Bangalore District Court
The State Of Karnataka vs Mr.N.Krishna on 13 April, 2017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 13th APRIL 2017.
Spl. C.C.No. 128/2012
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing, Bengaluru
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: Mr.N.Krishna, Major,
S/o Late K.Narayanappa,
First Division Assistant,
Office of IGR, 1st floor,
No.720, Water Board,
Shimsha Bhavan, 8th Block,
Jayanagara, Bengaluru,
R/o No.214, 1st Floor, Balaji Road,
Thyagaraja Nagara, Bengaluru 28.
(Rep by Sri Rajanna B Advocate)
*****
2 Spl. C.C. No.128/2012
1. Nature of Offence: Offence punishable under
Sec.7, 13(1)(d)R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 11-01-2012.
of offence:
3. Date of First Information 11-01-2012.
Report:
4. Date of Arrest: 11-04-2012.
5. Date of Commencement 25-04-2016.
of recording of evidence:
6. Date of Closing of evidence: 27-02-2017.
7. Date of Pronouncement of 13-04-2017.
Judgment.
8. Result of the case: Accused is convicted.
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City, has charge sheeted the above named accused with an allegation that the accused has committed the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
2. The case of the prosecution, in brief is as follows:
The Accused, being a public servant, was working as First Division Assistant in the office of the Inspector General of Stamps and Registration, Bengaluru. On 11-01-2012 one Abhilash has lodged a 3 Spl. C.C. No.128/2012 complaint before the Lokayuktha Police by alleging that this accused has demanded the bribe amount of Rs.3,000/- from him for doing the index correction work in respect of the property belong to his father.
On the basis of said complaint, Lokayuktha Police have registered the FIR in Cr.No.03/2012. Lokayuktha Police have secured the official witnesses and conducted the pre trap proceedings in their presence and drawn the pre trap mahazar. On 11-01-2012, at about 1.10 p.m., in the office of the accused at Shimsha Bhavan, 8th Block, Jayanagara, Bengaluru, accused was trapped by the Lokayuktha Police, when he found accepting the bribe amount of Rs.3,000/- from the complainant.
The Lokayuktha Police have conducted the trap proceedings and drawn the trap mahazar. The Accused was arrested and produced before the court. Lokayuktha Police continued the further investigation and secured the documents relating to the demand of bribe amount, recorded the statement of witnesses and obtained the service particulars of the accused. Lokayuktha Police also obtained the chemical analysis report regarding the seized material objects and after completion of investigation, submitted the final report before the sanctioning authority and after getting the sanction, filed the charge sheet before this court by alleging that the accused has committed the 4 Spl. C.C. No.128/2012 offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
3. This court took the cognizance and accused produced before this court was enlarged on bail. The accused was provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charges and having found prima facie materials, framed the charges against the accused for the offence punishable under Sec.7 and 13(1) (d) R/w Sec.13(2) of Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 7 witnesses as PW.1 to 7 and got marked Ex.P-1 to P-21 documents and MO.1 to 14 material objects.
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against him. As defence evidence, the accused examined himself as DW.1.
6. I have heard the arguments of both the parties.
7. The points, that arose for my consideration are:
1. Whether there is valid sanction to prosecute the accused?5 Spl. C.C. No.128/2012
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as a First Division Assistant in the office of Inspector General of Stamps and Registration, Bengaluru, for doing index correction work relating to the complainant, demanded the illegal gratification of Rs.3,000/- on 09-01-2012 and on 11-01-2012 at about 1-10 PM in the office of the accused at Shimsha Bhavana, Jayanagara 8th Block, Bengaluru accused demanded and accepted the amount of Rs.3,000/- from the complainant, as an illegal gratification, other than legal remuneration, so as to render the official favour to the complainant and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as First Division Assistant in the office of Inspector General of Stamps and Registration, Bengaluru, on 11-01-2012 at the above said place and time, abused his official position by illegal means and as a public servant demanded and accepted the illegal gratification of Rs.3,000/- from the complainant against public interest and there by committed criminal misconduct and there by committed the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988?
4. What order?6 Spl. C.C. No.128/2012
8. My answers for the above points is in the following because of my below discussed reasons.
POINT No.1: IN THE AFFIRMATIVE.
POINT No.2: IN THE AFFIRMATIVE.
POINT No.3: IN THE AFFIRMATIVE.
POINT No.4: AS PER FINAL ORDER.
REASONS
POINT No.1:
9. This point is relating to the sanction and validity of sanction obtained for prosecuting the accused. As the accused is a public servant working as a First Division Assistant in the office of Inspector General of Stamps and Registration, Bengaluru, and he was charged with the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, obtaining the valid sanction from the competent authority is a statutory and mandatory requirement to prosecute him. Before proceedings to consider the question of validity of sanction, let me first discuss the evidence let-in by the prosecution before this court.
10. CW.2-Srikanth C.M., who was examined before the court as PW.1, deposed during the course of his evidence that, he and CW.3 were working in Ambedkar Development Corporation and during 7 Spl. C.C. No.128/2012 January 2012, they appeared before the Lokayuktha Police to act as witnesses and they were told that trap has to be conducted in respect of the official by name Krishnappa. PW.1 further deposed that, in the Lokayuktha office, Lokayuktha Police have explained them as to how the trap is to be conducted and accused has demanded the bribe amount for registration of the site. PW.1 further deposed that Lokayuktha Police have conducted the pre trap proceedings in their presence and drawn the pre trap mahazar as per Ex.P.1. PW.1 further deposed that thereafter they were taken to office of the accused and camera was fixed on the shirt of the complainant and Lokayuktha Police have asked them to give the signal by wiping his head, as soon as accused receive the tainted money. PW.1 further deposed that he and complainant went inside the office and the complainant asked the accused as to whether his work was completed or not. PW.1 further deposed that accused replied that the work is in progress and it will be completed and complainant handed over the tainted money to the accused and accused received the same and kept in his shirt pocket and thereafter complainant gave the signal to Lokayuktha Police and immediately Lokayuktha Police came inside the office of accused and caught him. PW.1 further deposed that Lokayuktha Police have recovered the amount from the accused, conducted hand wash 8 Spl. C.C. No.128/2012 procedure and after hand wash of the accused in the solution, same turned into pink colour and it was seized. PW.1 further deposed that the amount recovered from the accused was the same amount which was given to him while drawing the pre trap mahazar and Lokayuktha Police have seized the file relating to the application given by the complainant and they came back to the office of Lokayuktha. PW.1 further deposed that Lokayuktha Police have seen the recordings of those proceedings in the camera, which was fixed on the shirt button and enquired the senior officials in the office of the accused and told them about they trapping the accused. PW.1 further deposed that Lokayuktha Police have drawn the pre trap mahazar as per Ex.P.1 and trap mahazar as per Ex.P.2. PW.1 further said that the serial number of the currency notes were written as per Ex.P.3 and he has given the acknowledgement as per Ex.P.4 for having handed over the seal to him. PW.1 further deposed that Lokayuktha Police have transcripted the recordings in the camera as per Ex.P.5 and P.6.
11. CW.3 R. Kumar Swamy, who was examined before the court as PW.2, deposed during the course of his evidence that he and CW.2 were working in Dr. Ambedkar Development Corporation and on 11- 01-2012, their Administrative Manager has directed them to appear before Lokayuktha Police and accordingly they appeared before the 9 Spl. C.C. No.128/2012 Lokayuktha Police. PW.2 further deposed that Lokayuktha Police Inspector introduced one Abhilash to them and he told that one Krishnappa has demanded the bribe amount of Rs.3,000/- from him for issuing the encumbrance certificate in respect of his property. PW.2 further deposed that complainant has recorded their conversation in the voice recorder and produced the same before Lokayuktha Police. PW.2 further deposed that Lokayuktha Police have conducted the pre trap proceedings in their presence and drawn the pre trap mahazar as per Ex.P.1. PW.2 further deposed that thereafter they were taken near the office of the accused and CW.1 and 2 proceeded inside the office of accused and he and Lokayuktha Police staff stood outside. PW.2 further deposed that, few minutes later CW.1 and 2 came out of office and gave the signal and thereafter they entered the office of accused and CW.1 shown the accused to the Lokayuktha Police and told that he has received the bribe amount from him. PW.2 further deposed that Lokayuktha Police have given their introduction to the accused and conducted the hand was of accused in a solution and right hand wash turned into pink colour and same was seized by the Lokayuktha Police. PW.2 further deposed that as per the instruction of Lokayuktha Police, CW.2 took out the tainted currency notes from the shirt pocket of the accused and when those currency notes were verified and counted, 10 Spl. C.C. No.128/2012 they were tallied with Ex.P.3. PW.2 further deposed that an additional currency note of Rs.500/- was also found with the accused and same was returned to him. PW.2 further deposed about Lokayuktha Police seizing the file as per Ex.P.7 and movement register and attendance register as per Ex.P.8 and P.9. PW.2 further deposed that shirt pocket of the accused was washed in the sodium carbonate solution and same turned into pink colour and same was seized. PW.2 further deposed that Lokayuktha Police have secured the senior official of the accused by name Bhavikatti and shown the recordings in the CD to him and he gave a report. PW.2 further deposed that accused has given a statement as per Ex.P.10 and complainant has denied the said statement given by the accused. PW.2 further deposed about Lokayuktha Police drawing the mahazar in his presence as per Ex.P.2.
12. CW.1 Abhilash, who was examined before the court as PW.3, deposed during the course of his evidence that his father is running a business of constructing the house and selling the same and during the year 2012, his father had constructed a house measuring 20X30 feet and one of the intending purchaser has approached his father to purchase the said house and asked the documents relating to that site. PW.3 further deposed that the encumbrance certificate has not available in respect of that site and he applied for the same before the 11 Spl. C.C. No.128/2012 Sub-Registrar, Hebbal, who told them to appear before them after submitting the application. PW.3 further deposed that when he again approached before the Sub-Registrar, Hebbal, official by name Venkatesh told that the encumbrance certificate relating to their site is not available and index correction has to be made and also told him to appear before him ten days after filing the application. PW.3 further deposed that he again met said Venkatesh in the office of Sub- Registrar, who give a letter and asked him to submit that letter along with the partition deed, to the District Registrar. PW.3 further deposed that his brother gone to the office of District Registrar and one of the official by name Ravi told to his brother that they require two months to make the index corrections. PW.3 further deposed that, his brother told to the said official that they require the encumbrance certificate urgently and the said official asked his brother to pay Rs.6,000/- to him and assured that he will do the work within two days. PW.3 further deposed that his brother gave Rs.6,000/- to the said official and on the next day, when his brother met the said official, he gave two letters addressed to IGR and documents containing the index entries and asked his brother to submit the same to the office of AGR. PW.3 further deposed that, about three days later, with those letters and documents, he went to the IGR office and presented the 12 Spl. C.C. No.128/2012 application and met the case worker, who is the accused before this court. PW.3 further deposed that, after going through the documents, accused told him that six months time is required to complete his work and when he shown urgency, accused asked him to pay the bribe amount, which is double the amount which his brother paid in the D.R. office. PW.3 further deposed that when he shown his inability to pay the amount, accused scaled down his demand and demanded to pay Rs.3,000/-. PW.3 further deposed that on the next day, he called the accused over phone and accused demanded the bribe amount of Rs.3,000/- to complete his work and thereafter he appeared before the Lokayuktha Police on 10-01-2012 and orally complained about the demand made by the accused. PW.3 further deposed that Lokayuktha Police have handed over a voice recorder to him and asked him to again approach the accused and record the conversation between him and the accused. PW.3 further deposed that, on the same day, he met the accused, recorded the conversation between them and thereafter met the Lokayuktha Police and handed over the voice recorder to them and lodged a written complaint as per Ex.P.11. PW.3 further deposed that thereafter Lokayuktha Police have secured two witnesses and conducted the pre trap proceedings in their presence and drawn the pre trap mahazar as per Ex.P.1. PW.3 further deposed that thereafter 13 Spl. C.C. No.128/2012 they proceeded towards the office of accused at Jayanagar and he met the accused in his office along with CW.2 and accused asked him as to whether he brought the bribe amount. PW.3 further deposed that he has handed over the bribe amount to the accused and he received the same from his right hand and kept it in the shirt pocket and thereafter he gave the signal to the Lokayuktha Police. PW.3 further deposed that Lokayuktha Police have entered the office of accused and he shown the accused to the Lokayuktha Police and told that he has received the bribe amount from him and thereafter hand wash of the accused was conducted, which turned into pink colour and same was seized. PW.3 further deposed that bribe amount of Rs.3,000/- was also seized from the accused and so also the documents relating to the demand of bribe. PW.3 further deposed that shirt pocket of the accused was immersed in the sodium carbonate solution and same turned into pink colour. PW.3 further deposed that recordings in the button camera and voice recorder were displayed before the senior official of the accused and he has identified the accused and his voice in those recordings. PW.3 further deposed that accused has given a written explanation as per Ex.P.10 and he has denied the explanation given by the accused. PW.3 further deposed about Lokayuktha Police drawing the trap mahazar in his presence as per Ex.P.2.
14 Spl. C.C. No.128/2012
13. CW.12-Chikkakempegowda, who was examined before the court as PW.4, deposed during the course of his evidence that when he was working as District Registrar of Gandhinagar, for rectification of index, an application was received by their office and same was moved by one Seethamma and others. PW.4 further deposed that in the partition deed, there was a mistake in index and to rectify the same application was moved and they received the application on 02-01- 2012 and forwarded same to the case worker by name Rajendra to verify the same. PW.4 further deposed that on 03-01-2012, a notice was issued to the applicants to produce the original documents and on 05-01-2012, original documents were produced and he verified the same. PW.4 further deposed that, he directed First Division Assistant in their office to prepare the orders in this regard for correction of index and on the same day, order was ready and he put his signature for the order and sent the same to the tappal section, so as to forward the same to IGR office. PW.4 further deposed that, said order was reached the IGR office and it is as per Ex.P.7.
14. CW.6 Siddappa Mukkanna Bhavikatti, who was examined before the court as PW.5, deposed during the course of his evidence that during the year 2012, he was serving as assistant in the computer 15 Spl. C.C. No.128/2012 section of IGR office and accused was working as FDA in their office. PW.5 further deposed that during the year 2012 Lokayuktha Police have asked him to appear before their office in connection with the case registered against the accused and they have displayed the audio recordings before him and asked him to identify the voice in the said audio recordings. PW.5 further deposed that after hearing the audio recordings, he noticed that voice in the said recordings was quite similar to the voice of the accused. PW.5 further deposed that thereafter Lokayuktha Police have shown a video clippings to him and he has seen the person offering the money to the accused and accused received that money from his right hand and kept in his pocket. PW.5 further deposed that he has handed over the attendance register as per Ex.P.7 and inward register as per Ex.P.8 and 9 and gave a report as per Ex.P.12. PW.5 further deposed that CW.9, who was working as IGR then, has issued a work allotment order as per Ex.P.13.
15. CW.9 Dr. V. Chandrashekar, who was examined before the court as PW.6, deposed during the course of his evidence that when he was working as an Inspector General of Registration, accused was serving as FDA in their office and on 08-03-2012 he received a letter from ADGP Lokayuktha seeking sanction to prosecute the accused. PW.6 further deposed that along with the said letter, Lokayuktha Police 16 Spl. C.C. No.128/2012 have sent the copy of the complaint, FIR, panchanama, FSL report, spot panchanama and statement of witnesses. PW.6 further deposed that he has carefully gone through all those documents and prima facie satisfied that the accused has committed the alleged offences and accordingly issued the sanction order as per Ex.P.14 to prosecute the accused. PW.6 further deposed that he is the competent authority to dismiss the accused from his service and accordingly he is also competent to accord the sanction to prosecute him. PW.6 further deposed that during the course of investigation, he has issued a letter as per Ex.P.13 regarding work allotted to the accused, as per the request of Lokayuktha Police.
16. CW.19 P. Narasimhamurthy, who was examined before the court as PW.7, deposed during the course of his evidence that on 10- 01-2012, CW.1 appeared before him and orally complained about the accused demanding the bribe amount of Rs.3,000/- from him to do his work relating to correction of index and he has handed over a digital voice recorder to CW.1 and asked him to record the conversation between him and the accused regarding the demand of bribe amount. PW.7 further deposed that, on 11-01-2012, CW.1 appeared before him and lodged a complaint as per Ex.P.11, on the basis of which, he has registered the FIR as per Ex.P.15. PW.7 further deposed that by 17 Spl. C.C. No.128/2012 issuing a letter as per Ex.P.16, he secured CW.2 and 3 as witnesses and conducted the pre trap proceedings in their presence and drawn the pre trap mahazar as per Ex.P.1. PW.7 further deposed that he directed the CW.1 to hand over the tainted currency notes to the accused, when demanded by him and give the signal to them by wiping his head, after receiving the tainted currency notes by the accused. PW.7 further deposed that he designated CW.2 as a shadow witness and asked him to accompany CW.1 and observe all the proceedings between CW.1 and the accused. PW.7 further deposed that after the pre trap proceedings, they proceeded towards the office of accused at Jayanagar and he sent CW.1 and 2 inside the office, by switching on the button camera and voice recorder and other members of the trap team followed them and stood outside the office room of accused. PW.7 further deposed that, at about 1.10 p.m., CW.1 came out of the office and gave the signal to them by wiping his head and immediately the trap team entered the office room of accused and CW.1 shown the accused to them and told that he has received the tainted currency notes from him. PW.7 further deposed that hand wash of accused was conducted in sodium carbonate solution and right hand wash turned into pink colour and same was seized. PW.7 further deposed that the tainted currency notes were taken out from the left 18 Spl. C.C. No.128/2012 shirt pocket and it was seized. PW.7 further deposed that the attendance register and file movement register and file relating to demand of bribe amount were seized and thereafter they came back to his office along with the accused. PW.7 further deposed that recordings in the voice recorder and button camera were displayed in the presence of the witnesses and recordings were transcripted as per Ex.P.6 and it was also transmitted into CD. PW.7 further deposed that a metal seal used for seizing the material objects were handed over to CW.2 by obtaining the acknowledgment from him as per Ex.P.4. PW.7 further deposed that accused has given a written explanation as per Ex.P.10 and thereafter the trap mahazar was drawn as per Ex.P.2. PW.7 further deposed about he continuing the investigation and recorded the further statement of CW.1 and statement of CW.2 and 3 and 13 to 18. PW.7 further deposed about he securing the work allotment order and service particulars of the accused and sketch from the PWD and chemical analysis report. PW.7 further deposed about he securing the call particulars and preparing the final report and submitted the same before the sanctioning authority and after getting the sanction, he filed the charge sheet before this court.
17. The accused was examined as DW.1 and he deposed that he was serving as a First Division Assistant in the Head Office of Stamps 19 Spl. C.C. No.128/2012 and Registration Department and on 11-01-2012, when he was putting the case file in the office as a case worker, one Srikanth and complainant Abhilash came before him. DW.1 further deposed that complainant Abhilash asked him to do index correction work urgently and handed over the amount of Rs.3,000/- to him and asked him to do the index correction immediately on that day. DW.1 further deposed that complainant has thirsted that amount in his shirt pocket and immediately Lokayuktha Police came and caught him. DW.1 further deposed that when he received the application of the complainant for correction of index, he has immediately put up the same before the DIG by name Bhavikatti and he has made entries in his own hand writing as per Ex.P.7. DW.1 further deposed that, on 10-01-2012 he received the application from the complainant and on 11-01-2012 the file was before DIG for his approval. DW.1 further deposed that he has no independent authority to pass any order regarding the correction of index and after registration of this case and he was released on bail, he has put up the file on 12-01-2012. DW.1 further deposed that he has not demanded the bribe amount from the complainant and the explanation as per Ex.P.10 was given by him and in the said explanation, he said that complainant has forcibly given the amount to him. DW.1 further deposed that on 05-01-2012 District Registrar has 20 Spl. C.C. No.128/2012 passed an order for correction of index and their office received the same on 09-01-2012 and on 10-01-2012 he has put up the file before the AIGR.
18. There is no dispute that the accused is a public servant, working as First Division Assistant in the office of the Inspector General of Stamps and Registration, Bengaluru. Under Sec.19 of the Prevention of Corruption Act 1988, obtaining the prior sanction to prosecute the accused is an essential requirement, since he is a public servant and charged with the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
19. In order to prove the sanction and validity of sanction, prosecution examined CW.9, Dr.V.Chandrashekar as PW.6 and he was the Inspector General of Stamps and Registration, Bengaluru, when the requisition for issuing the sanction to prosecute the accused was made. PW.6 deposed about they receiving the requisition from the ADGP, Lokayuktha, along with the final report and entire case papers, with a request to accord the sanction to prosecute the accused. PW.6 further deposed that he has perused all those papers and found prima facie case and satisfied about the grounds to accord sanction and accordingly issued the sanction order as per Ex.P.14 to prosecute the 21 Spl. C.C. No.128/2012 accused. PW.6 also said that, being the IGR, he is the competent authority to dismiss the accused from service and accordingly, he is competent to accord sanction to prosecute the accused.
20. The evidence of PW.6 was not seriously challenged by the accused by cross examining him, in disputing the authority of PW.6 to issue sanction and application of mind by him before issuing the sanction. In-fact, there is no serious dispute as such regarding the sanction and validity of sanction accorded to prosecute the accused, as no arguments were canvassed by the learned counsel for the accused in respect of sanction and validity of sanction accorded by PW.6 to prosecute the accused.
21. There is no serious dispute regarding the authority of CW.9/PW.6 to issue the sanction to prosecute the accused, being the Inspector General of Registration. There is also no dispute regarding application of mind by the sanctioning authority before according the sanction to prosecute the accused. In-fact, there was prima facie case against the accused to file the charge sheet. Having found the same, this court has taken the cognizance and registered this case. This court, having found the prima facie case, also proceeded to frame the charge. Under such circumstances, one cannot say that the 22 Spl. C.C. No.128/2012 sanctioning authority has not applied its mind before issuing the sanction. Considering all these aspects, I hold that there is valid sanction to prosecute the accused. Accordingly, I answer the point No.1 in the Affirmative.
POINT No.2 & 3:
22. To avoid the repetition of my discussion on facts, I have taken these two points together for determination. This accused was charged for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, with an allegation that the accused, being a public servant, working as First Division Assistant in the office of the Inspector General of Stamps and Registration, Bengaluru, has demanded the bribe amount of Rs.3,000/- from the complainant for doing the index correction work and accused was trapped, while he was receiving the bribe amount of Rs.3,000/- from the complainant on 11-01-2012.
23. In order to bring home the guilt of the accused for the offence under Sec. 7 and 13 of the Prevention of Corruption Act 1988, prosecution has to establish mainly two factors. Firstly, prosecution has to prove that there is demand and acceptance of the bribe amount by the accused. Secondly, prosecution has to establish that, said 23 Spl. C.C. No.128/2012 demand and acceptance of the bribe amount must be in respect of an official act to be performed by the accused. Only if the prosecution able to establish these two factors, one can say that prosecution has discharged its initial burden and entitled to get the benefit of presumption in their favour.
24. It is true that the prosecution has got benefit of presumption, as provided under Sec. 20 of the Prevention of Corruption Act 1988, in respect of the commission of offence under Sec. 7 of the said Act. However, benefit of presumption can be extended in favour of the prosecution and onus can be shifted upon the accused, only when the prosecution discharges the initial burden of proving that the accused has demanded and accepted the illegal gratification for doing any official act in favour of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2010(3) KCCR 1851 (State of Karnataka v/s M. Gopalakrishnaiah and Others). It was held by the Hon'ble High Court of Karnataka in the above decision that, even to draw the presumption under Sec.20 of the Prevention of Corruption Act 1988, prosecution is required to prove that there was demand and acceptance of illegal gratification. It was further held in the 24 Spl. C.C. No.128/2012 above decision that, if the demand and acceptance for the purpose of doing official favour is proved by the prosecution beyond reasonable doubt, burden may shift on the accused. However, when the initial burden of proving the demand and acceptance is not established, drawing the presumption under Sec.20 of the Prevention of Corruption Act 1988 would not arise.
25. Same view was expressed by the Hon'ble Supreme Court in a decision reported in 1997 (1) Crimes 186 (Supreme Court) (Mehaboob Khan Patan V/s State of Maharastra) 2010 (2) SCC (Cri) 385 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede), 2014 AIR SCW 4924 (Satwir Singh V/s State of Delhi) and 2016 (1) KCCR 815 (R.Srinivasan and another V/s State by Lokayuktha Police). So, in view of Sec.20 of the Prevention of Corruption Act 1988 and the ratio laid down in the above referred decisions, it is incumbent on the part of the prosecution to discharge the initial burden of proving the demand and acceptance of the bribe amount by the accused, for doing official act in favour of the complainant, so as to get benefit of presumption in their favour and also to shift the onus on the accused to rebut and displace the presumption.
25 Spl. C.C. No.128/2012
26. As I said earlier, one of the essential requirements to constitute the offences under Sec. 7 of the Prevention of Corruption Act, 1988, is pendency of official work before the accused in respect of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka). It was held in the above decision that, when no work is pending before the accused at the time of lodging the complaint, demanding the bribe amount for doing any work does not arise.
27. The Hon'ble High Court of Karnataka has reiterated the same view in a recent decision reported in 2016 (1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police, Bengaluru). It was held by the Hon'ble High Court of Karnataka in the above decision that the scope of demanding the bribe amount by a public servant would arise, if there is a possibility of doing any official act in favour of the complainant.
28. Same view was expressed by the Hon'ble Supreme Court in one of its decision reported in AIR 2014 SCW 2080 (B. Jayaraj V/s State of A.P.). So in view of the ratio laid down in the above decisions and also Sec. 7 of the Prevention of Corruption Act 1988, 26 Spl. C.C. No.128/2012 which mandates that receipt of bribe amount should be for doing or for not doing any official act, prosecution has to prove before this court that some official work was pending and has to be done by the accused, relating to the complainant, as on the date of lodging the complainant and as on the date of trap, so as to demand the illegal gratification from him.
29. The accused, while denying and disputing the pendency of the official work relating to the complainant before him, submitted that in respect of the application filed by the complainant for index correction, he has completed his part of the work on 10-11-2012 by putting up the file before his senior official for his approval. Hence, it was submitted on behalf of the accused that, on the date of filing the complaint and trap i.e. on 11-01-2012, no work was pending before him. In this regard, accused has drawn the attention of this court to Ex.P.7, which was the file seized by the Lokayuktha Police from the office of the accused on the date of trap.
30. It is the specific case made out by the prosecution that the accused has demanded the bribe amount from the complainant for movement of file relating to the index correction, which was filed by the complainant. According to the prosecution, accused has demanded 27 Spl. C.C. No.128/2012 the bribe amount of Rs.3,000/- from the complainant to put up the file for making index correction and to get the order in respect of the index correction.
31. Of-course, order relating to the index correction has to be made by the Inspector General of Registration and the accused, being the First Division Assistant, working in the IGR office, has got the duty to receive the application and put up the file in respect of the index correction. In this regard, it is necessary to consider the duty particulars of the accused, which was furnished to the Lokayuktha Police, as per Ex.P.13 by the IGR office. As per the Ex.P.13, accused being the First Division Assistant, working in the office of IGR, has to attend the file relating to index corrections and also attend the file relating to e-stamping. Regarding the application filed by the complainant Abhilash, information was also furnished to the Lokayuktha Police as per Ex.P.13. According to which, application was received on 09-01-2012 and the accused has put up the file on 10-01- 2012.
32. Now, it is relevant to refer Ex.P.7 and page 59 of the charge sheet, which indicates that after receiving the application, accused has put up the file on 10-01-2012. The accused, who was examined before 28 Spl. C.C. No.128/2012 this court as DW.1, also deposed that, on 10-01-2012, he put up the file. Therefore, his part of the work was completed.
33. Now, the question before this court as to whether the official work relating to the application filed by the complainant for getting the index correction was completed by the accused as on the date of lodging the complaint and on the date of trap. The lodging of complaint before the Lokayuktha Police was on 11-01-2012 and trap was also laid on 11-01-2012. The documents collected at the time of trap, coupled with the Ex.P.13 and the evidence of the accused, who was examined as DW.1, shows that, a day before the trap i.e., on 10- 01-2012 accused has made note on the file to put up the file.
34. By making the note on the file to put up the file, accused cannot contend before this court that his part of the work was completed before lodging the complaint and trap. Though the accused has made writings in the file for putting up the file for approval on 10- 01-2012, he has not actually placed the file before the senior officials. The evidence on record goes to show that the file was still with the accused and it was seized from the accused at the time of trap. Merely by making the office note on the file to put up the same, accused cannot contend that his part of the work is completed. Apart from 29 Spl. C.C. No.128/2012 making the note in the file, file has to be actually placed before the competent senior official of the accused to get his approval. It was not done by the accused. It appears that the accused has waited for the arrival of the complainant to make the payment of the bribe amount for actually placing the file, though he has made office note in the file to put up the same.
35. Ex.P.7 and page 59 of the charge sheet goes to show that on 12-01-2012 and 17-01-2012, accused himself has made some notes on the file. Those two dates are subsequent to the trap. The accused, who was examined before this court as DW.1, specifically deposed in page 2 of his examination in chief that, after the trap and he was released on bail, he again put up the file on 12-01-2012, as evident from the entries at page 59 of the charge sheet. This would clearly indicate that even after the trap, accused has attended the file on 12- 01-2012 and 17-01-2012, as evident from page 59 and 60 of the charge sheet. If all the work relating to that file was completed by the accused on 10-01-2012 and much before the trap, there was no reason for him to attend the file again subsequent to the trap on 12-01-2012 and 17-01-2012. This would clearly indicate that all the work relating to the complainant's file was not completed by the 30 Spl. C.C. No.128/2012 accused as on the date of lodging the complaint and on the date of trap.
36. It is pertinent to note here that, accused was trapped on 11- 01-2012 and on the same day, he was produced before this court. The accused was remanded to judicial custody and he was released on bail on 12-01-2012. It appears that, immediately after his release, on the same day, accused went to the office and attended the file on 12-01- 2012, as evident from the entries in page 59 of the charge sheet and as deposed by accused himself during the course of his examination in chief. The accused attending the same file immediately after his release on bail and on the same day of his release on bail, also gives the indication that his part of the work relating to the complainant's file was not completed on the date of lodging the complaint and on the date of trap. As I said earlier, accused attending the file and making the office note on 12-01-2012 and 17-01-2012 itself indicate that his part of the work was still pending on 11-01-2012, when the trap was laid. Therefore, merely because he has made note on the file to put up the file, accused cannot contend that his part of the work relating to the complainant's application for correction of index has been completed. The evidence on record clearly establishes that the accused has got still official work to perform in respect of the complainant's file 31 Spl. C.C. No.128/2012 on the date of lodging the complaint and as on the date of trap. Thereby, prosecution has proved the first requirement regarding pendency of the official work relating to the complainant before the accused as on the date of lodging the complaint and on the date of trap.
37. The next important question, which requires to be considered by this court, is about the demand of bribe amount, which is also one of the important requirements to constitute the offence punishable under Sec.7 of the Prevention of Corruption Act. Regarding the demand of bribe amount as one of essential requirement to constitute the offence under Sec.7 of the Prevention of Corruption Act, 1988, it is necessary to refer the decision of Hon'ble Supreme Court reported in 2010 (2) Supreme Court Cases (Crl) 385 (State of Maharastra V/s Dnyaneshwar Laxman Rao Wankhede), wherein it was held that demand of illegal gratification is a sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
38. The Hon'ble Supreme Court has reiterated the same view in a subsequent decision reported in 2015 AIR SCW 951 (C. Sukumaran V/s. State of Kerala) wherein it was held that demand 32 Spl. C.C. No.128/2012 of illegal gratification by the accused is sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
39. The Hon'ble Supreme Court has expressed the same view in its Judgment reported in (2013) 14 Supreme Court Cases 153 (State of Punjab V/s Madan Mohan Lal Verma), wherein it was held that mere recovery of tainted notes is not enough, as there is necessity of showing the demand for illegal gratification. Same view was expressed by the Hon'ble Supreme Court in the subsequent decision reported in 2015 STPL (Web) 354 SC (Gulbar Hussain and others V/s State of Assam and another). So the ratio laid down in all those decisions are very clear on this point that the initial burden is upon the prosecution to prove that there was demand of illegal gratification made by the accused.
40. As per the prosecution case, in the case on hand, demand of illegal gratification by the accused is on two stages. Firstly, there was demand before lodging the complaint and secondly, there was demand of illegal gratification made by the accused subsequent to the lodging of complaint, when the complainant, along with the trap team approached the accused to trap him.
33 Spl. C.C. No.128/2012
41. Regarding the alleged demand of bribe amount before lodging the complaint, prosecution rely upon the complaint allegations, evidence of the complainant and also the recordings made in the voice recorder, which was given to the complainant by the Lokayuktha Police. In the complaint, which is marked as per Ex.P.11, the complainant has alleged regarding the demand of bribe made by the accused when the complainant approached him in respect of the index correction work. The complainant, who was examined before this court as PW.1, has also deposed in detail as to the circumstances which made him to appear before this accused for index correction work and demand of bribe made by the accused.
42. So far as the recordings made in the voice recorder, the complaint allegations, coupled with the evidence of the complainant, goes to show that on 10-01-2012, when the complainant met the Lokayuktha Police and informed them about the demand of bribe made by the accused, instead of registering the FIR, Lokayuktha Police have decided to hold a preliminary enquiry to ascertain the genuineness of the complaint made by the complainant and handed over the digital voice recorder to the complainant. Accordingly, on the same day, complainant met the accused in his office and made the conversation between him and accused and recorded that conversation in the voice 34 Spl. C.C. No.128/2012 recorder and produced the same before the Lokayuktha Police on 11-01-2012 while lodging the complaint. The pre trap mahazar, which is marked as per Ex.P.1, goes to show that the recordings in the digital voice recorder was displayed in the presence of the witnesses and thereafter the recordings was transmitted into a CD and the recordings in the voice recorder was also transcribed as per Ex.P.3. The evidence produced before this court regarding the recordings in the voice recorder are the transcription of the recordings as per Ex.P.5 and the CD as per M.O.4. Now the question before this court is as to whether these two evidence can be accepted by this court.
43. In respect of the electronic evidence, it is the instrument, in which the recordings were originally recorded, is the primary evidence and any other evidence, in the form of CD, to which the recordings was transmitted, is the secondary evidence. So, evidence produced before this court regarding the recordings in the voice recorder in the form of CD and transcription of the recording are the secondary evidence and primary evidence is the voice recorder in which the recording was actually made and same has not been produced before this court. Moreover, secondary evidence produced before this court is also not accompanied by the certificate, as required Under Sec.65-B of the Indian evidence Act. The learned counsel for the accused, by 35 Spl. C.C. No.128/2012 relaying upon the decision of Hon'ble Supreme Court reported in 2014 (10) SCC 473 (Anwar P. B Vs P.K. Basheer and others) and AIR 2016 Supreme Court 5389 (Harpal Singh alias Chhota V/s State of Punjab), has vehemently argued that when the primary evidence of the recordings are not produced and only the secondary evidence is produced, which is not accompanied by the certificate under Sec. 65-B of the Indian Evidence Act, same cannot be accepted. In the above referred decisions, Hon'ble Supreme Court has laid down the law relating to appreciation of the electronic evidence. As per the ratio laid down in the above decision, in respect of any electronic evidence, if the primary evidence has not been produced before the court and only the secondary evidence is produced, it shall be accompanied by a certificate, which is required under Sec. 65-B of the Indian Evidence Act, regarding the genuineness of the same. It was further held in the above decisions that, if the secondary evidence is not accompanied by the certificate, as required under Sec.65-B of the Indian Evidence Act, such a secondary evidence of the electronic recordings cannot be admitted in evidence.
44. So, now it is well established principle of law that in case of electronic recordings or evidence, primary evidence has to be produced before the court. If the primary evidence is not produced 36 Spl. C.C. No.128/2012 before the court and only the secondary evidence is produced and said secondary evidence is not accompanied by a certificate under Sec. 65- B of the Indian evidence Act, in respect of the genuineness of the secondary evidence, same cannot be admitted. In the case on hand, though the prosecution has produced only the secondary evidence in respect of the recordings in the voice recorder in the form of CD and transcription of the recordings, it is not accompanied by a certificate under Sec.65-B of the Indian Evidence Act. According to me, on this score only, this court has to discard the evidence produced by the prosecution in the form of CD containing the recordings in the voice recorder, in order to prove the demand of bribe, before lodging the complaint. Hence M.O.4 CD and Ex.P.5 transcription of the recordings in the voice recorder deserves no consideration by this court.
45. All these reasoning of this court are also applicable for the CD produced as per M.O.12 in respect of the recordings made in the button camera and voice recorder, which was given to the complainant at the time of pre-trap proceedings to record the trap proceedings. Even though the recordings in the button camera and voice recorder was given to the complainant at the time of trap, same has not been produced before the court. Those recordings were also transmitted 37 Spl. C.C. No.128/2012 into a CD and produced before the court as M.O.12 and recordings in the button camera and voice recorder was also transcribed as per Ex.P.6. Even that CD is not accompanied by the certificate under Sec.65-B of the Indian Evidence Act. Therefore, in view of the above referred decision of the Hon'ble Supreme Court, this court cannot accept the said CD and transcription of the recordings.
46. Even if this court ignores the electronic evidence produced by the prosecution in the form of CD and the transcription of the recordings for want of certificate under Sec. 65-B of the Indian Evidence Act, still there is evidence of the complainant, regarding demand of bribe made by the accused before lodging the complaint. For appreciating the evidence of the complainant in this regard, it is necessary to consider some of the admitted and undisputed facts and also the defence of the accused, which was introduced by him while he giving the explanation before the Lokayuktha Police immediately after the trap and the defence, which the accused has taken during the course of trial before this court.
47. The file relating to the trap, which was seized by the Lokayuktha Police and produced before this court as per Ex.P.7, goes to show that there was some mistake in the registered partition deed 38 Spl. C.C. No.128/2012 dated 05-07-2004, which was entered in between the members of the complainant's family. When the complainant has approached the Sub- Registrar, Hebbal for issuance of the encumbrance certificate, officials there in have asked the complainant to make the rectification of the index, for which he filed the application. Even though in the application name of the complainant is not referred, application has been moved on behalf of the one Seethamma and others, because she is one of the party to the registered partition deed dated 05-07-2004. Said Seethamma is none-other than the grand-mother of the complainant. The father of complainant by name Vijayakumar is also one of the party to the registered partition deed dated 05-07-2004 and on behalf of the parties to the partition deed, application was moved for correction of the index. The witness examined for the prosecution as PW.4 is one Chikkakempegowda and when he was the District Registrar of Gandhinagar Registration District, he considered the application and passed the order on 05-01-2012 for rectification and correction of index. Said order is found place in Ex.P.7 file and it is in page No.65 to 80 of the charge sheet. After passing the order, file was referred to the office of the Inspector General and Registration and Stamps, Bengaluru, wherein this accused was serving as an F.D.A. It is undisputed fact that accused has received the application and put up 39 Spl. C.C. No.128/2012 the office note as evident from Ex.P.7. According to the complainant for the purpose of moving the file and putting up the file for getting the order for index correction, there was demand of bribe made by the accused.
48. Immediately after the trap, accused was asked by the Lokayuktha Police to give his explanation regarding the tainted currency notes found with him. Regarding the necessity of giving opportunity to the accused to offer his explanation, it was held by the Hon'ble High Court of Karnataka in a decision reported in 2015(1) KCCR 898 (N. Suryanarayana @ Soori V/s State of Inspector of Police, CBI) that, when the tainted currency notes were found with the accused and he was trapped, trap laying officer should give the opportunity to the accused about receipt of the money. If such an opportunity is not given, proceedings stands vitiated. So as per the ratio laid down in the above decision, immediately after the trap, it is the duty of the trap laying officer to afford the opportunity to the accused to give his explanation. That mandatory requirement laid down in the above referred decision was complied by the Lokayuktha Police and opportunity was given to the 40 Spl. C.C. No.128/2012 accused and he has given his explanation in his hand writing and same is marked before this court as per Ex.P.10.
49. When this court given opportunity to the accused to lead his defence evidence, accused examined himself before this court as DW.1. In his examination in chief, accused/DW.1 said that Lokayuktha Police have asked him to give explanation and he has given it in his hand writing as per Ex.P.10, by saying that the complainant has forcibly given the amount to him, though he has not demanded it. So, in his examination in chief itself, accused has admitted that as per the request and opportunity given by the Lokayuktha Police, he has given explanation as per Ex.P.10. During the course of his cross- examination, accused/DW.1, in page-5, has specifically admitted that he has given his explanation as per Ex.P.10 and Ex.P.10(b) is his signature. DW.1 also admitted that the facts stated in Ex.P.10 are true and correct. Accused/DW.1 also admitted that in Ex.P.10 he has stated that he was trapped by the Lokayuktha Police after receiving the amount of Rs.3,000/- from a client and client referred in Ex.P.10 is the complainant herein. The accused/DW.1 also admitted that in Ex.P.10 he has not stated that CW.1 has forcibly kept the tainted currency notes in his pocket. So, by way of above answer, accused has 41 Spl. C.C. No.128/2012 admitted that he has given the explanation as per Ex.P.10. There is no allegation that it was forcibly obtained from the accused. There is also no allegation that there was any threat or coercion on the accused for obtaining such a statement.
50. Now, it is necessary to reproduce the explanation given by the accused as per Ex.P.10, which runs like this:
"ɪÀiÁ£ÀågÀ°è, «£ÀAw¸ÀĪÀÅzÉãÉAzÀgÉ J£ï. PÀȵÀÚ ¥Àæ.zÀ.¸À. DzÀ £Á£ÀÄ ¢B11-01-2012 gÀAzÀÄ PÀZÉÃjAiÀÄ°è PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀĪÁUÀ gÀÆ.3000-00UÀ¼À£ÀÄß ¥ÀPÀëPÁgÀjAzÀ ¥ÀqÉzÀ £ÀAvÀgÀ vÁªÀÅUÀ¼ÀÄ £À£ÀߣÀÄß mÁæ¥ï ªÀiÁrgÀĪÀÅzÀÄ ¸Àj C¥ÉëÖ. DzÀgÉ F «µÀAiÀÄzÀ°è ¥ÀPÀëPÁgÀjUÉ AiÀiÁªÀÅzÉà PÁgÀtPÀÄÌ £Á£ÀÄ demand ªÀiÁrgÀĪÀÅ¢®è. ¥ÀPÀëPÁgÀgÀÄ vÁªÁVAiÉÄà dįÉäªÀiÁr ¤ÃrgÀÄvÁÛgÉ. PÁgÀt ¸ÀzÀj ¥ÀæPÀgÀtªÀ£ÀÄß F ºÀAvÀzÀ°è PÉÊ ©qÀ¨ÉÃPÉAzÀÄ F ªÀÄÆ®PÀ PÉÆÃgÀ¯ÁVzÉÉ."
51. Now, it is relevant to consider the evidence of the accused, who was examined as DW.1 before this court. In his examination in chief itself accused deposed that on 11-01-2012 at about 11.30 a.m. one Srikanth (Shadow witness) and complainant Abhilash came before him and complainant asked him to do his index correction work and handed over the amount of Rs.3,000/- to him and asked him to do the index correction work immediately on that day. Accused/DW.1 further 42 Spl. C.C. No.128/2012 said that complainant has thursted that amount in his shirt pocket and he refused to receive the same and kept the same on his table and Lokayuktha Police have came and caught him. So, even in his examination in chief, accused has admitted that an amount of Rs.3,000/- was given to him by the complainant. Only defence, which the accused has taken is that there was no demand of bribe made by him. So not only while giving his written explanation as per Ex.P.10 immediately after the trap, but also during the course of his evidence before this court on oath, accused said that an amount of Rs.3,000/- was given to him by the complainant, but he has not demanded the same. In view of these admission made by the accused and undisputed facts, only question which requires to be considered by this court is as to whether there was any demand of bribe made by the accused, for the complainant handing over the amount of Rs.3,000/- to him at the time of trap.
52. Even without the admission made by the accused, prosecution has independently proved before this court that the complainant has lodged the complaint alleging the demand of bribe amount by the accused, on the basis of which the FIR was registered. The evidence of PW.1 to 3, coupled with the evidence of the Investigating Officer, who was examined as PW.7, also establish that 43 Spl. C.C. No.128/2012 after registration of the FIR, official witnesses were secured and in their presence, pre trap proceedings were made and pre trap mahazar was drawn. In respect of conducting the pre trap proceedings and drawing of pre trap mahazar, there is no such cross-examination to these witnesses. However, learned counsel for the accused, during the course of his argument, has pointed out some variations in the evidence of PW.1 to 3 and PW.7 regarding timings of the witnesses appearing before the Lokayuktha Police, actual place where the trap team gone to lay the trap. One of the witness said that he appeared before the Lokayuktha Police at 10.30 a.m. whereas another witness said that, it was 12.30 a.m. One of the witness said that they gone to the office of accused at Banashankari, whereas another witness said that they gone to the office of accused at Jayanagara. Admittedly, office of the accused is situated at Shimsha Bhavan at Jayanagar and Banashnakari is nearby locality to Jayanagara. As I said earlier, the accused himself admitted that both shadow witness and the complainant had appeared before him on 11-01-2012 at about 11.30 a.m. in his office and handed over the amount of Rs.3,000/- to him. When the accused himself has admitted the same by entering into the witness box and sworn an oath and also given written explanation regarding he receiving the amount of Rs.3,000/- these minor 44 Spl. C.C. No.128/2012 variations in the evidence of the prosecution witnesses, in respect of conducting the pre trap proceedings, drawing of pre trap mahazar and its timings were all not relevant for the consideration of this court.
53. Another contradiction pointed out by the learned counsel for the accused, during the course of his arguments, is about shadow witness saying that lokayuktha police fixing the camera on his shirt to record the event at the time of trap, where as complainant saying that camera was handed over to him. It is true that there is some contradiction in this regard, in between the evidence of complainant and shadow witness. But, this contradiction will be of no importance now, since this court can not consider the recordings in the camera and voice recorder for want of certificate under Sec.65(b) of the Indian Evidence Act.
54. PW.1 to 3 and the Investigating Officer have also deposed in respect of they proceeding to the office of accused with the trap team and thereafter CW.1 and 2 entering into office of the accused. Both the shadow witness and complainant, who were examined as PW.1 and 2 said that complainant met the accused and there was conversation between the accused and the complainant and the complainant has handed over the amount to the accused and accused, after receiving 45 Spl. C.C. No.128/2012 the amount kept the same in his shirt pocket. The panch witness and the Investigating Officer, who has entered the office after receiving the signal from the complainant, have also deposed that after they entered the office, complainant told them that the accused has received the amount and thereafter hand wash of the accused was conducted in sodium carbonate solution and right hand finger wash turned into pink colour. All these witnesses have also deposed about the recovery of the tainted currency notes from the accused, as it was taken out from the pocket of the accused. Even though all these witnesses were cross-examined by the learned counsel for the accused, no material contradictions were brought out from their cross-examination to disbelieve their oral testimony. The cross-examination made to these witnesses were simply resulted in elaborating the statement given by them in their examination in chief and some explanations were sought and nothing was brought to contradict their oral testimony.
55. During the course of cross-examination of accused, he deposed that there was no enmity or dispute between him and the complainant. The accused also said that he do not know the complainant before 09-01-2012. The accused also said that he cannot say the reason for the complainant to lodge the false complaint against him, if he has not demanded the bribe amount from him. So, there 46 Spl. C.C. No.128/2012 was no enmity between the complainant and the accused so as to lodge the false complaint against him and to trap him. It is also not made out by the accused that there was any person behind the complainant to file the false complaint against him and to trap him deliberately. A false complaint can be filed against the accused and he can be trapped, if there was any personal vengeance between the complainant and accused or if the complainant has been set up by some others, who are not in good terms with the accused. Both these instances and circumstances were not made by the accused during the course of trial. Under such circumstances, I found absolutely no reasons to disbelieve or discard the evidence of the complainant, which clearly establish that the accused has demanded and accepted the tainted currency notes from the complainant at the time of trap.
56. The accused receiving the tainted currency notes was proved when the hand wash of the accused turned into pink colour, which was also admitted by the accused. There is also chemical analysis report regarding the positive phenpthelene test of hand wash of the accused, which also establishes that the accused has received the tainted currency notes.
47 Spl. C.C. No.128/2012
57. There is also oral testimony of complainant, which is corroborated with the evidence of shadow witness and panch witness regarding the accused demanding and accepting the tainted currency notes. As I said earlier, complainant, who was examined as PW.3, specifically deposed regarding the accused demanding the bribe amount from him before lodging the complaint, which made him to appear before the Lokayuktha Police. PW.3 also deposed about the accused demanding the bribe amount from him at the time of trap, which made him to hand over the tainted currency notes to the accused. The shadow witness, who was examined as PW.2, said before this court that he accompanied the complainant when he entered the office of accused and accused has enquired about the presence of the shadow witness with the complainant and complainant told that he is his mestri and when the accused received the money, he kept the same in his shirt pocket and thereafter signal was given. The panch witness, who was examined as PW.2, deposed that, after receiving the signal from the complainant, they entered the office of accused and complainant shown the accused to him and said that he has received the money from him. PW.2 also said that hand wash procedure of the accused was conducted and thereafter the tainted currency notes found in the left shirt pocket of the accused was recovered. There is 48 Spl. C.C. No.128/2012 also the evidence of Investigating Officer, who was examined as PW.7, to corroborate all these statements of complainant, shadow witness and panch witness. Though all these witnesses were cross-examined by the learned counsel for the accused, no material aspects were brought out from their cross-examination to disbelieve their oral testimony. Even I found no reasons to disbelieve their oral testimony.
58. The accused tried to impress upon this court that, either in the trap mahazar or in the statement of the complainant and the shadow witness, there is any reference about the accused demanding the money at the time of trap. Therefore, it was submitted on behalf of the accused that, demand of bribe, as alleged by the prosecution has not been proved. The complainant, who was examined as PW.3, specifically deposed regarding the accused demanding the bribe amount. Accordingly, he handed over the tainted currency notes to him. Though the shadow witness has not specifically deposed about the accused demanding the money, he has deposed that the accused has received the money and kept the same in his left shirt pocket. In the trap mahazar and the statement of complainant and the shadow witness, there is reference about some conversation between the accused and the complainant before handing over the currency notes. 49 Spl. C.C. No.128/2012 Those conversation, though it is not directly in terms of the demanding the amount, it indirectly goes to show that accused has demanded the money and put his hands forward in order to receive the bribe amount.
59. As I said earlier, accused while giving his explanation before the Lokayuktha Police, immediately after the trap as per Ex.P.10 and during the course of his evidence before this court as DW.1, specifically admitted that the tainted currency notes were handed over to him. But, the accused tried to impress upon this court that it was not demanded by him. Therefore, according to the accused, it would not amount to acceptance of the illegal gratification. If the accused has not demanded the money and he was not interested to receive the illegal gratification, he would have refused to receive the same. The accused would have thrown the tainted currency notes, which has been offered to him. In his explanation as per Ex.P.10, there is no reference about the accused trying to reject money and refusing to receive the money. Rather, it has been simply stated in Ex.P.10 that it was given voluntarily by the complainant. In Ex.P.10 accused never said that it was forcibly thrusted into his pocket in spite of resistance by him. During the course of his evidence as DW.1 accused tried to impress upon this court it was forcibly thrusted into his pocket and he 50 Spl. C.C. No.128/2012 has refused to receive the same and kept on his table. If the accused has resisted the payment of amount, tainted currency notes would not have been in his shirt pocket. Either it would have on his table or fallen on the ground. The evidence of the complainant, shadow witness, panch witness and the Investigating Officer coupled with the trap mahazar consistently shows that the tainted currency notes were found in the left shirt pocket of the accused. All these witnesses said that the amount of Rs.3,000/- was recovered from the left shirt pocket of the accused. There is even no suggestion to these witnesses denying and disputing their statement that the tainted currency notes were recovered from the shirt pocket of the accused. It is also not suggested to these witnesses that the tainted currency notes were found on the table of the accused and not in his shirt pocket. This would establish before the court that the accused has demanded the money and accordingly he has accepted the same, because of which, tainted currency notes were found in his shirt pocket.
60. It is pertinent to note here that when hand wash of the accused was conducted in sodium carbonate solution, right hand wash turned into pink colour and same was not disputed or denied by the accused. This would indicate that the accused has received the money 51 Spl. C.C. No.128/2012 from his right hand and kept the amount in his shirt pocket. If the amount was voluntarily or forcibly kept in his shirt pocket by the complainant, there was no reason for the right hand finger wash of the accused turning into pink colour and positive phenolphthalein test. It appears that, in order to escape from the liability of guilt, accused tried to offer a false explanation that, after the tainted currency notes were thrusted into his pocket, he taken out the same and kept on his table. If the accused has touched the currency notes in order to keep the same on his table, tainted currency notes would have been on the table of the accused when the trap team arrived there. As I said earlier it was consistently deposed by all the witnesses that the tainted currency notes were found in the left shirt pocket of the accused, which also establish that accused has demanded and accepted the illegal gratification in the form of tainted currency notes. If really the accused has not demanded it and he was not interested to receive it, he would have resisted the payment of that amount when the complainant voluntarily or forcibly kept the same in his shirt pocket and there by those currency notes would not have been in the person of the accused. Therefore, I have to accept the prosecution version. Accordingly I have to hold that prosecution has independently proved before this court that there was demand and acceptance of the tainted 52 Spl. C.C. No.128/2012 currency notes by the accused and thereby there is acceptance of the illegal gratification.
61. Now, let me draw my attention to some of the other decisions relied upon by the learned counsel for the accused in support of his arguments. One of the decision relied upon by the accused is the decision of Hon'ble Supreme Court reported in 2015 (3) SCC 247 (M.R.Purushotham V/s State of Karnataka), wherein it was held that when the demand of illegal gratification is not proved, accused cannot be convicted for the offences punishable under Sec. 7,13(1)(d) R/w 13(2) of the Prevention of Corruption Act, merely on the basis of the possession and recovery of the currency notes from the accused. I have carefully gone through the ratio laid down in the above decision, wherein the demand of illegal gratification by the accused was not proved because of the complainant failing to support the prosecution case and not deposing about the accused demanding the bribe from him. In this particular case, complainant has said about the demand of bribe made by the accused, which is corroborated by the evidence of shadow witness and also other evidence.
62. Another decision relied upon by the learned counsel for the accused in support of his argument is the decision of Hon'ble Supreme 53 Spl. C.C. No.128/2012 Court reported in AIR 2010 Supreme Court 1589 (Banarsi Dass V/s State of Haryana). In the above decision, Hon'ble Supreme Court has reiterated the rule regarding the demand and acceptance of the bribe as an essential requirement to constitute the offence. In that particular case also, complainant has turned hostile to the prosecution case and failed to say that there was demand of bribe made by the accused. Therefore, Hon'ble Supreme Court held that the demand of legal gratification was not proved and accused cannot be convicted. In this particular case, complainant has deposed regarding the demand of bribe amount.
63. Another decision relied upon by the accused is the decision of Hon'ble Supreme Court reported in AIR 2015 Supreme Court 3549 (P.Sathyanarayana Murthy V/s District Inspector of Police and another), wherein it was held that demand of illegal gratification is mandatory requirement to bring home the guilt of the accused and when the demand is not proved, accused cannot be convicted, only on the basis of the acceptance of the amount by way of illegal gratification. In that particular case, complainant was not examined before the court because of his death before the commencement of the trial. Therefore, prosecution unable to prove the 54 Spl. C.C. No.128/2012 demand of bribe. In this particular case, demand of bribe made by the accused has been proved by the prosecution by examining the complainant and the evidence of the complainant is corroborated with the evidence of shadow witness.
64. Other decision relied upon by the accused is the decision of Hon'ble High Court of Karnataka reported in 2004 (2) KCCR 1233 (D. Rajendran V/s State of Police Inspector) and decision of Hon'ble Supreme Court reported in 1979 (4) SCC 526 (Panalal Damodar Rathi V/s State of Maharashtra). In both these decisions it was held that in the trap cases, evidence of the complainant requires independent corroboration regarding material particulars. In this particular case, evidence of the complainant has been corroborated by the evidence of shadow witness.
65. One more decision relied upon by the learned counsel for the accused in support of his argument is the unreported decision of Hon'ble High Court of Karnataka in Crl.Apl.No.165/2010 in between (S.R.Chowdaiah V/s State of Karnataka) dated 09-07-2015 wherein it was held that mere recovery of money from the accused by itself is not enough to prove the guilt, in the absence of substantive evidence regarding demand and acceptance of illegal gratification. In 55 Spl. C.C. No.128/2012 that particular case also the complainant has turned hostile to the prosecution case and not deposed regarding demand made by the accused. Therefore, it was held that conviction cannot be based on the basis of evidence of shadow witness alone. In this particular case, there is evidence of complainant, which is corroborated by the evidence of the shadow witness regarding demand and acceptance of the money.
66. One more decision relied upon by the accused is the decision of Hon'ble Supreme Court reported in 2005 SCC 21 (Smt. Meena V/s State of Maharastra). In that particular case, one of shadow witness was not examined and another shadow witness turned hostile to the prosecution case. The tainted currency notes were fall on the pad of the table. The facts of that case is altogether different from the facts and circumstances of this case. In this case, apart from the complainant, both the shadow witness and the panch witness have supported the prosecution case. Moreover, tainted currency notes were found in the left shirt pocket of the accused and same was recovered. Hence, with great respect to all those decisions, I say that this accused has got no benefit from the same.
56 Spl. C.C. No.128/2012
67. On the other hand, learned Public Prosecutor, in support of his argument, has relied upon a unreported decision of Hon'ble Supreme Court in Crl.Apl.No.697/2011 in between (Chaitanya Prakash Audichya V/s C.B.I.). The fact of that case is quite similar to the fact of this case. Like in that particular case, tainted currency notes were found on the person of the accused. Both PW.1 and 2 have deposed regarding the demand and acceptance. The accused has given explanation in that particular case which was not proved by him. Therefore, Hon'ble Supreme Court held that demand and acceptance not only stands established, presumption invokable under Sec. 20 of the Prevention of Corruption Act, also attracted in favour of the prosecution. In this particular case also, explanation offered by the accused has not been satisfactorily proved by him. There is also no satisfactory explanation by the accused to accept and believe the same.
68. The prosecution has successfully discharged the initial burden placed upon them to prove the demand and acceptance of the illegal gratification by the accused in order to render the official favour to the complainant. When the prosecution has discharged the initial burden, they got benefit of presumption as provided under Sec. 20 of the Prevention of Corruption Act, 1988. Of-course, as I said at the out 57 Spl. C.C. No.128/2012 set, prosecution can get the benefit of presumption only after they discharge the initial burden of proving the demand and acceptance of the illegal gratification by the accused. In this particular case, accused has admitted the receipt of the tainted currency notes from the complainant, but tried to impress upon this court that there was no demand by him and it was voluntarily or forcibly given to him. The amount received by the accused in the form of tainted currency notes is not a remuneration or legally payable amount to the accused in order to get the correction of index, as applied by the complainant. Hence, it is an illegal gratification. Therefore, prosecution has got the benefit of presumption and onus shifts upon the accused to displace or rebut the presumption. In the case on hand, accused has miserably failed to lead cogent, convincing and concrete evidence before this court, either by way of cross-examining the prosecution witnesses or by leading independent evidence, to displace or rebut the presumption in favour of the prosecution. Accordingly, I hold that the prosecution independently proved the allegation leveled against the accused and even on the basis of the benefit of presumption also, they have successfully proved that the accused has demanded and accepted the illegal gratification from the complainant in order to render the official favour to him.
58 Spl. C.C. No.128/2012
69. The learned counsel for the accused, during the course of his arguments, has pointed some contradictions, which emerged from the evidence let in by the prosecution. It is true that there are some minor variations in the oral evidence of complainant, shadow witnesses, trap witness and the Investigating Officer, if they are compared with each other and compared the complaint, pre-trap and trap mahazar. However, that cannot be a ground to disbelieve their oral testimony. These kinds of variations and inconsistencies in the oral evidence of prosecution witnesses bound to appear in each and every prosecution case and the evidence let in by them. There cannot be any prosecution case, which is free from all these minor variations and inconsistent statements. When any incident is witnessed by more than one person and they were asked to explain that incident, they will explain in their own ways and little bit of variations bound to appear in their explanations. Human beings with different perception would look towards an incident in their own way and explain the same in their own way. These variations also natural because of passage of time, as the human memory is very short and it vary from person to person. In this particular case, these witnesses were called upon to depose before the court in respect of an incident, which has taken place about five to six years before they giving their oral testimony before the court. 59 Spl. C.C. No.128/2012 Under such circumstances, these minor inconsistent and variations bound to appear in the oral testimony of these witnesses. But, what the court has to consider is as to whether they are major contradictions to disbelieve their oral testimony. I have not found any major contradictions and any such reasons to doubt the oral testimony of these witnesses and also to discard the same.
70. To sum up my discussion, prosecution proved that there is a valid sanction to prosecute the accused. The prosecution has also proved that an official act relating to the complainant is pending before the accused. The demand of the bribe amount by the accused is also proved by the prosecution, in order to make the index correction work applied by the complainant. The prosecution has also proved the demand of the bribe amount, made both before filing the complaint and also subsequent to filing of the complaint and while trapping the accused. The prosecution has also proved the acceptance of the bribe amount, while trapping the accused. On the other hand, accused has failed to prove his explanation about finding of tainted currency notes with him and also positive phenolphthalein test of his hand wash. Because of all these circumstances, I hold that the prosecution has proved the guilt of the accused for the offences punishable under 60 Spl. C.C. No.128/2012 Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The accused receiving the tainted currency notes in order to render the official favour for the complainant amounts to criminal misconduct. Therefore, accused has to be convicted for the offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. Accordingly, I answer points No.2 and 3 in the Affirmative.
POINT No.4:
71. In view of my findings on the above points, accused is liable to be convicted. Accordingly, I proceed to pass the following order:
ORDER The accused found guilty.
Acting under Sec.235(2) of Cr.P.C.
accused is convicted for the offence punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of Prevention of Corruption Act 1988.
MO.1 metal seal is ordered to be returned to the Karnataka Lokayuktha Police after expiry of the appeal period.
MO.2 to 13 are worthless and ordered to be destroyed after expiry of the appeal period.61 Spl. C.C. No.128/2012
MO.14 currency notes are ordered to be confiscated to the state government after expiry of the appeal period.
Put up for hearing on sentence.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 13th day of April 2017) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ORDERS ON S E N T E N C E. I have heard the accused, learned counsel for the accused and also the learned Public Prosecutor on sentence to be imposed on this accused.
The accused and learned counsel for the accused submitted that accused is aged about 60 years and now retired from service and suffering from illness and he has to look after his family and he is only the bread earner in their family. Therefore, prayed to show the leniency on him while imposing the sentence.
62 Spl. C.C. No.128/2012On the other hand, learned Public Prosecutor submitted before me that accused, being the public official, has committed the heinous offence of demanding and accepting the bribe amount. The accused, being a public servant, is found to be involved in the corrupt practice. Therefore, prayed for imposing the maximum punishment to the accused.
The accused found guilty of committing the offence punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. So far as the Sec.7 of the Prevention of Corruption Act 1988, is concerned, it is punishable with imprisonment, which shall not be less than six months and it may extend up to five years and shall also be liable to fine. So far as Sec.13(2) of the Prevention of Corruption Act is concerned, it is punishable with imprisonment, which shall not be less than one year and which may extend up to seven years and shall also be liable to fine. Under Sec.16 of the Prevention of Corruption Act 1988, while imposing the fine, this court shall take into consideration amount or value of the property, which the accused person has obtained while committing the offence. 63 Spl. C.C. No.128/2012
Even though by way of recent amendment to the Prevention of Corruption Act 1988, minimum and maximum imprisonment provided for the offence punishable under Sec.7 and 13(2) of the Prevention of Corruption Act 1988 is enhanced, those amended provisions are not applicable to this case, because said amendment was introduced recently, whereas in the case on hand, alleged offences were committed during the year 2012. As per the criminal jurisprudence, this court has to impose the sentence to the accused, which is provided for the particular offence, as on the date when the offence is actually committed.
As the minimum punishment is provided for these offences, question of invoking the provisions of Probation of offenders Act and releasing the accused on probation would not arise.
The accused was working a First Division Assistant in the officer of Inspector general of Stamps and Registration, Bengaluru at the time of commission of alleged offence. The demand and acceptance of the bribe amount by this accused is Rs.3,000/-. Considering all these aspects and also grounds shown by the accused, I feel it is just and proper to impose him 64 Spl. C.C. No.128/2012 the minimum imprisonment provided under the Prevention of Corruption Act 1988 and made him liable to pay the fine. Accordingly, I proceed to pass the following order on sentence:
ORDER The accused is sentenced to under go simple imprisonment for six months and to pay the fine of Rs.5,000/- for the offence punishable Sec.7 of the Prevention of Corruption Act 1988.
In default to pay the fine amount, accused shall under go simple imprisonment for one month.
The accused is sentenced to undergo simple imprisonment for one year and to pay the fine of Rs.10,000/- for the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
In default to pay the fine amount, accused shall under go simple imprisonment for two months.
The substantial sentences of imprisonment shall run concurrently.
The accused is entitled for the benefit of set-off, as provided under Sec.428 of Cr.P.C., 65 Spl. C.C. No.128/2012 for the period for which, he was in judicial custody in respect of this case.
Office to furnish the copy of this judgment to the accused with free of cost, forth with.
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Srikanth C.M. PW.2: R. Kumar Swamy PW.3: V. Abhilash PW.4: Chikkakempegowda PW.5: Siddappa Mukkanna Bhavikatti PW.6: Dr. V.Chandrashekar PW.7: P. Narasimhamurthy LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Pre trap mahazar Ex.P.1(a to d) : Signatures of PW.1,2,3 & 7 Ex.P.2: Trap mahazar Ex.P.2(a to d): Signatures of PW.1,2,3 & 7 Ex.P.2(e) : Signature of accused 66 Spl. C.C. No.128/2012 Ex.P.3 : List of currency notes Ex.P.3(a & b): Signatures of PW.1 Ex.P.4: Acknowledgement Ex.P.4(a & b): Signatures of PW.1 & 7 Ex.P.5: Transcription Ex.P.5(a & b): Signatures of PW.1 & 7 Ex.P.6: Transcription Ex.P.6(a & b): Signatures of PW.1 & 7 Ex.P.7: Charge sheet documents Ex.P.8: Movement register Ex.P.9: Attendance register Ex.P.10: Statement of accused Ex.P.10(a to c): Signatures of PW.2, CW.1 & 7 Ex.P.10(d): Signature of accused Ex.P.11: Complaint Ex.P.11(a & b): Signatures of PW.3 & 7 Ex.P.12: Report given by CW.6(PW.5) Ex.P.12(a): Signature of PW.5 Ex.P.13: Work allotment letter Ex.P.13(a): Signature of CW.9 Ex.P.14: Sanction order Ex.P.14(a): Signature of PW.6 Ex.P.15: FIR Ex.P.15(a): Signature of PW.7 Ex.P.16 & 17: Letters to depute officials Ex.P.16(a): Signature of PW.7 Ex.P.18: Service particulars of accused Ex.P.19: Chemical analysis report 67 Spl. C.C. No.128/2012 Ex.P.20: PWD sketch of the spot Ex.P.21: Call particulars LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Seal containing alphanbet 'N' MO.2: Sample solution MO.3: Pink colour solution MO.4: CD MO.5: CD MO.6: Sample solution MO.7: Light pink colour solution MO.8: Uncoloured solution MO.9: Sample solution MO.10: Light pink colour solution MO.11: Cover containing shirt MO.12: CD MO.13: CD MO.14: Form-8 LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1: N.Krishna.
LIST OF DOCUMENTS MARKED FOR ACCUSED:
-NIL-
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78)