Bangalore District Court
The State Of Karnataka vs No.1 : A.Sundarraj @ Sundar on 29 December, 2020
IN THE COURT OF LXXVIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE (P.C.Act), BENGALURU (CCH-79)
Present: Sri.Gopalakrishna Rai.T, B.A.(Law), LL.B.,
LXXVIII Addl.City Civil & Sessions Judge
& Special Judge (P.C.Act.), Bengaluru.
Dated: 29th December 2020
Spl.C.C.No.82/2011
Complainant: The State of Karnataka, represented by
Police Inspector, Karnataka Lokayukta,
City Division, Bengaluru.
(By Public Prosecutor)
V/s.
Accused No.1 : A.Sundarraj @ Sundar
S/o Late N.Annaiah,
Aged 46 years, Car Driver,
Karnataka State Silk Development Board,
Thalagattapura, Bangalore,
working on OOD,
Since 8 years in DPAR Department,
M.S.Building, Bengaluru..
R/at No.61/12, 11th Cross, Bhovipalya,
West of Chord Road, Mahalakshmipuram,
Bengaluru-86.
(by Sri.T.Prakash., Advocate)
Accused No.2 : Sri. Y.Muniyappa
(Abated)
Date of commission of offence 16.12.2010
Date of report of occurrence 29.12.2010
Date of arrest of accused no.1 30.12.2010
Date of release of accused no.1 04.01.2011
on bail
2
Spl.CC.No.82/2011
Date of commencement of 11-07-2017
evidence
Date of closing of evidence 09-09-2020
Name of the complainant M.H.Anandkumar
Offences complained of Under Sections 7, 13(1)(d) r/w
section 13(2) of Prevention of
Corruption Act 1988.
Opinion of the Judge Accused no.1 is found guilty
JUDGMENT
The above said accused no.1 has been prosecuted by the Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, for the offences punishable under sections 7, 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988. (PC Act in short).
2. The brief facts of the prosecution case:
The accused no.1 Sundarraj was working as a driver with Sri.Nandakumar who was working as Commissioner of Muzarai Department and in-charge Personal Secretary to the Hon'ble Chief Minister during the year 2010. The complainant M.H.Anandkumar was working as Assistant Archak at Banashankaramma Temple which was under the control of Muzarai Department. One Muniyappa (accused no.2, now dead) was also working in Muzarai Department. Several complaints were lodged against M.H.Anandkumar to Department of Muzarai, Lokayukta and Hon'ble Chief Minister. On 16.12.2012 Muniyappa approached the complainant and asked him to approach accused no.1 3 Spl.CC.No.82/2011 Sundarraj for the closure of the complaints. Accordingly, both Sundarraj and Muniyappa have demanded illegal gratification of Rs.10,00,000/-, Rs.3,00,000/- Rs,75,000/- & Rs.35,000/- from the complainant. Finally, they have agreed for Rs.35,000/-. Since the complainant was not interested to pay bribe amount, he lodged complaint as per Ex.P.12 to Lokayukta police and got registered a criminal case against accused persons in Cr.No.69/2010 for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act.
3. After registration of the case on 30.12.2010 an entrustment panchanama was drawn. On the same day lokayukta police have laid a trap and at 4.45 pm near Navashakthi Temple situated inside BBMP premises, Hudson Circle, Bengaluru, accused no.1 A.Sundarraj @ Sundar being a public servant having assured to clear the complaints that were lodged against CW.1 M.H.Anandkumar demanded and accepted illegal gratification of Rs.35,000/- from him other than legal remuneration and trap was successful.
3.(a). After hearing both sides, this court has duly framed the charges for the alleged offences against accused no.1. The accused no.1 having denied the charges leveled against him has claimed to be tried and accordingly, the prosecution to establish his guilt has totally examined 11 witnesses as PW.1 to 11 and has produced documents at Ex.P.1 to 30 and MO.1 to 24 were marked.
4Spl.CC.No.82/2011
4. About the evidence produced by the Prosecution:
4.(a). The prosecution has examined complainant Anandkumar as PW.4. The Commissioner of Endowment, Bengaluru by name Nandakumar with whom accused no.1 was working as a driver is examined as PW.1. Smt.Dr.L.Nagalambikadevi who has issued prosecution sanction order as per Ex.P.2 is examined as PW.2. One Sunil.P.L. witness to Ex.P.6 entrustment panchanama and Ex.P.10 trap panchanama is examined as PW.3. The friend of the complainant by name Yashawanth.K. who was present throughout the proceedings is examined as PW.5. Sri.T.Hanumantha who has assisted the accused to received illegal gratification is examined as PW.6 and his statement recorded under section 164 of Cr.P.C., is marked at Ex.P.15. The officer by name Shashikanth Hiremath who has identified the voice of the accused found in recorded conversation is examined as PW.7.
Sri.Prashanthkumar.M.P. who was identified the voice of the accused is examined as PW.8. Sri.Boraiah who has furnished service particulars of accused no.1 Sundrraj as per Ex.P.17 is examined as PW.9. To show that accused has called complainant over mobile no.9342597945, the prosecution has examined H.A.Mohan as PW.10. Sri.Shivashankar.N.G., Police Inspector who has registered the case and conducted the investigation is examined as PW.11.
4.(b). After closure of evidence of prosecution, incriminating circumstances that were found in the testimony of prosecution witnesses are formulated into the form of questions as required under section 313 5 Spl.CC.No.82/2011 of Cr.P.C., and explained to the accused. He has denied the version of prosecution witnesses, however, he has not chosen to examine any witnesses on his behalf.
4(c). Heard the arguments of learned PP for the State and Sri.T.Prakash, Advocate for accused no.1. Learned PP has submitted that the prosecution has produced valid sanction as required under section 19 of PC Act. He has also submitted that the prosecution has proved both demand and acceptance of bribe by the accused and hence requested to record an order of conviction. Refuting the same, learned counsel for accused no.1 has submitted that prosecution has failed to prove demand and acceptance of bribe as no work of the complainant was pending with the accused. Further, it is argued that the complainant has forcibly thrust the amount in the hands of accused no.1. It is also argued that there was no persistent demand made by the accused. The certificate produced by the prosecution as per Ex.P.30 is contrary to the provisions of section 65B of Evidence Act. With the above grounds, requested the court to record the order of acquittal.
4(d). This court has given its anxious considerations to the arguments so advanced and subjected the evidence placed on record to the process of judicial scrutiny. Further, considered the list of citations furnished by the learned counsel for accused no.1.
6Spl.CC.No.82/2011 4(e). Under the circumstances narrated above, the following points do arise for consideration of this court:
1) Does the prosecution proves the fact that it has obtained valid sanction to prosecute accused no.1 as required under section 19 of P.C.Act?
2) Does the prosecution beyond reasonable doubt proves the fact that accused no.1 as a public servant working as driver has demanded and accepted an illegal gratification of Rs.35,000/-
from PW.4 and thereby committed an offence punishable under section 7 of PC Act 1988?
3) Does the prosecution proves beyond reasonable doubt that accused no.1 has committed criminal mis-conduct as defined under section 13(1)(d) which is punishable under section 13(2) of PC Act ?
4) What order?
5. My findings to the above points are as under:
Point No.1: in the affirmative Point No.2: in the affirmative Point No.3: in the affirmative Point No.4: as per the final order below for the following 7 Spl.CC.No.82/2011 REASONS
6. Point No.1:
6.(a). The fact that at the given point of time, accused no.1 was employed as a driver in Karnataka State Sericulture Research & Development Institute is not in dispute. Similarly, it is not in dispute that on deputation he was working as driver in Department of Personal & Administrative Research. Further, it is an admitted fact that on 30.12.2010 he was working as a driver to Joint Secretary to Hon'ble Chief Minister is not in dispute. Therefore, it is proved that accused no.1-
Sundarraj was working as a public servant within the meaning of section 2(c)(i) of PC Act and he was discharging his public duty within the meaning of Section 2(b) of PC Act 1988.
6(b). In view of the above circumstances, it is for the prosecution to prove that, a valid sanction has been accorded by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. That burden can be discharged by the prosecution by producing original sanction order which contains the facts constituting the offence and the grounds of satisfaction and by adducing evidence to show the facts placed before the sanctioning authority and the satisfaction arrived at by it.
6(c). The prosecution in its attempt to prove the fact that it has secured a valid sanction to prosecute accused no.1 for the offence punishable under section 7 and 13(2) of PC Act has not only produced the oral evidence of PW.2, but also documentary evidence at Ex.P.2. In 8 Spl.CC.No.82/2011 addition to the evidence of PW.2, the prosecution has also relied on the evidence of PW.11 N.G.Shivashankar.
6(d). In the decision reported in 2014 Cr.LJ 930 in the case between CBI Vs. Ashok Kumar Agarwal, the Apex Court of this nation has held as follows: Sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the Government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilt. There is an obligation on the Sanctioning 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 FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant materials. 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 of which, the Competent Authority may refuse action. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently by applying its mind and taking into consideration all the relevant facts before grant of Sanction while discharging its duty to give or withhold the 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. The order of sanction 9 Spl.CC.No.82/2011 should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that entire relevant facts had been placed before the Sanctioning Authority and the authority had applied its mind on the same and that, sanction had been granted in accordance with law. From the study of the above decision it is clear that the prosecution is under obligation to place entire records before Sanctioning Authority and satisfy the court that, the authority has applied its mind. Similarly the Sanctioning Authority has to do complete and conscious scrutiny of whole record placed before it. The Sanction Order should show that the authority has considered all relevant facts and applied its mind.
6(e). It is the evidence of PW.11 Shivashankar that during the course of investigation he has received prosecution sanction order as per Ex.P.2 to prosecute accused no.1.
6(f). The PW.2 Dr.M.Nagalambikadevi has deposed that during 2010 to 2013 she was working as Commissioner & Director of Sericulture Development. It is her evidence that accused no.1 A.Sundarraj was working as a driver in her department and was deputed to DPAR. At the time of cross-examination of PW.2, this portion of evidence is not at all challenged by accused no.1. Therefore, the evidence of PW.2 that accused no.1 Sundarraj was working as a driver in DPAR on deputation is remained unchallenged.
10Spl.CC.No.82/2011 6(g). It is pertinent to note that the authority of PW.2 to issue prosecution sanction as per Ex.P.2 is not at all denied by accused no.1 at the time of her cross-examination. Therefore, the contention of the prosecution that PW.2 was the sanctioning authority to issue prosecution sanction to prosecute accused no.1 is stands proved.
6(h). The PW.2 has deposed that on 25.02.2011 her office has received a letter from ADGP, Lokayukta seeking sanction to prosecute accused no.1 Sundarraj. Her evidence would also reveal that along with the letter she has also received copy of complaint, pre-trap mahazar, trap mahazar, chemical examination report, spot sketch, statement of witnesses and other documents. The receipt of above documents in the office of PW.2 is also not denied by accused no.1. Further, at the time of cross-examination of PW.2 nothing is suggested to her that investigation materials are not placed before her for scrutiny. Therefore, the prosecution is justified in contending that the investigating agency has placed copies of entire investigation materials before the sanctioning authority for its scrutiny.
6(i). It is the definite evidence of PW.2 that she had gone through all the materials and applied her mind and came to the conclusion that it is a fit case to accord sanction to prosecute accused no.1. From the reading of evidence of PW.2 it is clear that she has applied her mind to the documents produced by the investigating agency. The suggestion to PW.2 that without going through any records, she has mechanically issued Ex.P.2 order is denied by her. Except this suggestion nothing is elicited 11 Spl.CC.No.82/2011 from the mouth of PW.2 that she did not examine the documents produced by the investigating agency. Therefore, based on mere suggestions which were denied by the witness, it cannot be held that PW.2 without application of mind has issued Ex.P.2.
6(j). It is the contention of accused no.1 that he has offered his explanation at the time of trap. Interestingly, the accused himself got marked this explanation as per Ex.P.13 at the time of cross-examination of PW.3 P.L.Sunil. In fact, PW.2 has deposed that she does not remember whether the investigating agency has sent copy of explanation given by accused no.1 or not. A reading of Ex.P.13 would show that at the earliest point of time accused no.1 was stated that complainant being Archak has falsely implicated him. Even if it is said that PW.2 had no opportunity to look into the explanation as per Ex.P.13, itself is not sufficient to discard her evidence that she has examined the investigating materials submitted for her scrutiny. Further, the prosecution sanction order as per Ex.P.2 does not depict the fact that PW.2 had an opportunity to look into the explanation given by accused no.1. However, this aspect of the matter is not sufficient to hold that without any materials PW.2 has issued Ex.P.2 sanction order mechanically.
6(k). Added to the oral evidence of PW.2, as per Ex.P.2 also, after perusal of entire materials, PW.2 being the author has expressed her complete satisfaction. It is also borne out from Ex.P.2 that PW.2 is the appointing and disciplinary authority of accused no.1. This aspect of the matter remained unchallenged. Thus, meticulous scrutiny of Ex.P.2 in the 12 Spl.CC.No.82/2011 light of corroborative testimony of PW.2 only conclusion that can be arrived is that PW.2 has applied her mind and on expressing her satisfaction has issued Ex.P.2 sanction order.
6(l). The facts elicited from the mouth of PW.2 would show that as per the materials, the complainant was working as an archak and Muzarai Department has received several complaints against him. The above evidence of PW.2 in cross-examination is in accordance with the theory of the prosecution. Before the court it is for the prosecution to prove the charges leveled against accused no.1 beyond reasonable doubts. However, at the time of issuing prosecution sanction order, the authority is required to consider the documents produced by the investigating agency within the parameters of prima-facie case. In the present case a reading of the materials would show that the investigating agency has produced materials collected by it during the course of its investigation to the scrutiny of PW.2. The evidence of PW.2 would show that she has applied her mind to the materials and issued Ex.P.2 order.
6(m). One of the contentions taken by accused no.1 is that along with investigation materials, the investigating agency has sent draft sanction order. When a suggestion is directed to PW.2 to this effect, she has denied the same. However, learned prosecutor would submit that even if draft sanction is sent, it is not fatal to the case of prosecution. To substantiate this contention, learned PP has placed reliance on the decision reported in 1992 Crl.L.J.1144. But in the present case except the defense that draft sanction is also sent along with prosecution papers, 13 Spl.CC.No.82/2011 nothing is placed on record to substantiate the same. Under the circumstances, this court is of the opinion that accused no.1 is failed to show that along with the letter, ADGP of Lokayukta has sent draft prosecution sanction order.
6(n). Thus, on appreciation of oral evidence of PW.2 in chief examination in the light of defense taken by the accused, this court is of the opinion that she being the appointing and disciplinary authority of accused no.1 who is empowered to remove him from the post of driver, on application of her mind to the materials produced by the investigating agency expressed her satisfaction and then issued Ex.P.2. Therefore, there are no reasons to accept the contention of the accused that PW.2 has issued Ex.P.2 sanction order mechanically. Hence, it is held that the prosecution has secured a valid sanction to prosecute accused no.1. Resultantly, Point No.1 is answered in the Affirmative.
7. Point No.2 and 3: These two points are taken together for discussion as the same are interconnected with each other and with an intention to avoid repetition of fact and discussion.
7(a). In order to bring home the guilt of accused no.1 for the offence punishable under section 7 and 13(2) of PC Act, prosecution has to prove that the accused being a public servant demanded and accepted illegal gratification. The prosecution must also prove that the demand and acceptance of illegal gratification is for doing some official act or favour to the complainant. Under Section 20 of PC Act, there is a presumption available in respect of offence punishable under section 7.
14Spl.CC.No.82/2011 The benefit of presumption can be extended in favour of prosecution and onus can be shifted upon accused only when prosecution discharges initial burden of proving that accused has demanded and accepted illegal gratification. Under section 13(1)(d), accused receiving pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant or receiving any pecuniary advantage without any public interest would constitute the offence.
7(b). In various decisions of the Hon'ble Supreme Court it has been held that demand of illegal gratification by the accused is sine-quo-non to constitute offence under section 7 and even under section 13(1)(d) of PC Act. Therefore, without proving demand for illegal gratification by the accused, prosecution cannot proceed further. For the offence punishable under section 7 of PC Act even an official act or favour to be done by the accused to the complainant and demand of bribe to do such official act or favour is also necessary to be established.
7(c). Keeping in mind the above settled proposition of law now it is the duty of this court to examine the evidence produced by the prosecution both oral and documentary. It is the evidence of PW.4 Anandkumar that he was working as Archak in Banashankari Temple and with the permission of Deputy Commissioner he was conducting religious programmes in TV Channels. It is also his evidence that Sri.Banashankari Temple where he was working during 2007 to 2013 is coming under the control of Muzarai Department. The above aspect of the matter is not denied by accused no.1 either at the time of cross-
15Spl.CC.No.82/2011 examination of PW.4 or at the time of his statement as required under section 313 of Cr.P.C., 7(d). The evidence of PW.4 would show that one Muniyappa told him that Muzarai Department received several complaints against him (PW.4) and if it is not solved he will lose his Archak job in the temple. Further, PW.4 has deposed that Muniyappa has told him that the file is available in the office of Chief Minister and hence it is necessary to meet accused no.1 Sundarraj and he will solve the problem. This portion of evidence of PW.4 is denied by accused no.1. However, it is elicited from the mouth of PW.4 that he was working in Banashankari temple and the said temple comes under the control of Muzarai Department and News items were published against him in several magazines as per Ex.D.2 to
6. A reading of magazines as per Ex.D.2 to 6 would demonstrately indicate that several news items were published against the complainant. Further, accused no.1 in his written statement has contended that there were several complaints by the public before the Muzarai Commissioner against the complainant Anandkumar. Thus, it is clear that in addition to the complaints so received by the Muzarai Department, news items were also published against the complainant. Therefore, it can be gathered that at the given point of time PW.4 was in trouble as there were several complaints lodged against him.
7(e). It is the evidence of PW.4 that he along with Muniyappa met accused no.1 and discussed the issue. Further, he has deposed that on 16.12.2010 accused have repeatedly contacted him over phone and 16 Spl.CC.No.82/2011 demanded Rs.3,00,000/- by promising him to solve the problem and he has recorded the conversation. His evidence would show that on 21.12.2010 he told the accused that he can adjust only Rs.35,000/- and thereafter they continued to demand for bribe amount. The above portion of evidence of PW.4 is denied by accused no.1. However, it is the duty of the court to see other evidence available on record and to find out whether the evidence of PW.4 is worthy to accept or not.
7(f). It is the evidence of PW.4 that since there was persistent demand from the accused, on 29.12.2010 he came to lokayukta office, informed about the demand of bribe amount and then lokayukta police inspector has asked him to record the conversation and accordingly, talked to them over phone and recorded the conversation by agreeing to pay Rs.35,000/- on 30.12.2010. It is also his evidence that thereafter on 30.12.2010 he went to lokayukta office and produced all the recordings and lodged Ex.P.12 complaint. This evidence of PW.4 is in accordance with the contents of Ex.P.12 complaint lodged at the earliest point of time.
7(g). The investigating officer into the present crime by name Shivashankar.N.G. being PW.11 has deposed that based upon Ex.P.12 complaint he has registered the case and transmitted FIR as per Ex.P.18 to the court. This aspect of the matter is not denied by accused no.1 . His evidence also reveals the fact that at the time of registration of case itself, the complainant has produced CD said to have containing conversation between himself and accused no.1. It is argued by the learned counsel for 17 Spl.CC.No.82/2011 accused no.1 that the investigating officer ought to have seized mobile and sim card of the complainant but he has not chosen to do so and hence there is no authenticity in respect of article no.3. But this aspect of the matter alone will not take away the theory of prosecution if other evidence produced by the prosecution is worthy to accept.
7(h). It is relevant to note that, at the time of cross-examination of PW.11 it is elicited that he has not seized the mobile and sim card alleged to have containing conversation between the complainant and accused no.1. Similarly, he has not seized mobile and sim card of accused no.1. However, it is borne out from the evidence of PW.11 that police constable Ramaiah has transmitted the conversation found in the mobile of the complainant to the computer and obtained a CD.
7(i). The two testimonies of PW.4 and PW.11 reaffirms the facts narrated by the prosecution. It is the evidence of PW.11 that after receipt of complaint as per Ex.P.12, to find out truth or otherwise of the allegations that were made therein, he has conducted a probe and got information that several complaints were filed against the complainant before Muzarai and Revenue Department. It is suggested to PW.11 that since he was a strong disciple of the complainant, he has falsely foisted criminal case against accused no.1. But, this suggestion is denied by him. Therefore, merely based on a suggestion it cannot be said that at the instance of the complainant PW.11 has foisted a false case against this accused.
18Spl.CC.No.82/2011 7(j). It is argued by the learned counsel for the defense that accused no.1 was discharging his duty as a driver to the Commissioner of Department of Muzarai. The fact that the Commissioner of Muzarai was also working as Joint Secretary to Hon'ble Chief Minister is not in dispute. The evidence placed on record would show that there were several complaints pending against the complainant not only before Hon'ble Chief Minister but also before Revenue and Muzarai Departments. Under the circumstances, though the contention of the accused no.1 that no work of the complainant was pending with him is appears to be true, in the present scenario it is duty of the court to consider the evidence produced by the prosecution in a judicious manner. But in the present case, the evidence produced by the prosecution would demonstrately establish that accused no.1 was working as driver to the Joint Secretary of Hon'ble Chief Minister. Thus, it is highly improbable to believe the contention of accused no.1 that he was not at all involved in the process of demanding for bribe under the guise of closing the complaints. Had this contention of accused no.1 were to be true, the question of lokayukta police assisting the complainant in the lines of entertaining a false complaint does not arise. Therefore, only on the ground that no work of the complainant was directly pending with accused no.1, it is not proper to discard other evidence produced by the prosecution.
7(k). It emanates from the evidence of PW.4 that at the time of lodging Ex.P.12 complaint, he has produced Rs.35,000/- in denomination 19 Spl.CC.No.82/2011 of Rs.1000x18 & Rs.500x34. In the same line, PW.3 Sunil being pancha to entrustment mahazar also deposed that the complainant has produced Rs.35,000/- in denomination of Rs.1000x18 & Rs.500x34 currency notes. In addition to the evidence of PW.4 & 12, PW.5 & 11 have reiterated that it is the complainant who has produced Rs.35,000/-. The production of Rs.35,000/- by the complainant as on 30.12.2010 is not at all denied by accused no.1. Therefore, it is clear that since complainant was not interested to pay bribe amount, he approached lokayukta police and lodged complaint as per Ex.P.12. The evidence of PW.11 would indicate that since the allegations that were made in Ex.P.12 are true, he has registered the case and proceeded further in the lines of further investigation. Hence, at any stretch of imagination it cannot be said that at the instance of PW.4, the IO i.e., PW.12 has registered a false case against accused no.1.
7(l). It is the evidence of PW.11 that the CD produced by the complainant was played through a computer and then copied to another CD and contents of the same transcribed as per Ex.P.4 & 5. Similar to the evidence of PW.11, it is the evidence of PW.3 that all the conversation available in voice recorder were transcribed on a sheet of paper, verified the transcriptions and compared with the recordings heard by them and ascertained that it is true transcription and then signed on Ex.P.4. Similarly, it is his evidence that the recordings that were found in CD were transcribed as per Ex.P.5. The evidence of PW.3 clearly indicate that true transcriptions were made as per Ex.P.4 & 5 with regard to 20 Spl.CC.No.82/2011 conversation that were found in voice recorder and CD produced by the complainant. Though PW.3 is cross-examined, this aspect of the matter has not been seriously disputed by accused no.1. Therefore, the evidence of PW.3 that Ex.P.4 & 5 contains true transcriptions of conversation recorded in the voice recorder and CD produced by the complainant would show that he has deposed truth before the court. Further, it is relevant to note that at the time of his cross-examination nothing is suggested that the transcription that were found in Ex.P.4 & 5 is not the true transcription of conversation that were recorded in voice recorder and CD.
7(m). A reading of Ex.P.4 would clearly show that there is demand for illegal gratification from the side of accused no.1 so as to destroy the complaints that were filed against the complainant. Further, it is relevant to note that at the time of cross-examination of PW.11 also it is not suggested that Ex.P.4 is concocted by him to falsely implicate accused no.1.
7(n). In addition to the above, the transcription produced by the prosecution as per Ex.P.5 would also show that both accused no.1 & 2 have met the complainant and disclosed about anonymous complaints filed against him and assured him that they will destroy the same. At this juncture itself it is relevant to note that if really accused have no nexus with alleged complaints that were lodged, question of they assuring the complainant that they will destroy the same does not arise. Hence, the 21 Spl.CC.No.82/2011 contention of accused no.1 no work of the complainant was pending with him is not probable to accept.
7(o). From the appreciation of evidence produced by the prosecution, it is crystal clear that Ex.P.4 & 5 is nothing but verbatim recordings that were found in the voice recorder and CD produced by the complainant along with Ex.P.12. Therefore, to disbelieve the version of PW.3 & 11 and the contents of Ex.P.4 & 5 which is in accordance with CD so produced before the court, there are no reasons. Thus, it is proved that under the guise of clearing the complaint that were pending against the complainant, accused no.1 has demanded illegal gratification from him.
7(p). It is the evidence of PW.11 that since the complainant has produced Rs.35,000/-, the currency note numbers and its denominations were noted down as per Ex.P.3. It is the evidence of PW.3 Sunil that the complainant has produced Rs.35,000/- and its numbers and denominations were mentioned in a sheet as per Ex.P.3. It is relevant to note that accused no.1 did not dispute recovery of a sum of Rs.35,000/- from his possession. However, it is his case that the complainant has thrust the amount to his hands. The fact that the amount recovered from accused no.1 as per MO.1 and the descriptions that were mentioned in Ex.P.3 are one and the same is not in dispute. Hence, the evidence of PW.3 & 11 would clearly establish that it is the complainant who has produced MO.1 cash of Rs.35,000/- so as to lay trap against accused.
22Spl.CC.No.82/2011 7(q). Further, it is the contention of the prosecution that after registration of the case, transcription as per Ex.P.4 & 5 and description of currency notes as per Ex.P.3, pre-trap mahazar was drawn as per Ex.P.6. The evidence of PW.3, 4 & 5 would demonstrately indicate that by following due procedure, pre-trap mahazar was drawn and after smearing phenolphthalein powder, CW.3 has verified the currency notes as per MO.1 and kept the same in right side inner pocket of the nicker of the complainant. In fact, learned counsel for accused no.1 has submitted that by following procedure, Ex.P.6 pre-trap mahazar was drawn.
7(r). The evidence produced by the prosecution would also show that PW.3 Sunil was asked to follow the complainant as shadow witness, observe the happenings and to report later. In his evidence, PW.3 Sunil has stated that he being member of trap team, as per the instructions of IO watched the happenings and reported later. It is pertinent to note that this portion of evidence of PW.3 is not at all challenged by accused no.1 at the time of his cross-examination.
7(s). Thus, it is crystal clear that after following due procedure, pre- trap panchanama as per Ex.P.6 was drawn and attested by panchas & investigating officer.
7(t). It is contended by the learned counsel for accused no.1 that on the particular day of trap, accused has not demanded for any illegal gratification and on the other hand it is the complainant who has called the accused to come to the temple in the Corporation Building. During the course of cross-examination of PW.4 it is elicited that accused no.1 23 Spl.CC.No.82/2011 Sundarraj is a simple driver, no official work of the complainant was pending with Muzarai Department. It is relevant to note that, it is not the case of the prosecution that the official work of the complainant was pending with Muzarai Department. On the other hand, it is the definite case of the prosecution that the complainant was working in Banashankari Temple which comes under the control of Muzarai Department and as there were several complaints pending against the complainant, accused no.1 being the driver of Commissioner of Muzarai Department, accused no.2 has asked the complainant to approach accused no.1 at that time accused no.1 has demanded for illegal gratification. The documents confronted by the counsel for accused no.1 as per Ex.D.1 to 6 itself is sufficient to hold that there were several complaints pending against the complainant in Muzarai Department. Therefore, the contention of accused no.1 that no work of the complainant was pending with him is of no avail in view of the factual matrix of the case narrated above.
7(u). The conjoint reading of evidence of PW.3, 4, 5 & 11 would clearly indicate that after they reaching the temple, accused no.1 Sundarraj and another person came there and complainant gave tainted notes as per MO.1 to accused no.1. It is also the evidence of the witnesses referred to above, PW.4 has removed the knotted hairs and flashed the signal and immediately trap team came and surrounded accused no.1. The evidence placed on record would also show that immediately accused no.1 gave the tainted notes to the person who had 24 Spl.CC.No.82/2011 come with him and he kept the same in the helmet. Thus, it is clear that accused no.1 has received MO.1 from the complainant. No doubt, as has been observed above, it is the defense of accused no.1 that PW.4 has forcefully thrust MO.1 to his hands. Had accused no.1 has not demanded illegal gratification, question of he arriving to the place chosen by the complainant does not arise. Further, Ex.P.4 & 5 referred and subjected to discussion would also show that accused no.1 has demanded illegal gratification from the complainant so as to close the complaints that were pending before various departments including the office of Hon'ble Chief Minister.
7(v). It is argued by the learned counsel for accused no.1 that as on the day of incidence there is no demand for illegal gratification. No doubt, the evidence produced by the prosecution and Ex.D.1 to 6 clearly indicate that about the antecedents of the complainant, several news items were published. Under the circumstances, it is proved to the satisfaction of this court that the complainant was facing trouble in the hands of several departments including Muzarai Department in which accused no1. was working as a driver on deputation at the given point of time. Therefore, the fact that as on the date of trap, accused no.1 did not demand for illegal gratification itself is not suffice to hold that without demand only to falsely implicate him, the complainant has thrust the amount to his hands.
7(w). In addition to the above evidence, the evidence of PW.6 T.Hanumantha, the person who has accompanied accused no.1 to 25 Spl.CC.No.82/2011 Navashakthi Temple situated inside the Corporation Building would show that accused no.1 was handed over the helmet which contained amount. The evidence of this witness is helpful to the case of prosecution to show that accused no.1 was very much present at Navashakthi Temple and the complainant has paid Rs.35,000/- to him. The evidence of PW.3 shadow witness would show that complainant has gave Rs.35,000/- as per MO.1 to accused Sundarraj, who kept the same in his right side pant pocket and later took out and kept in the helmet and handed over the same to another person who came with him. Thus, this portion of evidence of PW.3 clearly corroborates the evidence of PW.6 that accused Sundarraj handed over MO.1 a sum of Rs.35,000/- along with MO.2 helmet. Therefore, merely on the ground that PW.6 did not say about demand and acceptance, his evidence with regard to he taking possession of MO.1 & 2 from the accused is relevant fact to prove the acceptance of bribe amount.
7(x). The evidence of PW.3, 4, 5 & 11 if subjected to scan, would indicate that as on the date of trap accused did not demand for money. However, the circumstances referred to above would show that accused no.1 has demanded illegal gratification and later to receive the same he came to Navashakthi Temple and received and hence, it cannot be said that without there being demand, the complainant has thrust MO.1 to the hands of accused no.1.
7(y). The well established principles of law by catena of decisions of Hon'ble Apex Court is that only when the initial burden regarding 26 Spl.CC.No.82/2011 demand and acceptance of illegal gratification is successfully discharged by the prosecution, then burden of proving the defense shifts upon the accused and a presumption will arise under section 20 of Prevention of Corruption Act. Here is a case wherein the evidence of the complainant coupled with corroborated version of PW.3 throws much light as to the demand and acceptance of illegal gratification by accused no.1.
7(aa). While invoking the provisions of section 20 of PC Act the court is required to consider the explanation offered by accused no.1, if any, only on the touchstone of the preponderance of the probability and not on the touchstone of proof beyond reasonable doubt. However, before accused no.1 is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. In the present case the defense theory that PW.4 did thrust money into the hands of accused no.1 is not supported by any circumstances.
7(ab). In the present case, the oral evidence produced by the prosecution subjected to the scrutiny of this court would clearly establish that MO.1 a sum of Rs.35,000/- was recovered from MO.2 helmet which was in the possession of PW.6. The evidence of PW.6 as discussed above would show that accused no.1 Sundarraj has handed over both MO.1 & 2 to him. The evidence of PW.11 would show that he has drawn trap mahazar as per Ex.P.10 in the presence of panchas including PW.3 Sunil. It is relevant to mention that the currency notes that were mentioned in 27 Spl.CC.No.82/2011 Ex.P.3 and recovered as per MO.1 at the time of drawing trap mahazar as per Ex.P.10 are one and the same.
7(ac). The learned counsel for accused no.1 has pointed out contradictions and omissions that were found in the testimonies of prosecution witnesses. No doubt, PW.3 has deposed that he was standing at a distance of 50 meters from the temple where the complainant has paid tainted money to accused no.1. Further, it is his definite evidence that he could not hear the conversation between the complainant and accused due to long distance. This evidence of PW.3 itself is sufficient to conclude that he has deposed truth before the court. Just because PW.3 has not heard the conversation between the complainant and accused no.1 at the time of paying tainted money, his evidence cannot be discarded which is otherwise credible in relation to pre-trap and trap mahazar. It is relevant to mention that PW.3 in his cross-examination has deposed that he has seen PW.4 taking the amount from the pocket of his trouser and giving it to accused no.1. This portion of evidence of PW.3 is not denied by accused no.1. In fact, it was not suggested to PW.3 that though PW.4 has thrust the amount to the hands of accused no.1, he has falsely deposed that PW.4 has given the tainted notes to accused no.1. Further, it is not out of place to mention here itself that, had no work was pending with accused no.1, there was no necessity for him to come to Navashakthi Temple situated within the compound of BBMP Office and to receive tainted money. Thus, above aspect of the matter is one of the circumstances which throw much light to the theory of prosecution that 28 Spl.CC.No.82/2011 to close the complaint that were pending against PW.4, accused no.1 has demanded illegal gratification and received the same at Navashakthi Temple, BBMP Office compound, Bengaluru.
7(ad). Similar to the evidence of PW.3, PW.6 Hanumantha in his cross-examination has deposed that he do not know what was the conversation took place between Swamiji (Complainant) and accused no.1 near the temple. However, his evidence would show that at Navashakthi Temple one swamiji and another person were talking with accused no.1. Further, his evidence as narrated above would show that accused no.1 gave him helmet as per M.O.2 and he found MO.1 inside it. Thus, the evidence of PW.6 further substantiate the contention of the prosecution that this witness also witnessed the acceptance of tainted money.
7(ae). It is relevant to note that in the present case at the time of cross-examination of PW.4 much was concentrated with regard to his character. However, in this type of cases question of considering character or news items that were published in Ex.D.1 to 6 magazines is of no importance. The contention taken by accused no.1 is that PW.4 has forcibly thrust M.O.1 to his hands. Had this contention were to be true, PW.6 Hanumanthu ought to have deposed this fact. Contrary to the contention of accused no.1, the evidence of PW.6 would show that accused no.1 was speaking with PW.4 and another person inside Navashakthi Temple. Thus, the contention of accused no.1 that PW.4 has forcefully thrust the amount is not probable to accept. Per contra, the oral 29 Spl.CC.No.82/2011 testimonies referred to above would clearly establish that accused no.1 has demanded and accepted the tainted money.
7(af). The learned counsel for accused no.1 has argued that in so far as CD at M.O.16 to 24 though PW.11 has produced certificates under section 65B of Evidence Act, the same is not in accordance with strict compliance of the provisions. No doubt, in his cross-examination, PW.11 has deposed that police constable Ramaiah has transmitted the conversation to the computer and obtained its CD. According to PW.11, by practice Ramaiah became expert and he is a non-certified expert. His evidence would reveal that the process of transcription and transmitting the information into CD was done by his staff, however, in his supervision. In fact, learned PP has submitted that though CD was prepared by the staff of PW.11, the computer was under his control. This submission is not reputed by accused no.1. Admittedly, PW.11 taken assistance of his staff to prepare CDs. It does not mean to say that PW.11 had no domain or control over the computer installed in his chamber. It emanates from the materials placed on record that the computer was under the control of PW.11. No doubt, it is elicited from the mouth of PW.11 that at the relevant point of time police constables by name Harsha, Ramesha, Yathindra and Ramaiah were operating the computers. This evidence of PW.11 itself is not sufficient to come to the conclusion that he has no exclusive domain over the computer. Therefore, at any stretch of imagination, it cannot be said that the certificate as per Ex.P.30 30 Spl.CC.No.82/2011 is not in accordance with strict compliance of section 65B of Evidence Act.
7(ag). It is relevant to note that at the time of marking of CD, objection was raised by accused no.1 only with regard to certificate as required under section 65B of Evidence Act. However, it is not the contention of accused no.1 that the prosecution has concocted the CD said to have containing conversation between himself and the complainant. In fact, learned counsel for accused no.1 has placed reliance on the decision reported in 2014 (10) SCC 473 in the case between Anwar.P.V. Vs. P.K.Bhasheer and argued that electronic records like CDs, VCDs etc., has to be accompanied by a certificate as specified in section 65B of Indian Evidence Act and the same is mandatory. This aspect of the matter is not in dispute. No doubt, at the time of production of CDs before the court, the investigating officer did not produce certificate as required under section 65B of Evidence Act. But, at the time of his evidence as PW.11, he has produced Ex.P.30 certificate. It is elicited from his mouth that his staff were operating said computer. However, it does not mean to say that PW.11 had no control over the same. The evidence of PW.11 instill confidence in the mind of the court that the computer was in his control and domain. As per section 65B, certificate is required at the time of admitting electronic records in evidence. This observation of this court is supported by the decision reported in 2019 (5) KLJ 401(SC) in the case between Karnataka Lokayukta Police Vs. M.R.Hiremath. At the time of evidence of 31 Spl.CC.No.82/2011 PW.11, certificate as per Ex.P.30 is produced in due compliance of section 65B. As per the decision reported in 2018 (16) SCC 272 in the case between Union of India Vs.CDR Ravindra.V.Desai, non production of certificate under section 65B of Evidence Act is curable defect. In the instant case, PW.11 has produced Ex.P.30 at the time of his evidence. Therefore, the defect is cured by virtue of production of Ex.P.30. Hence, in the opinion of this court, there is due compliance of mandatory requirement of section 65B of Evidence Act 1872.
7(ah). No doubt, the investigating officer has not seized mobile and sim card of the complainant. Similarly, he has not seized voice recorder and the mobile through which pre-trap and trap proceedings were videographed. It is borne out from the evidence of PW.11 that he did not seize voice recorder, mobile, sim card and memory card. Learned Prosecutor has submitted that it is not possible for the IO to seize the above referred articles in all the cases. There is force in this submission. This observation is made because in each and every case it is humanly impossible to seize the voice recorder, mobile, sim card and memory card. In the present case the evidence of PW.11 would show that he by following the procedure established under law prepared CDs and issued Ex.P.30 certificates as required under section 65B of Evidence Act. Under the circumstances, the non-seizure of voice recorder, mobile, sim card and memory card is not fatal to the case of prosecution as other evidence placed on record inspire confidence in the mind of the court.
32Spl.CC.No.82/2011 7(ai). In his complaint as per Ex.P.12, PW.4 at the earliest point of time has stated that Sundarraj from his mobile number 9481189635, Muniyappa from his mobile number 9243481496 have frequently called to his mobile numbers i.e, 9845675722 and 7899660258. It is the evidence of PW.11 that he during the course of his investigation secured CDR of mobile number 9845675722 as per Ex.P.28. The genuineness of this CDR is denied by accused no.1 at the time of cross-examination of PW.11. It is the definite contention of accused no.1 that in respect of Ex.P.28 the investigating agency has not secured certificate as required under section 65B of Evidence Act. This objection is well founded because in respect of Ex.P.28, the investigating officer has not secured certificate from Bharathi Airtel Limited. Hence, CDR at Ex.P.28 is inadmissible in evidence. Further, to show that accused Sunndarraj was the customer in respect of mobile number 9481189635 and that the complainant was the customer in respect of mobile numbers 9845675722 and 7899660258, the investigating officer has not secured any particulars from concerned service provider companies. Hence, it appears to this court that only for the sake of securing CDR, Ex.P.28 was secured by the IO without collecting relevant documents and complying mandatory requirement enumerated under section 65B of Evidence Act.
7(aj). However, it is relevant to note that the perusal of Ex.P.28 at ink page no. 107 to 109 would show that customer of mobile number 9481189635 has called to the customer of mobile number 9845675722 for two times. The data found in Ex.P.28 at ink page number 110 to 113 is 33 Spl.CC.No.82/2011 in respect of mobile number 7899660258. The contents of Ex.P.12 complaint would reveal the fact that PW.4 was the customer of mobile number 7899660258. A reading of page no.110 to 113 of Ex.P.28 would show that the customer of mobile number 7899660285 has called to alleged mobile number of accused no.1 i.e., 9481189635 for several times. Therefore, it is clear that there was repeated calls from the side of the complainant to the alleged mobile number of accused no.1. Thus, it is clear that it is the complainant who has called accused no.1 frequently and not vice-versa. In the circumstances, this court is of the opinion that inadmissible document at Ex.P.28 and its contents are of no assistance to the case of prosecution to establish alleged persistent demand by accused no.1 to the complainant for illegal gratification.
7(ak). From the evidence produced by the prosecution it is proved to the satisfaction of this court that there were several complaints pending against the complainant(PW.4) before various authorities. The evidence discussed above would clearly indicate that accused no.1 being the driver of Endowment Commissioner has demanded illegal gratification under the guise of closing the complaints that were pending against the complainant. It is the contention of accused no.1 that to bring pressure on Endowment Department, PW.4 has falsely implicated him by thrusting money into his hands. However, to probablise this contention except the suggestions that were directed to prosecution witnesses, no other circumstances brought out by accused no.1 that too when the prosecution has proved demand and acceptance of illegal gratification.
34Spl.CC.No.82/2011 7(al). The contradictions in the evidence of PW.3, 4 & 5 with regard to place of accepting bribe is not significant as their evidence otherwise inspire confidence. Further, in the present case accused no.1 has admitted that amount was recovered from the helmet which Hanumanthu was holding. The said Hanumanthu being PW.6 has deposed that it is accused no.1 who has handed over helmet as per MO.2 and from which MO.1 was seized by the police. The witnesses are not required to recollect and narrate entire version with photographic memory. In the present case the documents prepared contemporaneously affirm the primary and ocular evidence.
7(am). To conclude, as discussed above the evidence of PW.3, 4 & 5 with regard to demand for illegal gratification by accused no.1 is consistent. Normally a citizen is always reluctant to lodge complaint against a public servant even if illegal gratification is demanded. Unlike other cases, in a trap case, the complainant has to provide his own currency notes for arranging trap. In addition to it, he has to comply with several formalities. Added to it, he has to remain away from his job or work. Therefore, he has to sacrifice his time and effort while doing so. Further, he has to attend the court at the time of trial and withstand the test of cross-examination. It is borne out from the evidence on record that the complainant is a Archak. Therefore, his intention to falsely implicate accused no.1 is very remote. Ordinarily, it is only when a citizen feels oppressed by a feeling of being commission of wrong, he adopts the course of approaching Lokayukta. Hence, without any reason, a citizen 35 Spl.CC.No.82/2011 lodging the complaint against a public servant with malafide intention is cannot be accepted. Therefore, in the present case, the evidence of PW.3, 4 & 5 inspire confidence in the mind of the court that they have deposed truth. Further, the evidence of PW.11 N.G.Ravishankar would show that as he has satisfied with genuineness of the allegations that were made in Ex.P.12 complaint, registered the case and conducted investigation as the trap was successful. Under the circumstances, it is highly impossible to believe the version of accused no.1 that at the instance of PW.4, PW.11 has registered a false case.
7(an). The learned counsel for accused no.1 has placed reliance on the decision reported in 2016 (4) AKR 82 in the case between Sardar Vs. State of Karnataka and the decision reported in 2008 (2) KCCR 985 and argued that mere recovery of money from the accused is not sufficient unless prosecution establish that the accused has made a demand for illegal gratification. Further, by placing reliance on the decision reported in AIR 2015 SC 3549 in the case between P.Sathyanarayanamurthy Vs. Dist. Inspector of Police & another and argued that proof of demand of illegal gratification is the gravamen and in the absence of same charge would fail. This court has applied ratio of the above decisions to the facts and circumstances of this court. In the opinion of this court the ratio of the decisions referred to above is not applicable to the facts and circumstances of this court as the prosecution has proved demand and acceptance of illegal gratification to the satisfaction of this court. No doubt, as on the date of trap, it is the 36 Spl.CC.No.82/2011 complainant who has called accused no.1 and paid amount to him. However, overall scrutiny of evidence placed on record would clearly indicate that under the guise of closing complaints, accused no.1 has demanded illegal gratification by expressing his financial constrains.
7(ao). In addition to it, by placing reliance on the decision reported in 2016 (1) SCC 713 in the case between N.Sunkanna Vs. State of Andrapradesh and argued that only on proof of demand and acceptance of bribe amount a legal presumption under section 20 of PC Act can be drawn. There is no dispute with regard to this aspect of settled proposition of law. The well established principles of law by catena of decisions of Hon'ble Apex Court is that only when the initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then burden of proving the defense shifts upon the accused and a presumption will arise under section 20 of PC Act. Here in this case the evidence of PW.4 coupled with corroborated version of PW.3 & 5 throw much light as to the demand and acceptance of illegal gratification by the accused and the same is proved by adducing cogent and convincing evidence. Thus, the prosecution is justified in contending that the presumption contemplated under section 20 of PC Act that accused no.1 has accepted undue advantage as a motive or reward to close the complaints that were pending against the complainant is to be drawn, is accepted. Hence, it is held that the contention of accused no.1 that presumption cannot be drawn 37 Spl.CC.No.82/2011 is not accepted. Resultantly, presumption contemplated under section 20 of PC Act is drawn to the effect that accused no.1 has accepted undue advantage as a reward to close the complaints that were pending against the complainant before various authorities including Muzarai Department and the Office of Hon'ble Chief Minister.
7(ap). It is argued that the testimony of PW.11 is interested one and therefore much credence should not be attached to it. It is true that the police officer is always interested in the success of trap. At the same time it must be realized that a police officer being a government servant would not resort to perjury and concoct evidence to rope in an innocent government servant. In the present case also the contention of accused no.1 that PW.11 being a strong disciple of PW.4, has registered false case and implicated him is not worthy to accept. This observation is made because PW.11 has followed all the procedures of trap and as accused no.1 demanded and accepted illegal gratification of Rs.35,000/-, he has conducted further investigation and filed final report. Hence, at any stretch of imagination it cannot be said that the testimony of PW.11 is interested one.
7(aq). So the overall careful scrutiny of the entire oral and documentary evidence makes this court to feel that none of the authorities quoted for accused no.1 can be made applicable to the case on hand to base the order of acquittal. On the other hand, thoughtful view of this court is that the prosecution has 38 Spl.CC.No.82/2011 satisfactorily able to establish alleged demand and acceptance of illegal gratification and consequently the alleged mis-conduct. With this, the only conclusion would be that the prosecution has satisfactorily proved the guilt of accused no.1 for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act beyond reasonable doubt. Accordingly, point Nos.2 and 3 are answered in the affirmative,
8. Point No.4: In view of my findings on the above points as given above, I proceed to pass the following:
ORDER Accused no.1 Sundarraj is found guilty for the offences punishable under section 7 and 13(2) of Prevention of Corruption Act 1988.
Acting under Section 235(2) of Cr.P.C., accused no.1 Sundarraj is convicted for the offences punishable under Sections 7 and 13(2) of Prevention of Corruption Act, 1988.
The bail bonds executed by him and his surety is hereby stands canceled.
M.O.1-Cash of Rs.35,000/- is confiscated to the State after expiry of appeal period.
The office is hereby directed to return M.O.15 Metal seal to Lokayukta Police, after expiry of appeal period.39
Spl.CC.No.82/2011 The office is hereby directed to destroy M.Os 2 to 14 & 16 to 24 after the appeal period as the same are worthless.
Put up for hearing on quantum of sentence to be imposed on accused no.1.
(Dictated to the Stenographer on computer, typed by her, then corrected, signed and pronounced by me in the open court on 29th December 2020).
(Gopalakrishna Rai.T) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru. (CCH-79) ORDER ON SENTENCE
1. The accused no.1 and his counsel have submitted that accused no.1 has to look after his family and is having huge responsibilities and therefore, lenient view may be taken in sentencing him.
2. On the other hand, public prosecutor has submitted that accused no.1 being a public servant has committed heinous offence of taking bribe and he is involved in corrupt practice and therefore maximum punishment is to be imposed.40
Spl.CC.No.82/2011
3. The commission of offence by accused no.1 under section 7, 13(1)(d) r/w section 13(2) of Prevention of Corruption Act is proved in this case and he found guilty for the said offences. The offence under section 7 of Prevention of Corruption Act is punishable with minimum imprisonment of 6 months and maximum of 5 years and also with fine. The offence under section 13(1)(d) which is punishable under section 13(2) of Prevention of Corruption Act, is punishable with minimum imprisonment of 1 year and maximum of 7 years and also with fine. As per section 16 of Prevention of Corruption Act, where sentence of fine is imposed under section 13(2) of Prevention of Corruption Act, the court in fixing amount of fine shall take into consideration the amount which accused has obtained by committing the offence. Even though by way of recent amendment, minimum and maximum imprisonment provided for the offence punishable under section 7 and 13(2) of Prevention of Corruption Act are enhanced, those amended provisions are not applicable to this case, as offences alleged against accused no.1 was committed prior to coming into force of amendment.
4. The accused no.1 was driver attached to Commissioner of Endowment at the time of trap. The fact that entire family is dependent on the income of accused no.1 is not in dispute. So far as imposition of sentence is concerned the court has to look into unamended provisions of PC Act. The accused no.1 has demanded 41 Spl.CC.No.82/2011 illegal gratification and at the time of trap, he received Rs.35,000/-. The offence committed by him is serious in nature. However, a duty is cast upon the court to take into consideration the financial capacity of accused no.1, his health condition and his family status while imposing sentence.
5. Thus, on considering all these aspects and looking into the facts and circumstances of the case, gravity of the offence and its impact on the society, it is proper to sentence accused no.1 to undergo simple imprisonment for 1 year and to pay fine of Rs.50,000/- for the offence under section 7 of Prevention of Corruption Act. Further, he shall undergo simple imprisonment for 1 year and to pay fine of Rs.50,000/- for the offence punishable under section 13(2) of Prevention of Corruption Act. If that is done it will sub-serve justice. With the above findings, I proceed to pass the following ORDER Acting u/s 235(2) of Cr.P.C. accused no.1 Sundarraj is sentenced to undergo simple imprisonment for 1 (One) year and to pay fine of Rs.50,000/- (Rupees Fifty thousand only) for the offence punishable under section 7 of Prevention of Corruption Act, in default of payment of fine, he shall undergo further simple imprisonment for 6 months.
42Spl.CC.No.82/2011 Further, he is sentenced to undergo simple imprisonment for 1 (One) year and to pay fine of Rs.50,000/- (Rupees Fifty thousand only) for the offence punishable under section 13(2) of Prevention of Corruption Act, in default of payment of fine, he shall undergo further simple imprisonment for 6 months.
The substantive sentences of imprisonment shall run concurrently.
The accused no.1 is entitle for the benefit of set-off under section 428 of Cr.P.C. for the period for which he was in judicial custody in this case.
The office is hereby directed to furnish a copy of this judgment to accused no.1 free of cost forthwith.
(Gopalakrishna Rai.T), LXXVIII Addl. City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru (CCH-79).
43Spl.CC.No.82/2011 ANNEXURES List of witnesses examined for the prosecution:
P.W.1 - Nandakumar
P.W.2 - Dr.N.Nagambika Devi
P.W.3 - Sunil.P.L.
P.W.4 - Anandkumar
P.W.5 - Yeshwanth.K.
P.W.6 - T.Hanumantha
P.W.7 - Shashikanth Hiremath
P.W.8 - Prashanth Kumar.M.P.
P.W.9 - B.Boraiah
P.W.10 - H.L.Mohan
P.W.11 - Shivashankar.N.G.
List of documents exhibited for the prosecution:
Exhibit Description of the Date of the
Remarks
No. document document
1 Prosecution Sanction : 31.03.2011
1(a) Order for accused no.2
Sign of PW.1
2 Prosecution Sanction : 21.03.2011
Order for accused no.1
2(a) Sign of PW.1
3 Sheet containing currency : 30.12.2010
note numbers
3(a) Sign of PW.1 :
3(b) Sign of PW.11 :
4 Conversation :
Transcription sheet
44
Spl.CC.No.82/2011
4(a) Sign of PW.3 :
4(b) Sign of PW.11
5 Conversation :
Transcription sheet
5(a) Sign of PW.3 :
5(b) Sign of PW.11
6 Pre-trap Panchanama : 30-12-2010
6(a) Sign of PW.3 :
6(b) Sign of PW.4
6(c) Sign of PW.5
6(d) Sign of PW.11
7 Transcription of voice : 30.12.2010
recording
7(a) Sign of PW.3 :
7(b) Sign of PW.11
8 Transcription of sample :
voice of the accused no.1
8(a) Sign of PW.3 :
8(b) Sign of PW.11
9 Transcription of sample :
voice of the accused no.2
9(a) Sign of PW.3 :
9(b) Sign of PW.11
10 Trap-Mahazar : 30.12.2010
10(a) Sign of PW.3 :
10(b) Sign of PW.4
10(c) Sign of PW.5
10(d) Sign of PW.11
11 Sheet containing sample : 30.12.2010
seal of metal seal
45
Spl.CC.No.82/2011
11(a) Sign of PW.3 :
12 Complaint : 30.12.2010
12(a) Sign of PW.4 :
12(b) Sign of PW.11
13 Written Explanation of : 30.12.2010
accused no.1
13(a) Sign of PW.3 :
13(b) Sign of PW.11
14 Copy of Showcause : 04.11.2010
Notice and enclosures
15 164 Statement of : 03.02.2011
Hanumantha
15(a) Sign of PW.6 :
16 Written Explanation of : 30.12.2010
PW.6
16(a) Sign of PW.6 :
16(b) Sign of PW.11
17 Service details of accused :
no.1 18.01.2011
17(a) Sign of PW.9 :
17(b) Sign of PW.11
18 FIR : 30.12.2010
18(a) Sign of PW.11 :
19 Rough Sketch : 30.12.2010
19(a) Sing of PW.11 :
20 Acknowledgement for : 30.12.2010
receipt of Metal Seal
20 Sign of PW.11 :
(a & b)
46
Spl.CC.No.82/2011
21 Explanation of accused : 30.12.2010
no.2
21(a) Sign of PW.11 :
21(b) Sign of accused no.2
22 PF No.120/2010 : 30.12.2010
22(a) Sign of PW.11 :
22 Two copies of Identity
(b & c) Cards
23 Statement of Nagaiah : 06.01.2011
23(a) Sign of PW.11 :
23(b) Sign of Nagaiah
24 Covering letter of PWD : 13.01.2011
24(a) Spot sketch :
24(b) Sign of PW.11
25 Chemical Examination : 07.01.2011
Report
25(a) Sign of PW.11 :
26 Documents with regard to : 07.01.2011
complaints against the
complainant
27 Copy of Attendance : 04.02.2011
Register of accused no.1
27(a) Sign of PW.11 :
28 Call details of PW.4 :
29 164 Statement of Rajanna : 05.02.2011
30 Certificate under section
65B of Evidence Act 09.10.2019
47
Spl.CC.No.82/2011
Evidence adduced on behalf of the defence:
-NIL-
Documents marked on behalf of the defence:
-NIL-
Material Objects marked by Prosecution:
1 Cash of
:
Rs.35,000/-
1(a) : Cover
2 : Helmet
2(a) : Cover
3 Pant of
: accused
no.1
3(a) : Cover
4 to 14 : 11 Bottles
15 Sample
:
Seal
16 to 24 : 9 CDs
(Gopalakrishna Rai.T)
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (P.C.Act),
Bengaluru.