 50 Attested copy of payment voucher Ex.P 51 Attested copy of Travelling Allowance Repot Ex.P 52 Extract of the Cash Book (2 sheets) Ex.P 53 Attested copy of Extract of Ledger Account (4 sheets) 103 Spl.C.C.No.74/2005 Ex.P 54 File procurement of Cables Ex.P54(A) Letter dated 21.07.2004 (Inter Office Memo) Ex.P54(B) Letter dated 23.07.2004 Ex. P 54 (B-a) Signature o PW-10 Ex. P54(c) Letter dated 25.10.2004 (2 sheets) Ex.P 55 Relevant Portion of 164 statement of PW-9 Ex.P 56 -do-
Ex.P 57 Sanction Order
Ex.P57(a) Signature of PW-10
Ex.P 58 Notification dated 18.11.2004
Ex.P 59 Xerox copy of Notification dated 11.01.2005
Ex.P60 Report of Chemical Examiner dated
17.02.2005
4. List of documents exhibited for the accused :-
Exhibits Documents
Ex.D1 Letter dated 15.10.2004
Ex.D2 Letter dated 1.10.2004
Ex.D3 Facsimile sheet
Ex.D4 Letter dated 17.1.2002
Ex.D5 Xerox copy of Delegation of Powers
Ex.D6 Relevant portion of 161 statement of P.W.3
104 Spl.C.C.No.74/2005
5) List of Material Objects marked for the prosecution :-
Exhibits Documents
M.O.1 Currency notes of Rs.1000/- in total Rs.50,000/-
M.O.2 Bottle containing solution in which right hand
fingers of accused was dipped
M.O.3 Bottle containing solution in which left hand
fingers of accused was dipped
M.O.4 Sealed cover contained M.O.5
M.O.5 Telugu Newspaper 'E-Nadu' dated 26.10.2004
M.O.6 Sealed cover contained M.O.7
M.O.7 Sony Micro Cassette
M.O.8 Sealed cover contained M.O.9
M.O.9 Sony Micro Cassette
(S.H.PUSHPANJALI DEVI)
XLVI Addl. City Civil and Sessions Judge and Special Judge for C.B.I. Cases, Bengaluru.
Holding Concurrent Charge of XLVII Addl.City Civil and Sessions Judge and Spl.Judge for CBI Cases, Bengaluru.
Digitally signed by SAKE HARIDAS PUSHPANJALI DEVI DN: cn=SAKE HARIDAS SAKE HARIDAS PUSHPANJALI DEVI,ou=HIGH COURT OF PUSHPANJALI KARNATAKA,o=GOVERNMEN T OF DEVI KARNATAKA,st=Karnataka,c= IN Date: 2018.07.10 10:30:24 IST