Bangalore District Court
State By Lokayukta Police Station vs H.V.Shushrutha S/O H.C.Vishnu on 20 January, 2017
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA), AT
BENGALURU (CCH-79)
Present: Sri. D.T.Devendran, B.A. LL.B.
LXXVIII City Civil & Sessions Judge
& Special Judge, Mayo Hall Unit,
Bengaluru.
Dated this the 20th day of January 2017.
Spl.C.C. No: 99/2004 c/w Spl.C.C.No.79/2005
Complainant: State by Lokayukta Police Station,
Bengaluru.
(By Public Prosecutor)
-Vs-
Accused : 1. H.V.Shushrutha S/o H.C.Vishnu
Murthy, R/o No.1119, II Stage,
Vivenkananda Circle,
Mysore - 23.
2. Dr.M.V.Ramana, S/o Varagalappa,
The then Deputy Director of Medical
Education and Chairman of Selection
Scrutiny Committee, Bengaluru.
R/o No.825, 24th main, II nd Phase,
JP Nagar, Bengaluru - 73.
(Abated)
3. Dr.A.R.Jairenukaya, S/o L.Revannaiah,
Aged 51 years, the then Deputy Director
2 Spl.C.C No.99/2004 c/w 79/2005
of Medical Education and Member
Secretary of Selection Scrutiny
Committee, Now working as Prof : in
Anatomy, Bengaluru Medical College,
Bengaluru. R/o No.2591, 18th main,
11th cross, Indiranagar, Bengaluru.
4. M.R.Prakash, S/o Late M.,R. Raju,
Aged 47 years, FDA, Bengaluru Medical
College, Bengaluru. R/o No.426,
5th cross, IInd Stage, JP Nagar,
Bengaluru.
(Split up)
5. Dr.Lakshmipathi Babu, S/o
Narasimhaiah, Aged 44 years,
Private Medical Practitioner,
R/o No.242, 1st cross,
IInd Block, IIIrd Stage, Banashankari,
Bengaluru-85.
(A.1 - By Sri. P.N.Hegde;
A.3 - By Sri. M.Sharass Chandra;
A.5 - By Sri. A.Sampath; Advocates)
Date of commission of Prior to 21-02-1994
offence
Date of report of occurrence 21-02-1994
Date of arrest of accused:
Accused No.1 27-06-1997
Accused No.3 11-08-1998
Accused No.5 23-02-1995
Date of release of accused
on bail:
3 Spl.C.C No.99/2004 c/w 79/2005
Accused No.1 27-06-07/06-08-13
Accused No.3 11-08-1998
Accused No.5 23-02-1995
Date of commencement 05-01-2010
of evidence
Date of closing of 10-11-2016
evidence
Name of the complainant M.Gangi Reddy
Offences complained of U/S.120B, 420, 468,
109 IPC and u/s 8, 9,
12, 13(1)(d)(i) r/w 13
(2) of PC Act, 1988.
Opinion of the Judge Acquittal
Date of Judgment: 20-01-2017
....
JUDGMENT
The Dy.S.P. City Division, Karnataka Lokayukta, Bengaluru has filed this charge sheet against accused persons for the offences punishable under Sections 120B, 420, 468, 109 of IPC and under Sections 8, 9, 12, 13(1)(d)(i) r/w 13(2) of the Prevention of Corruption Act, 1988.
2. These are the cases relating to commission of irregularities and malpractices in selection of candidates for the first year MBBS course for the year 1993-94. The selection of 4 Spl.C.C No.99/2004 c/w 79/2005 candidates for MBBS course has its own history. Prior to 1985 admission to the professional colleges was based on the marks obtained in the PUC or equivalent qualifying examination. From the academic year 1985 the Karnataka State Government has introduced Common Entrance Test (hereinafter called as CET) for this purpose. A committee constituted by the Government took a decision to conduct CET for the year 1993-94 for admission to the professional courses on 16.07.1993 and 17.07.1993. In the meanwhile as the private colleges were charging exorbitant fees several enactments and many Government orders have been issued. This resulted in number of cases being filed before the courts across the country. The Constitutional Bench of the Hon'ble Supreme Court in the case of Unnikrishnan -Vs- State of UP reported in 1993(1) SCC 6 has formulated a scheme to be followed by the state Governments for admission to the professional courses. In the light of said directions our Government has framed the Karnataka Selection of candidates for admission to Engineering, 5 Spl.C.C No.99/2004 c/w 79/2005 Medical, Dental, Pharmacy and Nursing Courses Rules, 1993 (herein after referred as Rules for brevity). Pursuant to the said Rules the Government vide its order dated 10.03.1993 has constituted the Entrance Test Committee consisted of Prof. M.I.Savadatti, Vice Chancellor, University of Mangalore as the Chairman, Prof. P.V.Bhandari, the Director of Technical Education, Bengaluru as Member Secretary, Dr.M.V.Ramanna, the Director of Medical Education, Bengaluru, Heads of the Science and Technical Departments of Indian Institute of Science, Bengaluru as the members. The committee has authorized the Member Secretary to make preliminary arrangements for conducting the test and in its meeting dated 10.05.1993 has ratified the decision of the earlier committee to conduct Entrance Examination on 16.06.1993 and 17.06.1993.
3. After conducting examination the valuation of answer papers was done through computers at JC College, Mysuru, headed by Prof. Hariharan. The ranks were awarded to the 6 Spl.C.C No.99/2004 c/w 79/2005 students on the basis of marks secured in the qualifying examination and in CET. The percentage of marks in both the examinations was taken on an average and the candidate's rank was fixed. Though Rule 9 mandates publication of merit list atleast in two daily newspapers, in violation of the Rules the results were published on 07.08.1993 in the office of Director of Technical Education Bengaluru, Nodal Centers, Directorate of Technical Education of various States and in the Karnataka Bhavana, New Delhi. The first selection list under payment category was published in the newspapers on 15.10.1993 showing the allotment of seats and colleges. The second list was published on 24.10.1993 and the admission for the second list was commenced from 26.10.1993. The Director of Medical Education has also called the candidates upto the rank of 6000 for spot allotment on 29.10.1993. In the meantime as the Government received certain complaints and also on the proposal of the Director of Medical Education, in pursuance of Rule 14, the Government vide its order dated 09.09.1993 has 7 Spl.C.C No.99/2004 c/w 79/2005 formed a Selection Scrutiny Committee consisting of the deceased accused No.2 who was the Director of Medical Education as Chairman, accused No.3 the then Deputy Director of Medical Education as Member Secretary, the Joint Director of Medical Education, Principals of Bengaluru Medical College, Dental College, Pharmacy College and Nursing College as members to scrutinize the documents of selected students. As there were allegations against the Chairman and Member Secretary of the Selection Scrutiny Committee they were asked to go on leave placing Dr. S.Kantha as in-charge Chairman who was one of the members. Dr. S.Kantha the in-charge Chairman while comparing the records found that 26 candidates who secured low ranking numbers conspiring with accused No.2 to 5 putting higher rankings illegally secured the medical seats and thereby denied opportunity to the deserving meritorious students.
8 Spl.C.C No.99/2004 c/w 79/2005
4. Immediately she took steps to cancel the illegal admissions of 26 candidates. Challenging the cancellation of their admissions many students have approached the Hon'ble High Court. Though at the first instance the Hon'ble High Court has granted stay order, later has dismissed the writ petitions. Aggrieved by the dismissal of writ petitions some of the candidates have approached the Hon'ble Supreme Court and by virtue of the orders passed in the case of Anil Baipadithaya and ors -Vs- State of Karnataka reported in (1995) 6 SCC 531 they continued their studies. In the meantime Dr. S.Kantha has written a letter to the Government for referring the matter to the Lokayukta enquiry. Accordingly, the Government vide its letter dated 03.02.1994 invoking Sec. 7(2)(A) of the Karnataka Lokayukta Act, 1984 has sent a proposal to make a detail enquiry, preferably by the Upa-Lokayukta. However, it appears contrary to the proposal of Government the Superintendent of Police, Karnataka Lokayukta on the basis of reference made by the Government has conducted a preliminary enquiry and found 9 Spl.C.C No.99/2004 c/w 79/2005 that accused No.5 a private practitioner who was old student of Bengaluru Medical College (BMC) conspired with the Selection Scrutiny Committee members to give fake rank number to accused No.1 to get a medical seat. It is also found that the Selection Scrutiny Committee has wrongly left its function to be performed by accused No.3 enabling him to issue selection intimation and admission letters. In pursuance of conspiracy accused No.3 has issued admission letter and selection intimation using a fake rank number for obtaining admission. Thus, having found material in the reference made by the Government that there was large amount of malpractices and irregular admissions, he has prepared a report and directed the Dy.S.P. to register the separate cases in respect of each candidate. Accordingly, several cases came to be registered including the present one showing Dr. S.Kantha as one of the accused. Then, the Lokayukta Police conducted investigation, made search of the houses of accused Nos.2 & 3, the houses and clinic of accused No.5 and seized certain documents. 10 Spl.C.C No.99/2004 c/w 79/2005 During the course of investigation, the Lokayukta police have examined several witnesses and colleted number of documents. All the accused were on anticipatory bail. Later the accused No.2 reported dead. Therefore, the investigating agency obtaining sanction order to prosecute accused Nos.3 and 4 the public servants has filed the present charge sheet showing accused No.2 as abated.
5. After receipt of charge sheet, the court took cognizance of the offences, securing the presence of accused Nos.3 and 5 released them on bail. As the presence of accused No.1 and 4 could not secure, the case against them came to be split up with a direction to file separate charge sheet. Accordingly charge sheet in Spl.C.C.No.79/2005 came to filed against accused No.1. The accused are duly represented through their counsel. As required under Sec.207 of Cr.P.C. the copies of prosecution papers have been furnished. Then hearing both sides on 02.07.2005 charge against accused Nos.3 11 Spl.C.C No.99/2004 c/w 79/2005 & 5 came to be framed for the offences punishable under Sections 120B, 420, 468 r/w 34 of IPC and under Sections 8, 9, 13(1)(d)(i) r/w 13(2) of the Prevention of Corruption Act, 1988 which was read over and explained. Both accused pleaded not guilty and claimed to be tried. Hence, the matter was posted for trial. During the midst of trial the presence of accused No.1 was secured in Spl.C.C.No.79/2005 and on 06.08.2013 he was released on court bail. On 12.03.2014 separate charges came to be framed against accused No.1 which was read over and explained. Accused No.1 also pleaded not guilty. Thereafter, by an order dated 15.07.2014 the case in Spl.C.C.No.79/2005 clubbed for continuing trial with Spl.C.C.No.99/2004
6. In support of its case while giving up some of the witnesses who reported dead, P.V.Bhandari whose presence could not be secured because of his illness and others as not necessary prosecution in all examined PWs 1 to 21, through them got marked documents as per Ex.P.1 to P.35 and closed 12 Spl.C.C No.99/2004 c/w 79/2005 its side. Then the accused Nos.1, 3 and 5 have been examined under Section 313 of Cr.P.C. and questioned about incriminating evidence appearing against them. Accused Nos.1 and 5 have totally denied the prosecution evidence as false. Accused No.3 during his examination except that the Government has formed Selection Scrutiny Committee wherein he was the Member Secretary has denied all other evidence as false. Further he has also filed his written submission. However, none of the accused has chosen to lead any defence evidence. Hence, the matter was posted for arguments.
7. Heard learned Public Prosecutor for the State and the learned counsel for the accused persons and perused the case papers and the brief notes of arguments.
8. On perusal, the following points arise for my consideration:
1. Whether prosecution proves beyond reasonable doubt that on or about 29.10.1993 accused No.1, 3 and 5 13 Spl.C.C No.99/2004 c/w 79/2005 along with deceased accused No.2 and split up accused No.4 entered into an agreement with the fraudulent intention to secure MBBS seat for accused No.1 in payment category got up fraudulent selection committee letter by providing higher CET ranking thereby committed an offence punishable under Sec. 120B of IPC?
2. Whether prosecution proves beyond reasonable doubt that in pursuance of common malafide intention of helping to obtain admission to MBBS course though accused No.1 has secured rank number of 7700 falsely represented that he has secured rank number 2012 belonging to some other candidate making use of it induced the CET to allot payment seat thereby committed an offence punishable under Sec. 420 r/w 34 of IPC?
3. Whether prosecution proves beyond reasonable doubt in pursuance of conspiracy the accused have fabricated fraudulent selection committee letter intending to use it for the purpose of obtaining admission to accused No.1 in BLDEA Medical College, Vijayapura and thereby committed an offence punishable under Sec. 468 r/w 34 of IPC?14 Spl.C.C No.99/2004 c/w 79/2005
4. Whether prosecution proves beyond reasonable doubt that on or about 29.10.1993 accused No.3 being a public servant abusing his position by corrupt or illegal means obtained a valuable thing or pecuniary advantage to procure a seat for first year MBBS course to accused No.1 thereby committed an offence punishable under Sec. 13 (1)(d) r/w 13 (2) of Prevention of Corruption Act?
5. Whether prosecution proves beyond reasonable doubt that accused No.5 obtained illegal gratification from accused No.1 as a motive or reward for inducing by corrupt or illegal means accused No.3, the deceased accused No.2 and split up accused No.4 the public servants to provide higher ranking and to fabricate false selection committee letter in exercise of their official function and thereby committed an offence punishable under Sec. 8 of Prevention of Corruption Act?
6. Whether prosecution beyond reasonable doubt that accused No.5 has accepted or obtained illegal gratification as a motive or reward by exercising his personal influence to induce accused No.3, the deceased accused No.2 and split up accused No.4 the public servants to provide 15 Spl.C.C No.99/2004 c/w 79/2005 higher ranking and to issue fraudulent selection committee letter to accused No.1 and thereby committed an offence punishable under Sec. 9 of Prevention of Corruption Act?
7. What order?
9. My findings to the above points are as under:
Point No.1: In the Negative,
Point No.2: In the Negative,
Point No.3: In the Negative,
Point No.4: In the Negative,
Point No.5: In the Negative,
Point No.6: In the Negative,
Point No.7: As per the final order for the
following:-
REASONS
10. Point Nos.1 to 3:- The prosecution has alleged that accused No.1, 3 and 5 along with deceased accused No.2 and split up accused No.4 have conspired to secure medical seat for accused No.1 and in furtherance of their conspiracy have assigned higher rank number, forged the documents and thereby committed cheating. Since, these three points related 16 Spl.C.C No.99/2004 c/w 79/2005 to each other, for the purpose of convenience and to avoid repetition, I have taken up their discussion together.
11. Before going to analyze and appreciate the evidence adduced in the case it is necessary to have a look on the scheme evolved by the Constitutional Bench of Hon'ble Supreme Court in Unnikrishnan's case (Supra).
SCHEME
206. The scheme evolved herewith is in the nature of guidelines which the appropriate Governments and recognising and affiliating authorities shall impose and implement in addition to such other conditions and stipulations as they may think appropriate as conditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. We are confining the scheme for the present only to 'professional colleges.'
207. The expression Professional colleges' in this scheme includes:
(i) Medical colleges, dental colleges and other institutions and colleges imparting Nursing, Pharmacy and other courses allied to Medicine, established and/or run by private education institutions,
(ii) Colleges of engineering and colleges and institutions imparting technical education including electronics, computer 17 Spl.C.C No.99/2004 c/w 79/2005 sciences, established and/or run by private educational institutions, and
(i) Such other colleges to which this scheme is made applicable by the Government, recognising and/or affiliating authority."
208. The expression "appropriate authority" means the Government, University or other authority as is competent to grant permission to establish or to grant recognition to a professional college.
209. The expression 'competent authority' in this scheme means the Government/University or other authority, as may be designated by the Government/University or by law, as is competent to allot students for admission to various professional colleges in the given State.
210. It is made clear that only those institutions which seek permission to establish and/or recognition and/or affiliation from the appropriate authority shall alone be made bound by this scheme. This scheme is not applicable to colleges run by Government or to University colleges. In short, the scheme hereinafter mentioned shall be made a condition of permission, recognition or affiliation, as the case may be. For each of them viz., grant of permission, grant of recognition, grant of affiliation, these conditions shall necessarily be imposed, in addition to such other conditions as the appropriate authority may think appropriate. No Private educational institution shall be allowed to send its students to appear for an examination held by any Government or other body constituted by it or under any law or to any examination held by any University unless the concerned institution and the relevant course of study is recognised by the appropriate authority and/or is affiliated to the appropriate University, as the case may be. 18 Spl.C.C No.99/2004 c/w 79/2005
(1) A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a given State), or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakfs Act (or the corresponding legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and A.P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called except those mentioned above will be permitted to establish and/or administer a professional college. All the existing professional colleges which do not conform to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from today.
In default whereof, recognition/affiliation accorded shall stand withdrawn. (In this connection reference may be had to Rule 86(2) of Maharashtra Grant-in-aid code (referred to in State of Maharashtra v. Lok Shikshan Sanstha, [1971] Suppl. S.C.R. 879 which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant. Grant of recognition and affiliation is no less significance).
(2) Atleast, 50% of the seats in every professional college shall be filled by the nominees of the Government or University, as the case may be, hereinafter referred to as "free seats". These students shall be selected on the basis of merit determined on the basis of a common entrance examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the competent authority or the appropriate to authority, as the case may be. It is, however, desirable and appropriate have a common entrance exam for regulating admissions to these colleges/institutions, as is done in the State of Andhra Pradesh. The remaining 50% seats (payment seats) shall be filled by those candidates who are prepared to pay the fee prescribed 19 Spl.C.C No.99/2004 c/w 79/2005 therefor and who have complied with the instructions regarding deposit and furnishing of cash security/Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the 'payment students'. The Management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to payment seats. It shall, however, be open to a professional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating University. Such reservations, if any, shall be made and notified to the competent authority and the appropriate authority atleast one month prior to the issuance of notification calling for applications for admission to such category of colleges. In such a case, the competent authority shall allot students keeping in view the reservations provided by a college. The rule of merit shall be followed even in such reserved categories.
(3) The number of seats available in the professional colleges (to which this scheme is made applicable) shall be fixed by the appropriate authority. No professional college shall be permitted to increase its strength except under the permission or authority granted by the appropriate authority.
(4) No professional college shall call for applications for admission separately or individually. All the applications for admission to all the seats available in such, colleges shall be called for by the competent authority alone, along with 20 Spl.C.C No.99/2004 c/w 79/2005 applications for admission to Government/University colleges of nature. For example, there shall be only one notification by the competent authority calling for applications for all the medical colleges in the State and one notification for all the engineering colleges in the State and so on. The application forms for admission shall be issued by the competent authority (from such offices, centres and places as he may direct). The application form shall contain a column or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference, up to three professional colleges.
(5) Each professional college shall intimate the competent authority, the State Government and the concerned University in advance the fees chargeable for the entire course commencing that academic year. The total fees shall be divided into the number of years/semesters of study in that course. In the first instance, fees only for the first year/semester shall be collected. The payment students will be, however, required to furnish either cash security or bank guarantee for the fees payable for the remaining years/semesters. The fees chargeable, in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent Court. The competent authority shall issue 'a brochure, on payment of appropriate charges, along with the application form for ad- mission, giving full particulars of the courses and the number of seats available, the names of the colleges their location and also the fees chargeable by each professional college. The brochure will also specify the minimum eligibility conditions, the method of admission (whether by entrance test or otherwise) and other relevant particulars.
(6)(a) Every State Government shall forthwith constitute a Committee to fix the ceiling on the fees chargeable by a 21 Spl.C.C No.99/2004 c/w 79/2005 professional college or class of professional colleges, as the case may be. The Committee shall consist of a Vice- Chancellor, Secretary for Education (or such Joint Secretary, as he may nominate) and Director, Medical Education/Director Technical Education. The committee shall make such enquiry as it thinks appropriate. It shall however, give opportunity to the professional colleges (or their association(s), if any) to place such material, as they think fit. It shall, however, not be bound to give any personal hearing to anyone or follow any technical rules of law. The Committee shall fix the fee once every three years or at such longer intervals, as it may think appropriate.
(b) It would be appropriate if the U.G.C. frames regulations under Section 12A (3) of the U.G.C. Act, regulating the fees which the affiliated colleges, operating on no-grant-in- aid basis, are entitled to charge. The Council for Technical Education may also consider the advisability of issuing directions under Section 10 of the A.I.C.T.E. Act regulating the fees that may be charged in private unaided educational institutions imparting technical education. The Indian Medical Council and Central government may also consider the advisability of such regulation as a condition for grant of permission to new medical colleges under Section 10-A and to impose such a condition on existing colleges under Section 10- C.
(c) The several authorities mentioned in sub-paras (a) and ((1) shall decide whether a private educational institution is entitled to charge only that fee as is required to run the college or whether the capital cost involved in establishing a college can also be passed on to the students and if so, in what manner. Keeping in view the need, the interest of general public and of the nation, a policy decision may be taken. It would be more appropriate if the Central Government and these several authorities (U.G.C., I.M.C. and A.I.C.T.E.) 22 Spl.C.C No.99/2004 c/w 79/2005 cordinate their efforts and evolve a broadly uniform criteria in this behalf. Until the Central Government, U.G.C., I.M.C. and A.I.C.T.E. issue order/regulations in this behalf, the committee referred to in the sub-para (a) of this para shall be operative. In other words, the working and orders of the committee shall be subject to the orders/regulations, issued by Central Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may be.
(d) We must hasten to add that what we have said in this clause is merely a reiteration of the duty nay, obligation placed up on the Governments of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu by their respective legislatures to wit, Section 7 of Andhra Pradesh Act 5 of 1983, Section 4 of Maharashtra Act 6 of 1988, Section 5 of Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of 1992. Other States too may have to have similar provisions, carrying statutory force.
(7) Any candidate who fulfils the eligibility conditions would be entitled to apply for admission. After the free seats in professional colleges are filled up, atleast 10 days' time will be given to the candidates (students) to opt to be admitted against payment seats. The candidates shall be entitled to indicate their choice for any three colleges (if available). In such a case, he shall comply with the deposit and cash security/Bank guarantee - taking the institution charging the highest fees as the basis within the said period of ten days. If he is admitted in an institution, charging less fee, the difference amount shall be refunded to him. (The cash security or Bank guarantee shall be in favour of the competent authority, who shall transfer the same in favour of the appropriate college if that student is admitted).
(8) The results of the entrance examination, if any, held should be published atleast in two leading newspapers, one in English and the other in vernacular. The payment candidates 23 Spl.C.C No.99/2004 c/w 79/2005 shall be allotted to different professional colleges on the basis of merit-cum-choice. The allotment shall be made by the competent authority. A professional college shall be bound to admit the students so allotted. The casual vacancies or unfilled vacancies, if any, shall also be filled in the same manner. The management of a professional college shall not be permitted to admit any student other than the one allotted by the competent authority whether against free seat or payment seat, as the case may be. It is made clear that even in the matter of reserved categories, if any, the principle of inter se merit shall be followed. All allotments made shall be published in two leading newspapers as aforesaid and on the notice boards of the respective colleges and at such other places as the competent authority may direct, along with the marks obtained by each candidates in the relevant entrance test or qualifying examination, as the case may be. No professional college shall be entitled to ask for any other or further payment or amount, under whatever name it may be called, from any student allotted to it whether against the free seat or payment seat.
(9) After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. The said list shall be followed for filling up any casual vacancies or 'drop-out'-vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date can be filled by the Management.
211. It is made clear that it shall be open to the appropriate authority and the competent authority to issue such further instructions or directions, as they may think appropriate not inconsistent with this scheme, by way of elaboration and elucidation.
24 Spl.C.C No.99/2004 c/w 79/2005
212. This scheme shall apply to and govern the admissions to professional colleges commencing from the academic year 1993-94.
12. Pursuant to the said directions our state Government has framed the Rules, the relevant provisions are extracted as follows;
6. Determination of Merit : - The merit shall be determined by taking the marks obtained in the Entrance Test and the optional subjects in the qualifying examination in equal proportion.
xxx Provided that where the merit of two or more candidates is the same, the interse merit shall be determined with reference to the marks obtained in the Entrance Test in Mathematics in the case of Engineering and allied courses and in Biology in the case of Medical and allied courses and where the marks obtained in such cases are equal, then the interse merit shall be determined on the basis of marks obtained in Physics in the case of Engineering and the allied courses and in Chemistry in the case of Medical and allied courses. Where the marks obtained are equal again the interse merit shall be determined on the basis of the age of candidate, the older candidate placed above the younger.
7. Procedure for Selection of Candidates:- The procedure for the selection of candidates for admission to Institutions against ' free seats' shall be as follows:-
xxx 25 Spl.C.C No.99/2004 c/w 79/2005
9. Preparation and Publication of General Merit List:-
(1) The Entrance Test Committee constituted under sub-
rule (1) of Rule 8 shall prepare the general merit list of all candidates who have appeared for the Entrance Test in accordance with Rule 6 and cause the publication of the said list in atleast two daily newspapers-one English and the other Kannada having wide circulation in the State and in the Notice Board of all the Universities in the State and the office of the Director and such other public places as may be determined by the said committee. The General Merit List shall be forwarded to the Director who shall send the same to all the Institutions.
11. Selection of Candidates against 'payment seats':-
(1) The following candidates shall be eligible for selection for admission to the 'payment seats':-
(a) Candidates who have been selected for admission to a seat in any Institution under the 'free seats' category who have also opted for 'payment seats', or payment of such cash security or Bank Guarantee, as specified by the Committee, within 10 days from the date of publication of the list under Rule 10.
(b) Candidates remaining in the general merit list and who have already exercised option to be considered for selection under 'payment seats' category and within 10 days from the date of publication of the list prepared under Rule 10 furnish cash security or bank guarantee as specified by the Committee.
(c) xxx
(d) The Director of Technical Education shall prepare a list of all the applicants who have appeared in the Entrance 26 Spl.C.C No.99/2004 c/w 79/2005 Test and opted for being considered for Selection under 'payment seats'.
(e) A list called the 'select list for payment seats' shall be prepared from among the candidates noted above based on merit and the allotment of courses or institutions shall be done in the order of merit based on the preferences of the candidates and the availability of seats in the preferred Institution or Course.
(f) A second list called the 'eligibility list of remaining candidates' shall be prepared in the order of merit and the said list shall be followed for filling up any casual or drop out vacancies after giving change of Institution/course to higher merit candidates already admitted. No admission to these seats shall be made after the last day fixed by the Government.
xxx
13. List of Selected Candidates:-
(1) The Director shall prepare a list of candidates finally selected for admission to various courses in the institutions and send copies thereon to the principals of the institutions for giving wide publicity not exceeding ten days before the last date of admission as fixed by the Government. This list shall contain not only the names but also the rank in the merit list, the class of reservation, if any. The selections shall be notified by the Director by publication in atleast two daily newspapers -
one English and the other Kannada - having wide circulation in the state or letters by registered post to the candidates to facilitate the candidates to report to the respective institutions fixing a date before which the candidate should get admitted to the institution. If the candidate fails to get himself admitted within the date fixed, the admission shall automatically stand forfeited without any further notice to the candidate. 27 Spl.C.C No.99/2004 c/w 79/2005
(2) All selections made shall be subject to verification of the original marks card and physical fitness by the principals of the concerned institutions to which they are admitted and also by the concerned University.
14. Selection Scrutiny Committee and its functions:-
(1) There shall be a Selection Scrutiny Committee constituted by the Government with the Director as the Chairman and such other members as may be specified. The Chairman also may invite specialist in the field as invitees to assist the Committee.
(2) The Selection Scrutiny Committee shall scrutinize all the documents required to be produced by the candidates under these rules and shall record its views in the matter.
(3) In all matters under sub-rule (2) above, the decision of the Committee shall, subject to any general or special orders of Government in this regard be final.
13. The learned Public Prosecutor taking me through the evidence adduced in the case submits that the act of conspiracy though not apparently visible it can very well ascertained from the relevant facts of the case. It is his submission that accused No.1 has filled Ex.P.6 admission letter in his own handwriting and submitted it before the scrutiny committee. The committee approving the same allotted seat 28 Spl.C.C No.99/2004 c/w 79/2005 assorting the rank number of another student. This clearly goes to show that accused no.1 succeeded in getting admission without his admission letter passing through the usual screening process. By no stretch of imagination it can be said that due to oversight accused No.1 has wrongly mentioned his CET rank number. It is his submission that accused No.1 being the beneficiary it can safely be presumed that he willfully misrepresented his CET rank number in order to wrongfully claim MBBS payment seat for which he was not otherwise entitled to. The learned public prosecutor submits that the facts go to show the hidden agreement between the accused. It is his submission that there was league between parties, to do a punishable act by illegal means, to secure seat in the college by depriving the meritorious student. Since conspiracy is secretly planned and direct evidence is difficult to produce, submits that the conspiracy has to be presumed, even under Sec.20 of the Prevention of Corruption Act. I do not agree with the learned Public Prosecutor with regard to drawing presumption under 29 Spl.C.C No.99/2004 c/w 79/2005 Section 20 of the Prevention of Corruption Act, as in the case of B.Jayaraj -Vs- State of A.P. reported in (2014) 13 SCC 55 it has been held that in so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act.
14. The learned Public Prosecutor submits that even though the petitions filed by some of the candidates were allowed by the Hon'ble Supreme Court in its judgment reported in (1995) 6 SCC 531 has held that 'we strongly decry and condemn the fraud played by the applicants, the present is not an occasion where any punishment is deserved at the behest of one who is not prepared to punish the main culprit, as the members of SSC have to be regarded, because, but for their active role, the appellants would not have succeeded in their highly objectionable and deplorable act'. Such being the 30 Spl.C.C No.99/2004 c/w 79/2005 findings there is no need for further proof of the offences alleged against the accused.
15. Per contra the learned counsel appearing for accused No.1 submits that at the outset the prosecution was required to prove the act of conspiracy between the members of Selection Scrutiny Committee and accused No.1. The element of cheating and forgery has to be proved by adducing the acceptable evidence. In order to prove the said aspects the prosecution was duty bound to produce original ranking list showing the actual ranking of accused No.1, original ranking reflecting the name of the person whose ranking has been allegedly used by the accused, original application stated to have been submitted by accused showing wrong ranking number and the documents showing the procedure adopted by Selection Scrutiny Committee in selecting the candidates. Admittedly, none of those documents have seen the light of the court. The learned counsel with regard to filling up of Ex.P.6 submits that the 31 Spl.C.C No.99/2004 c/w 79/2005 cumulative reading of the contents of the said document one and the only conclusion can be arrived is that the admission letter is prepared by the Selection Scrutiny Committee after all the process and to be forwarded to the concerned college. It is also his submission that the conjoin reading of the evidence adduced by the prosecution coupled with the admissible documents produced during the evidence, there is absolutely no material to hold that, the accused No.1 had a meeting of mind with the other accused. Therefore, extending the benefit of doubt has prayed for acquit accused No.1. The learned counsel appearing for accused No.3 and 5 submits that the prosecution has failed to prove the charges alleged against accused. Nobody has lodged complaint alleging that accused have committed cheating they have not deprived rights of any other student. The candidates were not known their rankings, the authorities have not published the merit list and select list as required under the scheme and the rules. Dr. S.Kantha was the main person behind these incidents, even though the 32 Spl.C.C No.99/2004 c/w 79/2005 Hon'ble Supreme Court and Hon'ble High Court of Karnataka have directed to hold proper investigation and to bring out the truth, the investigating agency giving clear go bye to her has filed the charge sheet against other accused. Accused No.3 being subordinate to Chairman has signed the documents without any malafide intention. There is no material to connect accused No.5 to the alleged offences. Under the circumstances, both counsel prayed for acquit accused Nos.3 and 5. In view of rival submission made, let me turn to the evidence adduced in the case.
16. Among 21 witnesses examined in the case PW.2 N.S.Rama Rao in his evidence has stated that in connection with CET exams held in the year 1993 as a nominee of Director of Technical Education he was supervising. He has further stated that he was assisting the Computer Section System Manager Prof. Hariharan (now deceased). He used to carry the answer sheets to JC College, Mysuru and was bringing back the rank list and handing it over to Director of Technical Education 33 Spl.C.C No.99/2004 c/w 79/2005 (DTE). As no rank list, as stated by the witness, has been produced before the court, his evidence is of no assistance to the prosecution. PW.7 K. Dasaiah has been examined to prove Ex.P.10 the mahazar conducted at the time of search of house of accused No.2. In view of the fact that the case against accused No.2 is abated and none of the documents alleged to have been seized under Ex.P.10 are produced the evidence of this witness is also of no assistance to the prosecution.
17. PW.1 G.Basavaraju, was the then SP of Karnataka Lokayukta and PW.3 Dr. S.Kantha was one of the Member of Selection Scrutiny Committee, later was placed in-charge of the post of Chairman of Selection Scrutiny Committee. Both these witnesses have spoken about the procedure ought to have been followed by Selection Scrutiny Committee in selecting the candidates. PW.1 in his evidence has said that he made preliminary enquiry and prepared his report as per Ex.P.1. As it rightly said by the counsel for accused, it is only the culled out 34 Spl.C.C No.99/2004 c/w 79/2005 portion of the report alleged to have been submitted by PW.3 to the Government. PW.4 Narayana and PW.5 Khasim Sab were deputed by PW.3 to assist Selection Scrutiny Committee as requested by deceased accused No.2. PW.5 said that as per the instructions, he was distributing the blank admission application forms to the candidates with instructions to fill it and hand over to PW.4. From this witness the prosecution has not elicited the form which he was distributing. PW.4 in his evidence has said that selection of second list under the payment category was conducted for the candidates of Karnataka as well as other States from 26.10.1993 to 29.10.1993 upto 2 p.m. It is his evidence that the candidates after getting the blank form from PW.5 filling it used to come to him along with enclosures. He was verifying the documents at Sl. Nos.1 to 6 comparing with the CET select ranking list which was supplied by the office of Director of Medical Education (DME). He used to see the candidate as well as his photo. After everything was found out to be correct, he used to write 35 Spl.C.C No.99/2004 c/w 79/2005 the college code and put his initials, sending the candidate before the Selection Scrutiny Committee. He has identified Ex.P.6 the admission letter of accused No.1. This witness has said that on 05.09.1994 as per the directions of Director of Medical Education he submitted computer list first and second under payment category, fee receipt books, newspapers and model admission letters with enclosures of genuine students to the Investigating Officer. On 06.12.1994 he submitted some more documents containing the initials and writing of accused No.3 to the Investigating Officer.
18. PW.1 in his evidence has said that as per order dated 09.09.1993 the Government has set up Selection Scrutiny Committee consisting of Director of Medical Education i.e. Dr.Ramanna deceased accused No.2 as Chairman, Deputy Director of Medical Education, Dr.Jai Renukarya, Accused No.3 as Member Secretary and Dr. S.Kantha, the Principal, Bengaluru Medical College as member. As could be seen from the order dated 09.09.1993, a copy of which available in the 36 Spl.C.C No.99/2004 c/w 79/2005 file, apart from three persons as stated by PW.1 the Joint Director of Medical Education, the Principals of Bengaluru Dental College, Pharmacy College and Nursing College were also Members. It is very unfortunate to note that except PW3 Dr. S.Kantha other members were totally un-aware of constituting Selection Scrutiny Committee nominating them as members. Thus, there arises doubt about who constituted the Selection Scrutiny Committee.
19. From the evidence of PW.3 it is found that as she was busy in attending the parents who had come from all over India, she has asked her colleague Dr. Yashoda to sit in her place. No material as such has been produced before the court to show that PW.3 was authorized to depute her representative. It is found from her evidence that she had attended interview on a day or two and the Chairman or the Secretary have not conducted any meetings and drawn the minutes. So, it is clear that she has not attended the Selection 37 Spl.C.C No.99/2004 c/w 79/2005 Scrutiny Committee for selection of candidates particularly in 26 cases unearthed by her.
20. It is case of the prosecution that all the accused conspiring together have assigned higher rank number to accused No.1 and fabricating the documents have committed an offence of cheating. PW.3 said that the Chairman and Member Secretary for selection of candidates have devised a new format called admission letter which contained the details like name, CET admission ticket number, PUC admission ticket number, CET Rank number, the signature of the candidate etc., Though PW.4 has said that the Ex.P.6 is the admission letter, PW.3 in her evidence has identified Ex.P.3 which is the selection intimation.
21. PW.3 in her evidence has further said that when she was scrutinizing the CET Rank list and the particulars of students selected under payment category she has unearthed the irregular admission of 26 candidates who were not eligible 38 Spl.C.C No.99/2004 c/w 79/2005 for admission. After coming to know the irregular admission, she has cancelled the admissions and intimated the concerned colleges. At this stage a question would arise as to the power of PW.3 to cancel the admissions. No material has been produced before the court to show that she had any such powers or she has taken permission from the Government to do so.
22. Challenging the cancellation of their admissions the candidates have approached the Hon'ble High Court of Karnataka and got the stay order. Though the Hon'ble High Court later has dismissed the writ petitions, some of the candidates had approached the Hon'ble Supreme Court and got further stay and completed their education. During the pendency of such cases, the Hon'ble Supreme Court has directed our Hon'ble High Court to nominate a District Judge to hold an enquiry. Accordingly, our Hon'ble High Court appointed Sri. T.Mahesh Hegde, District Judge to conduct an enquiry. The said District Judge in his enquiry report apart from finding 39 Spl.C.C No.99/2004 c/w 79/2005 that the Chairman and Member of Selection Scrutiny Committee were guilty has noticed the non-publication of merit list and also held that the candidates were otherwise eligible to be selected, have not deprived the legitimate seats of other merited students. In this case the prosecution has not produced the merit list or the select list prepared and published in accordance with the Rules or the Scheme as laid down by the Hon'ble Supreme Court. Under the circumstances, it is very difficult to accept that the version of the prosecution that the candidates were aware of their ranking.
23. It has been alleged by the prosecution that accused No.1 has entered the fake rank number in Ex.P.6 the admission letter. In my opinion it is issued by the authorities. Therefore, the candidates were not supposed to fill up the details therein. The learned counsel for accused No.1 submits that the information in Ex.P.6 necessarily to be filled by the committee which has allotted the college to the students. According to him, the cumulative reading of the contents of the documents, 40 Spl.C.C No.99/2004 c/w 79/2005 one and the only conclusion can be arrived is that, the admission letter was prepared by the Selection Scrutiny Committee. Before going to hold that accused have assigned fake rank number, the burden was on the prosecution to prove that accused No.1 was assigned with a particular rank number. No doubt PW.1 and 3 in their evidence have said that accused No.1 actually held the rank as 7700 to establish the same no material has been produced before the court. In the result, I am not agreeable with the prosecution that by filling Ex.P.6 with fake rank number accused have committed the offences as alleged against them.
24. PW.1 in his evidence has stated that under no circumstances the candidates whose admission number is not announced in the papers or in the respective examination centers or in the office of Director Technical Education is expected to appear before the Selection Scrutiny Committee. It is his evidence that on 27.10.1993 accused No.3 has issued admission letter by giving fake rank number as 2012 even 41 Spl.C.C No.99/2004 c/w 79/2005 though accused No.1 has secured rank number of 7700. According to this witness the candidate has put the fake number in column No.3 of admission letter conspiring with the other accused. During the course of his cross-examination this witness has said that he has not verified any other document except those mentioned in Ex.P.2. As far as the role of accused No.5 is concerned this witness has not made any independent enquiry, even though said that in the enclosed documents to the letter marked at Ex.P.2 there is no material against accused No.5.
25. PW.3 in her evidence said that P.Varadaraya Bandari the then Director of Technical Education was preparing the list of eligible candidates. That means the said Bhandari has prepared the list of eligible candidates. No material has been placed before the court to show that the candidates who were eligible for selection was prepared and published. In the absence of production of merit list or the select list and without knowing what the actual rank number of accused No.1 was, it 42 Spl.C.C No.99/2004 c/w 79/2005 cannot be believed that he has entered the fake number and thereby forged the document with an intention to cheat.
26. PW.3 has also spoken in detail about the procedure for selection. When she has said that she was not present at the time of selection proceedings, her evidence with regard to the procedure followed becomes hearsay. During the course of evidence this witness said as if it was transpired to her that 26 students might have not been interviewed by the Selection Scrutiny Committee. It is her evidence that though those students had not signed in the computer merit list against their name, they were given admission through an allotment letter called selection intimation. Even though this witness has referred the computer merit list, no such list has been produced before the court for its verification. In the absence of documentary evidence only on the oral evidence of PW.3, it cannot said that the accused have conspired together and put higher rank number and thereby forged the document with an intension to cheat.
43 Spl.C.C No.99/2004 c/w 79/2005
27. Now the next point requires to be answered is the power of Selection Scrutiny Committee. As already said pursuant to the Rules the Government has formed the Selection Scrutiny Committee. The functions of Selection Scrutiny Committee clearly mentioned Rule 14. For ready reference the said rule is extracted as follows:-
14. Selection Scrutiny Committee and its functions:-
(1) There shall be a Selection Scrutiny Committee constituted by the Government with the Director as the Chairman and such other members as may be specified.
The Chairman also may invite specialist in the field as invitees to assist the Committee.
(2) The Selection Scrutiny Committee shall scrutinize all the documents required to be produced by the candidates under these rules and shall record its views in the matter.
(3) In all matters under sub-rule (2) above, the decision of the Committee shall, subject to any general or special orders of Government in this regard be final.
44 Spl.C.C No.99/2004 c/w 79/2005The operative portion of order dated 09.09.1993 issued pursuant to Rule 14 reads as follows:-
¸ÀPÁðj DzÉÉñÀ ¸ÀASÉå B DPÀÄPÀ 56 JA¦J¸ï 93 ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ B 9-9-1993 ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¥Àj²Ã°¸À¯ÁV, PÀ£ÁðlPÀ gÁdåzÀ ªÉÄrPÀ¯ï, qÉAl¯ï, ¥sÁgÀä¹ ºÁUÀÆ £À¹ðAUï PÁ¯ÉÃdÄUÀ½UÉ 1993-94£Éà ¸Á°£À°è DAiÉÄÌ ºÉÆA¢zÀ C¨ÀsåyðUÀ¼À ¥Àj±ÉÆÃzÀs£ÉUÁV ªÉåzÀåQÃAiÀÄ ¤zÉðñÀPÀgÀ CzÀsåPÀëvÉAiÀÄ°è, ¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è ¸ÀÆa¹zÀ DAiÉÄÌ ¥Àj±ÉÆÃzÀs£Á ¸À«ÄwAiÀÄ£ÀÄß gÀa¸À®Ä ªÀÄAdÆgÁwAiÀÄ£ÀÄß ¤Ãr DzÉñÀ ºÉÆgÀr¸À¯ÁVzÉ. [Emphasis by me] From the combined reading of the Rule 14 and the order dated 09.09.1993 the copy of which is available in the case file the Selection Scrutiny Committee was asked to scrutinize the candidature more particularly testimonials of selected candidates. Thus, it is clear that only the selected candidates were suppose to appear before the Selection Scrutiny Committee for the purpose of verification. Therefore there arises doubt about the power of Selection Scrutiny Committee 45 Spl.C.C No.99/2004 c/w 79/2005 to select the candidates. When the Selection Scrutiny Committee had no power to select the candidates it cannot believed that the Selection Scrutiny Committee has committed malpractices in the selection of candidates for admission to the First Year MBBS Course.
28. The learned counsel appearing for accused submitted that the Selection Scrutiny Committee and others were under tremendous pleasure as there was direction from the Hon'ble Supreme Court and the orders of State Government prescribing the date for completion of selection and admission process.
29. PW.10 Gangaboraiah has been examined to prove Ex.P.14. PW.10 in his evidence has said about visiting the house of accused No.3 on 23.02.1994 and on search police seizing 39 documents under a mahazar as per Ex.P.14. In order to prove Ex.P.14 the prosecution has also examined PW.17 B.B.Patil the then Police Inspector who in his evidence has stated about searching the house of accused No.3 and seizure 46 Spl.C.C No.99/2004 c/w 79/2005 of 39 documents. Unfortunately none of the documents seized under Ex.P.14 are produced before the court for its verification to connect accused No.3 to the alleged offences.
30. PW.9 Smt.A.Bharathi & PW.12 N.Sreekanta Prasad and PW.13 M.S.Chidananda have been examined to prove the signatures of accused No.3. PW.9 identified the signature of accused No.3 as per Ex.P.3(a) in Ex.P.3. All the three witnesses have identified the signatures of accused No.3 found on Ex.P.12 and Ex.P.13, PW.12 and PW.13 have also deposed about seizure of Ex.P.12 and P.13 in their presence under a mahazar as per Ex.P.16. The signatures of Accused No.3 were sent for expert opinion. PW.16 C.Ashwathappa, the then Asst. Director, FSL, Bengaluru in his evidence identifying Ex.P.32 and P.33 the opinion and reasonings of one Lakshminarayana, the Scientific Officer, who is no more, has said that the signatures were of accused No.3. In this case accused No.3 has not seriously disputed his signatures.
47 Spl.C.C No.99/2004 c/w 79/2005
31. PW.6 Girish the panch witness has been examined to prove the search of house of accused No.5. PW.6 in his evidence has said about accompanying police to conduct the search of house of accused No.5 on 23.02.1994. In this regard prosecution has also examined PW.21 P.K.Shivashankar the then Police Inspector. Though both witnesses have said about the seizure of 24 documents under Ex.P.7 none of the documents have been produced before the court. On the other hand PW.21 in his cross-examination has categorically said that the documents seized under Ex.P.7 are not at all connected with this case. Thus, it clearly goes to show that there is no nexus between accused No.5 and other accused and thereby I do not find any support in the say of prosecution that accused No.5 had a role and involved in the Selection and admission of accused No.1.
32. PW.11 D.Thimmappa in his evidence has said about seizure of documents sent by Director of Medical Education under mahazar as per Ex.P.15, but none of the documents 48 Spl.C.C No.99/2004 c/w 79/2005 seized under Ex.P.15 are produced before the court. PW.15 S.Subramanya in his evidence has said that during the month of November 1995 as instructed by his Asst. Director has carried the ranking list pertaining to this case and handed over to the Investigating Officer. But the prosecution has not produced the alleged list handed over by his witness. PW.14 Neena Coeilho the Branch Manager has said about furnishing Ex.P.23 to P.28 the bankers cheques and challans under a covering letter as per Ex.P.29. In view of the fact that there is no dispute that accused No.1 at the time of admission has paid the requisite fee no importance can be attached to the evidence of this witness.
33. PW.18 M.Gangi Reddy, the then Dy.S.P. in his evidence has said about on receipt of Ex.P.1 registering the case as per Ex.P.34. PW.20 A. Vasantha Kumar, the then Dy.S.P. in his evidence has stated about apart from examining number of witnesses and recording the statement collecting the documents as per Ex.P.23 to P.28 and Ex.P.35. PW.8 49 Spl.C.C No.99/2004 c/w 79/2005 M.Shivakumara Swamy the then Under Secretary to the Government, Medical Education Department in his evidence identifying Ex.P.11 has said about issue of sanction order to prosecute. PW.19 Narayanappa the then Dy.S.P has said about submitting charge sheet.
34. In this case, the learned Public prosecutor submitted that the statement of accused recorded under Sec.313 of Cr.P.C. may be used against them as they were not able to explain or furnish good grounds to get out of circumstances may be relied upon for conviction. As could be seen from the statement of accused recorded under Sec.313 of Cr.P.C. the accused Nos.1 and 5 have denied the entire evidence adduced against them. Accused No.3 except that the constitution of Selection Scrutiny Committee wherein he was the Member Secretary has denied all other incriminating evidence appeared against him. Under the circumstances, the burden is on the prosecution to establish the offences alleged against accused beyond all reasonable doubts. Thus, on appreciation of the 50 Spl.C.C No.99/2004 c/w 79/2005 evidence adduced before the court, I am of the opinion that the prosecution has failed to establish that accused Nos.1, 3 and 5 have conspired together, forged the document for the purpose of cheating. Accordingly, the point Nos.1 to 3 raised for my consideration are answered in the Negative.
35. Point No.4 : The prosecution has alleged that accused No.3 being a public servant abusing his position by corrupt or illegal means obtained a valuable thing or advantage from accused No.1 to procure a seat for the first year MBBS course under payment category by providing higher CET ranking by fabricating a fraudulent selection committee letter and thereby committed an offence punishable under Sec.13(1)(d) r/w 13 (2) of Prevention of Corruption Act. In view of my findings on Points 1 to 3 holding that prosecution has failed to establish that accused have conspired together, forged the documents for the purpose of cheating, the next question requires to be answered is whether accused No.3 has obtained a valuable thing or advantage to attract the specific charge 51 Spl.C.C No.99/2004 c/w 79/2005 alleged against him. The learned counsel appearing for accused No.3 submits that committee was constituted for the first time. No guidelines were issued to follow by the committee. In view of the direction of Hon'ble Supreme Court all the admissions were to complete by 30.10.1993. There was paucity of time. No doubt accused No.3 has signed both admission letter and selection intimation, split up accused No.4 who was deputed by PW.3 used to fill those documents. Accused No.3 use to put his signature believing the staff that they have verified the genuineness. No documents connected to this case and no money has been recovered from accused No.3. It is not in dispute that accused No.3 was the public servant, he was also the Member Secretary of Selection Scrutiny Committee. No doubt it has been alleged that accused No.3 has issued admission letter and selection intimation under his signature the learned counsel for accused No.3 submits that accused No.3 being subordinate has put his signatures on the directions of deceased accused No.2. It is also his submission that before 52 Spl.C.C No.99/2004 c/w 79/2005 issuance of admission letter and selection intimation letter by accused No.3 there were other persons who have verified the testimonials. The learned counsel submits that there may be negligence on the part of accused No.3. For his negligence he cannot be punished under the provisions of the Prevention of Corruption Act. Accused No.3 in his written submission filed at the time of examination under Sec.313 of Cr.P.C. has said that the Government has initiated a departmental enquiry against him by a retired Judge and he has been exonerated of all the charges levelled against him. Under the circumstances, I do find force in the submission and in the absence of material to show that he has obtained any pecuniary advantage or he has obtained any valuable thing the offence under Sec.13 (1)(d) is not attracted and he cannot held guilty. Accordingly, the point raised for my consideration is answered in the negative.
36. Point Nos.5 & 6: The learned Public Prosecutor submitted that accused No.5 is a private medical practitioner, he is the old student of Bengaluru Medical College where the 53 Spl.C.C No.99/2004 c/w 79/2005 selection for first year MBBS course for the year 1993-1994 was held. It is his submission that accused No.5 was close to deceased accused No.2 who prevailed on accused No.2 to secure medical seats to ineligible candidates. Though it has been alleged that accused No.5 has secured the medical seats to ineligible candidates and obtained money in reward or as a motive nothing has been established before the Court. The learned counsel appearing for accused No.5 submits that the allegation was manipulation of ranks. The name of PW.3 found in all the reports. Pursuant to the orders of Hon'ble Supreme Court Sri. T.Mahesh Hedge, the then District Judge has submitted a report but the Government has not taken any action on that report. In the case of A.Ramadas -Vs- State of Karnataka reported in ILR 2000 KAR 4385 the Hon'ble High Court observing that fraud played in securing admission has held that the Government must see that such things do not occur and further held that inspite of material available on record at every point of time respondent No.6 (PW.3) has been 54 Spl.C.C No.99/2004 c/w 79/2005 allowed to retire without any conditions and she has been rewarded with the post of Vice-Chancellor of the University. Under the circumstances, the Hon'ble High Court has directed to hold a proper investigation. It is his submission that inspite of directions issued by the Hon'ble Supreme Court and Hon'ble High Court of Karnataka the investigating agency conveniently left out PW.3 and filed charge sheet against the present accused.
37. The learned counsel submits that the prosecution relied on the evidence of some witnesses. Among them CW.11 Smt. Yashoda could not examine before the court as she is reported dead. PW.4 Narayana though in his statement recorded under Sec.161 of Cr.P.C. has said about conspiracy nothing is elicited during his examination before Court. PW.1 G.Basavaraju in his evidence has said about credible information. To substantiate the same no material has been produced. In order to connect accused No.5 to the alleged offences, the investigating agency has conducted search of 55 Spl.C.C No.99/2004 c/w 79/2005 house of accused No.5, his clinic and the house of his relative as per Ex.P.7 to P.9. No doubt PW.6 and PW.21 have said about conducting search of house of accused No.5 and seizing 24 documents under Ex.P.7 none of the documents have been produced before the court. Apart from that PW.21 in his cross- examination has categorically said that the said documents are not at all connected to this case. Under the circumstances, it can only be said that the prosecution has failed to prove the alleged offences. At this stage, it is relevant to mention here that in one of the series of cases accused No.5 has filed an application for discharge. After hearing both sides, the court in Spl.C.C.No.130/2003 passed an order discharging accused No.5. Even though the allegations made in all the cases are one and the same it is not made clear why the accused No.5 has not filed similar applications in all the cases. Except PW.1 stating that there was credible information that the accused No.5 involved in the case nothing has been produced before the court to show that accused No.5 has played any role in 56 Spl.C.C No.99/2004 c/w 79/2005 securing medical seat to accused No.1 and thereby committed an offence punishable u/s. 8 and 9 of Prevention of Corruption Act. Accordingly, these two points raised for my consideration are answered in the negative.
38. Point No.7: In view of my above discussion and findings on Point Nos. 1 to 6 held in the negative, I proceed to pass the following:
ORDER Acting u/s 235(1) of Cr.P.C. the accused No.1, 3 and 5 are acquitted from the offences punishable under Sections 120B, 420, 468 r/w 34 of IPC and under Sections 8, 9, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bonds executed by accused and their sureties stands cancelled.
The accused are set at liberty.57 Spl.C.C No.99/2004 c/w 79/2005
The original judgment is ordered to keep in Spl.CC No.99/2004 and a copy in Spl.CC No.79/2005.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 20th day of January 2017) (D.T.Devendran) LXXVIII Addl. City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
PW1: Basavaraju G
PW2: N.S.Rama Rao
PW3: Smt.S.Kantha, Doctor
PW4: T.Narayan
PW5: Kasim sab B
PW6: Girish
PW7: Dasaiah
PW8: M. Shivakumaraswamy
PW9: Smt. A.Bharathi
PW10: N.Gangaboraiah
PW11: D.Thimmappa
PW12: Srikanta Prasad
PW13: M.S.Chidananda
PW14: Kum.Neena Coelo
PW15: S.Subramanya
PW16: C.Ashwathappa
PW17: B.B.Patil
PW18: M. Gangireddy
58 Spl.C.C No.99/2004 c/w 79/2005
PW19: Narayanappa
PW20: A.Vasanth Kumar
PW21: P.K.Shiva Shankar
List of documents exhibited for the prosecution:
Ex.P.1 Report/complaint
P.1 (a) signature of PW.1
P.2 (a) signature of PW.18
Ex.P.2 Letter dtd. 03.02.94
Ex.P.3 Copy of Selection intimation
P.3 (a) signature of A.3
Ex.P.4 Copy of letter dated 13.12.1993
P.4 (a) signature of PW.4
Ex.P.5 Copy of Paper Publication
Ex.P.6 Admission letter dtd 29.10.93
P.6 (a) form of admitted handwriting and
signature
P.6 (b)
to (g) sample writing and signature of A.1
Ex.P.7 Copy of mahazar
P.7 (a) signature of PW.6
Ex.P.8 Copy of mahazar
P.8 (a) signature of PW.6
Ex.P.9 Copy of mahazar
P.9 (a) signature of PW.6
Ex.P.10 Copy of the Mahazar
P.10 (a) signature of PW.7
Ex.P.11 Government Order dtd 27.08.01
P.11 (a) signature of PW.8
Ex.P.12 Specimen signature of A.3
P.12 (a) signature of PW.12
Ex.P.13 Specimen signature of A.3
P.13 (a) signature of PW.12
Ex.P.14 Copy of mahazar dtd 23.02.94
59 Spl.C.C No.99/2004 c/w 79/2005
Ex.P.15 Copy of mahazar
Ex.P.16 Mahazar dtd. 17.12.94
P.16 (a) signature of PW.12
Ex.P.17 Selection intimation
Ex.P.18 Selection intimation
Ex.P.19 Selection intimation
Ex.P.20 Selection intimation
Ex.P.21 Selection intimation
Ex.P.22 Selection intimation
Ex.P.23
to Ex.P.25 3 Bankers Cheques
Ex.P.26
to Ex.P.28 3 Challans of SBI
Ex.P.29 SBI letter dtd.25.11.96
Ex.P.30 FSL report dtd. 9.3.1998
P.30 (a) signature of PW.16
Ex.P.31 Reasons for opinion
Ex.P.32 FSL Report dtd 31.01.95
P.32 (a) signature of PW.16
Ex.P.33 Reasons for opinion
Ex.P.34 FIR
P.34 (a)
& (b) signature of PW.18
Ex.P.35 Mahazar dtd 27.06.1997
P.35 (a) signature of PW.20
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence :
- Nil -
LXXVIII Addl. City Civil & Sessions Judge, Mayohall Unit, Bengaluru.60 Spl.C.C No.99/2004 c/w 79/2005 61 Spl.C.C No.99/2004 c/w 79/2005