Karnataka High Court
Sri M A Raghuraman vs State By Inspector Of Police on 21 August, 2018
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.1081 OF 2012
BETWEEN:
Sri.M.A.Raghuraman,
S/o Sri.M.A.Ananthachar,
Age:54 Years,
Occ: Superintendent of Service Tax
Arrears Recovery Cell
Office of the Commissioner of Service Tax
S.P.Complex, No.16, Lalbagh Road
Bangalore.
... Appellant
(By Sri Kiran S Javali, for
Sri S S Hiremath, Advocate)
AND:
State by Inspector of Police
C.B.I/ACB, Bangalore.
... Respondent
(By Sri P.Prasanna Kumar, SPP.)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set-aside the judgment dated 30.08.2012
passed by the XXXII Addl. City Civil and Sessions Judge &
Special Judge for CBI cases (CCH-34), Bangalore in SPl.CC
No.219/2011 convicting the appellant/accused for the
offences punishable under Section 7 and 13(1)(d) r/w 13(2)
of Prevention of Corruption Act. Appellant/accused is
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sentenced to undergo simple imprisonment for one year six
months for offence punishable under Section 7 of Prevention
of Corruption Act to pay fine of Rs.5,000/-, in default to pay
fine to undergo simple imprisonment for six months.
Appellant/accused is also sentenced to undergo simple
imprisonment for one year and six months for the offence
punishable under Section 13(1)(d) r/w Section 13(2) of
Prevention of Corruption Act and shall pay fine of
Rs.5,000/-, in default to pay fine, he shall undergo simple
imprisonment for six months. The substantive sentences
shall run concurrently and the appellant prays that he may
be acquitted.
This Criminal Appeal coming on for Further Hearing
this day, the Court delivered the following:
JUDGMENT
The appeal is directed against the judgment passed by the XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore, under Prevention of Corruption Act, 1988 in Spl.CC No.219/2011 pronounced on 30.08.2011 wherein the accused was found guilty for having committed the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentenced him to undergo simple imprisonment for a period of one year six months and to pay fine of 3 Rs.5,000/- in default to pay fine to undergo Simple Imprisonment for a period of six months for the offence punishable under Section 7 of the Prevention of Corruption Act. He was further sentenced to undergo Simple Imprisonment for a period of one year six months and to pay fine of Rs.5,000/- in default of payment of fine to undergo Simple Imprisonment for a period of six months for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
2. The prosecution agency is Central Bureau of Investigation/ACB and the complainant who set criminal law into motion is one Darshan D, S/o Dwarakanath K, Flat No.306, Sai Madhura Enclave, J.P.Nagar, 1st Phase, Bengaluru-560078 and it is lodged against one Raghuraman, Superintendent, Central Excise Service Tax, Lalbagh Road, Bengaluru. 4
3. It is claimed that the accused made demand for bribe of Rs.12,000/- to render favour to the complainant in the matter of non filing of monthly returns in connection with the service tax as the complainant is said to be carrying on the business in the name and style of "M/s.Tesseract Technologies"
which was registered with Central Excise Department during 2009 in respect of design business.
4. The substance of the complaint is that, during the 3rd and 4th week of August 2011, complainant received a phone call from accused who was Superintendent of Service Tax Department, Lalbagh road, Bengaluru at that time and enquiring about his firm and its business. Complainant informed that though he formed his firm in March 2009, he did not carry on the business. Then he was directed by the accused to meet the latter in the office at Lalbagh Road. Accordingly, after 3 or 4 days, the complainant went to 5 the office of the accused. However, he was not available as such, the complainant had again gone on the subsequent date and met the accused and explained about the non commencement of the business in his firm due to personal and financial problem. The complainant also expressed his decision to close the firm.
5. The next query by the accused was whether the complainant filed the returns, for which, he told about non filing of such returns due to non commencement of business in the firm. The accused told the complainant that non filing of returns itself is an offence, as such, the complainant was liable to pay a fine of Rs.30,000/- for non filing of returns and not intimating about commencement of business. The complainant expressed his inability to pay fine of Rs.30,000/-. The accused then told the complainant to pay 50% of the fine amount which amounts to Rs.15,000/-. But when the complainant expressed his 6 difficulty in paying, the amount was scaled down by the accused to Rs.12,000/-. It is further stated in the complaint that the complainant was not ready to pay the bribe amount as demanded by the accused. It is also stated that the accused-Raghuraman had telephoned on 29.08.2011, 05.09.2011 and 07.09.2011 from his mobile No.9448950349 to the mobile of the complainant bearing No.991609094 and demanded the bribe money and also threatened that if the complainant fails, he would be liable for payment of the entire fine amount. On 09.09.2011, the complainant requested the accused to spare some time and the accused granted two days time for paying the bribe amount. The complainant states that he never wanted to pay bribe. Hence, he lodged a complaint against the accused. The complaint came to be lodged at 11.30 hours by the complainant.
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6. Later the matter was allotted to Sri.R.K.Shivanna, Police Inspector to investigate the case against the accused for the offence punishable under Section 7 of the Prevention of Corruption Act in Crime No.RC17(A)/2011. It was on the basis of the registration of the complaint in the said crime number, Central Bureau of Investigation conducted the necessary formalities such as entrustment mahazar in the office and the recovery/trap mahazar under the leadership of PW15 - Sri.Shivanna who is said to be TLO (Trap laying officer) and on completion of the trap, the prosecution claims that the accused-Raghuraman was caught red handed after having demanded bribe amount of Rs.12,000/- and accepting it from the complainant thereby committed offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. Thus, casewas initiated against the accused for the said offences. 8
7. As per the claim of the prosecution the accused was working as a public servant in Central Excise Department, Lalbagh Road, Bengaluru. Thus, it is incumbent on the part of the prosecution to obtain necessary permission to prosecute the public servant- accused for the said offence from the competent authority. The sanction order placed by the prosecution is marked as Ex.P8 and the same is issued by one H.V.Pradhan, Commissioner, Service Tax, Bengaluru and he has been examined as PW2 in this case. On context, the competency of the sanctioning authority and the factum of sanction is not seriously disputed. The said Commissioner in addition to issuing the sanction order to prosecute the accused has also deposed regarding his competency to issue sanction and fact of issuing the sanction order dated 25.11.2011.
8. After completion of the investigation, CBI/ACB has filed final report under Section 173 of Cr.P.C against the accused for the offences punishable under 9 Sections 7 and 13(1)(d) of P.C. Act. The claim of the prosecution is that, the accused being the public servant discharging duties as Superintendent, Service Tax Department, demanded bribe of Rs.15,000/- from the complainant for accepting Nil return and exonerate the accused from the liability of paying fine amount of Rs.30,000/- and while receiving the said amount was caught red handed in the premises of CET Cell at Malleswaram, Bengaluru on 10.9.2011.
9. The learned Special Judge, after hearing the parties and considering the material on record, proceeded to frame charge against the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of P.C Act. Accused pleaded not guilty and came to be tried.
10. In order to prove its case, CBI/ACB has examined in all 15 witnesses as PWs 1 to 15, got marked Exs.P1 to P37 and MOs 1 to 11. On behalf of defence, Exs.D1 to D5 were marked.
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11. The learned Special Judge, after hearing the parties and perusing the materials available on file, found accused guilty for having committed the offence punishable under Sections 7 and 13(1)(d) read with section 13(2) of P.C. Act and sentenced him as stated above.
12. Out of total number of witnesses who are examined before the Special Court, it is necessary to classify the witnesses as under:
13. PW1-N.Lakshminarayana and PW6- Radhakrishna Ballal are the independent witnesses. PW13-Subramanyaswamy, PW8-Nirmala, PW9-Sunil are the employees of Service Tax Department. PW10- P Pullaiah is the person who had gathered at CET cell. PW5- Basavaraj Govinagidad is from the Health Department who is said to have examined the chemical effect and presence of phenolphthalein powder. PW12- Gangadhara is a security guard, at the Forest Office, 11 accommodated a chair and table for conducting recovery mahazar. PW11- Murthy S.N., Nodal Officer, Vodafone who has provided call details of Vodafone phone, PW7- P Rathnakar Nayak gives details of BSNL phone, PW15-R.K.Shivanna is the investigating officer, PW14-Suresh Kumar, PI, conducted further investigation.
14. In this connection, Sri P Prasanna Kumar, learned SPP for the respondent submits that formality of registering and building up a case for the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of P.C. Act, 1988 requires chemical process and the explanation of the procedure to confirm the authenticity and proof. The prosecution agency claim they have registered a case for the offences, investigated the matter after receiving the complaint. It is stated that the complainant approached DIG and presented the complaint which was referred by the DIG to PW15 Shivanna. Later, said Shivanna secured PWs 12 1-Lakshminarayana, Administrative Officer, Oriental Insurance Company and PW6- Radhakrishna Ballal, Assistant Manager in Vijaya Bank to assist the proceedings as independent witnesses.
15. The essence in substance of the proceedings were that after securing the said independent witnesses in the presence of the complainant, the authenticity of the complaint would have to be checked. In this connection, Entrustment mahazar as per Ex.P1 is said to have been conducted in the presence of independent witnesses, N.Lakshminarayana, Radhakrishna Ballal, complainant-Darshan, s/o Dwarakanath K, R.K.Shivanna, Police Inspector and Trap Laying Officer (TLO), T.Rajashekara, Sub-Inspector, CBI, Srinivasa Murthy, Head Constable, CBI, S.Manjunath, Police Constable, CBI, Bengaluru.
16. During entrustment mahazar, Trap Laying Officer briefed the matter to the complainant and the 13 authenticity of demand of bribe and voice of the accused were demonstrated before witnesses. The complainant was asked by Shivanna to explain the entire details and he narrated the matter.
17. The complainant who is said to have started a website designing business in the name of "M/s.Tesseract Technologies", having registered with the Central Excise Department during March 2009 had failed to submit the monthly returns which is an offence under the Act and the defaulter would be liable to pay fine. In this connection, in the first instance the accused had called the complainant and stated that the complainant was liable to pay an amount of Rs.30,000/- by way of fine in view of non filing of monthly returns. When the complainant expressed his inability, the accused shown rebate by demanding Rs.15,000/- i.e. 50% of the fine amount. Even then the complainant stated it is difficult, further concession was 14 shown by reducing Rs.3,000/- and bribe amount was fixed at Rs.12,000/-. It is in this connection, complainant who was not interested in paying the bribe lodged a complaint against the accused. Thus, in the presence of the complainant, TLO, independent witnesses and others, the proceedings were conducted.
18. The other aspects are, the prosecution said to have conducted the investigation asking the complainant to present the amount of Rs.12,000/- and the 2nd witness was asked to verify the serial number of the currency notes, accordingly, they were done. List was prepared and the amount of Rs.12,000/- was in the denomination of Rs.500 x 24.
19. The constable was directed to smear the phenolphthalein powder on both the sides of all the currency notes. It is further stated that clean water was collected in a tumbler, thereafter, sodium carbonate powder was mixed to it to make it sodium carbonate 15 solution. A sample was collected in a bottle and preserved by sealing it and obtained signature of the participants.
20. The independent witness -Radhakrishna Ballal was directed by TLO to place tainted currency in the right side pocket of the shirt worn by the complainant and the witness who had contacted the currency notes smeared with phenolphthalein powder was instructed to dip his fingers and wash in the remaining sodium carbonate solution, upon which, the colorless solution turns to pink, collected it in separate bottle and seized. Thereafter, the procedure to be complied by each of the participants of the department in the proceedings is explained by TLO such as, all of them going to the spot designated by the accused and to take their position, complainant was directed to handle the currency carefully without touching or meddling with it. The independent witnesses were instructed to 16 follow the complainant like shadow and observe the conversation and the act that happened between the complainant and the accused. Complainant was directed that if the amount of bribe was demanded by the accused for the second time only, he would have to give it and on receipt of the same by the accused he should pass signal by combing of his hairs. With this, the team led by TLO R.K.Shivanna, consisting of complainant, independent witnesses and other officials left the office.
21. The accused while asking the complainant to get the money as bribe, asked the complainant to come near CET cell, Malleswaram. Thus, as per the clarification of the accused, complainant was supposed to go with the bribe money of Rs.12,000/- near CET cell, Malleswaram.
22. All the items that came up for consideration during entrustment mahazar were sealed. Even the 17 voice said to have been that of the accused was taken and sample was collected from the mobile to the laptop from the voice recorder to the mobile and thereafter to a CTR.
23. The task of the members of the team was to catch accused- Raghuraman in case of acceptance of bribe. R.K.Shivanna was designated Trap laying officer, complainant-Darshan and other witnesses were asked to go ahead with their assignment. With that they completed the entrustment mahazar proceedings at 1530 hours on 10.09.2011.
24. It was after the completion of the said mahazar Ex.P1, the trap team went in Innova vehicle bearing Reg.No.KA-03-D-5364 and the complainant on TVS Apache Motor cycle bearing No.KA-03-EQ-6618 towards CET Cell, Malleshwaram which is the place where accused had asked the complainant to meet him for the purpose of paying the amount. The complainant 18
-Darshan along with the independent witness contacted accused over phone and informed him that he has left his place and that he would be coming to CET premises Malleshwaram, that was heard by the independent witnesses. The witnesses took their respective positions, complainant and shadow witness proceeded it was 4.25 p.m. the complainant met the accused and there were number of people roaming in front of the gate of CET Cell. The shadow witness and other members were standing near the complainant. There was no room for suspicion due to heavy crowd. After two to three minutes, complainant took out the tainted bribe money from his left side shirt pocket in his right hand and gave it to accused, who received the same in right hand and kept it in his right side front pant pocket. All the witnesses saw the happenings. The complainant gave signal by combing his hairs, upon which they all went near. The complainant showed the accused and informed that he was accused-Raghuraman, 19 Superintendent Service Tax who demanded bribe of Rs.12,000/- from him and received. The Trap Laying Officer (TLO), disclosed his identity and accused informed that he is Raghuraman working as Superintendent in Service Tax Department, Recovery Cell, Lalbagh Road, Bengaluru. To a query by TLO as to whether the accused demanded and received the bribe of Rs.12,000/- from complainant, the accused got perplexed and remained mum for sometime and informed TLO that the amount received from the complainant was meant for obtaining demand draft towards payment of service tax in the name of complainant's firm. TLO asked accused whether he is authorized to receive the service tax by cash from the complainant, it was replied by the accused that he was not authorized to receive any cash. When he was asked about why he came to CET cell, the accused was tight lipped. Under the directions of the TLO, clean water was collected in a tumbler and sodium carbonate 20 solution was prepared. A sample was collected in a bottle and seized. In the remaining solution the TLO asked the accused to dip his right hand fingers upon which solution turned pink colour. The solution was collected in a bottle and seized. Fresh Sodium carbonate solution was prepared in which accused was asked to dip his left hand fingers. On doing so the solution remained unchanged. All of them were seized and sealed. The accused was asked as to where he had kept the tainted money. Accused replied that he had kept the money in his right side front pant pocket and took out the currency notes of Rs.500/- denomination and the same was verified by showing it to complainant and witnesses and they confirmed that said currency was seen and which were subjected to entrustment mahazar-Ex. P-1 in the office of CBI. The serial numbers of the currency as observed is as under:
(i) 2KP864798, (ii)7KQ894006 (iii) 1LL364531 21
(iv)7KL678664 (v) 0LU028167 (vi) 9KQ516299 (vii) 3KF675540 (viii) 3KF675539 (ix) 6EF079781
(x)1DE224631 (xi) 8HQ206208 (xii) ONN228959 (xiii) 8CD872663 (xiv) 2HD945564 (xv) 6HK121594 (xvi) 8KA182572 (xvii) 5AL538232 (xviii) 7EE796469 (xix) 6FF140766 (xx) 6KD042179 (xi) 6CE555774 (xii) 8PD515227 (xiii) 2GP283283 (xiv) 5FG774029.
25. After comparing and verifying, the currency notes were also subjected for seizure as per MO-10. Since the space was not conducive for conducting action, further formalities were conducted in the office premises of Karnataka Forest Development Corporation Ltd., just opposite to CET Cell. Table and a chair was accommodated by the Security Guard of the said office. Thereafter, TLO asked the complainant to explain about the transaction. On query, the complainant told before the TLO that on coming to CET Cell premises, he saw the accused in the presence of witnesses then on 22 meeting him, accused told the complainant to hand over the money and asked him to collect the nil returns and assured him that he would take care of everything and see that the request of the complainant was accepted and permitted to close his business. Thereafter, he demanded money and when the amount was given, the accused received it in the right hand and kept it in the right side front pocket of the pant. The shadow witness endorsed the version of the complainant. An alternative pant was arranged to the accused and greenish blue colour pant was asked to remove and pocket portion was washed in sodium carbonate solution upon which the solution turned to pink colour. The pant pocket portion, solution and pant were seized separately and pant was having label of "The Harry Collection" and same was kept in a green colour envelop and sealed by using the brass seal having English letter "CBI".
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26. A nokia black colour mobile hand set bearing No.95, IMEI No.00401/01/740329/2, type -RM-421, with BSNL mobile sim No.8991718120411588810 having subscriber No.9448950349 was also seized. Voice recorder that was in the possession of complainant was taken and the conversation between the complainant and accused were played and then transferred to new blank CDR and the rough sketch was prepared. A specimen of seal was collected.
27. At the time of taking hand washes of the accused mob had gathered near the gate of CET Cell Malleshwaram and TLO noted their names and addresses. They are: P.Pullaiah, Basanth kumar, Prabhakar Prasad, Prateek Gangawar and requested them to co-operate by giving statement. Accordingly, Pullaiah was examined as PW-10. After the conclusion of the mahazar at 9.45 P.M. on 10.09.2011 in the place belonging to Karnataka Forest Development Corporation 24 Ltd., 18th Cross Malleshwaram, Bengaluru-03, under the electric tube light, contents of mahazar was read over and participants signed it. Thus, the claim of the prosecution is that on a complaint lodged by said Dharshan- PW-4, the genuineness was ascertained by them and CBI and thereafter official witnesses were secured to assist the proceedings in furtherance of which entrustment mahazar was conducted as per Ex.P.1 and the recovery mahazar was prepared at the Karnataka Forest Development Corporation Ltd. CBI stated that accused was apprehended red handed when he demanded and received the bribe from the complainant.
28. The oral evidence of the complainant is that he reiterates the contents of complaint and stated in the entrustment mahazar wherein the procedure of the trap, the features, the compliance and other formalities were explained. The complainant and other witnesses 25 were asked to be careful in following the instructions like payment of the amount to the accused should be made only if it is demanded for the second time. Further, the complainant reiterates what all stated in the mahazar -Exhibit P-2 to the effect of going to the premises of CET Cell, Malleswaram and going towards accused in accordance with the instructions and handing over of the money MO-10 upon the demand made by the accused and thereafter passing signal to the TLO and the proceedings that were conducted including the preparation of Sodium Carbonate Solution and the chemical test regarding conversion of a colourless solution into a pink one. In this connection hand wash and washing pocket portion of the pant also explained. Thus, it is regarding demand, payment of bribe, the accused keeping the amount in his pocket, the complainant passing on the signal or explanation by him in substance.
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29. He was cross examined at length. To a question, he answers that there was no too much of rush in the premises of CET Cell. It is elicited from him that prior to registration he was not pursuing the business. He sticks to gun. Major portion of the cross examination is spread over on the question relating to business, the presence of the witnesses, conducting of entrustment mahazar. He sticks to his assertion made by him during examination-in-chief and no serious contradictions are made out. He also speaks out about going to the office of the accused on the previous day. However, he met a lady PW8-Nirmala and as the accused had applied leave as ascertained by him in the phone call, he went on the next day. He further confirm the demand for bribe of Rs.12,000/- by the accused to facilitate and favor the complainant to close the business accepting nil returns. He stated regarding meeting of the witnesses in the Office of CBI. 27
30. PW1 - N. Lakshminarayana is a shadow witness. He is working as an Administrative Officer in Oriental Insurance Company. He endorses and reiterates the evidence of PW4-Darshan, the complainant, wherever participation of this witness is connected. He deposes regarding he being called to the Office of CBI, narrated the instructions given by PI - Shivanna regarding complainant explaining about the complaint and the accused demanding bribe of Rs.12,000/- from the complainant. He being made to know about participation in the proceedings, arrival and presence of two witnesses, the formalities that were conducted therein including the complainant presenting the amount of Rs.12,000/- said to be the bribe amount, thereafter smearing of the phenolphthalein powder to the currency notes and after verifying and maintaining serial number of currency and getting it verified.
31. Further, at the instance of Shivanna one of the Police Constable touched the said currency notes, 28 his hand was washed in sodium carbonate solution prepared in a glass tumbler. Immediately, it turned into pink colour. A portion of sodium carbonate solution was taken and put it in a bottle, seized and sealed. In substance, he tells about his participation, conducting of Ex.P1 - Entrustment mahazar, knowing about contents of Ex.P20-complaint. He further tells about he going in a team lead by Shivanna near CET Cell and thereafter going along with and staying nearby the complainant and observing the complainant and the accused talking to each other and after some time, the complainant taking out currency notes from his shirt pocket and accused receiving it in his right hand and kept it in his right pocket of his pant.
32. Thereafter recording conversation of complainant with accused. The TLO had already arrived. In his presence the complainant identified the accused. He introduced the TLO to the accused. On 29 ascertaining his name and the incident that happened, accused reported to have told that the amount received by him was in respect of service tax. Thus, in tandem he narrates the role of others and his role in conducting Ex.P1 - entrustment mahazar and Ex.P2 - recovery mahazar. In substance his deposition is inconsonance with the evidence of PW4-Darshan, the complainant. He identifies currency notes, sealed solution, seal used for the proceedings, seizure affected and the proceedings conducted during trap mahazar.
33. PW6 - Radhakrishna Ballal, is the second independent witness, who was present and heard the facts from the complainant, associated in entrustment mahazar and also heard the instructions. He tells about his role played during the entrustment mahazar - Ex.P1. He is the person who kept tainted money in the pocket of the complainant in accordance with the instructions given by the TLO. He was present when 30 verification conducted after apprehending the accused, recovering Rs.12,000/- from him vide MO-10, effecting the seizure and accusation made by each of the witnesses during the entrustment mahazar and recovery mahazar.
34. PW7 - P.Rathnakar Nayak, gives details of the telephone calls between the complainant and the accused from 15.08.2011 and 10.09.2011 as per Ex.P22.
35. Insofar as the witnesses from the Service Tax Department are concerned, they are PW3 - Bijoykumar Kar, PW8-Nirmala, PW9-M.Sunil and PW13- Subramanyaswamy.
36. Among them, PW3- Bijoykumar Kar is the Addl. Commissioner, Service Tax, Bangalore. His evidence is about production of ST1 application of complainant -PW4-Darshan, which is marked as Ex.P10 and other procedural aspects.
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37. PW8-Nirmala, is the Inspector of Arrears Recovery Cell, Service Tax. Her evidence is to the effect that the complainant is the Proprietor of M/s.Tesseract Technologies, Bangalore and he visited her officer on 22.08.2011, he told that he was called by the accused and came to know that accused was on leave on that day and he wanted to meet the accused in connection with the returns. She telephoned through her mobile to the accused and handed over the mobile to complainant, wherein the accused asked the complainant to come on next day as he was on leave.
38. PW9-M.Sunil, is the Inspector, Arrears Recovery Cell, Service Tax, Bangalore, he identifies the complainant as Proprietor of the said firm. PW13- Subramanyaswamy, Retired Assistant Commissioner, Service Taxes, Bangalore, his evidence is in detail and in line regarding procedure adopted in payment of taxes or penalty. He tells that if particular person is identified 32 as defaulter the letter was used to be addressed to such person and he would be called upon to file returns and also penalty will be imposed. The relevant point that he speaks about the case is that the cash is not collected by the Department regarding penalty. It is always paid by challan or through on-line. It is in this connection the prosecution relies that the accused himself collected the money by way of penalty or fine from the complainant only for getting the DD for payment of Service Tax.
39. PW10 - P.Pullaiah, Manager, IT, Syndicate Bank, said that he came to Bangalore to take his father- in-law to medical check up and also to attend CET counseling of his daughter. His evidence is that at about 4.30 PM when he was going to the place of parking, he noticed group of people caught hold of the accused.
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40. PW5-Basavaraj Govinagidad, is the Assistant Chemical Examiner, Public Health Institute and his evidence is regarding examination of MO1 and 3.
41. PW12 - Gangadhara, Security Guard, Forest Office, Malleshwaram. He states that on the date of incident, he was requested to accommodate Chair and table by the CBI Officers. He deposed that in the beginning he did not provide it, however, the CBI Officer spoke to higher Officer of this witness, who in turn directed him to spare and accordingly he spared the table and chair.
42. PW14 - E.P.Suresh Kumar, Police Inspector, CBI and PW15 - R.K.Shivanna, Investigating Officer, speaks about the formalities. The sanction to prosecute the accused is issued by PW-2 - H.V.Pradhan.
43. The learned counsel Mr. Kiran S Javali appearing for Mr. S.S.Hiremath, for appellant - accused, 34 would submit that there are no ingredients of Section 7 of the Act. He would further submit that there are discrepancies between the versions of the complainant and witnesses. The trap mahazar does not reflect the commission of the offence alleged against the accused/ appellant and the prosecution has not established transparency, if any during Trap mahazar.
44. The learned counsel for appellant - accused would assertively submit that the demand is a crucial aspect for the bribe and once the demand for bribe is not established, the entire case of the prosecution fails. In this connection he submits that, the explanation of the accused marked as Ex.D4 is to the effect that the amount was received by the accused towards DD that was to be given towards payment of service tax.
45. Sri P Prasanna Kumar, learned SPP for respondent would submit that the prosecution has established the offence against the accused beyond all 35 reasonable doubt. The filing of complaint and its ingredients are true and natural. Each incident narrated by witnesses themselves prove that the accused committed the offence punishable under Section 7 and Section 13(1)(d) of Prevention of Corruption Act.
46. The demand or attempt to demand for gratification for discharging official duties is an offence, which becomes complete when once the amount is received in pursuance to the demand made by the public servant. The concept of demand is not accepted with reference to verbatim expression. As there is no circumstance or instructions to complainant to pay the bribe or illegal gratification. The demand for bribe is always told in their own artistic manner. Here the complainant is made to know the same through the communication by the accused.
47. The meeting of the complainant and the accused did not last in one meeting. There is series of 36 discussions between the complainant and the accused. In one of the instances the accused told the complainant that, penalty is Rs.30,000/- and he could pay 50% of the said amount which comes to Rs.15,000/- as bribe and then it is refused by him. Incidentally, when the demand was made during the first occasion it was not in a public place or in the presence of witnesses. The amount received by the accused is stated to be bribe amount. It is necessary to calculate and assess the necessity of the accused going to CET Cell Premises on 2nd Saturday and asking the complainant to come to the said place, where there is no room for suspicion. The independent witnesses were present at a distance of 10 to 13 meters from the complainant and accused. They could see the complainant and accused, but they may not hear the words of the accused. If any discussion takes place, the next immediate act in the context is, the persons definitely told or reveal what they spoke immediately. 37 Here the complainant and the accused were seen discussing by the witnesses and immediately, thereafter the complainant takes out the amount and gives it to the accused, who receives it through his right hand and kept it in his right pocket of pant. To call it tainted currency notes the chemical test in the form of change of color is established and currency notes were earlier subjected to entrustment mahazar and they are tainted notes. Further aspect is that the accused is not a layman, he is Superintendent in Service Tax Department.
48. PW13- Subramanyaswamy, Retired Assistant Commissioner of Service Taxes, in his evidence makes it clear that there is no example of collecting taxes or penalty amount from the assessee in cash. The way to pay is either by way of challan or online. The undisputed explanation by the accused is that he collected the amount of Rs.12,000/- from the 38 complainant at CET Cell premises to buy DD for payment of service tax. It cannot be forgotten for a while that the accused is not a layman or Group D employee, on the other hand he held a prestigious post of Superintendent in the Service Tax Department. Further, he told that he went to CET premises on a 2nd Saturday, that was a holiday to his Department, waiting for the complainant, collected the amount for the purpose of buying DD, that is totally not practical.
49. It is necessary to mention that when the complaint is lodged for demand of bribe by the accused, it is clear from the point of the complainant that the accused demanded bribe. Again after ascertaining the prima facie case and registering the FIR when trap is laid and when it is proved that demand is made and accepted, literally there will be two demands, first demand is during first meeting of the complainant and accused and second demand is during trap mahzar. In 39 the context, demand is not used in plurality in so far as illegal gratification is concerned.
50. The learned counsel for appellant - accused high lighted another point wherein the presumption as mentioned in Section 20 of the Act, is not available to the prosecution in this case. It is necessary to extract Section 20 of the Act, which reads as under:
20. Presumption where public servant accepts gratification other than legal remuneration.-
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section(1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.40
(2) Where in any trial of an offence punishable under Section 12 or under clause(b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
51. It is necessary to compare between `no explanation' or 'false explanation'. When the person placed in a particular place being a man of atleast ordinary prudence tells something regarding the act in 41 which he is involved, tells something which version according to him is truth. When he gives a false version it is as good as 'no explanation'. Further false version embalms the true one which misleads everybody.
52. Regard being had to the fact that, passing of the amount from the complainant to the accused is not disputed. In addition, it is necessary to refer to Section 20 of the Act. When the person wants to give explanation and he refused to give by knowing truth would go against him or gives false explanation, it lands such person in unescapable position of guilt.
53. Learned counsel for the appellant would submit that, as contemplated under Section 13(1)(d) of P.C. Act, mere receipt of consideration does not become an offence punishable under Prevention of Corruption Act, 1988, unless it is preceded by demand by the public servant. In this connection, it is necessary to mention that under Section 13 of the P.C. Act, there are 42 several Sub-Sections such as Sub-Sections (a) (b) (c) (d)
(e) which are punishable under Section 13(2) of the Act. Insofar as the demand is concerned, the nature and demand are discussed in the reasons assigned. The accused, was a Superintendent of service tax. Sofaras the work pendency is concerned, very often it is contended that the work must be pending with the public servant. In this connection, here, it is the first, the phone said to have been made by the accused summoning the complainant to his office, where the complainant came to know that he has not filed monthly returns which is punishable by imposing penalty. Here it is necessary to distinguish the tax amount, when once a person is registered under the Service Tax Act, he is bound to file monthly returns despite the fact whether he gets taxable income or not. The non-filing of the returns is punishable under the Act. It is the case of the complainant that he started the said software firm during 2009 but could not start 43 the business and decided to put an end, thus it would be the case of nil returns so far as the said firm is concerned.. Thus, in this connection, what was supposed to have been done is, the employer could have filed the nil returns and sought for surrendering the registration and could have get rid of his liability of payment of service tax. It is in this case, as could be seen from the evidence of the complainant that the accused said to have asked whether the complainant had filed Nil returns to enable to close the file. The officer cannot be notified in the premises belonging to CET Cell wherein official duties are not carried out. More particularly, when it was a General Holiday or Second Saturday. Further, as per the retired Assistant Commissioner of the Service Tax, PW13, there is no provision for collecting cash from the assessee and the methods recognized are payment through challan or online.
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54. On considering the sequence of events that the accused was aged 53 years at the time of offence and working as Superintendent cannot be unaware of the element to the effect of receiving the amount from a dealer on a General Holiday in different place other than the office. Thus the conclusion is that it was not a legal gratification. The demand that is communicated to the complainant is in understandable manner. It is said that the accused is a public servant who has more knowledge of the receipt of amount once they are demanded or he desires to do so. In the contextual circumstances, the demand made by the public servant declares his intention open to the complainant for demanding illegal gratification and he has a desire for that. In this connection, learned counsel for the appellant would submit that the shadow witnesses (independent witness) did not hear the conversation between the accused and the complainant. But the independent witnesses have said that they saw the 45 visible conversation between complainant and the accused but they did not hear the same. Immediately in 2 or 3 minutes the accused removed currency notes from left shirt pocket and gave it to the accused who received through right hand and kept it in his right side pant pocket. It reveals, the sequence of events only establish that the accused demanded and received the amount. The currency notes through change of colour of solution have confirmed that they are the same notes which were subjected to Entrustment Mahazar. Thus, the receipt of amount has been established by the prosecution beyond shadow of doubt. In this connection it is necessary to mention that as on the date of incident, the appellant was a Public Servant, working as Superintendent in Service Tax Department, which is not disputed. His presence in CET Cell premises on a holiday itself establish his intention and preparation of receiving the amount that was demanded as bribe beyond reasonable doubt.
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55. Now it is the responsibility of the appellant to establish the stand taken by him, more particularly, when he says that the said currency notes were meant for buying Demand Draft for payment of service tax which is as good as 'no explanation', rather, it is 'false explanation'. Under these circumstance, the failure on the part of the accused/Public Servant is covered under Section 20 of the P.C. Act 1988. In so far as contention that recovery of money is not established beyond reasonable doubt is concerned, apart from Ex.P1 - Entrustment Mahazar, the presence of the complainant with the accused is established. More particularly, the trapping which was not outside the building or down stairs. On the other hand it is open space belonging to CET cell where number of persons were present and their presence shows as witnesses and trap members cleverly positioned to avoid suspicion. The evidence of the complainant is without exaggeration or glorification or magnifying the things. 47 The entire version is natural. He has no animosity against the accused. Visit of the complainant to the office of the accused is doubly confirmed with evidence of Smt. Nirmala Inspector, Arrears Recovery Cell, Service Tax, Bangalore, who has stated that on a particular day i.e. on 22.08.2011 the complainant had been to her office. The accused had gone to the office and met the said lady who said the accused was on leave on that day and she spoke to accused over her mobile and gave her mobile to the hands of the complainant who spoke to the accused.
56. The evidences of PW1 and PW6 as independent witnesses, PW4 as a complainant, PW15 as Investigation Officer establish beyond shadow of doubt that Mahazar proceedings were conducted in the office of the CBI and in the presence of the said persons along with the others. The evidence of the complainant and that of the Investigation Officer establish that the complaint was perused and the demand was confirmed. 48 It is necessary to mention the demand for bribe was recorded through voice recorder, later on laptop and CDs were obtained. Even otherwise in this connection learned counsel for the appellant would submit that Section 55(b) of the Act is not complied. Here it is necessary to mention that the explanation are convincingly given regarding the record of voice by both when the team went for trapping the accused and when the complainant spoke to him. Even otherwise voice recorder and the material on record suggests that there was a definite and specific demand by the accused- Public Servant to pay the amount of Rs.12,000/- as gratification and he received it on 10.09.2011. There is no doubt or suspicion regarding the commission of offence by the accused. In his evidence, the Investigating Officer tells about the formalities and procedures adopted during the Mahazar and activities such as getting the sketch, obtaining chemical 49 examination report and getting the currency notes chemically examined.
57. Learned counsel for the appellant-accused would submit that the solution of left hand wash of the accused does not result in change of its colour. It is necessary to observe that in the version of the complaint and the evidence of shadow witnesses are crystal clear to the effect that the amount was received in right hand and kept by the accused in the right side pant pocket.
58. PW2 - H.V. Pradhan who has given sanction of prosecution of the accused for the offence punishable under Section 7 of P.C. Act is well reasoned. Further, it discusses the nature of the activities, which are claimed as offence and there is proper application. More particularly, the sanction is based on the material available for the Sanctioning Authority to issue sanction as per Ex.P8. Even while the accused was examined under Section 313 of Cr.P.C., he has not disputed the 50 receipt of consideration, but tells that he received the said amount towards the payment fine amount.
59. In the circumstances, I find that the finding of learned Special Judge with regard to deposition of PWs.1, 4, 6 and 15 are well reasoned. For the reasons assigned above, I am of the sincere, but firm view that the reasons assigned and the findings arrived by the learned Special judge in holding the accused guilty for the offences punishable under Sections 7 and 13(1)(d) of the P.C. Act is just and proper and does not call for any interference by this Court in this appeal.
60. The date of commission of offence is prior to the amended Act of 2014. The sentence imposed is simple imprisonment for one year six months for the offence punishable under Section 7 and to pay fine of Rs.5,000/-, in default to pay fine, to undergo simple imprisonment for six months and also to undergo simple imprisonment for one year six months and to 51 pay fine of Rs.5,000/-, in default to pay fine, to undergo simple imprisonment for another six months for the offence under Section 13 (1)(d) read with Section 13(2) of P.C. Act.
61. Further the substance of the circumstances and the materials against the accused establish the commission of offence punishable under Section 7 and 13 (1)(d) of Prevention of Corruption Act 1988 independently without giving room for doubt.
62. The sentence imposed under Section 13(1)(d) read with Section 13 (2) of P.C.Act is, simple imprisonment for one year and six months. In this connection the offence under Section 13(1)(d) read with Section 13(2) is punishable with minimum sentence of one year and fine. Considering the fact that trial commenced during 2011 and the accused is said to have been retired from service, it is just and proper to limit the imprisonment to a minimum of one year. 52
63. In the result, Appeal is partly allowed. The judgment of conviction passed in Spl.C.C. No.219/2011 on 30.08.2012 by the XXXII Addl. City Civil and Sessions Judge and Special Judge for CBI Cases, Bangalore, is hereby confirmed. However, the sentence of simple imprisonment imposed for one year six months with fine amount of Rs.5,000/- for each of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) P.C. Act by the learned Special Judge are reduced to one year for the said offences. However, fine amount is maintained.
Office to send back the records.
Sd/-
JUDGE GH/tsn*/SBN/VK/SBS*