Bangalore District Court
The State Of Karnataka vs Noor Mohammed Panali on 28 June, 2018
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
(CCH-78)
PRESENT: SRI MALLIKARJUNAGOUD,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 28th day of June, 2018
Spl. C.C.No. 346/2015
*****
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: Noor Mohammed Panali, K.A.S.,
Aged 59 years, S/o Late M.H.Panali,
Director of Urdu and other minority
Language schools,
Public Education Department,
K.R. Circle, Bengaluru,
R/o No.10, 5th cross,
3rd Main Road,
Lal Bahaddur Shastry Nagar,
Vimanapura Post, Bengaluru.
(Sri. R.N.Nayak, Advocate for accused)
2 Spl. C.C. No.346/2015
1. Nature of Offence: Offences punishable under Sec.
7,13(1)(d)r/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 21-04-2005
of offence:
3. Date of First Information 21-04-2005
Report:
4. Date of Arrest: ----
5. Date of Commencement 12-04-2017
Of recording of evidence:
6. Date of Closing of evidence: 20-11-2017
7. Date of Pronouncement of 28-06-2018
Judgment.
8. Result of the case: Accused is convicted
^^^^^
JUDGMENT
In this case Dy.S.P., Karnataka Lokayuktha, Bengaluru City Division, has filed charge sheet against the accused for the offences punishable under Sec.7 and 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988. (In short PC.Act).
2. Charges leveled against the accused are that: the complainant-CW.1-T. Vasanth was the Secretary of Sri. Sharana Basaveswara Education Society, situated at Channagiri in Davanagere District. Said institution is running a school to the disabled children by 3 Spl. C.C. No.346/2015 appointing the teachers. For running the same, initially the institution has to incur the expenses and submit its application before the concerned authority for release of the same. In this case, the said institution has submitted its application for release of the second installment funds to the complainant's education society for the year 2003-04 and first installment fund for the year 2004-05. The total amount was around Rs.22,00,000-00. In this connection, the complainant has appeared before the accused and requested him to release the said fund. This accused being a public servant working as a Director of Urdu and other Minority Language institution, Public Education Department, K.R.Circle, Bengaluru. At that time, this accused has demanded illegal gratification of Rs.50,000-00 for release of the funds of the complainant's institution. On 16-04-2005, the complainant had appeared before the accused, at that time, he has demanded and accepted illegal gratification of Rs.35,000-00. Despite receiving the said gratification amount, this accused has not released the funds of the complainant's institution. On account of the same, on 21-04-2005 again the complainant had appeared before the accused and requested him to release the funds of his institution. At that time, again this accused demanded the complainant to pay additional illegal gratification amount of R.10,000-00 to him. Again on the same day in 4 Spl. C.C. No.346/2015 the evening when the complainant went and met the accused, to discuss about his pending work, at that time he has directed him to meet him in his house in the morning on 23-04-2005.
3. On account of the same, on 23-04-2005 the complainant had been to the house of the accused situated at Lalbahadoor Shastri Nagara, Bengaluru, to discuss about the release of the funds of his institution. At that time, again this accused demanded and accepted illegal gratification of Rs.10,000-00 from the complainant for doing his official favour for release of funds of the complainant's institution. By doing so, the accused being a public servant has committed criminal misconduct by misusing his official position and powers, so the Lokayuktha Police have filed the charge sheet against the accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
4. After completion of entire investigation, Lokayuktha Police have submitted the charge sheet ag ainst the accused before the court. The presence of accused was secured before the court by issuing summons. Accused appeared before the court through his 5 Spl. C.C. No.346/2015 counsel, copy of the charge sheet was supplied to him under Section 207 of Cr.P.C., and he was enlarged on bail.
5. Heard the arguments of both the sides on hearing before charge. After hearing on HBC, after perusal of the charge sheet and the documents placed before the court, this court held that, there is a prima facie case against the accused for prosecuting him for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
6. Charges against the accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act are read over and explained to him in the language known to him, for that, he pleaded not guilty and claims to be tried.
7. In all the prosecution has cited as many as 30-witnesses in the charge sheet. Out of them, the prosecution has examined CW.1- T.Vasanth-complainant is examined as PW.1, CW.2-H. Nagesh-pancha witness is examined as PW.2, CW-4-Tushar Girinath-Additional Secretary, DPAR, Vidhana Soudha, Bengaluru, who issued the sanction order is examined as P.W.7, CW.6-B.M.Satish-the President of Social Welfare Institute of Management, Davanagere, CW.15-Parashuram, 6 Spl. C.C. No.346/2015 Teacher in Jai Amba Bhavani Mahila Vidyasamste, Davanagere, CW.19-Smt. Yashoda, President of Mahila Shakthi Mahila Mandali, Davanagere, the circumstantial witnesses are examined as P.W.4, P.W.3 and P.W.5, CW.21-H. Raghuram Somayaji, Director of Urdu and Minority Education, Public Education Department, is examined as P.W.8, CW.28-A.N. Rajanna, CW.29-B. Parameswarappa and CW.30-K. Ravishankar, police officials the I.O.s., are examined as P.W.6,9 and P.W.10, got marked 27-documents as Ex.P.1 to P.27 and got marked 10 material objects as M.O.1 to 10. In the cross-examination of the prosecution witnesses, the counsel for the accused got marked eight documents as Ex.D.1 to Ex.D.8. Special Public Prosecutor has submitted that, he has given up other witnesses and closed his side.
8. Statement of the accused Under Section 313 of Cr.P.C. was recorded and he denies the incriminating evidence against him. Enquired the accused about his defence evidence, for that, he has submitted that, he has no defence evidence, so his defence evidence is taken as nil and recording of evidence is closed and case was posted for arguments.
9. Heard the arguments of both the sides.
7 Spl. C.C. No.346/2015
10. After hearing the arguments, after perusal of the charge sheet and evidence of the prosecution witnesses along with the documents marked in their evidence, the following points arise for consideration of this court:-
1. Point No.1: Whether the prosecution proves that, the sanction order issued for prosecuting the accused is a valid?
2. Point No.2: Whether the prosecution proves its case against the accused beyond all reasonable doubt that, in the year 2005 when the complainant has appeared before the accused for release of the funds amount of Rs.22,00,000-00 pertains to the second installment for the year 2003-04 and first installment for the year 2004- 05 of Sri. Sharana Basaveswara Vidya Samste, Channagiri, at that time, this accused has demanded illegal gratification of Rs.50,000-00 and on 16-04-2005 he has demanded and accepted illegal gratification of Rs.35,000-00.
Again, on 23-04-2005 when the complainant appeared in the house of the accused situated at Lalbahadoor Shastrinagara, Bengaluru, at about 9.15 a.m. for discussing about his pending work, at that time, this accused has demanded and accepted illegal gratification of Rs.10,000-00 from the complainant for doing his official favour in the matter of the complainant for release of Government funds to his above said institution, thereby he has committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
3. Point No.3: Whether the prosecution proves its case against the accused beyond all reasonable doubt that, this accused being a public servant working as Director of Urdu and other Minority 8 Spl. C.C. No.346/2015 Language institution, Public Education Department, K.R.Circle, Bengaluru, by illegal means has abused his official position as a public servant demanded and accepted illegal gratification of R.10,000-00 from the complainant in his house on 23-04-2005 at about 9.15 a.m. against the public interest and thereby he has committed criminal misconduct punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988?
4. Point No.4: What Order?
11. My findings on the above points are as follows:
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
12. POINT No.1: Here after considering the charge sheet, evidence of P.W.7, documents marked at Ex.P.26 and Ex.D.5 and the submissions of both the sides, now the point remains for consideration of this court is, whether the sanction order issued by the Government marked at Ex.P.26 is a valid sanction or not, is the fact to be decided by this court. In this case, counsel for the accused has taken a contention stating that, as per the proceedings appearing in Ex.D.5, 9 Spl. C.C. No.346/2015 the Chief Minister of Government of Karnataka has not recommended for issuance of sanction to prosecute this accused, so it is not a valid sanction. Further, he has contended that before issuing sanction order, the sanctioning authority has not applied its mind stating as to whether there is a prima facie case against the accused for prosecuting him for the offences alleged against him on the basis of the charge sheet papers. By looking into the sanction order marked at Ex.P.26, it indicates that, the sanctioning authority has not applied its mind properly, so it is not a valid sanction order. Further, he has contended that, in view of the proceedings appearing in Ex.D.5, it is not a valid sanction as there is no recommendation by the Government for prosecuting this accused for the offences alleged. Hence, he requested the court to consider this fact and acquit the accused. In support of his case, the counsel for the accused has relied on the following decisions:
1. (1997) 7 Supreme Court Cases 622 between (Mansukhlal Vithaldas Chauhan V/s State of Gujarat),
2.(2007) 11 Supreme Court Cases 273 between (State of Karnataka V/s Ameerjan).
13. In this regard, learned Public Prosecutor submitted before the court stating that, bare denial of contents appearing in Ex.P.26 by the counsel for the accused will not dispense with its proof. Further, 10 Spl. C.C. No.346/2015 initial burden of proof is on the prosecution to prove the fact that, the sanction order marked at Ex.P.26 is a valid sanction order. By looking into the sanction order, it indicates that, before according sanction the sanctioning authority has scrutinized all the charge sheet papers sent by ADGP, Lokayuktha for the scrutiny of the Government. After verifying the said documents and after satisfaction of the competent authority it held that, there is a prima facie case against the accused for prosecuting him for the offences alleged against him, so it has issued sanction order, so it is a valid sanction. Hence, he requested the court to answer point No.1 in the affirmative.
14. After considering the submissions of both the sides and after going through the decisions relied upon by the counsel for the accused, iit is clear that, before prosecuting a public servant for the offences punishable under Sections 7,8,10,11,13 and 15 of P.C. Act, obtaining of valid sanction order from the competent Government or the authority as described under Section 19 of P.C. Act is necessary. This Act states that previous sanction of the competent Government or the authority empower to remove such public servant from his service is necessary. The Legislatures have made it clear that, obtaining sanction order from the competent Government or authority is made 11 Spl. C.C. No.346/2015 necessary with an intention to protect the interest of the public servant from illegal prosecution. The Legislatures have introduced this Act with an intention to see that, the corruption should not taken place at the place where the public servants discharge their duty. When they have introduced this Act, they imposed a condition stating that obtaining of previous sanction of the Government is must. It is with an intention to see that, no public servant shall be prosecuted for any false or frivolous complaint filed against such person. With this intention, the Legislatures have imposed a condition stating that previous sanction of the competent Government or the authority is must for prosecuting a public servant. Section 19 (a) to (c) of P.C. Act, states that who are the competent authorities for issuance of sanction order. If a public servant is an employee of Central Government or State Government, then the concerned Central Government and State Government who is empower to remove the public servant from his service for commission of the offences alleged against him under the P.C.Act. In other cases, the competent authority who is empower to remove him from the service for his criminal misconduct.
12 Spl. C.C. No.346/2015
15. Here by looking into the position of this accused as a Director of Urdu and other Minority Language institution, Public Education Department, it indicates that, it was a KAS cadre. In view of the same, the State Government is the competent authority to issue sanction order. The sanction order marked at Ex.P.26 indicates that, it is issued by the Government of Karnataka in the name of the Governor and on the authorization of the Governor, the P.W.7 has signed it and sent to ADGP Lokayuktha. By looking into the said sanction order, it indicates that, the sanctioning authority has considered all the charge sheet papers sent for its scrutiny. After verifying the complaint, FIR, pre trap and trap mahazars, statement of the witnesses, chemical analysis report and the other documents sent for its scrutiny, the State Government satisfied that, there is a prima facie case against the accused for prosecuting him for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, so it has issued sanction order as per Ex.P.26. The bare reading of that order, it indicates that, before issuing the sanction order, it has considered all the charge sheet papers sent for its scrutiny and satisfied that, there is a prima facie case against the accused, so this court held that, the sanction order marked at Ex.P.26 is a valid sanction.
13 Spl. C.C. No.346/2015
16. I have gone through the proceedings of the Government marked at Ex.D.5. There is no mention in the same stating that, the sanction sought by ADGP, Lokayuktha for prosecuting this accused was rejected by the Government. When there is no mention about the same in the said proceedings, so it cannot be said that, the sanction order issued by the Government marked at Ex.P.26 is not a valid sanction. I have gone through the ratio involved in the decisions relied upon by the counsel for the accused reported in 1. (1997) 7 Supreme Court Cases 622 between (Mansukhlal Vithaldas Chauhan V/s State of Gujarat) and 2.(2007) 11 Supreme Court Cases 273 between (State of Karnataka V/s Ameerjan). In the said decisions their Lordships held that, before issuing a sanction order the sanctioning authority must apply its mind and ascertain as to whether there is a prima facie case against the accused for prosecuting him for the offences alleged against him or not. Here by looking into the sanction order marked at Ex.P.26, it is specifically stated that, before issuing the sanction order the sanctioning authority has verified all the charge sheet papers sent for its scrutiny mentioned in the sanction order and satisfied that, there is a prima facie case against the accused for according sanction to prosecute him for the offences punishable under 14 Spl. C.C. No.346/2015 Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act. In view of all these reasons, it indicates that, the sanctioning authority has applied its mind before issuing the sanction order. With these observations, this court held that, the sanction order issued by the Government marked at Ex.P.26 is a valid sanction. Hence, this court answered point No.1 in the Affirmative.
17. Point No.2 and 3: For giving findings of this court on point No.2 and 3, common discussion of the oral and documentary evidence placed by the prosecution before the court along with the submissions of both the sides on point No.2 and 3 are necessary, so both the points are taken up for common discussion.
18. It is the case of the prosecution that, the complainant- PW.1-T. Vasanth was the Secretary of Sri. Sharana Basaveswara Education Society, situated at Channagiri in Davanagere District. That institution was established by the said institution for providing education to the disabled children. Such institutions are established in other places of Karnataka and the said institutions used to function under the funds allotted to them by the Government. The Central Government has sponsor the scheme of integrated education for 15 Spl. C.C. No.346/2015 disabled children/persons. Every year they used to release the funds to such institution in installment basis as first installment and second installment. Initially the said institutions have to borne its expenses and submit the application claiming the same from the Government. This accused-Noor Ahmed Panali was working as a Director of Urdu and other Minority Language institutions, Public Education Department, Bengaluru. He was authorized to release the said funds to all such institutions established in Karnataka. The Government has not released the second installment funds for the year 2003-04 and first installment fund for the year 2004-05. Subsequently, in the month of March 2005, Government has released the due funds to the said institutions and directed this accused to release the said funds to concerned institutions. During that time, the installment amount of Rs.22,00,000-00 for the above said period was due to the Sri. Sharana Basaveswara Education Society, situated at Channagiri. In that connection, the complainant has approached the accused and requested him to release the same. At that time, this accused demanded illegal gratification of Rs.50,000-00 to the complainant and on 16-04-2005, complainant had appeared before the accused and paid illegal gratification amount of Rs.35,000-00 to the accused on his demand. At that time, again this accused demanded the balance 16 Spl. C.C. No.346/2015 amount, for that, this complainant expressed his inability. Despite the same, he demanded for the additional amount of Rs.10,000-00. In view of illegal gratification demanded by the accused, complainant was fed-up with the attitude of the accused, so on 21-04-2005 he filed a complaint before the Lokayuktha police as per Ex.P.1.
19. After registering the case, Lokayuktha Police secured the presence of two independent witnesses to act as panchas, conducted pre trap mahazar as appearing in Ex.P.10, left that office around 4.30 p.m. and went to the office of the accused. After they went there, they sent the complainant into the office of accused along with CW.3- S.R.Lokesh with a instruction to act him as a shadow witness. When they went inside that office, met the accused and discussed about pending work of the complainant. At that time, this accused informed him that, he is busy in his office duty, so he cannot entertain the him, so he asked the complainant to meet him in his house on 23-04-2005 in the morning. On account of the same, the complainant and shadow witness came out of that office and informed the same to Lokayuktha Police. From there they returned to Lokayuktha office, drawn panchanama as per Ex.P.11, affixed their signature. The I.O. informed 17 Spl. C.C. No.346/2015 the complainant and the pancha witnesses to come on 23-04-2005 around 6 A.M.
20. As per the instructions of Lokayuktha Police, on 23-04-2005 the complainant and pancha witnesses appeared before the I.O. in his office. After their arrival, I.O. handed over tainted currency notes in the hands of pancha witness-Lokesh, get it verified and kept in the left side shirt pocket of the complainant, instructed the complainant to met accused and discuss about his pending work and to pay the said amount to the accused on demand. On the lost occasion, CW.3- Lokesh was present with the complainant as a shadow witness, so I.O. instructed P.W.2-H. Nagesh to act as shadow witness on that day. Thereafter, Lokayuktha Police left their office in their departmental vehicle, went near the house of accused situated at Lalbahadoor Shastri Nagara, Bengaluru along with the complainant and pancha witness. After they went there, they repeated the instructions given to the complainant and shadow witness and sent them in the house of the accused. When the complainant and shadow witness came infront of house of the accused, its outer door was closed, so the complainant got opened the same by knocking. The accused came and opened that outer door, saw the complainant and shadow witness and enquired the 18 Spl. C.C. No.346/2015 complainant about shadow witness. Complainant informed him that, he is his friend and he also running the school for disabled persons, so he wants to discuss with him. At that time, this accused was hurry to go to office, so he informed the shadow witness to be stay outside his house and taken the complainant inside his house. After they went inside the house, the complainant discussed with the accused about his pending work, at that time, this accused demanded additional illegal gratification amount of R.10,000-00. On his demand he paid that amount to the accused came out of that house and accused closed the outer door of his house. After coming out of that house, the complainant gave signal to the Lokayuktha Police. Thereafter, they rushed towards that house. After their arrival, they tried to get open the outer door of that house by knocking. This accused partly opened the door saw these persons and enquired about them. When the I.O. got identified by himself saying that, he is a Lokayuktha Inspector, by hearing the same, he closed that door. Thereafter, Lokayuktha Police forcibly got opened that door and went inside the house. After they went inside that house, complainant informed the Lokayuktha Police stating that, he is Mr. Noor Mohammed Panali to whom he has paid the bribe amount on demand. After hearing the same, Lokayuktha Police got prepared the sodium carbonate solution in two bowls, taken 19 Spl. C.C. No.346/2015 out some portion of it in a sample bottle, got washed both the hands of accused separately in the remaining solution and the solution in both the bowls changed into pink colour and seized the same. Thereafter, Lokayuktha Police enquired the accused about the bribe amount, at that time, he told them that, that amount is on the sofa. Thereafter, Lokayuktha Police collected that amount and verified its numbers with the numbers mentioned in the note sheet and same was tallying. In view of the same, they confirmed that, the amount collected in the house of accused is illegal gratification amount demanded and accepted by the accused from the complainant. At that time nearly 15-16-persons were present out side that house. On enquiry they told that, they too have came to the house of accused to pay their demanded illegal gratification amount. Later, Lokayuktha Police enquired the accused and collected his written statement as per Ex.P.13. Later, Lokayuktha Police prepared sketch map as per Ex.P.19, searched the house of accused and found additional amount of Rs.1,15,000-00. From there, they returned to their station, drawn trap mahazar as per Ex.P.14 and obtained the signatures of panch witnesses. After getting the chemical analysis report and recording of statement of the witnesses and obtaining sanction order, Lokayuktha 20 Spl. C.C. No.346/2015 Police have submitted charge sheet against the accused for the offences alleged against him.
21. In support of the case of the prosecution, learned Public Prosecutor submitted before the court stating that, considering the case of the prosecution about the allegations made against the accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, the prosecution has to prove and establish its case stating that, work of the complainant was pending with the accused, accused has demanded and accepted illegal gratification for doing his official favour to the complainant. For considering this fact, the very documents got marked by the counsel for the accused in 'D' series are sufficient. In Ex.D.7, name of the complainant's education institution is appearing. However, the counsel for the accused has put a suggestion stating that, place of that institution is not appearing. Mere non-mentioning of the place of that education institution itself is not sufficient to discard that contention. When the accused got marked that document in the cross- examination, he has to prove and establish that, that the education institution at Sl.No.31 is not the education institution of the complainant. It is true that, the counsel for the accused is denying the 21 Spl. C.C. No.346/2015 very fact of locustandi of the complainant as a Secretary of Sri. Sharana Basaveswara Education Society, situated at Channagiri. By looking into the document marked at Ex.D.2, it indicates that, he was the Secretary of the said education society from 2000-01 to 2007-08. In the list of the members of its administration, name of the complainant T. Vasanth Theggihally is appearing as Secretary and they got prepared the audio report with regard to the income and expenditure of their education society every year. It is true that, counsel for the accused has put a suggestion stating that, education society of the complainant was block-listed by the Government. By looking into the documents marked at Ex.D.3, it indicates that, it was block-listed in the year 2008 i.e., after registering of this case against the accused. By looking into Ex.D.5, it indicates that a proceeding was initiated for termination of this accused from the service and his restoration, so it indicates that, he was terminated on account of registering of this case and trap of the accused. Subsequently he was reinstated to the service as the investigation was not completed within the stipulated period. In Ex.D.5, issuance of sanction for prosecuting this accused, the sanctioning authority has satisfied with the charge sheet papers stating that, there is a prima facie case against the accused. By looking into the document marked at Ex.D.6, it indicates 22 Spl. C.C. No.346/2015 that on 08-02-2005 the Government has passed the proceedings with regard to release of funds of integrated institutions for disabled persons for the year 2004-05. Counsel for the accused has taken a contention that, as on the date of registering the case, this accused was not authorized to release any funds to any of the education societies. By looking into the document marked at Ex.D.8 and the evidence of P.W.8, it indicates that, on account of act of this accused that order was passed by the Government. In the examination in chief of P.W.8, he has stated that, as this accused was trapped by the Lokayuktha Police, accused was suspended and he was placed in- charge of the same. As per the evidence of P.W.8, Ex.P.27 is the letter sent by him along with Ex.D.8. In that order, Government has directed to the Director of Urdu and other Minority Language institution, Public Education Department, to release the second installment amount to the said education institutions. Said document clearly indicates that, release of funds of the complainant's education society was pending with this accused. By looking into the trap mahazar, it indicates that, the I.O. has followed all the procedures to be fulfilled for conducting the trap. Ex.P.2 to Ex.P.10 are pertains to the pre trap mahazar and the said facts fulfills the same. Ex.P.14 is the trap mahazar and in that trap mahazar I.O. has specifically stated 23 Spl. C.C. No.346/2015 about the incident taken place after they went near the house of the accused and how successful trap was conducted against the accused.
22. In trap cases, for convicting the accused, the court has to consider the evidence of the complainant and shadow witness. It is true that, evidence of complainant with regard to demand and acceptance of illegal gratification by the accused from the complainant has to be corroborated with the evidence of shadow witness. Here in this case, P.W.1 and 2 are the complainant and shadow witness. In the complaint, the complainant has specifically stated about conversation taken place between him and the accused before trap and on the date of trap. Complainant has stated that, as this accused being a public servant has demanded additional illegal gratification of Rs.10,000-00, so he filed his complaint before the I.O. on 21-04-2005 as per Ex.P.1. After filing the complaint, I.O. has secured the presence of PW.2 and CW.3 conduct pre trap proceedings as appearing in Ex.P.2 to Ex.P.10. After registering the case, on the same day in the evening, Lokayuktha Police went to the office of the accused along with the complainant and panch witnesses. After meeting the accused by the complainant in his office, he told him that, he is busy with his office work and asked him to come and see him in his house on 23-04-2005 in the morning. 24 Spl. C.C. No.346/2015 Thereafter, complainant and shadow witness came out of that office, and complainant informed the same to the I.O., so they returned to their station and drafted the panchanama as per Ex.P.11, sent the complainant and the panch witnesses with instructions come on 23-04- 2005 in the morning around 6 a.m.
23. On 23-04-2005, I.O. secured the presence of the complainant and panch witnesses in his office conducted another mahazar as per Ex.P.12 and left that office after 7.30 a.m., went near the house of accused around 8.45 a.m. On that day, I.O. has instructed P.W.2 to accompany the complainant as a shadow witness to observe the conversation taken place between the accused and the complainant and inform about the same at the time of his enquiry. Unfortunately, on that day, when the complainant and P.W.2 went to the house of the accused and knocked the outer door, accused opened the outer door, saw the complainant and the shadow witness and enquired about the shadow witness. At that time, complainant introduced shadow witness as his friend and he is also running institution established for disabled children so he came over to his house to discuss about his institution. At that time, accused told to shadow witness to be stay out side his house and taken the 25 Spl. C.C. No.346/2015 complainant into his house. After they went inside the house, the complainant discussed about his pending work, accused demanded the bribe amount and collected the same from complainant. Thereafter, complainant came out of that house and gave signal to the Lokayuktha Police as instructed to him. Thereafter, they trapped the accused and got prepared the sodium carbonate solution in two bowls, taken out some portion of it in a sample bottle, got washed both the hands of accused separately in the remaining solution and the solution in both the bowls changed into pink colour. Thereafter, he got seized the bribe amount, enquired the accused about his defence to the same. At that time, this accused submitted his written statement as per Ex.P.13. In that written statement he has admitted the presence of this complainant and his request for release of funds on that day. Thereafter seizure of bribe amount of Rs.10,000-00 in his house. With regard to the said amount, he has stated that, it was left by the complainant without his knowledge, there was no demand by the accused. However, the complainant has specifically stated that, he paid that amount to the accused on demand and same was seized by the I.O. under the trap mahazar Ex.P.14. The presence of this accused in his house and discussed about the complainant's pending work, that itself presumes that, this accused has taken the complainant alone 26 Spl. C.C. No.346/2015 inside his house for receiving the bribe amount. If really, he was not demanding the bribe amount, he ought to have take both the complainant and shadow witness in his house for discussion or he would have sent them from out side his house by enquiring him at the outer door steps itself. When the accused has not permitted the shadow witness to enter into his house and when no other witness was present along with the complainant in his house, under such circumstances, sole testimony of complainant and the circumstantial evidence of shadow witness, other NGO's and I.O. are sufficient to consider the guilt of the accused. In trap mahazar marked at Ex.P.14, I.O. specifically stated about the conducting of trap and seizure of amount of Rs.10,000-00 in the house of the accused. Ex.P.15 to 18 are the photos taken at the time of trap mahazar, Ex.P.19 is sketch map of the scene of the offence and Ex.P.25 is the chemical analysis report. P.W.3 to 5 are the NGO's of other institutions. P.W.8 is the colleague of the accused and he has supported the prosecution case. P.W.6,9 and 10 are the I.O.s. P.W.6 has registered the case, conducted pre trap and trap proceedings and completed major investigation and prepared the final report. In the evidence of P.W.6, he has specifically stated about filing of complaint, registering of the case, conducting of pre trap proceedings, conducting of trap in the 27 Spl. C.C. No.346/2015 house of accused in the presence of panch witnesses, seizure of bribe amount from the accused in his house, drawing of trap mahazar, conducting of further investigation and recording of statements of other prosecution witnesses. Evidence of all the prosecution witnesses examined before the court along with the documents got marked by the prosecution in the examination of its witnesses and the documents marked by the counsel for the accused in the cross-examination of prosecution witnesses, it clearly proves the prosecution case against the accused beyond all reasonable doubt for having committed the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, so he requested the court to convict the accused by awarding maximum sentence. In support of his case, he relied on the following decisions:
1. Judgment of Supreme Court in Crl. Appeal No.1864/2011 Dated:16-09-2014 between (Somabhai Gopalbhai Patel V/s State of Gujarath),
2. Judgment of Supreme Court in Crl. Appeal No.697/2011 Dated:01-07-2015 between (Chaitanya Prakash Audichya V/s C.B.I.),
3. Judgment of Supreme Court in Crl. Appeal No.1317/2008 Dated:06-05-2015 between (State of A.P. V/s P. Venkateshwarlu),
4. Judgment of Supreme Court in Crl. Appeal No.955/2015 Dated:24-07-2015 between (Gurjant Singh V/s State of Punjab), 28 Spl. C.C. No.346/2015
5. Judgment of Supreme Court in Crl. Appeal No.618/2012 Dated:05-07-2016 between (Mukhtiar Singh V/s State of Punjab).
24. Contrary to this, learned counsel for the accused submitted before the court stating that, merely because prosecution witnesses have supported its case against the accused itself is not sufficient to convict. For convicting the accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, the prosecution has to prove its case against the accused beyond all reasonable doubt. It is well settled Principles of criminal jurisprudence that "Hundred criminals may be acquitted but one innocent person shall not be convicted". Here by looking into oral and documentary evidence placed by the prosecution before the court and the admissions of the prosecution witnesses in their cross- examination, it clearly indicates that, this complainant has no locustandi to file this complaint against the accused as he was not the Secretary of Sri. Sharana Basaveswara Education Society, Channagiri. No application for release of funds of the said institution was pending at the time of filing of complaint by the complainant against the accused. Usually, it is the duty of the D.D.P.I. of every district to collect the expenditure report of the concerned institutions, collect the utilization certificate about the previous funds and forward the same. 29 Spl. C.C. No.346/2015 At the time of this incident, this accused was not authorized to release the funds to any of the institutions. Usually, if the funds released by the Government are not utilized within the stipulated period, under such circumstances, that amount used to sent back to the Government. Thereafter the concerned NGO's have to apply for the same in the subsequent installments. Here in this case, the complainant has not submitted any proposal application before the accused for release of the funds to Sri. Sharana Basaveswara Education Society. The amount claimed by the complainant for the year 2003-04 and 2004-05 was not at all released by the Government. In the Government order dated:28-03-2005 and 08-02-2005 there is nothing to show that second installment of Rs.11,00,000-00 for the year 2003-04 and first installment of Rs.11,00,000-00 for the year 2004-05 was released in favour of the NGOs. In this regard, Lokayuktha Police have not produced any cogent evidence before the court. This accused has no authority to release the funds to the NGOs because in view of the order dated:28-03-2005, the Government has withdrawn the power and entrusted the same to Zilla Panchayat. Second installment for the year 2003-04 and first installment for the year 2004-05 was released subsequently, but a false claim was made by the complainant for filing a false complaint. Motive of the 30 Spl. C.C. No.346/2015 complainant filing this complaint is the act of conspiracy with other NGOs. The complainant himself is a stranger and he has no authority to file the complaint. As per Ex.D.1-one Hanumanthappa Theggihally was the Secretary and not the complainant. The integrity and credibility of the complainant is doubtful on account of the documentary evidence marked at Ex.D.3. There is no any corroboration in the evidence of the complainant and other prosecution witnesses with regard to the prosecution case to believe its false story. Evidence of P.W.8 clearly shows that, as on the date of complaint and trap, alleged amount was not available for release to any of the NGOs by the accused. I.O. has conducted search and seizure in the house of the accused only on the oral say of the complainant, so it is fatal to the prosecution case. Evidence of P.W.3 to 5 are unreliable to the prosecution case and it indicates that, their statements are manipulated to achieve the desired conspiracy. By looking into the evidence of P.W.1 and 2 along with trap mahazar, it contradicts each other and creates doubt in the mind of the court about the prosecution case. By looking into the evidence of P.W.1 and 2, the essential fact of demand and acceptance of illegal gratification by the accused from the complainant is not proved, so it is fatal to the prosecution case. Since the evidence of all the prosecution witnesses examined before the 31 Spl. C.C. No.346/2015 court contradicts each other, that itself creates doubt in the mind of the court about prosecution case with regard to allegations made against this accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the of Prevention of Corruption Act. By considering the oral and documentary evidence placed by the prosecution before the court, the prosecution has miserably failed to prove its case against beyond all reasonable doubt; hence, he requested the court to acquit the accused. In support of his case, counsel for the accused relied on the following decisions:
1. AIR 2016 Supreme Court 298 between (Krishan Chander V/s State of Delhi),
2. 2016 (12) Supreme Court Cases 150 between (V. Sejappa V/s State by Police Inspector Lokayuktha, Chitradurga),
3. (2006) 13 Supreme Court Cases 305 between (V. Venkata Subba Rao V/s State represented by Inspector of Police, A.P.),
4. (2011) 6 Supreme Court Cases 450 between (State of Kerala and another V/s C.P.Rao),
5. 2014 AIR SCW 5740 between (M.R.Purushotham V/s State of Karnataka),
6. (2005) 6 Supreme Court Cases 211 between (Ganga Kumar Srivastava V/s State of Bihar),
7. (2009) 15 Supreme Court Cases 200 between (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede),
8. (2009) 13 Supreme Court Cases 565 between (State of Kerala V/s Anilchandran @ Madhu and Others), 32 Spl. C.C. No.346/2015
9. (2014) 13 Supreme Court Cases 55 between (B. Jayaraj V/s State of A.P.),
10. (2007) 8 Supreme Court Cases 246 between (K. Subbareddy V/s State of A.P.),
11. (2015) 16 Supreme Court Cases 350 between (Khaleel Ahmed V/s State of Karnataka),
12. (2015) 11 Supreme Court Cases 314 between (C. Sukumaran V/s State of Kerala),
13. 2016 (1) Supreme Court cases 713 between (N. Sunkanna V/s State of Andhra Pradesh),
14. (2014) 10 Supreme Court cases 473 between (Anvar P.V. V/s P.K. Basheer and others).
25. After considering the submissions of both the sides, after going through the decisions relied upon by them along with the oral and documentary evidence placed by the prosecution before the court, the facts remains for consideration of this court is, whether the prosecution has proved its case against the accused beyond all reasonable doubt for having committed the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act or not is the facts to be considered by the court. For convicting the accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the of Prevention of Corruption Act, the prosecution has to prove the fact that, this accused being a public servant while discharging his public duty has demanded and accepted illegal 33 Spl. C.C. No.346/2015 gratification from the complainant for doing his official favour by misusing his official position. It is true that, as contended by the counsel for the accused, the initial burden of proof is on the prosecution to prove its case against the accused beyond all reasonable doubt. In criminal cases "Innocence of the accused is presumption and his guilt is subject to proof". I have gone through all the decisions relied upon by the counsel for the accused. In a decision reported in AIR 2016 Supreme Court 298 between (Krishan Chander V/s State of Delhi). The accused in that case was acquitted for the reasons that, the panch witness did not hear the conversation between the accused and the complainant with regard to demand and acceptance of bribe amount at the time when complainant had approached the accused to give bribe money. Whether the said ratio is applicable to the case on hand or not is the fact to be considered by the court.
26. It is true that, in the decision reported in 1993 Crl.L.J. 2878, Bombay High Court, HN-A between (M.G. Thatte V/s State of Maharashtra). His Lordship held that "Where the evidence of complainant quite credible no conviction can be based on such evidence unless it is corroborated by the independent material 34 Spl. C.C. No.346/2015 witness". In another decision reported in High Court of Karnataka reported in LAWS KAR 2004 393 High Court of Karnataka, between (D. Rajendran V/s State by Police Inspector, BOI). The Hon'ble High Court held that: "unless the evidence of the complainant and shadow witness corroborates with each other, it is not safe to convict the accused person". Under what circumstances, the principles of the said decisions are to be considered in a trap cases is the fact to be considered by the court. Application of the ratio of the said decisions differs from case to case and facts.
27. Here in this case, the counsel for the accused totally denying the locustandi of the complainant as a Secretary of Sri. Sharana Basaveswara Education Society and pendency of any work of the said institution with the accused. By looking into the document marked at Ex.D.2, it indicates that, those documents are the certified copies of the documents collected by this accused from the Registrar of Societies, Davanagere. The said document consists of list of members of Sri. Sharana Basaveswara Education Society, Chennagiri. The names of its members, income and expenditure account consisting of receipts, payments, balance sheet and audio report. In the said document name of the complainant-Vasanth Theggihally is appearing 35 Spl. C.C. No.346/2015 as the Secretary of that institution from 2002-03. It is true that, in the year 2001-02 one Hanumanthappa Theggihally was its Secretary. This incident had taken place in the year 2005 and at that time the complainant was the Secretary of that institution as appearing in the documents produced by the accused before the court.
28. Now, the point remains for consideration of this court is, whether any work pertains to the said Sri. Sharana Basaveswara Education Society was pending with this accused at the time of filing of the complaint or not is the fact to be considered by the court. For considering that fact, looking into the document marked at Ex.D.4 is necessary. It is a letter dated:21-01-2006 written by the Secretary of the Government of Karnataka, Primary and Higher Education, Bengaluru-02 to one Mr. Akhil Mirja. In that letter, it is mentioned that, the dues of the funds of second installment for the year 2003-04 and dues of the funds of first installment for the year 2004-05 of Sri. Sharana Basaveswara Education Society are released on 14-06-2005 and 16-06-2005 i.e., after registering this case against the accused. Ex.D.6 is the proceedings of the Government of Karnataka with regard to the release of the funds to the institutions for disabled children for the year 2004 dated:03-06-2004. In that proceedings, it is mentioned 36 Spl. C.C. No.346/2015 that, the amount mentioned in the said proceedings is to be released through the Director of Urdu and other Minority Language institutions, Public Education Department, to the concerned DIET's of the State. In view of the same, it indicates that, this accused being the Director of the same, so he was authorized to release the said funds to all the institutions concerned. Ex.D.7 is the list of second installment amount payable to the institutions mentioned in the same. The said list is dated:28-03-2005. Name of Sri. Sharana Basaveswara Education Society is at Sl.No.31. By considering the same, the second installment amount for the year 2003-04 and first installment amount for the year 2004-05 was ordered to be released to the said institution. The fact that, this accused was entrusted with that matter, is supported with the copy of the proceedings of the meeting dated:15-04-2005 and 16-04-2005 produced by the accused along with his 313 statement. In the said meeting it was resolved as follows:
f¯ÉèUÀ½UÉ ««zÀs PÁæAiÀÄðPÀæªÀÄUÀ½UÉ ©qÀÄUÀqÉAiÀiÁzÀ C£ÀÄzÁ£ÀzÀ §UÉÎ G¥À¤zÉÃð±ÀPÀgÀÄ RÄzÁÝV ªÉÄîĸÀÄÛªÁj ªÀiÁr AiÀiÁªÀ ¯ÉPÀÌ ²Ã¶ðPÉAiÀÄ°è AiÀiÁªÀ PÁAiÀÄðPÀæªÀÄPÉÌ JµÀÄÖ ºÀt ©qÀÄUÀqÉAiÀiÁVzÉ JµÀÄÖ ºÀt ¨ÁQ EzÉ JA§ÄzÀ£ÀÄß (PÉëÃvÀæ ²PÀëuÁ¢üPÁjUÀ½AzÀ zÀÈrüÃPÀj¹) ¢£ÁAPÀB 30-4-2005 gÉƼÀUÉ DAiÀÄÄPÀÛgÀ PÀbÉÃjUÉ ¤ÃqÀ®Ä ¸ÀÆa¸À¯Á¬ÄvÀÄ.37 Spl. C.C. No.346/2015
zÁªÀtUÉgÉ f¯ÉëAiÀÄ C£ÀÄzÁ¤vÀ ±Á¯ÉUÀ¼À°è 4 ªÀµÀðUÀ½AzÀ vÀÄnÖ ¨ÀsvÉÊ ºÁUÀÆ EvÀgÉ ©®ÄèUÀ¼ÀÄ ¨ÁQ EgÀĪÀÅzÀ£ÀÄß ¢£ÁAPÀB 30-4-2005 gÉƼÀUÉ EvÀåxÀð¥Àr¸À®Ä w½¸À¯Á¬ÄvÀÄ.
C£ÀÄzÁ¤vÀ ±Á¯ÉUÀ¼ÀÄ C£ÀÄzÁ£ÀPÉÌ M¼À¥ÀlÖ §UÉÎ ¤zÉÃð±ÀPÀgÀÄ (¥ÁæxÀ«ÄPÀ) ªÀÄvÀÄÛ (¥ËæqÀs ²PÀët) gÀªÀgÀÄ ¥Àj²Ã°¸ÀĪÀÅzÀÄ. ±Á¯ÉAiÀÄÄ C£ÀÄzÁ£ÀPÉÌ M¼À¥ÀqÀ¢zÀÝgÉ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¢£ÁAPÀ 20-4-2005 gÉƼÀUÉ F PÀZÉÃjUÉ PÀ¼ÀÄ»¹PÉÆqÀ¨ÉÃPÉAzÀÄ w½¹zÀgÀÄ.
So, the said resolution resolves that, earlier to registering the case, this accused was entrusted with the funds to release to the concerned institution established for disabled children.
29. The complainant has stated that he has approached the accused for release of the said funds in the month of April, at that time, he has demanded illegal gratification of Rs.50,000-00, for the same on 16-04-2005 he has demanded and accepted illegal gratification of Rs.35,000-00 from the complainant. Subsequently, on 21-04-2005 in the morning when he had appeared before the accused for release of the said funds, at that time, again he has demanded illegal gratification of Rs.10,000-00. Fed up with the attitude of the accused, he filed the complaint before the Lokayuktha Police as per Ex.P.1. After registering the case, Lokayuktha Police secured the presence of panch witnesses P.W.2 and CW.3, conducted pre trap 38 Spl. C.C. No.346/2015 proceedings as appearing in Ex.P.2 and Ex.P.10. Ex.P.2 is the notes sheet and Ex.P.10 is the pre trap mahazar. Ex.P.3 to 9 are the photos taken at the time of pre trap proceedings. After completion of the pre trap proceedings around 4.30 p.m. Lokayuktha Police left their office along with the panch witness, complainant and staff, went to the office of accused around 6 p.m. After they went there, they sent the complainant and the shadow witness S.R.Lokesh to meet this accused and to discuss about the pending work. When they went inside the office of the accused, and met him, at that time, this accused told the complainant stating that, he is busy with his office duty, so he has no time to talk with him. Hence, he informed the complainant meet him in his house in the morning on 23-04-2005. In view of the same, complainant pancha witness and Lokayuktha Police returned to their station, drawn panchanama as per Ex.P.11 and obtained the signatures of complainant and panch witnesses on the same and sent them back with instruction to come on 23-04-2005 at about 6 a.m.
30. As per their instruction, again the complainant and panch witness appeared in the Lokayuktha office, on 23-04-2005 in the morning. At that time, the Lokayuktha Police taken out the tainted currency notes kept in their almera, verified its numbers with its note 39 Spl. C.C. No.346/2015 sheet, again got smeared phenolphthalein powder on the same, got it kept in the left side shirt pocket of the complainant through CW.3- S.R.Lokesh. At that time, Lokayuktha Police instructed the complainant to meet the accused, discuss with him about the pending work and to pay the bribe amount on his demand and instructed P.W.2 H. Nagesh to be present with him and observe the proceedings taken place between the complainant and accused and give his statement at the time of their enquiry. In this regard, they drawn a panchanama as per Ex.P.12, obtained their signatures and left that office after 7.30 a.m. They reached the house of the accused situated at Lalbahaddoor Shastri Nagara, Bengaluru, around 8.45 a.m. sent the P.W.1 and 2 to meet the accused and to discuss with him about his pending work and to pay the bribe amount on demand.
31. When the complainant and shadow witness came near the house of accused, its outer door was closed, so he knocked the door and got it opened. Accused came and opened the door, saw the complainant and shadow witness, enquired about the shadow witness. For that, he informed that said witness is also running a institution to the disabled children and he wants to discuss with the accused about financial assistance. At that time, the accused asked that shadow 40 Spl. C.C. No.346/2015 witness to be stay outside the house and taken the complainant inside his house. After they went inside the house, the complainant discussed with the accused about his pending work, at that time, this accused demanded illegal gratification of Rs.10,000-00, complainant paid the same, came out side of that house. Thereafter, accused closed his house door and went inside. From there, the complainant gave signal to the Lokayuktha Police as instructed by them. Thereafter, the Lokayuktha Police went to the house of the accused, rang the bell to open the door. At that time, accused came and opened door partly by putting a chain, enquired about the persons gathered in front of his house. At that time, I.O. informed him that, he is a Lokayuktha police official. By hearing the same, he did not open the door, so forcibly Lokayuktha Police got opened the same, entered into the house of accused. The complainant by showing this accused to I.O. said that, he is Mr. Noor Mohammed Panali who collected the bribe amount of Rs.10,000-00 from him on demand. Thereafter, Lokayuktha Police got prepared the sodium carbonate solution in two bowls, taken out some portion of it in a sample bottle, got washed both the hands of accused separately in the remaining solution and the solution in both the bowls changed into pink colour. Later, Lokayuktha Police enquired the accused about the bribe amount and accused told 41 Spl. C.C. No.346/2015 them that, that amount is on the sofa, so they collected the said amount through pancha witness. Enquired the accused about his explanation to the complainant's case. At that time, this accused submitted his written explanation as per Ex.P.13. From there, they returned to their station, prepared trap mahazar as per Ex.P.14 and obtained the signatures of panch witnesses, complainant and the accused on the same. At the time of trap proceedings, the Lokayuktha Police have taken photos marked at Ex.P.15 to 18. Thereafter, Lokayuktha Police recorded the statements of witnesses, sent the seized articles to the chemical analysis, received the report from the chemical examiner as per Ex.P.25, obtained the sanction order as per Ex.P.26 and filed this charge sheet against the accused.
32. By considering the facts stated above, it clearly indicates that, the release of the funds of second installment for the year 2003- 04 and first installment for the year 2004-05 of Sri. Sharana Basaveswara Education Society, Chennagiri, was pending with this accused. Said facts disclosed in the documentary evidence produced by the accused and the Lokayuktha Police. It is true that, counsel for the accused has taken a defence stating that, at the time of filing of the complaint, this accused was not authorized to release the funds of 42 Spl. C.C. No.346/2015 any such institutions as the Government has passed order for its release through Zilla Panchayat. Whether such defence is admissible or not is the fact to be considered by the court. By looking into the explanation of the accused marked at Ex.P.13, it indicates the pendency of the work of Sri. Sharana Basaveswara Education Society, for release of its funds was with this accused and the appearance of this complainant in that regard are proved. In that statement, he has stated that, on 23-04-2005 at about 8.45 a.m. the complainant and a shadow witness-P.W.2 had came to his house, at that time, he was in a hurry to go to office, so he told P.W.2 to stay outside the house and taken the complainant inside his house, discussed with him about the official work and complainant requested to process the release of funds of his institution today itself as he requires the funds immediately. For that, the accused told him that, he will examine after going to the office. The complainant left the house of accused and accused closed the outer door. Thereafter, Lokayuktha Police came there and entered into his house, getting the outer doors opened forcibly. After their arrival, the complainant told the Lokayuktha Police stating that, he kept the bribe amount below one of the pillow kept on the sofa and same was collected by Lokayuktha Police, but he do not know about the said amount.
43 Spl. C.C. No.346/2015
33. Whether the said statement of the accused is admissible or not is the fact to be considered by the court. If he was not authorized to release the funds of the institutions for disabled children as appearing in the documents stated above, then the question of this complainant approaching the accused and requesting him for release of the said funds does not arise. Further, if it was a matter to be looked into in his office, why he instructed the complainant to come and meet him in his house on 23-04-005 morning and why he has taken the complainant alone into his house and did not permitted P.W.2 to enter into his house along with the complainant are the facts to be considered by the court. Usually, in cities nobody will permit the strangers to enter into their house and there is no explanation from the accused as to why he had taken the complainant alone in his house and why he has not permitted the P.W.2 to enter into his house. This act of the accused creates some suspicion in the mind of the court about the explanation given by this accused in his explanation marked at Ex.P.13.
34. By looking into the panchanama marked at Ex.P.12, it indicates that, on 21-04-2005 when the complainant and shadow 44 Spl. C.C. No.346/2015 witness went and met this accused, at that time, he did not entertain them and sent back the complainant with instruction to come and meet him at his residence on 23-04-2005 in the morning. On 23-04- 2005 in the morning when the complainant went to the house of accused, at that time, he allowed the complainant inside his house and entertain him, so this act itself indicates that, he has taken the complainant into his house as he called him to his house for receiving the bribe amount. If really, he was not after money from the complainant, he would have sent him back from his house by discussing with the complainant by standing at the outer door steps itself. If really he was not intending to demand and accept the bribe amount from the complainant, he ought to have permit the shadow witness to enter into his house along with the complainant. When he permits the complainant to enter into his house and restrain the shadow witness P.W.2 out side his house, that itself goes to show that, this accused did not entertain P.W.2 into his house as he was intending to receive the bribe amount from the complainant. When the accused has not permitted the shadow witness P.W.2 to enter into his house, under such circumstances, the sole testimony of the complainant is sufficient for considering the prosecution case. If this accused has permitted the shadow witness P.W.2 to enter into his 45 Spl. C.C. No.346/2015 house along with the complainant and then there was any contradictions in the statement of P.W.1 and 2, the court would have disbelieve the prosecution case as their evidence contradicts each other and creates doubt in the mind of the court. Here in this case, this accused has not permitted the shadow witness to enter into his house and taken the complainant alone into his house, so the sole testimony of complainant has to be believed.
35. In the examination in chief of P.W.1, he has specifically stated about the procedures followed by the Lokayuktha Police earlier to trap. For considering the prosecution case, the incident on 23-04- 2005 in the house of the accused is more important than the earlier incident. For considering this fact the evidence of the complainant in his examination in chief at para 3 on page 4 is important. It reads as follows:
".......... Thereafter we were taken to Lal Bahadur Shastri Nagar. Myself and witness Nagesh went near the house of the accused. Other members of the trap team stood outside the house here and there. Accused seen us and opened the door and enquired about witness Nagesh who was with me. I told the accused that he is of our institution.
Accused asked me to come inside his house alone.
46 Spl. C.C. No.346/2015Accordingly I alone went inside the house of the accused and sat on the sofa. I enquired the accused about the release of grant to our institution. Accused asked me as to whether I have brought the amount which he demanded. I told the accused that I have brought the amount and took out the tainted currency notes from my shirt pocket. Accused asked me to keep that amount on the sofa. Accordingly, I kept that amount on the sofa......."
This evidence of complainant with regard to his visit to the house of accused and he alone entered into the house of accused is corroborative with the explanation of accused marked at Ex.P.13 and the evidence of P.W.2. With regard to subsequent incident, complainant has stated in his examination in chief on the same para-3 and on page-4 and it reads as follows:
"............ Lokayuktha police came there and knocked the doors of the house of the accused.
Accused came near the door and seen the Lokayuktha Police inside his house and enquired them as to why they came there. Accused after coming to know that they are the Lokayuktha Police not opened the door. Lokayuktha Police have forcibly opened the door and went inside the house of the accused. Lokayuktha Police have shown their identity card to the accused. Lokayuktha Police have 47 Spl. C.C. No.346/2015 conducted the hand wash of both the hands of the accused in the solution. Both the hand wash turned into pink colour and same was seized by the Lokayuktha Police. Lokayuktha Police have asked the accused about the amount received by him from me. The amount was kept in some other place by the accused and he shown the same to the Lokayuktha Police. When those currency notes were verified they found to be the same currency notes which were given to me at the time of pre trap proceedings.....".
Accused has not stated about his hand wash in the sodium carbonate solution and change of its colour into pink. If really, he has not touched that amount or he has not demanded and accepted the same, then why his hand wash in the sodium carbonate solution was changed into pink colour is the fact to be considered by the court . There is presumption under Section 20 of the P.C. Act stating that, "any illegal gratification found in the custody of the public servant and he did not satisfactorily explained for the same, then there is a presumption that, he has demanded and accepted the same".
48 Spl. C.C. No.346/2015
36. At the time of meeting of the complainant with the accused, in his house, no other independent witness were present, so he has to say as to why and how hand wash in sodium carbonate solution was changed into pink colour without touching the tainted currency notes. As per Section 106 Indian Evidence Act states that "when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him". So here in this case also when the accused filed his explanation before the I.O. as per Ex.P.13, then, he ought to have state about his hand wash in the sodium carbonate solution and change of its colour. This silence of accused about the same itself creates doubt in the mind of the court about his defence taken in this case.
37. It is true that, P.W.2 is a shadow witness. The said witness has also specifically stated the procedures followed by the Lokayuktha Police earlier to the trap and about taking him to the house of the accused on 23-04-2005 and subsequent incident. In his examination in chief at para 5 page 4 he has stated as follows:
".......... Thereafter myself and complainant entered into the premises of the accused by opening the main gate, at that time the main door of that house was locked. Thereafter we knocked 49 Spl. C.C. No.346/2015 the door, accused come out and opened the door.
By seeing me he enquired about me and I told him that I am also running a school and I am in need of funds from the Government. For that he told me to wait outside and taken the complainant inside his house. The complainant went inside the house of the accused and around 09-15 A.M. he came out of that house and gave signal to Lokayuktha Police by wiping his face with hand kerchief ...........".
Further at para 5 page 4 he has stated as follows:
"............. Later accused came and opened the door in part and enquired about the persons standing in front of his house. There after the Lokayuktha Police got introduced to him stating that they are Lokayuktha Police. By hearing the same, this accused hesitate to open the main door. Thereafter the Lokayuktha Police pushed that main door and entered the house of the accused ........"
Further in para 5 page 5 he has stated as follows:
".............. Later Lokayuktha Police got prepared sodium carbonate solution in two bowls and got washed both the hand fingers of the accused separately in the said solution. The solution in both the bowls changed into pink 50 Spl. C.C. No.346/2015 colour. Thereafter Lokayuktha Police enquired this accused about bribe amount, for that he told them that, that amount is on the sofa.....".
So the evidence of P.W.2 also corroborates with the evidence of the complainant with regard to visit to the house of accused and about the demand and acceptance of bribe amount by the accused from the complainant. In the cross-examination of P.W.2, counsel for the accused put a suggestion stating that, at the time when they went there, other public were standing separately at few distance and that suggestions is on page 7 and it reads as follows:
"............It is true that when we went there other public were standing separately at few distance from the house of the accused. I do not know as to whether all the said persons were familiar to the complainant Vasanth or not. This accused has not called me inside his house after the complainant came out from that house. Lokayuktha Police have took the signatures of other 16 persons to the trap mahazar.........".
Further, he put a suggestion stating that after entering into the house of the accused by Lokayuktha Police, they asked about the bribe amount, P.W.2 has stated that first they got washed the hands of the accused in sodium carbonate solution and then asked him to produce 51 Spl. C.C. No.346/2015 the bribe amount. This suggestion by the counsel for the accused to P.W.2 indicates that, the bribe amount of Rs.10,000-00 marked as M.O.10 was seized by the Lokayuktha Police from the house of the accused.
38. P.W.3 to 5 are independent and circumstantial witnesses. They too also the NGO's of institutions running for the welfare of the disabled children and in their evidence they have specifically stated about the demand of bribe amount by this accused from them and about their presence in front of house of accused on 23-04-2005 in the morning around 8 or 8.30 A.M. In their examination in chief also they have specifically stated about their institutions and about the demand of bribe amount by the accused. If really, he has not demanded the bribe amount from them, then why they appeared before the house of the accused on 23-04-2005 is the fact to be considered by the court. Names of P.W.3 to 5 and other NGOs are appearing on page 6 and 7 of trap mahazar marked at Ex.P.14. In the trap mahazar I.O. has specifically stated about the entire proceedings of trap mahazar. The contents of trap proceedings are also corroborated with the evidence of P.W.1 to 5 and proves the prosecution case against the accused 52 Spl. C.C. No.346/2015 about demand and acceptance of illegal gratification of Rs.10,000-00 marked at M.O.10.
39. P.W.8 is a retired Government servant, who was in-charge of Director of Urdu and other Minority Language Education, Bengaluru, after suspension of this accused from his post. In his examination in chief he has specifically stated that, as this accused was involved in the trap case, so he was suspended and he was placed in charge of the same. Said statement reads as follows:
".............As he was involved in a trap case, so he was suspended from his post and I was placed in charge of the same....".
It is true that, in the cross-examination of P.W.8, he has admitted that, the amount mentioned in Ex.P.27 ought to have been utilized during the said financial period, but he pleaded his ignorance about any complaint against NGO's for release of such funds. In the examination in chief of P.W.8 on page 2 he has stated that, as per the Government order marked at Ex.D.6 and Ex.P.27 this accused was suppose to release the funds to the particular institutions before 23-04-2005. Said statement reads as follows:
53 Spl. C.C. No.346/2015
"..............As per the Government orders this accused was suppose to release the funds to the particular institutions mentioned in Ex.D.6 and Ex.P.27 before 23-04-2005..........".
There is no any cross-examination by the counsel for the accused to this witness in this regard. By considering this statement of P.W.8 in his examination in chief, further it is clear that, as on the date of filing of the complaint and earlier to the trap of the accused on 23-04-2005, he was suppose to release the funds to such institutions. This statement of P.W.8 further gives scope to believe the prosecution case about demand and acceptance of illegal gratification amount of Rs.10,000-00 by this accused from the complainant. P.W.6,9 and 10 are the I.O.s. P.W.6 A.N. Rajanna has specifically stated in his examination in chief about the procedures followed by him and after registering the case before trap and after trap in the presence of complainant and panch witnesses. The trap of this accused in his house on 23-04-2005, seizure of bribe amount marked at M.O.10 and additional amount of Rs.1,15,000-00. In the evidence of P.W.6 he has further stated about the presence of P.W.3 to 5 and other NGO's in front of house of the accused and recording of their statements. He 54 Spl. C.C. No.346/2015 has stated about further investigation done by him and preparing the final report. Evidence of P.W.6 corroborates with the evidence of P.W.1 to 5 and proves the prosecution case against the accused regarding demand and acceptance of illegal gratification amount of Rs.10,000-00 by this accused from the complainant. Nothing has been elicited in the cross-examination of P.W.6 by the counsel for the accused to disbelieve the prosecution case against the accused. The role of P.W.9 and 10 are very limited with regard to collecting the sanction order and submitting the charge sheet before the court. Their evidence is not of much importance. However, by considering the evidence of P.W.1 to 8 along with the case of the prosecution, the prosecution has proved its case against the accused beyond all reasonable doubt for the offences alleged against him.
40. I have gone through the decisions relied upon by the counsel for the accused stated above. In all the decisions their Lordships held that, demand and acceptance of bribe amount by the accused is sinequa-non and mere recovery of some amount from the accused itself do not constitute that, he has committed the offences under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and it is not sufficient to presume the guilt of the 55 Spl. C.C. No.346/2015 accused under Section 20 of P.C.Act. Further they stated that, very seizure of the amount from the possession of the accused under suspicious circumstances is not a presumption under Section 20 of the P.C. Act. I have gone through the ratio involved in all the decisions relied upon by the counsel for the accused stated supra. The ratio involved in the said decisions are entirely different from the facts of the case on hand. Here in this case, the accused admitted in his explanation marked at Ex.P.13 stating that, he allowed the P.W.1 alone to enter into his house for discussion and sent him out. Thereafter the Lokayuktha Police entered into his house search and seized cash of Rs.10,000-00 marked at M.O.10. That explanation is not satisfactory to admit the same. Since the complainant is not his friend or relative and if release of funds pertains to Sri. Sharana Basaveswara Vidya Samste was not with him and he was authorized to do anything in the matter, he ought to have sent the complainant and P.W.2 from his house after discussing with him by standing at the outer door steps or he ought to have permit the P.W.2 to be present with him, when the P.W.1 has entered in his house. As he has admitted the fact of taking the complainant alone in to his house and seizure of bribe amount of Rs.10,000-00 marked at M.O.10 from his 56 Spl. C.C. No.346/2015 house, that itself gives a scope to presume the prosecution case as prescribed under Section 20 of the P.C.Act.
41. It is true that the presumption under Section 20 of P.C.Act is a rebuttal presumption. Here in this case, that presumption is not rebutted by the accused with any cogent evidence and he has not stepped into the witness box to disprove the prosecution case stating as to why and how he was falsely involved in this case, if he has not committed any of the offences alleged against him. Since the presumption available with respect to the prosecution case is not rebutted by the accused with any cogent evidence. So the ratio involved in the decisions relied upon by the counsel for the accused cannot be considered for his acquittal.
42. I have gone through the decisions relied upon by the Public Prosecutor. In the said decisions their Lordships have discussed as to how the case of the prosecution against the accused for the offences punishable under Sections 7,13(1)(d) r/w 13(2) of the Prevention of Corruption Act, are to be considered by considering the evidence of the complainant and shadow witness. Further in the said decisions, their Lordships have specifically stated as to how the case of 57 Spl. C.C. No.346/2015 the prosecution to be appreciated by the court with regard to the allegations against the accused alleged in the charge sheet. By considering the ratio involved in the said decisions and the discussion of their Lordships in the said decisions, this court held that, the ratio involved in the said decisions are partly applicable to the case of the prosecution, to consider it. In a Supreme Court decision pertains to Crl.Appeal No.955/2015 dated:24-07-2015 between (Gurjant Singh V/s State of Punjab), their Lordships have stated as to how the prosecution case about demand and acceptance of illegal gratification shall be presumed under Section 20 of the P.C. Act and at para 22 of the same their Lordships have stated about the same and it reads as follows:
" 22. In the case at hand, the money was recovered from the pockets of the appellant- accused. A presumption under Section 20 of the Act becomes obligatory. It is a presumption of law and casts an obligation on the court to apply it in every case brought under Section 7 of the Act. The said presumption is a rebuttable one. In the present case, the explanation offered by the appellant-accused has not been accepted and rightly so. There is no evidence on the base of which it can be said that the presumption has been rebutted".58 Spl. C.C. No.346/2015
Here in this case the permission given by him for the entry of complainant alone into his house and seizure of bribe amount of Rs.10,000-00 from his house by Lokayuktha Police at the time of trap and change of colour of sodium carbonate solution in to pink colour after washing of his both the hands in the same and the evidence of P.W.1 to 5 are not rebutted with any cogent evidence. Hence, this court held that, presumption under Section 20 of the P.C. Act is available to the prosecution. By considering the oral and documentary evidence of the prosecution placed before the court, this court held that, the prosecution has proved the fact of demand and acceptance of illegal gratification by this accused from the complainant in his house on 23-04-2005 in the morning by misusing his official position as a public servant and committing of criminal misconduct by him for doing his official favour to the complainant. In view of all these reasons, this court answered point No.2 and 3 in the Affirmative.
POINT No.4:
43. In view of all the reasons, this court proceeds to pass the following order:
59 Spl. C.C. No.346/2015
ORDER Accused is held guilty for the offences punishable under Sec.7 and 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act,1988.
For hearing the accused on sentence.
(MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
CCH-78 Hearing on sentence.
Heard the accused and the Public Prosecutor on sentence. The accused submitted that, he is a retired Government servant, aged 62-years and he has undergone heart surgery in the month of Dec. 2016. He is the only the earning member of the family and he has to look-after his dependents, so he requested the court to take lenient view for imposing sentence.
Contrary to this, learned P.P. submitted before the court stating that, by considering the nature of the offences alleged against the accused and position of this accused on the date of offence, it indicates that, it is heinous in nature and against the interest of 60 Spl. C.C. No.346/2015 public. On the date of trap other than the complainant, NGOs' of other institutions of disabled children were also present in front of house of the accused for payment of illegal gratification amount demanded by the accused. This act of the accused shows that, he is not deserve for any concession, so no lenient view be taken for imposing sentence. Hence, he requested the court to convict the accused by awarding maximum sentence.
After considering the submissions of both the sides on sentence, it is true that, by looking into the nature of the offences, they are heinous in nature and against the interest of public.
However, the discretionary powers vest with the court for showing any lenient view in imposing sentence. By considering the physical condition and family background of the accused as submitted before the court, this court held that, he shall not be sentenced for regress imprisonment. The very object of convicting the accused is to bring awareness within him about his acts and to reform him in the society. He should convey the consequences of public servants accepting the illegal gratification while discharging their duty to the other public servants. By considering the physical condition of the accused as expressed before the court, this court held that, rigorous 61 Spl. C.C. No.346/2015 imprisonment cannot be passed. Just because rigorous imprisonment cannot be passed against him does not mean to say that, he shall not be sentenced for imprisonment. However, he can be convicted by imposing simple imprisonment and fine. With these observations, this court proceed to pass the following:
ORDER Acting u/Sec. 235(2) of Cr.P.C. accused is convicted for the offence punishable under Section 7 of the Prevention of Corruption Act, he is sentenced to undergo S.I. for one year and to pay a fine of Rs.5,000-00, in default of payment of fine, he shall undergo S.I. for six months.
Acting u/Sec. 235(2) of Cr.P.C. accused is convicted for the offence punishable under Section 13(1)(d) of the Prevention of Corruption Act, he is sentenced to undergo S.I. for two years and to pay a fine of Rs.10,000-00 in default of payment of fine, he shall undergo S.I. for one year.
Both the sentences run concurrently.
Acting U/s 428 of Cr.P.C. set-off is given to the accused for the period for which he was in judicial custody during the trial.
Office is directed to supply the free copy of the Judgment to the accused.62 Spl. C.C. No.346/2015
The M.O.1 to 9 which are worthless are ordered to be destroyed and M.O.10 i.e., cash of Rs.10,000-00 (Rupees Ten thousands only) is confiscated to the State after lapse of appeal period.
(Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 28th day of June 2018) (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78) ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Vasanth Pakirappa Theggihalli PW.2: H. Nagesh PW.3: Parashuram D. PW.4: B.M. Satish PW.5: Yashoda PW.6: A.N.Rajanna PW.7: Tushar Girinath PW.8: Raghuram Somayaji P.W.9: B. Parameshwarappa P.W.10: K. Ravi Shankar 63 Spl. C.C. No.346/2015 LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Complaint Ex.P.1(a & b): Signatures of PW.1 & P.W.6 Ex.P.2: Note sheet of currency notes Ex.P.2(a to d): Signatures of PW.1,2 & CW.3 and P.W.6 Ex.P.3 to 9: Photos (Pre trap) Ex.P.10: Pre trap mahazar Ex.P.10(a to d): Signatures of PW.1,2 & CW.3 and P.W.6 Ex.P.11: Mahazar dated:23-04-2005 Ex.P.11(a to c): Signatures of P.W.1,P.W.2 & C.W.3 Ex.P.12: Mahazar Ex.P.12(a to d): Signatures of P.W.1,2 & CW.3 and P.W.6 Ex.P.13: Written explanation of accused Ex.P.13(a to c): Signatures of PW.1, PW.2 and CW.3 Ex.P.14: Mahazar Ex.P.14(a to d): Signatures of PW.1,2 & C.W.3, P.W.6 Ex.P.14(e): Signature of accused Ex.P.15 to 18: Trap proceedings photos Ex.P.19: Rough sketch of spot Ex.P.19(a & c): Signatures of P.W.2 & P.W.6 Ex.P.19(b): Signature of Lokesh Ex.P.20: FIR Ex.P.20(a): Signature of PW.6 Ex.P.21: Letter to National High Authorities Ex.P.21(a): Signature of PW.6 Ex.P.22: Letter to Inspector of Survey settlement and land records 64 Spl. C.C. No.346/2015 Ex.P.22(a): Signature of Inspector Ex.P.23: Acknowledgment Ex.P.23(a & b): Signatures of Lokesh S.R. and P.W.6 Ex.P.24: Photo negatives Ex.P.25: Chemical analysis report Ex.P.25(a): Signature of P.W.6 Ex.P.26: Sanction order Ex.P.26(a): Signature of P.W.7 Ex.P.27: Funds allotment order of Government LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Sample solution MO.2: Hand wash solution of CW.2 M.O.3 & 4: Sample solution M.O.5 & 6: Right hand wash solution of Accused MO.7 & 8: Left hand wash solution of accused MO.9: Right hand wash solution of complainant MO.10: Currency notes LIST OF WITNESSES EXAMINED FOR ACCUSED:
NIL LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: R.T.I. copy of letter (list) of S.S.B.V.Samste, Chennagiri, Davanagere Ex.D.2: R.T.I. copies of documents 65 Spl. C.C. No.346/2015 Ex.D.3: R.T.I. copy of Education Societies block list of Government letter Ex.D.4: R.T.I. copy of letter of Government grants to SSB Vidya Samste, Channagiri.
Ex.D.5: R.T.I. copy of note sheet of Government Ex.D.6: Proceedings of Government of Karnataka Ex.D.7: Charge sheet document page 40-B Ex.D.8: Charge sheet document at page 36. Ex.D.8(a): Signature of P.W.8 (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78) 66 Spl. C.C. No.346/2015 67 Spl. C.C. No.346/2015 68 Spl. C.C. No.346/2015 69 Spl. C.C. No.346/2015 70 Spl. C.C. No.346/2015