Bangalore District Court
The State Of Karnataka Represented vs Mr.Basavraju B.G on 15 October, 2022
KABC10105322018
IN THE COURT OF THE XXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE ( P.C. Act) BENGALURU
(C.C.H.No.24)
Dated: This the 15th day of October 2022
:PRESENT:
LAKSHMINARAYANA BHAT K.
XXIII Additional City Civil and Sessions Judge
and Special Judge ( P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.226/2018
Complainant: The State of Karnataka represented
by Police Inspector, Anti Corruption
Bureau, Bengaluru Urban Police
station, Bengaluru.
(By the Public Prosecutor)
V/s
Accused : 1 Mr.Basavraju B.G.
S/o.H.G.Rudrappa,
aged 42 years,
Surveyor on deputation, office of the
Office of the Special Land acquisition
Officer, Karnataka Housing Board,
Cauvery Bhavan, KG road,
Bengaluru.
Original unit: Commissioner office,
Department of Survey Settlement
and Land Records. K.R.Circle,
Bengaluru .
Spl.C.C.226/2018
2
2 Mr.Shivaswamy,
S/o.Shivamadegowda,
aged 48 years,
Surveyor on deputation, office of the
Office of the Special Land acquisition
Officer, Karnataka Housing Board,
Cauvery Bhavan, KG road, Bengaluru
Original unit : Karnataka Housing
Board, Mysore.
(A-1 by Sri Venkataraman Naik, Adv.
A-2 by Sri R.Ramakrishna, Adv.)
JUDGMENT
The Police Inspector, Anti Corruption Bureau (in short the 'ACB'), Bengaluru Urban has filed the charge sheet against the accused No.1 and 2 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988 (in short the 'PC Act').
2(a). The short facts of the prosecution case as narrated in the charge sheet are that Cw.4 - Mr. Madappa is the owner of the property comprised in Sy.No.46 measuring 5 acres of Sonnanayakanapura village, Anekal Taluk and he was intended to convert the said land for industrial purpose. In pursuance, he had authorized his Spl.C.C.226/2018 3 relative Cw.1 - Mr. Pradeep H.R. to approach the concerned office and to get the work done. Accordingly Cw-1 had filed an application in the office of the Deputy Commissioner, Bengaluru for conversion of the said property and they have sought information from the Special Land Acquisition Officer, The Karnataka Housing Board (in short the 'KHB'), regarding whether the property sought for conversion was subjected to any acquisition.
2(b). It is further case of the prosecution that the accused No.1 is the Surveyor and the accused No.2 is the case worker working in the office of the KHB, Bengaluru. When Cw.1 went to the office of the KHB on 12.6.2017 in order to obtain 'no objection' certificate, the accused No.1 and 2 alleged to have demanded Rs.25,000/- as bribe. The informant claimed that he had recorded the audio conversation with the accused and also recorded the video footing in his mobile phone. Since he was not interested to make the payment of the bribe amount as demanded by the accused, on 14.6.2017 he went to the Spl.C.C.226/2018 4 ACB, Bengaluru Urban police station and lodged the report along with the documents. The police registered the case in Crime No.23/2017 against Mr. Hanumegowda and the accused No.2 Mr. Shiva Swamy under the provisions of the PC Act for the alleged demand of the bribe. They completed the pre-trap formalities, laid the trap, arrested both the accused and the bribe money was said to have been recovered from the possession of the accused No.1. After completing the post-trap formalities, the arrested accused were produced before the court and subsequently they were enlarged on bail. After completion of the investigation, the concerned police filed the charge-sheet against the accused.
3. After taking cognizance of the offence, presence of the accused was secured and on hearing both the parties, the charges were framed against them. They pleaded not guilty and claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution has examined Pw.1 to 10 witnesses, Spl.C.C.226/2018 5 produced Ex.P1 to P70 documents and M.O.1 to 8 material objections were identified. The accused were examined as required under Section 313(1)(b) of the Cr.P.C. regarding the incriminating circumstances appearing in the evidence against them. During the cross-examination of the prosecution witnesses, the accused got marked Ex.D1 to D4 documents. They did not choose to lead any oral evidence in support of their case.
5. Heard the arguments. The learned Public Prosecutor and the learned advocates appearing for the accused have filed memorandum of written arguments.
6. After analyzing the evidence placed on record by both parties, considering the defence of the accused and on applying the ratio laid down in the judgments relied by both parties, at this stage the points that would arise for the determination of the Court are :
Spl.C.C.226/2018 6
1. Does the prosecution prove the fact that it has obtained valid sanction to prosecute the accused as required under Section 19 of the P.C. Act?
2. Does the prosecution beyond reasonable doubt prove the fact that the accused No.1 and 2 being the public servants working as the Surveyor and the Second Division Assistant in the office of the KHB, Bengaluru, demanded Rs.25,000/-
bribe on 12.6.2017 and on
14.6.2017 at about 3.15 p.m. in the
office of the KHB Kempegowda
Road, Bengaluru the accused No.1
had demanded and accepted
Rs.25,000/- bribe to issue 'no
objection' certificate and thereby
they have committed the offence
punishable under Section 7 of the
PC Act?
3. Does the prosecution beyond
reasonable doubt prove the fact
that the accused No.1 and 2 being
the public servants by abusing
Spl.C.C.226/2018
7
their official position as such public servants on 14.6.2017 at about 3.15 p.m. in the office of the KHB, K.G. Road, Bengaluru demanded and accepted Rs.25,000/- as pecuniary advantage and thereby committed an offence of criminal misconduct defined under Section 13(1)(d) and punishable under Section 13(2) of the P.C. Act?
4. What order?
7. The aforesaid points are answered as:
Point No.1 : in the affirmative
Point No.2 : in the affirmative
Point No.3 : in the affirmative
Point No.4 : as per the final order
for the following
REASONS
Point No.1 :
8(a). As per Section 19 of the PC Act to prosecute the accused it is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority. It is the undisputed fact of the case is that Spl.C.C.226/2018 8 both the accused are the public servants as defined under Section 2(c) of the PC Act. In the instant case in order to prove the sanction, PW2 - Mr. Munish Lal Mouthgil was examined by the prosecution and as per his evidence, he was working as the Commissioner in the Department of Survey Settlement and Land Records. He had issued Ex.P5 the Sanction order to prosecute the accused No.1.
8(b). Pw-2 in his examination-in-chief has deposed that on 18.12.2017, from the ADGP, ACB, Bengaluru he had received the documents collected during the investigation along with the requisition seeking the sanction to prosecute the accused No.1. He further deposed that the investigating agency had placed on record copy of the first information statement, FIR, final report, pre-trap and post-trap mahazars, statement of witnesses etc. It is the evidence of Pw.2 that after verifying those documents he was prima-facie satisfied that the accused No.1 is involved in demand and acceptance of the bribe from the informant in relation to his official function and therefore he had decided to Spl.C.C.226/2018 9 accord the sanction. He has further claimed that he is the appointing and dismissing authority for the officers working in the cadre of surveyor and hence proceeded to accord the sanction by passing Ex.P5 order to prosecute the accused No.1.
8(c). During cross-examination of the said witness the accused has contended that along with the documents the investigating agency had also sent the draft sanction order and without verifying the documents Pw-2 had proceeded to issue the sanction Order. But Pw-2 has specifically denied the aforesaid contention of the accused. During cross-examination Pw.2 has admitted that the report issued by the Forensic Science Laboratory was not placed before him along with the investigation papers. The witness has further admitted that the Special Land Acquisition Officer, KHB is the authority competent to issue 'no objection' certificate and at the time of the alleged offence, the accused was working as the Surveyor. The witness has specifically denied that mechanically he had passed Ex.P5 order and accorded the sanction.
Spl.C.C.226/2018 10 8(d). The main contention of the accused during the cross-examination of Pw.2 is that the Investigation Officer had not placed all the material documents collected during the investigation before the sanctioning authority and hence Ex.P5 order is not valid and it is defective. It is to be noted that mere non-production of Ex.P12 voice analysis report before the sanctioning authority would not give any right to the accused to contend that the sanction accorded is defective. Even in Ex.P12 report the expert has arrived to the conclusion that the respective speeches said to be of the accused No.1 found recorded in the CD and the sample speeches are similar and of the same person. The prosecution had secured Ex.P12 report on 20.11.2018 after filing of the charge sheet before the court. The charge sheet came to be filed on 2.4.2018.
9(a). Pw.3 - Mr. G.N. Shivamurthy examined on behalf of the prosecution was working as the Commissioner, KHB, Bengaluru. In his evidence he deposed that on 18.12.2017 he had received the requisition from the Spl.C.C.226/2018 11 investigating agency along with documents i.e. FIR, first information statement, mahazar, chemical examination report, statement of witnesses etc with a request to accord the prosecution sanction against the accused No.2. As per his evidence after perusing all the documents he was satisfied that the accused No.2 is prima-facie involved in the case of bribery and hence he had proceeded to accord the sanction as per Ex.P9 order. 9(b). The defence of the accused No.2 during the cross-examination of Pw.3 is that Ex.P4 authorization letter is invalid, insufficiently stamped and hence it is inadmissible in evidence. The second contention is that before passing the order, Pw.3 had not heard him and without following the due procedure passed Ex.P9 order. 9(c). It is forthcoming from the cross-examination that both the accused have not challenged the authority of Pw.2 and 3 to accord the sanction to prosecute the accused. It is not the defence of the accused that Pw-2 and 3 are not the competent authorities to accord the sanction. Hence, Pw.2 and 3 are legally empowered to accord the sanction and they are the officers having the Spl.C.C.226/2018 12 authority to remove the accused from their office is proved. From the analytical reading of Ex.P5 and P.9 orders produced by the prosecution, it could be inferred that the sanctioning authority on ascertaining the facts of the case from the materials placed on record and after recording prima-facie satisfaction had accorded the sanction.
10(a). In regard to the contention of the accused that all the materials were not placed before the sanctioning authority, more particularly Ex.P12 voice analysis report, it is necessary to refer the decision of the Honorable Supreme Court reported in (2013) 8 SCC 119 in the case of State of Maharastra Vs. Mahesh G Jain. In the said decision the Apex Court held that the adequacy of materials placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and prima-facie satisfaction of the sanctioning authority is sufficient. The sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity. This Spl.C.C.226/2018 13 analogy is aptly applicable to the facts and circumstances of the case and merely because Ex.P-12 report was not placed before the sanctioning authority, the sanction order will not become defective for the sole reason.
10(b). In another judgment of the Honorable Supreme Court reported in (2012) 3 SCC 64 in Subramanian Swamy Vs. Dr. Manmohan Singh held that the sanctioning authority is not expected to ascertain the truthfulness or otherwise of the allegations made against the accused in prosecution papers. The decision to grant or refuse sanction is not quasi judicial function but it is an administrative order. Hence the accused is not required to be heard before it takes any decision. In the result the contention of the accused No.2 that he was not heard by the sanctioning authority before passing of the order and according the sanction is also not tenable under law.
10(c). In the judgment relied by the accused No.1 reported in (1997)7 SCC 622 in Mansukhlal Vithaldas Chauhan Vs State, the Apex court held that to grant the sanction independent application of mind to the facts of Spl.C.C.226/2018 14 the case by the sanctioning authority is necessary. But as per the facts of the said judgment, the sanction was accorded on the direction of the Hon'ble High Court and hence it was held as invalid. But as per the facts of the case on hand, the sanctioning authority has taken independent decision by according the sanction without being influenced by any other external factors. Hence the ratio of the said decision is not applicable to the facts of the case.
11. As per Section 19 of the PC Act, mere error, omission or irregularity in the sanction is not fatal unless it has resulted in failure of justice. The sanction order must be demonstrative of the fact that there had been proper application of mind on the part of sanctioning authority. The grant of sanction is an administrative function intend to protect the public servant against false, frivolous and vexatious prosecutions. Therefore after considering the law laid down in the aforesaid judgments, from the facts of the case the prosecution by examining Pw.2 and Pw.3 and by producing Ex.P5 and Spl.C.C.226/2018 15 Ex.P9 documents has proved that after conscious scrutiny of the records placed before them, the sanctioning authority had proceeded to accord the sanction. The oral evidence of Pw.2 and 3, Ex.P5 and 9 documents would satisfy the requirements of law. The sanction can be proved by producing the original sanction order or by adducing evidence to show that the documents were placed before the sanctioning authority. The prosecution in the case on hand has successfully proved both these facts. During cross-examination of Pw.2 and 3, the accused have failed to establish their defence and to discredit the testimony of the witnesses. In the above circumstances, there is no other option left before the court except to arrive to the conclusion that the prosecution has secured the valid sanction order to prosecute the accused No.1 and 2 as per Ex.P-5 and 9. In the result point No.1 is answered in the 'affirmative'.
12. Point No.2 and 3 :-
Spl.C.C.226/2018 16 Since these two points are inter connected with each other, in order to avoid repetition of facts and reasons, they are are taken up together for determination.
The gist of the prosecution side evidence Pw.1 - Mr. Pradeep H.R. is the informant, he has lodged Ex.P-1 first information statement and the witness to the entire pre- trap and post trap proceedings. Pw.5 - Mr.Madappa is the owner of the land and he had issued Ex.P4 authorization letter to Pw.1 for conversion of the land for industrial purpose. Pw.4 - Mr.Gopala Krishna H.R. is the shadow witness during the trap proceedings.
Pw.6 - Ms.Chandrika G. is an Expert who issued Ex.P12 voice analysis report.
Pw.7 - Mr.Vazeer Ali Khan, Dy.S.P. has received Ex.P1 first information statement from Pw.1 and registered Ex.P20 FIR.
Pw.8 - Mr. G.Nagaraja is the Dy.S.P. and the trap laying officer deposed regarding the pre-trap and post trap procedures.
Spl.C.C.226/2018 17 Pw.9 - Mr.Girish B.N. is pancha-2, the witness to the trap formalities, signatory to the pre-trap and trap mahazars.
Pw.10 - Mr.R.Balakrishna is the police officer conducted the conclusive part of investigation and filed the charge sheet against the accused. The argument of the prosecution Ex.P1 first information statement was lodged against Mr. Hanumegowda however during the evidence, Pw.1 has given satisfactory explanation regarding the reason for such discrepancy and identity of the accused No.1.
There is specific evidence against both the accused regarding the demand and acceptance of the bribe in the evidence of Pw.1, and Pw.4 and Pw.9 pancha witnesses. In addition to the substantive evidence, the prosecution has also placed corroboration by way of electronic evidence.
Ex.P-33 and Ex.P-34 explanations submitted by the accused are not reflected in the audio recording Spl.C.C.226/2018 18 conversation. It is the burden of the accused to prove the explanation satisfactorily.
In the event it appears that the explanations submitted by the accused are improbable, it adds strength to the prosecution case and there is statutory presumption to be drawn under Section 20 of the PC Act. The accused have failed to rebut the legal presumption under Section 20 of the PC At in their defence.
In the event for any reasons the court finds that the electronic evidence produced by the prosecution has to be excluded, the remaining evidence placed is sufficient to prove the charges framed against the accused.
The argument of the accused No.1 The evidence of Pw-1 is uncertain regarding the identity of the accused No.1 and even in Ex.P-8 statement recorded under Section 164 of the Cr.P.C., there is absence of any incriminating statement against him.
In furtherance of Ex.P1 statement, Ex.P-20 FIR was not registered against the accused No.1.
Spl.C.C.226/2018 19 The electronic evidence produced by the prosecution is not admissible for non-compliance of Section 65B of the Indian Evidence Act. The shadow witness has not overheard the alleged conversation between Pw.1 and the accused regarding the alleged demand and acceptance of the bribe. The video recording made during the trap proceedings has been deliberately suppressed by the prosecution and in the event it is produced, it will help the accused to prove their innocence. The accused No.1 was working as the Surveyor and no official work of the complainant was pending before him.
The Special Land Acquisition Officer is the authority competent to issue no objection certificate and hence there was no necessity or occasion for the accused No.1 to demand and accept the bribe.
The complainant had thrust the amount into the trouser pocket of the accused No.1 and he has been made as victim of the incident by false implication.
Spl.C.C.226/2018 20 Pw.8 the IO has deliberately allowed Mr. Hanumegowda the real accused involved in the incident to flee from the place of incident immediately after the alleged trap.
The argument of the accused No.2 The prosecution has failed to prove the ingredients of the offence : the demand, acceptance, recovery and pendency of the work.
The only charge against the accused No.2 is regarding the demand and admittedly there was no acceptance. There is absolutely no evidence to prove the alleged demand for the bribe.
There was no pending work of Pw-1 with the accused No.2 and hence the question of demanding the bribe does not arise.
The draft NOC was ready on 29.5.2017 and the accused No.2 had done his part of work much prior to the registration of the case and the date of alleged trap Pw.1 is a habitual complainant having lodged several false cases against the public servants.
Spl.C.C.226/2018 21 Pw.1 is having no authority to represent Pw.4 on the strength of Ex.P4 fabricated, insufficiently stamped document and it is inadmissible in evidence. Pw.1 during his cross examination has specifically admitted that there was no demand for the bribe from the accused No.2.
Ex.P24 Section 65B certificate under the Indian Evidence Act marked through Pw.8 is inadmissible.
13. The oral and documentary evidence of the prosecution 13(a) Amongst the prosecution witnesses examined, Pw.1 is the informant and in furtherance of his first information statement which is marked as per Ex.P1, the ACB police registered the case. Pw.1 in his examination- in-chief has deposed that on behalf of Pw.5, he went to the office of the KHB to obtain 'no objection certificate' (in short the NOC) and at that time, the accused No.1 and 2 had demanded the bribe of Rs.25,000/-. The witness further stated that he had recorded the audio conversation and video footage of the accused containing Spl.C.C.226/2018 22 demanding the bribe. Since he was not interested to make the payment of the bribe as demanded by the accused, he had lodged Ex.P1 report before the ACB Police regarding the incident on 14.6.2017. 13(b). Pw.7 - Mr.Vazir Ali Khan examined on behalf of the prosecution is the Dy.S.P. and in his evidence he deposed that on 14.6.2017, Pw.1 appeared before the ACB Police station, Bengaluru Urban and lodged Ex.P1 first information statement. He further deposed that after receiving the said information he had registered the case and forwarded Ex.P20 FIR to the Court. As per the evidence of Pw.7, at the time of lodging Ex.P1 statement, Pw.1 has also produced Ex.P2 and P-3 documents and a CD containing the audio conversation, video recording of the alleged demand for the bribe by the accused. 13(c). Pw.8 - Mr. G.Nagaraja is the Dy.S.P., ACB, Bengaluru and he is the trap laying officer. In his evidence he deposed that in order to lay the trap on 14.6.2017, he had secured presence of two pancha witnesses Pw.4 and 9 and introduced the complainant to them. After reading the contents of Ex.P1 first Spl.C.C.226/2018 23 information statement, they had agreed to assist the police as witnesses in the proposed trap proceeding. He further deposed that he had prepared Ex.P23 transcript of conversation contained in the CD produced by Pw.1 as per Ex.P15. He further deposed that both the witnesses Pw.4 and Pw.9 have heard the conversation contained in the CD regarding the demand for the bribe by the accused.
13(d). Pw.4 and Pw.9 are the public servants and the witnesses to the entire pre-trap and post-trap proceedings. Pw.1, 4, 8 and 9 in their evidence have deposed that as directed by Pw.8, Pw.1 has produced Rs.25,000/- currency notes of Rs.2,000/- and Rs.500/-. They have deposed regarding preparation Ex.P10 list containing the details of those currency notes, application of phenolphthalein powder and thereafter Pw.9 had counted the treated notes and kept it in the trouser pocket of Pw.1. Pw.8 has deposed that he had given necessary instructions to the informant and pancha witnesses to be followed during the proposed trap. He further deposed for having nominated Pw.4 as the Spl.C.C.226/2018 24 shadow witness in the proposed trap proceeding. All the witnesses deposed that thereafter Pw.9 was asked to dip his fingers in the sodium carbonate solution, it turned to pink colour. Pw.8 had explained to the informant and the witnesses with practical demonstration the chemical reaction of the phenolphthalein powder with the sodium carbonate solution and the purpose of applying phenolphthalein to the currency notes. 13(e). The informant, pancha witnesses and the IO in their evidence have further deposed that after fulfilling the pre-trap formalities, they went to the office of the KHB and Pw.1 went to the office and as already instructed Pw.4 shadow witness followed Pw-1. At about 3.55 p.m., Pw.1 came out of the office along with one person and went near the lift in the 4th floor of the building and at about 4.00 p.m. Pw-1 came out from the office and has given predetermined signal to the Investigating Officer. After receiving the planned signal from Pw.1, Pw.8 along with his investigation team conducted the raid and Pw.1 has informed Pw.8 that the accused No.1 had demanded Spl.C.C.226/2018 25 and accepted Rs.25,000/- bribe and during the incident Pw.4 was also present in the said place.
13(f). Pw.1, 4, 8 and 9 in their evidence further deposed that the accused No.1 and 2 have disclosed their name and designation to Pw.8. At that time, they came to know that the actual name of the accused No.1 is Mr. Basavaraju and not Hanume Gowda as shown in Ex.P1 first information statement and the FIR. All the witnesses further deposed that as directed by Pw.8, the accused No.1 was subjected to undergo the chemical hand wash test and at that time, the solution turned to pink colour. Pw.8 has collected the said solution for scientific examination. Pw.4 has deposed that as directed by Pw-8, he had collected the tainted currency notes of Rs.25,000/- from the trouser pocket of the accused No.1 and on comparison it was found tallying with the details as mentioned in pre-trap mahazar and the IO had seized the cash and it was identified as Mo.7 during the trial.
13(g). Pw.1, 4, 8 and 9 in their evidence have further deposed that Pw.8 had seized Mo.6 trouser of the accused No.1, collected the recorded conversation Spl.C.C.226/2018 26 between Pw.1 and the accused No.2 during the trap from the mobile phone of Pw-1 in Ex.P16 CD. Pw.8 deposed that he had collected the sample voice of the accused No.1 and 2 and the complainant in Ex.P17 to P19 CD, seized Ex.P-30 file relating to the pending work of Pw.1 from the office of the KHB. As per his evidence the accused No.1 and 2 had submitted their explanation statement regarding the trap as per Ex.P33 and 34 13(h). Pw.8 further deposed that he had secured Ex.P-58 sketch relating to the place of incident from the Assistant Executive Engineer, collected Ex.P-60 the chemical examination report, recorded the statement of witnesses. Pw.5 Mr. Madappa is the owner of the property and in his evidence he deposed that he had authorized his relative Pw-1 and issued Ex.P4 authorization letter for the purpose of converting his land for industrial purpose. Pw.6 - Ms.Chandrika G. - the Assistant Director, FSL, Bengaluru in her evidence has deposed that the respective speeches of the accused No.1 and 2 contained in Ex.P15 and P.16 CD and the sample speeches are similar and belongs to the same Spl.C.C.226/2018 27 person. Pw.10 - Mr. R.Balakrishna - the Police Inspector in his evidence deposed that he had collected Ex.P-5 and Ex.P-9 sanction order and after completing the investigation filed the charge sheet against the accused.
14(a). The accused are charged for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the PC Act and hence the prosecution is required to satisfy the following requirements:
(i) The accused were the public servants at the time when the offence was committed;
(ii) They accepted, or obtained, or agreed to accept or attempted to obtain illegal gratification from Pw-1,
(iii) For themselves or for some other person
(iv) Such gratification was not a remuneration to which they are legally entitled.
(iv) They accepted such gratification as a motive or reward for
(a)doing or forbearing to do an official act,
(b) doing or forbearing to show favour or dis-favour to Pw-1 the exercise of their official functions; or
(c) rendering or attempting to render any service, disservice to Pw-1, Spl.C.C.226/2018 28 14(b). In order to establish the guilt of criminal misconduct of the accused under Section 13(1)(d) of the PC Act, the prosecution is required to prove the following factors.
i) The public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage,
a) by corrupt or illegal means or
b) by abusing his position as public servant or
c) without any public interest.
15(a). The first and foremost submission of the learned advocate appearing for the accused No.1 is that there is major contradiction regarding identity of the accused No.1 in the oral and documentary evidence of the prosecution. Ex.P-1 first information statement was lodged against the Superintendent by name Mr. Hanumegowda and in pursuance Ex.P-20 FIR was also registered against him. Even in Ex.P-8 statement recorded under Section 164 of Cr.P.C. Pw-1 has stated that Mr. Hanumegowda had demanded and accepted the bribe. Therefore the learned counsel has vehemently Spl.C.C.226/2018 29 argued that the accused No.1 has been falsely implicated in this case.
15(b). In this background however Pw.1 in his evidence para-6 has given specific clarification that since the accused No.1 was sitting in the chamber having the name board of Mr. Hanumegowda, Superintendent, he had mistakenly thought that the name of the accused No.1 is Hanumegowda instead of Mr. Basavaraju. It is true that Ex. 20 FIR was registered against Mr. Hanumegowda and not against the accused No.1. The explanation forwarded by Pw.1 clearly shows that he was under the wrong impression that the name of the accused No.1 is Hanumegowda instead of Basavaraju. However after the trap, when the IO had questioned the accused No.1, he came to know that the actual name of the accused No.1 is Basavaraju. It is true that Ex.P8 statement under Section 164 of the Cr.P.C. was recorded before the learned Magistrate on 7.8.2017 after 54 days from the date of trap and in the said statement also Pw-1 has stated the name of the accused No.1 as Hanume Gowda. It appears due to inadvertence Pw.1 in his Ex.P8 Spl.C.C.226/2018 30 statement also referred the name of the accused No.1 as Hanumegowda instead of Basavaraju. When Pw-1 in his evidence before the court has properly identified the accused as the person who had demanded and accepted the bribe, the statement under Section 164 of CrP.C. loses its importance. Therefore there is absolutely no discrepancy regarding identity of the accused No.1 as contended by the learned defence counsel in his argument. There was initial discrepancy regarding the name of the accused No.1 but not the identity of the person.
15(c). In this regard it is necessary to consider the fact that Pw-1 in his evidence before the court has specifically deposed that the accused No.1 is the person who had demanded and accepted the bribe. It is neither the case of the prosecution nor the evidence of Pw.1 that Mr. Hanumegowda at any time had demanded or accepted the bribe. As per the evidence of Pw.1, the accused No.1 has demanded and accepted the bribe. Hence it is not the case of impersonation or false implication. Hence the above argument of the accused Spl.C.C.226/2018 31 No.1 regarding disputed identity of the accused No.1 holds no water and accordingly the said argument is rejected.
16(a). During the trial it is the definite case of the prosecution that the accused No.1 had demanded and accepted the bribe from Pw-1. Per contra during cross- examination of Pw.1 in para-14 the specific defence of the accused No.1 is that as on the date of the trap when he was coming to the office near the lift, Pw.1 had forcibly thrust the tainted currency notes into his trouser pocket. The specific evidence of Pw.4 the shadow witness to the trap is that when Pw.1 paid Mo.1 tainted cash, the accused No.1 had collected the amount, counted the currency notes and thereafter kept the said money in his trouser pocket. In the event the amount was thrust into the pocket, definitely the possibility of the accused No.1 counting those currency notes would not arise. 16(b). In support of the oral evidence of Pw-1 and 4, the prosecution has placed on record Ex.P-60 the Chemical Examination report. As per the said document, Spl.C.C.226/2018 32 the presence of phenolphthalein was detected in both the right hand and left hand finger washes of the accused No.1. The report is admissible in evidence under Section 294 of the Cr.P.C. even in the absence of examination of the Chemical Analyst. Therefore from the said report the court can infer that after collecting the tainted currency notes from his right hand, the accused No.1 had counted those notes with his both hands. Therefore the story of alleged thrusting of the amount by Pw-1 into the trouser pocket of the accused No.1 is apparently false and unbelievable.
17(a). The accused No.1 has also put forwarded his defence that Mr. Hanume gowda was the close associate of Pw-8 and hence he allowed him to escape from the place of incident and falsely implicated the accused No.1 in the present trap proceeding. The evidence placed on record is silent regarding the presence of Mr. Hanumegowda in the place of incident at the time of the trap. It is not the evidence of Pw-1 or Pw-4 that Pw1 had handed over the tainted currency notes to Mr. Spl.C.C.226/2018 33 Hanumegowda. It is also not the case of Pw-1 that Mr. Hanume Gowda had demanded and accepted the bribe. 17(b). In view of the above defence of the accused regarding false implication it is apposite to refer the judgment reported in (1984) 1 SCC 254 State of U.P. Vs Dr. O.K. Ghosh. In the said case the Hon'ble Supreme court held that the police officer being a Government servant would rarely resort to perjury and concoct evidence in order to rope in an innocent Government servant. Therefore, Pw-8 in order to safeguard Mr. Hanumegowda, has falsely implicated the accused No.1 in the trap case is highly improbable. Therefore the aforesaid contention of the accused No.1 is an afterthought defence raised during the course of trial.
18(a). It is the specific contention of the defence during the trial is that Pw.1 is a habitual/professional complainant and in order to falsely implicate the accused, he has fabricated letter of authorization as per Ex.P-4. During cross-examination Pw.1 in para-15 to 18 of his evidence has admitted that in past he had lodged 5-6 Spl.C.C.226/2018 34 cases against the public servants under the provisions of the PC Act. In order to substantiate the said contention the accused have confronted Ex.D1 to D4 documents. During cross-examination Pw-1 has not disputed those documents and accordingly they came to be marked in evidence. The evidence of Pw.5 shows that he had taken assistance and authorized his relative Pw.1 to get the property converted for industrial purpose. Even in the absence of Ex.P-4 authorization letter, the oral evidence of Pw.5 regarding those transactions is admissible. Ex.P3 is the RTC of the property sought for conversion into industrial purpose and it is appearing in the name of Pw.5. Ex.P2 and Ex.P30 file seized during the trap show that the application filed on behalf of Pw.5 for conversion of his land for industrial purpose was pending before the office of the KHB to issue NOC.
18(b). By producing Ex.D1 to D4 documents, the accused have proved that Pw.1 was the informant in Cr. No. 3/2016 and Cr. 12/2015 in two cases registered under the provisions of the PC Act. The witness has further admitted that he had lodged several other cases against Spl.C.C.226/2018 35 the public servants. However on mere production and marking of Ex.D1 to D4 documents it cannot be held that Pw.1 is the habitual complainant or he is in the habit of giving false complaints against the public servants. During cross-examination of Pw.1, the accused have failed to elicit any material admission to show that they have been falsely implicated in the present case or Pw-1 had falsely implicated others in several criminal cases. The trustworthiness of the witness has to be considered on the basis of the evidence adduced on record and not on the basis of number of cases filed by him. Further the accused have not placed any materials before the court to show any animosity between them and Pw-1 in order to implicate them in the false case.
18(c). In regard to the forgoing contention of the accused, this court finds it necessary to refer the judgment reported in (1980) 2 SCC 390 in the case of Hazari Lal Vs. State (Delhi Administration) the Hon'ble Supreme Court held that the respectability and the veracity of a witness is not necessarily dependent upon his status in life. In another judgment reported in (1974) Spl.C.C.226/2018 36 4 SCC 305 Gian Singh Vs. State of Punjab, the Hon'ble Supreme Court, held that the witness discredited in a trap case merely because of some other occasion they have been witnesses for the prosecution in the past. Basically, Court has to view the evidence in the light of the probabilities and the intrinsic credibility of those to testify. Therefore on application of the above ratio to the facts of the case only on the ground that Pw-1 on earlier occasion was the informant in few other cases would not result in impeaching the creditworthiness of his testimony.
18(d). After considering the oral evidence of Pw.1 and Pw.5 in its entirety, from Ex.D-1 to 4 and Ex.P5 letter of authorization, and from the above ratio laid down by the Apex Court, the defence has failed to make out that Pw.1 is not a trustworthy witness. The evidence and conduct of Pw.1 show that he is a person who is not inclined to make payment of the bribe amount and fights against the corruption. Hence he had approached the law enforcement agency to initiate appropriate legal Spl.C.C.226/2018 37 action. In such compelling circumstances he cannot be labeled as the habitual complainant. Therefore, the contention raised by the accused that Pw.1 is habitual informant is not worthy of appreciation and answered accordingly.
The Demand and Acceptance 19(a). The demand of illegal gratification is sine qua non to constitute the offence under Section 7 of the PC Act. It is also well settled law that mere recovery of the tainted currency notes from the possession of the accused does not constitute the offence. The prosecution is required to prove that the accused has demanded and voluntarily accepted the amount knowing it to be the bribe. In the case on hand the evidence of Pw.1 and in the contents of Ex.P1 first information statement contains incriminating allegations against both the accused that they had demanded the bribe of Rs.25,000/- in order to issue the certificate. Pw.1 in his evidence has specifically deposed that the accused No.1 in the presence of the accused No.2 had demanded and accepted Rs.25,000/-.
Spl.C.C.226/2018 38 19(b). It is the argument of the learned counsel that there is absence of evidence against the accused No.2 in the testimony of Pw-1 in specific words regarding the demand of the bribe. But in para-6 of the evidence of Pw-1 there is specific reference that as on the date of the trap, when he went to the office, the accused No.2 had asked him whether he has brought the agreed amount. The aforesaid evidence of Pw.1 shows that the accused No.2 as on the date of trap and also earlier had demanded the bribe from Pw.1. Moreover even in the contents of Ex.P-1 first information statement it is alleged that when Pw-1 had asked the accused No.2 why his Senior Officer has not affixed the signature to the certificate, the accused No.2 by impliedly expecting the bribe has stated that whether he is not aware of the reason for such non compliance. Pw.1 in his evidence has reiterated these facts and also made reference in the contents of Ex.P-1 statement. Therefore it is not necessary for the prosecution to prove that the accused No.2 in specific words had expressly demanded the bribe.
Spl.C.C.226/2018 39 19(c). The evidence of Pw.1 further shows that as on the date of trap 14.6.2017, the accused No.2 had made attempts to obtain the bribe amount , but Pw.1 had informed him that he will make the payment after meeting with the accused No.1. The said evidence of Pw-1 is sufficient to hold that there was actual demand and attempts to obtain the bribe by the accused No.2 . After arrival of the accused No.1, Pw.1 met him and at that time, the accused No.1 had demanded and accepted the bribe. Similarly, Pw.4 in his evidence has specifically deposed that as on the date of the trap, Pw.1 first met the accused No.2 and after arrival of the accused No.1, he had demanded and accepted the bribe from Pw-1.
19(d). It is the argument of the learned counsel for the accused that Pw-4 the shadow witness during his cross- examination has admitted that he had not heard the conversation between Pw-1 and the accused No.1 regarding the demand and acceptance of the bribe and hence his evidence has to be discarded. In the result there is no corroboration to the evidence of Pw-1 to prove Spl.C.C.226/2018 40 the demand and acceptance of the bribe. It is to be noted that Pw.4 was examined in chief on 6.9.2019 and he was cross-examined on 16.12.2019. The evidence Pw- 4 shows that he had fully supported the prosecution case in its entirety in his examination-in-chief but surprisingly quite contrary, during his cross-examination he has admitted that the accused No.1 himself took the tainted cash out of his pocket and thereafter Pw-8 had subjected the accused No.1 to undergo the chemical hand wash test. He further admitted that he had not seen the accused No.1 accepting the bribe from Pw-1 near the lift but he came to know about this fact when Pw.1 had disclosed it to the Pw.8. In examination-in-chief Pw-4 has specifically deposed that Pw.1 paid the tainted cash to the accused No.1 near the lift and as per the direction of the IO, the cash was seized from the pocket of the accused No.1. The entire examination-in-chief and cross-examination of Pw.4 shows that the witness to some extent in material aspects has made deliberate attempts to deviate from his earlier statement as deposed in his examination-in-chief.
Spl.C.C.226/2018 41 19(e). The other aspects require consideration are that the evidence of Pw.4 as deposed in his cross- examination is contrary to Ex.P-49 to 53 photos taken at the time of the trap proceedings. Ex.P49 photo reveal that two plastic bowls were kept on the table and as per Ex.P51 and 53, the accused No.1 was subjected to separately immerse his fingers in two bowls. After the accused was directed to undergo the chemical hand wash test, in Ex.P-55 photo it can be clearly ascertained that Pw.4 himself had collected the cash from the trouser pocket of the accused No.1 and thereafter Pw.4 and 9 comparing the currency notes can be made out in Ex.P56 photo. These photos were taken at the time of the trap and it is not the defence of the accused that those photos have been created for the purpose of the case. It is well said that the witness may lie but not the circumstances and the same is applicable to the facts and circumstances of the case. From the above referred photos it is proved that the accused No.1 was subjected to undergo the chemical hand wash test in two separate Spl.C.C.226/2018 42 bowls and thereafter Pw-4 himself had collected the tainted cash from the trouser pocket of the accused No.1 19(f). Pw-4 during his cross examination has deposed evidence in material aspects by deviating from the definite case of the prosecution. But the documents, other facts and circumstances of the case are in favour of the prosecution. The possibility to suspect that Pw-4 has been won over by the accused before he appeared before the court to face the cross-examination cannot be totally ruled out. Therefore, the defence of the accused No.1 that Pw.8 had directed him to hand over the currency notes from his pocket and thereafter he had dipped his fingers into the sodium carbonate solution is apparently false. Pw-8 in his evidence has denied this aspect.
19(g). During the cross-examination, Pw.4 has admitted that he had not seen Pw.1 making payment of Mo.1 cash in favour of the accused No.1. But the presence of Pw.4 in the place of incident has not been disputed by the accused. Ex.P59 is the sketch prepared by the Assistant Executive Engineer pertaining to the Spl.C.C.226/2018 43 place of incident and the said document also shows the presence of Pw.4 near the place. In the judgment reported in (2010)15 SCC 1 in the case of C.M. Sharma vs State the Hon'ble Court held that when the bribe is not taken in public view and if corroboration is sought, it will encourage the bribe taker to receive the illegal gratification in privacy and then insist for corroboration and the law cannot countenance such situation. The above ratio is aptly applicable to the facts of the case to the argument of the accused that Pw-4 has not overheard the conversation between Pw-1 and the accused No.1 and seen the demand and acceptance of the bribe. 19(h). In the above background of the facts of the case the ratio laid down in the judgment relied by the prosecution reported in (1980)2 SCC 390 Hazari Lal vs State is helpful to its case. In the said judgment the Hon'ble Court held that the prosecution is not required to prove the demand and acceptance of the bribe money by direct evidence and it may be proved also by circumstantial evidence.
Spl.C.C.226/2018 44 19(i). During the trap, the tainted currency notes were found in the trouser pocket of the accused No1. The accused No.1 in his Ex. P-33 voluntary explanation statement submitted to Pw-8 immediately after the trap has specifically admitted the fact of receipt of the amount from Pw-1. The relevant portion of Ex.P-33 reads:
" ಲಫಫ ಬಳ ಬರರತತತ ಇದದದ. ಆಗ ಅಪರಚತ ವವಕತ ಒಬಬ ಎದರರಗದ ಬಬದರ ನಮಗದ ಶವವ ಸತಸಮಯವರರ ಹಣ ಕದಕಡಲರ ಹದಹಳದತದರದ ಎಬದರ ಸರಳರಳ ಹದಹಳ ಬಲವಬತವತಗ ಹಣವನರನ ಕದಕಡಲರ ಬಬದ. ನತನರ ನರತಕರಸಲರ ತರಬಬತ ಒತತತಯ ಮತಡರರವವದರಬದ ನತನರ ಪಡದದರಕದಕಬಡರ ನನನ ಪತವಬಟನ ಎಡ ಜದಹಬನಲಲ ಇಟರಫಕದಕಬಡರರತದತಹನದ . ಆಗ ಭಭಷತಫಚತರದ ಅಧಕತರಗಳದಬದರ ಹದಹಳ ನನನನರನ ಕದಲವರರ ಹಡದರಕದಕಬಡರರತತತರದ. ನತನರ ಈ ಪಭಕರಣದಲಲ ನದದಕಹರಷಯತಗದರದ, ನತನರ ಯತವವದದಹ ಹಣ ಲಬಚವನರನ ಕದಹಳರರವವದಲಲ ಮತರತ ಹಣ ಕದಕಟಫವನರ ಯತರರ ಎಬದರ ನನಗದ ತಳದಕ ಇರರವವದಲಲ."
Therefore the defence of the accused No.1 that Pw-1 thrust the amount into his pocket is proved to be false and highly improbable.
19(j). Pw.9 is the pancha-2 to the trap proceeding and immediately after the trap along with Pw-8 the Investigation Officer, he went inside the office and has Spl.C.C.226/2018 45 deposed regarding the entire trap proceedings. Even during the cross-examination he has deposed that after collecting the cash from the trouser pocket, the accused No.1 has been directed to undergo the chemical hand wash test. The aforesaid discrepancy can be ignored for the reason that Ex.P7 trap mahazar was drawn on 14.6.2017 whereas Pw.9 was examined before the court and has deposed evidence in the month of February-May, 2022 after more than 5 years. The possibility of Pw.4 and 9 have forgotten the minute details of the trap proceedings is more probable. 19(k). In the above background of the case in the judgment reported in (2020) 2SCC 88 in Vinod Kumar Garg vs State, the Hon'ble Supreme Court held that if the testimonies of the panch witnesses are recorded after 5-6 years from the date of trap, minor contradictions on some details are bound to occur and it is natural. The witnesses are not required to recollect and narrate the entire incident with photographic memory and the insignificant variations do not negate the incriminatory evidence of demand and acceptance of the bribe. In the Spl.C.C.226/2018 46 case on hand also there are few minor discrepancies in the evidence of panch witnesses regarding the minute details of the trap procedure, stage and time of hand wash etc. But those contradictions can be ignored and the above ratio is aptly applicable to the facts and circumstances of the case.
19(l). In the judgment relied by the accused in K.Shanthamma case reported in (2022) 4 SCC 574 the Hon'ble Supreme Court observed that the evidence of the complainant regarding the demand made by the accused from time to time is an improvement and therefore held that the demand of illegal gratification by the accused was not proved by the prosecution. In the non-reported judgment relied by the accused in Crl.Appeal No.14/2016 arising out of SLP (Crl.) 703/2015 in Kishan Chandar Vs. State Pw.1 was declared hostile by the prosecution and he was cross-examined and in the evidence of pancha witness there was no demand of bribe. In the judgment relied by the accused reported in (2015) 10 SCC 152 in P. Sathyanaranamurthy Vs State of AP, the complainant was not examined as he had expired before the Spl.C.C.226/2018 47 commencement of the trial. In the case on hand the complainant was examined and he has fully supported the prosecution case. Therefore, the ratio of the above referred judgments are not applicable to the facts of the case.
20(a). Ex.P12 is the speech analysis report given by the Sr. Scientific Officer, FSL, Bengaluru and as per the said report Pw.6 had conducted the voice examination through perception/aural method. Pw.6 in her evidence has specifically deposed that the respective speeches of the accused No.1 and 2 in Ex.P15 CD is similar with the sample speeches. Pw.1 in his evidence has specifically stated that he got copied the conversation recorded in his mobile phone to Ex.P15 CD through his personal computer. Ex.P24 is the certificate produced by the prosecution issued by Pw.1 under Section 65B of Indian Evidence Act. It is the argument of the accused that Ex.P24 certificate was marked through Pw.8 and hence the said document is not proved as required under law.
Spl.C.C.226/2018 48 20(b). It is proper to mention here that merely because Ex.P24 came to be marked through the Investigation Officer, the document is not going to become invalid. The prosecution has complied the mandatory requirement of Section 65B of the Indian Evidence Act as held in the judgment of the Supreme Court in Arjun Panditrao Khotkar case.
20(c). Pw.6 in her evidence has admitted that the audio authentication software was not available in their Laboratory at the time of issuing Ex.P12 report and hence the audio authentication test was not carried out. During cross-examination, Pw.6 has admitted that there may be chances of alteration or editing of the voice sample sent for scientific examination. Therefore in the absence of audio authentication it is not possible to arrive to the definite conclusion that Ex.P15 CD contains the voice of the accused No.1 and 2. In the above circumstances, Ex.P12 report and oral evidence of PW.6 regarding voice analysis report is excluded. The accused are entitled to avail the benefit of aforesaid doubt in the evidence produced by the prosecution. Moreover, in view of Spl.C.C.226/2018 49 exclusion of aforesaid evidence, the question of non compliance of Section 65B certificate and arguments addressed on behalf of the accused and the judgments relied in this connection becomes insignificant. However in the case on hand, even in the absence of Ex.P12 report and oral evidence of Pw.6, the prosecution has placed on record other direct and circumstantial evidence.
The pending work before the accused 21(a). As per the evidence let in the by the prosecution, at the time of lodging Ex.P1 first information statement, Pw-1 had also produced Ex.P2 notice dtd.10.5.2017 issued from the office of the Deputy Commissioner Bengaluru addressed to the Special Land Acquisition officer, KHB, Bengaluru. The said document was received in the office of the KHB on 11.5.2017. It is the undisputed fact that Ex.P-30 file was seized at the time of the trap. The copy of Ex.P-2 application also finds place in Ex.P30 file. But it is proper to mention that in Ex.P30, page No.144 and 145 note sheets there is absolutely no recommendation made in the office of the KHB to issue NOC regarding the property comprised in Spl.C.C.226/2018 50 Sy.No.146 of Sonnanayakanapura village measuring 5 acres.
21(b). According to the defence of the accused No.2, on 29.5.2017, he had prepared the draft NOC (page No.147 and 148) in Ex.P30 and completed his part of the work. It is true the said contention of the accused is supported by the documents available in Ex.P-30. He further contended that the Special Land Acquisition officer is the authority competent to issue NOC and hence there was no occasion for him to demand and accept the bribe from Pw.1. But in the file there is no recommendation to issue NOC in page No.144 to 146 of Ex.P30.
21(c). The next question accrues for determination is whether the pendency of the work before the public servant is necessary in order to sustain the charges framed against the accused. In this connection this court finds it proper to refer the judgments reported in (2012) 8 SCC 527 Syed Ahmed Vs. State of Karnataka and 2005 SCC onLine Kar. 9181 Ranganath vs State of Karnataka. In Syed Ahmed Spl.C.C.226/2018 51 case the Hon'ble Supreme Court held that a public servant who is not in a position to do any favour to a person could also be deemed to commit an offence if he demands and accepts the illegal gratification. The person demanding and accepting gratification is a public servant, there was demand for gratification and the gratification has been given to the accused are sufficient. In view of the Explanation (d) to Section 7 of the P.C. Act, whether the public servant could or could not deliver results becomes irrelevant. The Hon'ble High Court in Ranganath case held that the existence of any official work for demand of bribe is not sine-qua-non to attract the provisions of Section 7 and 13(1)(d) of the PC Act. As per the explanation (d) appended to Section 7 a person who received any gratification as a motive or reward for doing what he does not intend or he is not in a position to do or has not done, comes within this expression. 21(d). Therefore, in the case on hand, the accused No.1 and 2 cannot be allowed to contend that the Special Land Acquisition Officer is the competent authority to issue NOC or that the accused No.2 had already Spl.C.C.226/2018 52 completed his part of the work by preparing the draft certificate and hence there was no occasion for them to demand illegal gratification from Pw.1. Ex.P30 case file shows that the accused have deliberately kept pending the said file from 10.5.2017 till the date of trap 14.6.2017 without issuing the required certificate. Therefore it can be inferred from the above facts and circumstances that anticipating the payment of the bribe the accused have not performed their part of the work.
21(e). As per Section 7 of the PC Act, if a public servant obtains any gratification as a motive or reward for doing an official act amounts to an offence and he would be found guilty. The term 'motive' evidently refers to a future act, while the word 'reward' is manifestly intended to apply to a 'past service'. What is forbidden is receiving of any gratification as a motive to do or a reward for having done any such thing as described in the definition. Therefore any demand made before doing of an official act or after doing an official act would be the bribe.
Spl.C.C.226/2018 53 21(f). In the case on hand Ex.P-2 requisition was received on 11-05-2017, but till the date of trap, required certificate was not issued. Therefore there was every opportunity for the accused to abuse their official position as the case worker and surveyor to demand and accept the bribe from Pw-1 on 14-6-2017. Thus the contention of the accused that they had no opportunity or there was any occasion for them to demand the bribe is not tenable. The demand and acceptance of the bribe by the accused as a motive or reward before or after performance of the official act falls within the ambit of Section 7 of the PC Act. In the result, the argument of the learned defence counsel that no work of the informant was pending before them to demand and accept the bribe is having no merit.
22(a). It is the contention of the accused No.1 during cross-examination of Pw-8 and in the course of the argument that the Investigation Officer has deliberately refrained from collecting the CC TV footage installed in the building of the office of the KHB in order to prove Spl.C.C.226/2018 54 the alleged demand and acceptance of the bribe. According to the accused, in the event CC TV footage is produced, definitely it will show the false implication and thrusting of the tainted currency notes to his trouser pocket. When the accused No.1 was examined under Section 313 of the Cr.P.C, he has also reiterated this fact. 22(b). However Pw8 in his evidence para-56 and 57 has specifically stated that in order to avoid CCTV camera installed in the building, the accused No.1 and 2 went near the lift at the time of accepting the bribe from Pw.1. The aforesaid explanation of the Investigation Officer prima-facie appears probable. In the event the accused is very definite about his defence, he could have secured the CCTV footage and there was every opportunity for him to produce the said footage either during the trial or when he was examined under Section 313 of the Cr.P.C. There is also onus of proof on the accused to rebut the presumption appearing against them under Section 20 of the PC Act. For the aforesaid reasons, the contention of the accused No.1 that Pw-8 has deliberately failed to Spl.C.C.226/2018 55 collect the CCTV footage of the KHB building pertaining to the date and time of offence is not worth of appreciation and accordingly their contention is discarded.
23(a). It is the argument of the learned defence counsel that the prosecution has deliberately not produced the conversation recorded during the trap in a voice recorder. Pw.8 in his evidence para-7 has specifically deposed that he had instructed Pw.1 to record the proceeding during the trap in the mobile phone. In para-23 and 24 he further deposed regarding securing of the mobile phone of the complainant and collecting the recorded conversation between Pw.1 and the accused No.2 immediately before the trap. There is also an explanation of Pw.1 and 8 that since the accused No.1 suddenly came to the office, Pw.1 could not record the conversation in his mobile phone when he went to meet the accused No.1 at the time of making the payment of illegal gratification.
Spl.C.C.226/2018 56 23(b). In this regard, during cross-examination Pw.8 in para-51 has admitted that the video recorded by Pw.1 produced at the time of preparing Ex.P6 pre-trap mahazar is not placed along with the charge sheet before the court. But Pw.8 in his examination-in-chief para-3 and 24 has specifically deposed that he had secured the audio and video recording in Ex.P15 and P16. Ex.P15 CD contains the video recording and hence the admission of Pw.8 in his cross-examination para-49 that he did not produce the video is due to inadvertence. Pw.8 in his cross-examination para-54 has specifically deposed that he did not provide any voice recorder to Pw.1 during the trap proceeding.
23(c). Moreover even in Ex.P6 trap mahazar there is no reference regarding Pw.1 was provided with a voice recorder during the trap. The copy of Ex.P 7 trap mahazar was furnished to the accused as on the date of trap itself. Pw.1 is his evidence has admitted that he had studied only upto 8th standard and hence there was every possibility that on account of mistaken identity of the electronic instruments he has deposed recording of the Spl.C.C.226/2018 57 conversation in his mobile phone as recording in the voice recorder. In this regard, on 22.9.2022 when the learned defence counsel have submitted their further arguments, Ex.P15 CD was played in the open court in the presence of both parties and their counsel. The said document contains audio and video recording. But due to inadvertence the aforesaid details has not been recorded in the order sheet dtd.22.9.2022. Therefore the accused have also failed to substantiate their contention that the prosecution has failed to produce the audio and video recorded in the voice recorder or suppressed the material facts before the court. Hence their contention holds no water.
24(a). It is the argument of the learned counsel for the accused that PW.4 has not supported the prosecution case and hence his evidence cannot be relied to arrive to the conclusion that the demand and acceptance of the bribe. In this regard, it is appropriate to refer the judgment reported in (2015) 11 SCC 213 in the case of Nayan Kumar Shivappa Wagmare Vs. State of Spl.C.C.226/2018 58 Maharashtra the Hon'ble Court noticed that there is every reason to believe that the witness had lost interest and has won over by the accused. In the case on hand also there is nothing on record to show as to why if the amount was not demanded Pw.1 has lodged Ex.P1 report before the ACB police. The demand can be proved by the testimony of PW1 as well as from Ex.P-1 first information statement. The presumption as to the demand of bribe can also be drawn if the tainted money tendered as bribe is recovered from the possession of the accused. If the explanation given by the accused about the recovery of money appears to be false, it may be taken as adverse circumstance against him. If the explanation of the accused found under preponderance of probability the prosecution is required to prove its case beyond reasonable doubt.
24(b). In the judgment reported in (2017) 3 SCC 608 in Umesh Manon Vs State of M.P, the complainant has given explanation that he forgot to turn on the tape recorder due to nervousness because of which no Spl.C.C.226/2018 59 conversation was recorded and the court accepted it as plausible and no adverse inference could be drawn against the complainant. In the case on hand also the facts and circumstances of the case and evidence of Pw.1 show that the explanation of the witness that on account of sudden arrival of the accused No.1, he could not turn on the voice recorder/mobile phone is plausible. Hence explanation of Pw-1 is accepted and no adverse inference could be drawn for his failure to record in his mobile phone the transactions during the trap when he met the accused No.1.
25(a). In the judgment relied by the learned Special Public Prosecutor reported in 2018) 9 SCC 242 in the case of State of Gujarat Vs. Naveen Bai Chandrakanth Joshi and others the Hon'ble Supreme Court held once it is established that the accused was possessing the bribe money, it is for him to explain that how the bribe money has been received by him and if he fails to offer satisfactory explanation, it will be presumed that he has accepted the bribe. As per the facts and circumstances Spl.C.C.226/2018 60 of the case on hand the accused No.1 and 2 have demanded the bribe and the accused No.1 has accepted the amount from Pw.1 and the same was recovered from him. The accused No.1 has failed establish that Pw-1 had thrust the amount into his pocket.
25(b). In another judgment relied by the prosecution reported in (1995) 3 SCC 567 in the case of M.W. Mohiuddin Vs. State of Maharasthtra the Hon'ble Supreme Court held that once the accused comes into possession of tainted money, the only inference to be drawn is that he accepted the pecuniary advantage. In the case on hand also, there was an effort on the part of both the accused by accepting the bribe and it is proved from the evidence of PW.1 that the accused No.1 had made demand and also got the affirmation from Pw.1 that he had brought the demanded money as on the date of trap.
25(c). In the judgment relied by the prosecution reported in (2006) 12 SCC 277 in B.Noha case the Hon'ble Court held that when it is proved that there was voluntary acceptance of the bribe, no further burden cast Spl.C.C.226/2018 61 on the prosecution to prove by direct evidence the demand or motive and it has to be deduced from the facts and circumstances of each case. In the judgment reported in (1980) 2 SCC 390 in the case of Hazarilal Vs. State the Hon'ble Supreme Court held that it is not necessary the passing of money should be proved by direct evidence, it may be proved by circumstantial evidence. The Court may also presume when the events are followed in quick succession lead to an inference that the accused has obtained the money by raising the presumption under Section 114 of Evidence Act. The court may also accept the evidence of a police officer who laid the trap without any corroboration.
26. In the case on hand the accused No. 1 and 2 are the Government servants and hence they seemed to possess considerable self confidence and intelligence. They are not ignorant and helpless persons. They are expected to complain to the police or any other authority including the court that they have been made as the victim of false arrest and implication. But in the case on Spl.C.C.226/2018 62 hand, the accused No.1 has not made any such allegation against Pw.8, the trap laying officer. Ex.P33 is the spontaneous explanation of the accused at the time of the trap and it is res-gestae within the meaning of Section 6 of the Indian Evidence Act. If any act is done by the accused in his official capacity, it amounts to official act even if it does not come within the scope of the functions of his office, the act does not cease to become official act. Therefore from the oral and documentary evidence the prosecution has proved that the accused No.1 and 2 have demanded the bribe from Pw-1 in order to issue required certificate to convert the land of Pw-5 for industrial purpose. It is further proved from the evidence that as on the date of trap both the accused had demanded the bribe and the accused No.1 has voluntarily accepted the amount. The accused No.1 has failed to establish the alleged defence of thrusting of the amount into his trouser pocket. Hence the demand and acceptance of the bribe is proved.
Spl.C.C.226/2018 63 The Presumption of Law
27. As per Section 20 of the PC Act, there is a legal presumption that when it is proved that a public servant accused of an offence has accepted, obtained or attempted to obtain for himself or for any other person any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he had accepted or obtained or attempted to obtain that undue advantage, as a motive or reward for performing or to cause performance of a public duty, improperly or dishonestly either by himself or by any public servant.
28. The prosecution in the case on hand has proved by placing oral, documentary and circumstantial evidence that the accused No.1 and 2 had demanded and the accused No.1 had obtained illegal gratification of Rs.25,000/ from Pw-1 on 14-6-2017. In the decision reported in (2001) 1 SCC 691 in the case of M. Narsinga Rao vs State of A.P. the Hon'ble Supreme Court three judges bench observed when there is no direct evidence to show that the accused had demanded and accepted Spl.C.C.226/2018 64 the money, the court can rely the circumstances sufficient to establish that the accused had accepted the amount and that give rise to a legal presumption under section 20 of the PC Act. The condition for drawing such legal presumption is that it should be proved that the accused had accepted or agreed to accept the gratification. It is a rebuttable presumption, but if the accused fails to disprove the presumption, then it can be held that the prosecution had proved that the accused received the amount. The accused may rebut the presumption by mere preponderance of probability by offering probable explanation and he is not required to prove his defence by the strict standard of proof of beyond reasonable doubt.
29. In the judgment relied by the prosecution reported in (2000) 8 SCC 571 Madhukar Bhaskar Rao Joshi Vs. State of Maharashtra held that the premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification and once it is established the inference to be drawn is Spl.C.C.226/2018 65 that the said gratification was accepted as motive or reward for doing or forbearing to do any official act. In the facts of the case the undisputed fact that the tainted cash had reached the hands of accused No.1 and found in his trouser pocket itself is sufficient corroboration for the testimony of Pw1 that the amount was paid to the accused. In another judgment reported in (2012) 7 SCC 80 in Narendra Champakal Trivedi Vs. State the Hon'ble court held that the presumption under Section 20 of the Act becomes obligatory and it is a presumption of law casts an obligation on the Court to apply in every case brought under Section 7 of the PC Act.
30. Therefore on coming back to the facts of the case, once it is proved that the money was recovered from the possession of the accused No.1, the burden of rebutting the presumption as contemplated under Section 20 of the PC Act shifts upon him. However the accused No.1 could not rebut the presumption through cross-examination of the prosecution witnesses that Pw-1 had forcibly thrust the amount into his trouser pocket. In Spl.C.C.226/2018 66 the present case, the efforts made by the accused in their defence to rebut the presumption has been failed. Hence, this court can arrive to the definite conclusion that the accused have miserably failed to rebut the presumption under Section 20 of the PC Act. Accordingly, the presumption as prescribed under law is drawn.
31. The evidence placed by the prosecution is consistent with the guilt of the accused and inconsistent with their innocence. It is well settled principle of law that the minor discrepancies or contradictions in the evidence which do not affect the merits of the case should be ignored. A criminal trial is meant for doing justice to all, the accused, the society, and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the court.
Spl.C.C.226/2018 67
32. After appreciating the entire prosecution evidence, it is cogent, corroborative, believable and trustworthy. The evidence clearly shows that the accused No.1 and 2 had demanded and the accused No.1 had accepted the illegal gratification of Rs. 25,000/- from PW-1. To attract the offence under section 13(1)(d) of PC Act, the public servant should obtain for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. In the case there is evidence to the effect that the accused No.1 had obtained pecuniary advantage for himself by corrupt and illegal means by abusing his position as such public servant.
33. It is true, the accused No.2 has not accepted the amount from Pw-1. But his involvement in demand and acceptance of the bribe is proved. Both the accused together have demanded and accepted the bribe for themselves. The accused No.2 has also played a very significant role in negotiating and also in the process of acceptance as on the date of trap. In this Spl.C.C.226/2018 68 regard, this Court referred the judgment of Hon'ble Supreme Court reported in (2001) 4 SCC 759 in the case of Rambhau and another Vs. State of Maharastra. Therefore, the evidence placed on record establish the fact that demand and acceptance of the bribe is by both the accused and they are equally guilty of the offence. In the facts of the case, the ingredients to bring the act of accused No.1 and 2 within the mischief of sections 7 and 13(1)(d) of the PC Act are satisfied.
34. It is settled law that the acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the PC Act and if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the PC Act. After considering the aforesaid evidence and defence of the accused, this court arrived to the definite conclusion that the prosecution has proved the charges framed against the accused No.1 and 2 under Sections 7, 13(1)(d) of the PC Spl.C.C.226/2018 69 Act. In the result point Nos.2 and 3 are answered in the affirmative.
35. Point No.4 :- In view of the above findings on point No.2 and 3, the accused are liable to be convicted for the offence punishable under sections 7 and 13(1)(d) of PC Act. Accordingly this court proceed to pass the following:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused No.1 and 2 are convicted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bond and surety bond executed by the offenders and their sureties are hereby stand discharged.
M.O. No.7 cash of Rs.25,000/- (Rupees twenty five thousand) is ordered to be confiscated to the State after expiry of the appeal period. Office is directed to return M.O. No.8. metal seal to the ACB Police.
Spl.C.C.226/2018 70 Office is directed to destroy M.O. No.1 to 5 sodium carbonate solution bottles, and MO -6 pant of the offender No.1 after completion of the appeal period as the same are worthless. (Dictated to the judgment writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open Court on this the 15th day of October, 2022.) sd/-
(LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
Spl.C.C.226/2018 71 ORDERS The judgment is pronounced by finding the offenders No.1 and 2 are guilty of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
2(a). On the question of the quantum of sentence to be imposed, heard the learned Sri. V.N.N. Advocate, appearing on behalf of the offender No.1. He submitted that the offender No.1 is having parents aged 83 and 81 years respectively and they are bedridden. In order to take care of them, presence of the offender No.1 in the family is necessary. His wife is suffering from Thyroid and other health related ailments and he is having a school going child. He is the only person required to take care of the entire family. Therefore under the aforesaid mitigating circumstances the learned counsel prayed for passing minimum sentence as prescribed under the enactment.
2(b). The learned Sri S.L.P. Advocate submitted that the wife of the offender No.2 is suffering from breast cancer and she is under treatment. The offender No.2 is having two school going children. He is suffering from sinus problem and there are no other earning members in his family. Hence he has submitted to consider the aforesaid aspects while passing the sentence.
Spl.C.C.226/2018 72
3. It is settled law that as held in the judgment reported in AIR 2004 SC 2317 in the case of N Bhargavan Pillai vs State of Kerala and in the State vs Parthiban (2006) AIR SCW 5267) the provisions of The Probation of Offenders Act do not apply to the offence under the PC Act.
4. In the light of the facts and circumstances of the case with particular reference to the nature and conduct of the offenders in committing the offence, the quantum of sentence to be imposed has to be determined. The offenders by committing the offence under the provisions of the PC Act had invited the risk to themselves, and now they cannot plead for leniency in the sentence to be imposed against them. The facts and circumstances of the case show that, they had demanded and accepted Rs. 25,000/- illegal gratification from Pw-1 for the official work to issue no objection certificate. Hence they should be punished by apposite sentence, however after taking into consideration the aforesaid mitigating factors submitted by them.
5(a). In the judgment reported in 2020 SCC on line 412 in the case State of Gujarath Vs. Mansukhbhai kanjibhaibai Shah the Apex court held Corruption is the malignant manifestation of a malady menacing the morality of men. There is common perception that Spl.C.C.226/2018 73 corruption in India has spread to all corners of public life and is currently choking the constitutional aspirations enshrined in the preamble.
5(b). In the judgment reported in (2006)8 SCC 693 State of M.P. Vs. Shambhu Dayal Nagar, the Hon'ble Supreme Court while responding to the plea for a lenient view for a charge of corruption expressed its concern against the rampant venality by public servant and observed that the public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post.
5(c). In AIR 2013 SC 1682 Niranjan Hemchandra Sashittal case the Apex court held that the gravity of the offence under PC Act is not be judged on the measure of quantum of bribe, as corruption is not to be justified in degree.
5(d). In the judgment reported in (2000)8 SCC 571 in the case between Madhukar Bahskarrao Joshi vs State of Maharastra para 18 the Apex court observed: " When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within bounds of law. One such measure is to provide condign punishment".
Spl.C.C.226/2018 74 5(e). In the decision reported in AIR 2015 SC 2678 in the case of Shanthilal Meena vs State of NCT Delhi, the Hon'ble Supreme Court exhaustively dealt with the philosophy behind the sentencing under the PC Act. There is any scope for reforming the convicted public servant and unless the courts awards appropriately deterrent punishment people will lose faith in justice delivery system and very object of the legislation will be defeated. The court has thus a duty to protect and promote public interest and build up public confidence. Misplaced sympathy or unwarranted leniency will send a wrong signal to the public giving room to suspect the institutional integrity affecting the credibility of its verdict. In order to decide the quantum of sentence, the ratio laid down in the aforesaid judgments are aptly applicable to the facts and circumstances of the case on hand.
6. Therefore after keeping in mind the above ratio laid down in the judgments, while awarding the sentence, this court should bear in mind the expectation of the society to prevent the corruption in the public office by providing prompt conviction and stern sentence. The accused are aged 46 and 52 years respectively. After considering the submission of the learned defence counsel, this court finds it not proper and necessary to impose the maximum punishment as prescribed under Spl.C.C.226/2018 75 the law. However it is necessary to strike the balance between the maximum and the minimum punishment.
7. In this case the offence was committed on 14-06- 2017. Thus, as per Amended Act No.1 of 2014, which came into effect from 16-01-2014, Section 7 of the PC Act was punishable with imprisonment which may extend to seven years and with fine and the minimum punishment shall be not less than three years. Similarly the offence under Section 13 (2) was punishable with imprisonment which may extend to ten years and with fine and the minimum punishment shall be not less than four years. The recent amendment to the PC Act by Act No. 16 of 2018 came into force from 26-7-2018 is not applicable to the facts of this case on hand.
8. In Parthiben case, the Apex Court held that the offence under section 7 and 13(1)(d) of the Act being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty. In the case on hand the offence proved against the offenders are under two different Sections 7 and 13(1)(d) of the Act providing different punishments, they should not be punished with a more severe punishment than the court could award to them for any one of the two offences.
Spl.C.C.226/2018 76
9. After considering the above facts and circumstances of the case and reasons stated herein above, this Court finds that it is just and proper to sentence the offenders No.1 and 2 to undergo rigorous imprisonment for a period of four years for the offence under Section 7 of the PC Act and rigorous imprisonment for a period of five years for the offence under Section 13(1)(d) read with 13(2) of the PC Act. In the opinion of this court the above quantum of sentence of imprisonment imposed is proportionate to the nature and gravity of the offence.
10. As per section 16 of PC Act where a sentence of fine is to be imposed under section 13(2) of PC Act, the court shall take into consideration the amount or value of the property the accused person has obtained by committing the offence. In the result, this court proceed to pass the following:
ORDER The offender No.1 and 2 Mr. Basavaraju B.G. and Mr. S. Shivaswamy are sentenced to undergo rigorous imprisonment for a period of four years and also to pay fine of Rs.10,000/- (ten thousand only ) each for the offence under Section 7 of The Prevention of Corruption Act 1988 and in default of payment fine they shall undergo simple imprisonment for further period of one month and Spl.C.C.226/2018 77 further sentenced to undergo rigorous imprisonment for a period of five years and also to pay fine of Rs.10,000/- (ten thousand only ) each for the offence under Section 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act 1988 and in default of payment fine they shall undergo simple imprisonment for further period of one month.
Both the substantive sentence of imprisonments shall run concurrently. Acting under section 428 of the Code of Criminal Procedure, the period of detention undergone by the offenders No.1 and 2 from 14-06-2017 to 19-06-2017 shall be given set off against the sentence of imprisonment. Free copy of the judgment be furnished to both the offenders forthwith.
(Dictated to the judgment-writer directly on computer, typed by him, corrected, signed and then pronounced by me in the open Court on this the 15 th day of October, 2022.) sd/-
(LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
Spl.C.C.226/2018 78 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Pradeep H.R. PW 2 : Munish Lal Mouthgil PW 3 : G.N.Shivamurthy PW 4 : Gopala Krishna H.R. PW 5 : Madappa PW 6 : Chandrika G. PW 7 : Vajeer Ali Khan PW 8 : G.Nagaraja PW 9 : Girish B.N. PW 10 : R.Balakrishna
List of documents marked on behalf of prosecution:
Ex P1 : Complaint Ex P1(a) : Signature complainant Ex P 2 : Acknowledgment Ex P 3 : Pahani Ex P 4 : Authorization letter dtd.20.2.2017 Ex P5 : Sanction order Ex P5(a) : Signature of PW 2 Ex P6 : Pre-trap mahazar Ex P6(a) : Signature of PW 1 Ex P6(b) : Signature of PW 4 Ex P6(c) : Signature of PW 8 Ex P6(d) : Signature of PW 9 Spl.C.C.226/2018 79 Ex P7 : Trap mahazar Ex P7(a) : Signature of PW 1 Ex P7(b) : Signature of PW 4 Ex P7(c) : Signature of PW 8 Ex P7(d) : Signature of PW 9 Ex P8 : Statement under Section 164 of Cr.P.C.
Ex P8(a) : Signature of PW 1 Ex P9 : Sanction order Ex 9(a) : Signature of PW 3 Ex P10 : Currency details sheets Ex P10(a) : Signature of PW 4 Ex P11 : Statement under Section 164 of Cr.P.C. Ex P12 : FSL report Ex P12(a) : Signature of PW 6 Ex P13 : Sample seal Ex P14 : Photographs Ex P15 : CD produced by the complainant Article-1 Ex P16 : DVD contains conversation held between the complainant and Accused No.2 Ex P17 : CD contains voice sample of Accused No.1 Ex P18 : CD contains voice sample of Accused No.2 Ex P19 : CD contains voice sample of complainant Ex P20 : FIR Ex P21 & 22 : Permission letters Ex P23 : Transcription sheet Spl.C.C.226/2018 80 Ex P24 : Affidavit
Ex P25 : Transcription of conversation between Accused No.2 and complainant Ex P26 : Transcription of sample voice of accused No.1 Ex P27 : Transcription of sample voice of accused No.2 Ex P28 : Transcription of sample voice of complainant Ex P29 : Seal receipt acknowledgment given by witness No.2 Ex P30 : Attested copy of file related to the complainant Ex P31 : Attested copy of extract of inward register Ex P32 : Attested copy of biometric document Ex P33 : Written explanation of accused No.1 Ex P34 : Written explanation of accused No.2 Ex P35 to: Photographs Ex.P58 Ex P59 : Letter with engineer's sketch Ex P60 : Chemical examiner's report Ex P61 : Service particulars of Accused No.1 Ex P62 : Certificate u/S.65-B Evidence Act given by Police Head Constable- Prabhakar Ex P63 : Certificate u/S.65-B Evidence Act given by Police Head Constable- Purushotham Ex P64 : Certificate u/S.65-B Evidence Act given by Vodafone Mobile Services Limited Spl.C.C.226/2018 81 Ex P65 : Attested copy of Vodofone Customer information form Ex P66 : Call data record given by Vodofone Ex P67 : Certificate u/S.65-B Evidence Act given by Idea Cellular Ltd.
Ex P68 : Attested copy of Vodofone Customer application form of idea Cellular Ltd.
Ex P69 : Call data record given by Idea Cellular Ltd.
Ex P70 : Sheet contains impression of metal seal List of material objects marked on behalf of the prosecution:
MO 1: Bottle (Article-2) MO 2: Bottle (Article-3) MO 3: Bottle containing sodium carbonate solution (Trap time, Article-4) MO 4: Bottle containing right hand wash of accused No.1 (Article-5) MO 5: Bottle containing left hand wash of accused No.1 (Article-6) MO 6 : Pant MO 6 (a) Cover MO 7 : Cash of Rs.25,000/-
MO 8 : Metal seal Spl.C.C.226/2018 82 List of witnesses examined on behalf of defence side:
NIL List of document marked on behalf of defence side Ex.D1 - Certified copy of FIR in Cr.No.3/2016 Ex.D2 - Certified copy of Complaint dtd.11.5.2016 Ex.D3 - Certified copy of FIR in Cr.No.12/2015 Ex.D4 - Certified copy of Complaint dtd.5.11.2015 XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
Spl.C.C.226/2018
83
Judgment pronounced in the open
Court vide separate Judgment. The
operative portion of the Judgment reads as under:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused No.1 and 2 are convicted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bond and surety bond executed by the offenders and their sureties are hereby stand discharged.
M.O. No.7 cash of Rs.25,000/- (Rupees twenty five thousand) is
ordered to be confiscated to the State after expiry of the appeal period. Office is directed to return M.O. No.8. metal seal to the ACB Police.
Office is directed to destroy M.O. No.1 to 5 sodium carbonate solution
bottles, and MO -6 pant of the offender No.1 after completion of the appeal period as the same are worthless.
(LAKSHMINARAYANA BHAT K.), XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
Spl.C.C.226/2018 84 Heard Sri VNN Advocate, appearing for offender No.1 and Sri SLP Advocate appearing on behalf of offender No.2 on quantum of sentence.
For orders on sentence by 2.45 p.m. XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ORDER
The offender No.1 and 2 Mr.
Basavaraju B.G. and Mr. S. Shivaswamy are sentenced to undergo rigorous imprisonment for a period of four years and also to pay fine of Rs.10,000/- (ten thousand only ) each for the offence under Section 7 of The Prevention of Corruption Act 1988 and in default of payment fine they shall undergo simple imprisonment for further period of one month and further sentenced to undergo rigorous imprisonment for a period of five years and also to pay fine of Rs.10,000/- (ten thousand only ) each for the offence Spl.C.C.226/2018 85 under Section 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act 1988 and in default of payment fine they shall undergo simple imprisonment for further period of one month.
Both the substantive sentence of imprisonments shall run concurrently.
Acting under section 428 of the Code of Criminal Procedure, the period of detention undergone by the offenders No.1 and 2 from 14-06-2017 to 19-06-2017 shall be given set off against the sentence of imprisonment.
Free copy of the judgment be
furnished to both the offenders
forthwith.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.