Karnataka High Court
A R Phaneendra Kumar S/O Late A Rajanna vs State By Inspector Of Police on 18 November, 2010
Author: N.Ananda
Bench: N.Ananda
.. 1
iN THE HIGH COURT or KARNATAKA AT K
DATED THIS THE 18TH DAY or NOVEMBER 201.5 - 2'
BEFORE _ V
THE HONBLE «. "
CRIMINAL Noiéiaot/20205
BETWEEN: 2 2 A :
Sri.A.R.Phaneendra Kurna'1'g- A '
S/o late A.Rajar1na * V V
Aged about 45 Years --
Residing at N_o.8'.1._9'_,'-A-3; _ '~ V:
Krishna Block, N;Ltio11ai"Gan1es Village
K01'ama1'1g:ala,Vfiangaiore;-,f-._v 2' _
Working at Ass.t.;>Er1gii1eer0'*v.n_' ._
Officeoof-the Pisst."E,xecutiv'e Ei1gi--;v1eef
Directorate noffiericiilture' _
Okalipuram. .Ban_gaio1'-5;. «. ' ' ...APPELLANT
[By sri.sinifirivshriaim:;1ar.,"~~Advocate)
. ' State _by..lnsp'-sector of Poiice
g Kar;1ata_ka.. Doiiayukta
. Bangalore.fDivisi'o11
'Ba1'1ga1ore'.§j_ ...RESPONDENT
{B3} II'. Gayathri, Advocate}
"this appeal is filed under section 374(2) Cr.P.C against the
'jt1dgme1'1t dated 26.02.2005 passed by the Speeiai Judge.
Bangalore Urban District. Bangalore City in SpI.C.C.No. 193/ 2002,
Econvicting the appellant/ accused for offences punishable under
sections 7 and 13[1]{d) I'/W section 13(2) of Prevention of
Corruption Act. 1988 and sentencing him to undergo R1. for a
period of one year and fine of Rs.20,000/ to
undergo R.I. for a period of three month._s""for.Acan""oifence
punishable under section 7 of Prevention
of' ~-C3oi*ri1p_tion " Act"
and sentencing him to undergo; .R..I_.' forja period of years.
and pay fine of Rs.20,000/-, in: default. to undergo _R'.'I,c for aV.._
period of six months For an offence p'unishabl'e_.under«-section
13(1)(d) r/w section 13{2)cof the..P;C.Act._fI'he' substantive
sentences of imprisonmeniishall run. concui'renti =
This appeal coming on for*fi_na1uhearing.this the Court
delivered the following;
The to as 'accused? Was
tried, "offences under sections 7
8: }¢i3{'i]{dV.}:i:jfi)u, section 13(2) of the
Prevention Act, 1988 {for short, 'the Act').
The_refore;" he" appeal.
heard Sri S.R.Krishnakumar, learned counsel
:Vfo_rVf 'a:4pfpVellaht*:/accused and Smt.T.M.Gayathri, learned
cU~uns___el' forrespondent/Lokayukta and I have been taken
A' through evidence and the impugned judgment.
in The case of prosecution, in brief is as foHows:4--
_3 _
During the year 2001, accused was
Assistant Engineer in the Directorate of Sericulture; "
office was situate at Okalipuram at"'E3a'ngallore_:.. ll§W2--Ba--sappa b
was a C1ass--III PWD Contractor. lPW:2'lulsedl.'tD.
works contract entrusted on te_n'd_er orvhpiece
During the year beenentrtisted with
two tender works 'of . X'/lifilififileii. 'A,:R's;1,30,O00/-- and
Rs.1,45,000/~_to.__be feiiecutedf 'ixtidtlie iv-Government Cocoon
Market Bt1i'iding5:at'. (:Vl]:l:11:al:l;l'E,)..Il'l£r1'Il;;:".V' In fact, bills in respect of
Workst"'e§{ecu:tedli%;'e're"".3ett1edl;_llV""Ii*ie accused, who was the
Assistant Engir1lee're«ask_ed. ,,l-ll'?/'2 to do some additional works
such as painting,"._ii§{ing~.-of window panes to Units I & II in
CadoonflMarket at Chinthamani and also to replace asbestos
' roof of Government Cacoon Market Building at
Pursuant to the oral direction, PW2 had
executed llwlvorks of value of Rs.2,40,000/--. When PW2
it approached accused to issue work order and prepare bill to
h"-enable PW2 to obtain payment for the works executed by
it "ham, accused demanded illegal gratification of___:Rs.60,000/--,_p
#4
after much bargain, it was reduced to
12.07.2001 when accused demanded and -..i:c:cepted'lu
gratification of Rs.40,000/~ frorr:-"'PV'J2¢, he 0
Lokayukta Police at Bangalore. 7fi_P£i;terlld'*
investigation, charge sheet filed.__against"I.ac'cused for
aforestated offences. j .
4. On behalf of were examined
and documents. as per' marked, so
also mat.e.ri.al.. were marked.
On behalfA«vone__C.Fiamesh was examined as DW1
and and Ex.D.1[a] were marked.
5._;' " The learned trial Judge on appreciation of evidence
lliealfing learned counsel for parties, held accused
:gi'_i_ilty":o'f«.oife.i:»c:es under sections 7 & 13[1)(d}(i1'}, punishable
under,.'1~seefi~ee 13(2) of the Act.
'in View of conviction of accused for aforestated
0' noffednces, the following points would arise for dete ;mination:-- 4
5 ,
(1) VVhether the prosecution has provefilpylfllat
has obtained a Valid sanction to .prosecluvte'*l '
accused?
(2) VVhether the prosecuti'on
accused being a public servaiii; Whi
as Assistant Eiigineer '"0:
Assistant Expecutive...lllfiigineer,A Directoir of
Sericulturgv Bangalore,
demanded a1idg_ac_cep_teti ililegaligratification of
Rs.§lO,,;OO0/v'l8.5O a.m., on
32. 1- la1;_p1RamyalaijrishnaVVVl Lodge, situate
'Sli3beda.rchlat_1'arn'"lRoad, Bangalore, as a
_moti';?e-«.,_oIi, reward to show official favour to
issue work order and
prepare'__bil~l,s 0flWO1'kS. which were executed
by VIPWZV in/the Government Cocoon Market
l3L1,_ilding at Chintamani as per oral
.,,.,__:liristructions given by accused and thereby
if-"conrimitted an offence under section 7,
. 'p''unishable under section 13(2) of the Act?
(3) Whether the prosecution has proved that
accused being a public servant by corrupt
and illegal means, misused his official
position to obtain pecuniary advantage of
f\* . '*-- C/L"-x.C£' .
--5
Rs.40,000/-- from PW2 at the place and time
stated in point N02 and thereby cornrnittede
an offence under section 13[1.].[i§1}[ii],:";~
punishable under section 13(2) of thr;':Aci;?y:VV' 2]'
[4] VVhether the learned trialfltldutlge in
appreciated the evidenceflon }"nétcordt?"-- ..
[5] Whether the impugriedy judgrnent
interference? _
[6] What order?"R" it
folloutsra : '
Regarding Pointiéfoi 1'; -
uAt t.he reievant if-;me, accused was working as Assistant.
, 'Engineer irilhe Directorate of Sericulture. The Government
.oft'.if{arr1»a.'ta1_{at.:;'Was the appointing and removai authority of
ac'cuse--d.. E§é.P.12 is the sanction order to prosecute accused.
The sanction order was issued by PW3-Padrnavathi, the then
"g_VU'iic1er Secretary, Department of Industries and Commerce,
. é'
'V Sericulture Section by order and in the name of Governor of
in c«»a«»~c:@» .
.. 7
Karnataka. As per the evidence of PW3, she" had.fl'p:Ilaced
necessary documents and reports before tile"
Sericulture and Textiles, who on: 'p'erusa]='_: f it
documents accorded sanction as l V
The defence has notphallenhged "of the
authority (minister) to'accord---~s:an.cti~oAn, but'the,tlefence has
contended that sanction 'without application
of mind.
8. is::§a"irly~,iVell se'ttl'eld when Validity of sanction
orderV"_&is 4l_cha_llelngeVd'..l'or:ii1on--application of mind by the
sanctioniirigi 'aut1:_ont;y;~.i.the same could be proved by the
byvproducing original sanction order or by
' ;.ladCluvcing_'all'ude evidence to prove satisfaction recorded by it.
vIn*.V--lthet1'case on hand, PW3 has given evidence relating
to' procedure followed to accord sanction to prosecute
2 AA accused. The sanction order as per Ex.P.l2 indicates that
sanctioning authority on perusal of the report submitted
H by the Inspector General of Lokayukta Police and also after
,3 _
going through the facts contained in the documents anndppalso
consideration of the facts relating to demand and'
of bribe amount by accused has recordevfdjp
satisfaction that accused is liable"; .ezj,r'i.(?d-I
offences thus accorded sanction
not find any infirmity in the«'c:.V:s'anctiVon Vffffhereffore,
answer point No.1 in a"ffi_nnatiye."
Regarding Point._No.2:§ V
9. The Vyvasffvviforking as Assistant
Engineer_ ti3e--«.__$;irec'torat€--o:' Sericulture and he was in-
charge of 'works. PW2 in Government Cocoon
Market _ at Chintarnani and PW2 had executed two tender
woflrts aforestafted has not been disputed. However,
execution of items of work on oral instructions given by
accused authority of accused to give such orai
instructions to PW2 and authority of accused to issue work
order have been seriously disputed by the defence. The
defence has also disputed the case of prosecution that
accused had demanded and accepted bribe from P' 2.
;\__/£\,/U '«
10. Before adverting to the evidence of PW2 1-egarding
crucial aspects such as demand of br1beg.g..l_:}e:flo1'--e». first
information was lodged, demand and acceptance
accused from PW2 on 12.07';2'00]¢ Va;m«. 7.;1'1b
Ramakrishna Lodge, SLtbedarchat11am_A_lRo ad ' Bangalo ' is
necessary to advert to the 'evAiVd.en'c:e""regarding 0
civil works. which are {said to.h.--a_ve.been executed/lay PW2 on
the oral instructions 'given The documentary
evidence in th_e*forrnoi"'E)t;:P.6A.vv.oulVd «indicate estimate for
replacing to Government Cocoon Market
at Chiritarr1ani'{Unit- Cost of Rs.46,000/--, details of
estimate ares-.fot1n'd at EX.P.6. The technical sanction was
0 " iaccordield on g_16.03v:lfl1.l001 and financial sanction was accorded
date. The second item relates to providing
iimpi-ovemeénts to Government Cocoon Market at Chintamani
(Unit"-l)g__d3at a cost of Rs.50,000/--. The next item which
i.r_1gcl"uded providing Window panes and plastering was
estimated at Rs.33,000/--. The technical sanction was
accorded on 16.03.2001 and financial sanction was accorded
('unfit "(£1
--- 10
much before that date. Similarly, Ex.P.6 contains
of execution of replacement of damaged,v_A=C@:eA.l.:Sheet"'t.o
Government Cocoon Market at \
of Rs.46,000/--. From the Vletterslloft:lcorresnc§.i1t3§§rice,flll'findiy
these works had to be imnaediately t-:;'1.:Eplrlotect the
interest of farmers, to the market.
11. it is theycase of had executed
these works'Vo1li;the bra} ir1st'r'uctibi1s...given by accused by
spending la "PW2 has deposed; after
works w_ere 'eXge.c_1_i'ted','.._he.._requested accused to issue work
order and prelp'are'~bil:j§--./{firlithe Works executed by PW2, for
which saccusedyldemahded bribe of Rs.60,000/--, which was
ylqater to ]Elsl.H4i»3,5O0/--; accused was also threatening
lie'-would issue work order and issue bills in the
name o>i'*so§me other person.
_ 12. The learned counsel for accused referring to evidence
l§W5 has submitted that out of the nine works which were
_.:hot included in the tender, PW2 had completed two works
7%. r n. z>~~~rL».
_
after the date of trap. The works were in__spec't.e'dl"-«on
20.09.2001. On 14.09.2001 Work order
PW2 had given requisition :o'"" issue.' worklorder on T
16.08.2001.
13. The learned counselfol'-...accu'sed that
out of nine works, PW2 'v..cornpleted--..tWQ.E works on
20.09.2001. T'herefore",--..l:eit_hler or before that
date neither to execution of
these The accused did not
have{gany.A Tito [discharge in favour of PW2,
equallj? so favour to seek from accused.
14;' " it. haxare'-» referred to aforestated documents in View of
the learned counsel for accused with
1 "ref'eren:c.e 'Vto.".cVi~dence of PW5--Gangadharaiah.
15. going through the evidence of PW5 I find on the
.. date Voflincident. PW2 had completed work long before and
lrequested accused for issuance of work order. After going
Jthrough the contents of Ex.P.6, 1 find that technical sanction
-- 12
for work order was issued on 16.03.2001, even
financial sanction was issued by the Directonof S3eric1iit1ire:'~<_
Considering the exigency, separate" tenders _were notQ'eall--ed 0 j
for execution of these works. "Al"he"-accused_V,. who
charge of execution of tende_r>works had orall~y"i'r'2'structed
PW2 to execute these tvorlts---en"Hpiee.e. worlkbasis. PW2 had
executed all the worllzlsg to safeguard
the interest Iarrriers ' tdllbring Cocoons to
Government ._0'i1intharriani.lllllherefore, submission
of 1ea"hae'd that all the Works were
executedgtlate of alleged trap cannot be
acceptedffl. "
A 15? ;,;The._ev1d"ehee"'et' PW2 that he had executed works
and he had not executed any work in the
hfigéovernrlneentll Cocoon Market after the date of trap has not
been ciontroverted. The prosecution has no case that the
0' ,ab'oVe works were entrusted to some other contractor and
they were executed by some other contractor. The matter can
be viewed from another angle. If PW2 [Class»III PWD
, 5
'x./ue-"W 1» i
13 _
Contractor) had created problems to accusedppplgyf
false complaint against him on
improbable that PW5 would entrust the b T
Therefore, the contention of defelncedlthat aboire
executed long after trap, theieiore, recluisitionv_:forri'ss'uance ofii
work order was given" by and work
inspection was done"4."'[')l.~_\.,..~*. cannot be
accepted.
contents_ per Ex.P.6, I find PW2 had
executed 'works a"n:d.. after the accused for taking
ne=;ess.ary st"ep_s"for issuance of work order and preparation
'A «of 'bills: in relation to execution of works which are stated as
,__v1'. lrnprovement to G-CM, Chintamani, Unit--2, Part--A
,. [Painting] for Rs.50,000/--.
2. improvement to GCM, Chintarnani, Unit--2, Part--B
(Providing glass, asbestos cement sheet for rain water
and plastering) for Rs.33,000/--.
4. Replacing damaged AC Sheet at GCM, Chintarnani,
Unit-- 1, for Rs.46,000/--. : __
{\3 .c.::.(,¢"\ xx [*1 "*'"' D€'"°"'
~ 16
22. The accused was prosecuted for denavandadand
acceptance of illegal gratification in respect':*of
works, which were executed by PW2 on the oraifinstructionsd ' to
given by accused. Therefore, therbegwas "no rt~eed_togproveithe
past conduct of PW2. Thdefaailure Aofgprosevcutijone"to; proved'
payment of percentage of bii}...a:Ar'nount to 'acc.use_df§ in respect
of tender Works eXecutedgbv'--i?W -consequence.
23. The eviidence §_etgr>--3N1';«. PW6 relating to
prepa'rati'ons»v_of _jn'ia'(.';e Office of Lokayukta Police
at Bangalore-- controverted. Even otherwise, I
findthere'Visitconsistvent'"evidence of PW2 regarding smearing
V. . ?;3heno1phtha1ei--n--powder on 80 currency notes of Rs.500/..
' and entrustrnent of the same to PW2 and
given to PW2 by PW6 [Police Inspector of
Lokavt1.kta}. The evidence regarding phenolphthalein test
_ does not require any discussion. It is in the evidence of PW2
that on 11.07.2001, PW1 et PW2 were sent to the Office of
accused viz Reshme Bhavan situate at
1'7
Okalipuram, Bangalore. The accused was
office. PW2 was informed that accused
Ramanagaram on official work. f T
Bhavan (Office of Director of
contacted one of his colleague:sV"oVerA.i)l1one.,V spoke f
to accused who infflimxed fdbiibeivvdamount to
Ramakrishna Lodge Therefore.
PW1, PW2, of raiding party
returned Police. The tainted
currencj/V nfiggs possession of PW2 and
keptft;-y PW2 was asked to visit the
office ofdxhokayuktafPoliee at 8 a.m. on the following day. On
at"8v--..a...in. tainted currency notes were handed
' ;.dover"t:o--._by PW6 and instructions were reiterated by
'' .f'W6. vOfnf'j_1d2'.dO7.200l at 8 a.m., raiding party consisting of
PW'1 CW3, PW6 & other members proceeded towards
it if Ramakrishna Lodge situate on Subedarchatram Road at
Bangalore. The jeep was stopped at a distance of 200 feet
from Ramakrishna Lodge. {Vi ,
18
24. The evidence of PW], and PW2 that jeep was
a distance from Ramakrishna Lodge,
Road at Bangalore, PW1 and PW2'lWere' lsentlll
Lodge; accused was found infecephtionshall; *after.. seeingr'
PW1, accused took hirn to restajurantn and they _vi;3ere sitting
on chairs in front of sitting on a chair
adjacent to accused from PW2; when
PW2 to wait for some
time;VpV.thereaiteri to a telephone booth
located in also entered telephone booth;
accused' call; at that time, accused
d,ernanded bribe' from PW2; PW2 gave bribe amount to
.A through glass pane was able to watch what
~. Was between PW2 and accused; thereafter PW2
camel-._':out': and gave pre--determi1'1ed signal to PW6, who
= rushed: to the place and held the hands of accused and
".l"recoVered tainted currency notes [bribe amount} from
it possession of accused; as there was gathering of public, PW6
took the accused to a room in the upstairs; the fingers of
f
N _ f-'\/xi «ma: 4
-19
both hands of accused were dipped in two
sodium carbonate solution; the resultantpwaslip
pink colour and the resultant in s:e'p'ar.ate b T
containers and the same were sealed}dthereafterdpaccused'
taken to his office from where:fo'.1r
signatures of PW2 were seized"iron?possessionhof accused
under a mahazar is -i.con'sisten_t_ 'for some minor
discrepancies.' ~ "_- .
25. As: _ evidence of PW6 regarding
registrationgdviof preparations made to trap the
accused and "rea'sons"--~.for not trapping the accused on
1gg1.{.'O"/".e.fZ0O1andvdarrangements made to trap accused on
has not been seriously controverted. The
_ {Police Inspector) about apprehension of
accused from telephone booth is not controverted.
* VNPW6 has deposed;-- at 8 a.m., on 12.07.2001, raiding
'party consisting of PW1, PW2, CW3, led by him reached
Ramakrishna Lodge and jeep was stopped at a distance of
_ ;'
' l:}"'\"'""(£x_I
-- 20 7 7
200 feet from the lodge; PW6 instructed PW2pV.p.t_d--v
amount only if it is demanded by accused;
PW1 to accompany PW2 to see :as"lt'o«wah'lat b T
between accused and PW2.
PW6 has deposed; afte'rl:_llreaching-- tihatram
Road, jeep was stopped of feet from
Ramakrishna Lodge; to the reception
area of the members of raiding
party too}; ir1'::.'d.jtierentltpllaces in the premises of
hotel; at one person {later identified as
accused}.came"nearA'PW2;u'at that time, PW2 who was sitting
in4;reception"' area got up and wished him; accused also
PW2 and accused came to dining hall area of
p the they were followed by PW1; after some time,
accused got up from dining area and entered a telephone
Apboothusituate in the reception hall; PW2 also entered the
l' -mteiephone booth; after 2 or 3 minutes, PW2 came out of
Hltelephone booth and gave pre--determined signal to PW6 by
rolling up his shirt sleeves; PW6, CW3 and other embers of
N .(fi\""'D""V'*£»x*
--2l
raiding party came near PW2; PW2 showed
PW6 that accused has received bribe amountibif
the same from PW2; as
Lokayukta Police surrounded
himself to accused and explained purposeof
informed accused thiatxéhe arrest: asked
accused about his name disclosed the
same. PW6 :qu.e:s't;_i,on€:Adl amount. The
accused ;:i:roduced' right side pocket of his
CV'»l'f_5llVltofv:verify serial numbers and
denorriination notes with reference to
EX.P_._1. CW3" on. verification found serial numbers and
denomination oftainted currency notes tallied with serial
frnumbers denominations of amount mentioned in
l'l'Vhereafter, tainted currency notes were kept in a
cover and it was sealed. The accused was taken to a room in
lodging section. The phenolphthalein test was conducted by
Alsdipflping fingers of both hands of accused in separate bowls
l containing sodium carbonate solution, the resultant Wash
{\:s=,.,,- "Z" Lu, ('«"t.~~€é.«:
22
turned into pink colour and the resultant wash "c.ol1:e'e,ted
in separate bottles and the same were ":lt1.:..V_the'.'_
meanwhile, PW6 asked accused-iifhe gis'4tolgiVe j if
explanation, he may do so. In respon"seA'to the same, "accus.ed
gave his statement, which wasfincorporated in
{EX.P.5]. The accused gave-~ izvritten e§<pla.nat.ibn as per
Ex.P.27. PW6 prepared eg.?_sl;~;:e'tCh of occurrence.
Thereafter, PWB .complet'edl¥t.rap:'mahmar' as per EX.P.5. PW6
and othe5r«';rivF:<:_I15lo_e.rs Zraidpingpiarty proceeded to the office of
accused and collt:Vc'te:d*n:ecess_aryVdocuments, including blank
stamp. papers of face Value of Rs.20/~ each}.
They had been pufrchnlased in the name of PW2. The
ifititesgtiigating Cffic--er (PW6) collected necessary documents
V and trap proceedings. The Investigating Officer
'v'recorded statements of Witnesses. PW6 sent
incrirmnating material to Forensic Science Laboratory. The
lllnvestigating Officer after obtaining necessary sanction to
prosecute accused submitted charge sheet.
-- 23
During cross--examination of PW6, I find preparation
made by PW6 to trap accused has not beenV..Vsferio_us1y
controverted. The presence of PW2 and
Witness] at 8.30 am. or 9 a.m.
not been controverted. The rec.ovefcydA.f§31é
notes in a sum of Rs.4O,OO.OV/'w--.__ufrom' 'possessi'orr_ot_Vacc'us'ed
not controverted. On the has come out
with a version _ 200i," PW2 had
approached him to arra ~ from DWI'
C.Rarne'sh,- a crass; PWD Contractor. When
the accused DW1 told accused that he
would lend a" sum or_ Rs';'i4o,ooo/-- to PW2 on the security of
flheredafter-,~£)W1. lent a sum of Rs/£0,000/-- to PW2
V to return the same Within. a month thereafter.
.'PW'2 didv'V'r:i7oa'tVrepay the loan amount to DW1. Thereafter,
DW 1 pressurising accused to get back his money from
it it PW2. The accused demanded PW2 to repay loan amount to
PW2 told accused that he would bring the loan
H amount of Rs/£0,000/~ to Ramakrishna Lodge on
Iv
24 _
12.07.2001 at 8.30 am. Accordingly,
Ramakrishna Lodge with a sum of Rs.4OJ}GG../i}*V.ar1d .
the same to accused. The accused told
time for arrivai of DW1. Pwg told accused that coujidu
wait any longer. Thereafter.'iaccused-. 'prdceeded to a
telephone booth to phimudtodxgo over to
Ramakrishna Lodge amount. When
accused was" iito PW2 thrusted
tainted pocket of trousers of
apprehended by PW6.
Therefore; to contend there was neither
demand nor acceptance bribe amount. In support of this
'~ Ver:s'i'ori_....paccusedflexarnined DW1~C.RaInesh.
26.;'__ counsel for accused wouid submit that as
per'~..eVid'e1'-ce of PW} {shadow witness), PW1 had not over
heard 'conversation between accused and PW2 in
«Ramakrishna Lodge. There is no evidence to prove that
_,ve_cCused had demanded bribe from PW2. Thereforeg
, f
/1; 4. x" 5*-.-s
25
interested testimony of PW2 that there was
acceptance of bribe by the accused cannot if
27. The learned counsel for
attention to evidence of i3'v\Ipji"~~._to sfubrnitp 1that_f"'PWf has.'
admitted that he could notyoverhearppconversation between
accused and PW2 either in telephone booth.
28. In order it is necessary
to refer trap instructions given by
accuasedfto' atfkamakrishna Lodge between
8.30 or .2001. After first information
was .. lodged upon. '.1 PW6 after making necessary
to trapfvaccused, proceeded to office of accused
shadow witness and other members of
The accused was not in his office. It was learnt
that Vaccused had gone to Ramanagaram. In fact, accused
x called one of his colleagues over phone, when PW2 was
in the office of accused, he spoke to accused who informed PW2
N. .,.,,.&\z"----C>'~"'"'{ gm!
as 26
to meet him near Ramakrishna Lodge at 8.30 a.mm--. .a...m.
on the following day i.e., 12.07.2001.
During cross--examjnation:"o£x "P'.?.V2',..A it,«ha's_ not5be'en T
suggested to PW2 that on xwheri_-.ac*cuse'd:\spboi:e
to PW2, the conversation thaftook j:)}ace--..be_tvifeen'"accuseld
and PW2 related to return c-f'"1o.a_n larnountlallegedly lent by
DWI to PW2 and assnrancev.lgi§ven' to accused to
repay loan 0- ~
fIt"is-- the:fe'vidence of_"Pw"'1 that he was sitting on a
chairln lfront.oi' to the table where accused and
PW2 were"«sitting.._ deposed the conversation taking
p1_a}ceE_b.etweenAAlaccused and PW2 was not clear to him. But
' ;.P"\aV1_ 'couldtnake out that they were talking to each other. In
"the circunfnrstances, though PW1 did not clearly hear
conzzersation between accused and PW2, yet he could make
it » outédernand of bribe by accused. Therefore, evidence of PWI
tcannot be suspected. Thus. We have credible and consistent
f\2.cg""~'9"<é;r
.. 27
evidence in proof of demand and acceptance".
accused.
29. The accused in his examination .=;1nderc--V:.section 3.137. '
Cr.P.C., has filed a Written lsubmissioln.
specifically stated in the ofA'i'«/larch had'
approached accused and 1'eg11.este_d'Vto word to DW1 to
lend a sum of return the same in
the month off"iI3__1'i1 2GU'1..-- Erhe a word to DW1
and DWl_ PW2. PW2 did not
retuitn after lapse of 2 to 3 months, PW2
did not relpaylthe scolded accused stating that on
hi4s§'wr).rds,.V nv_V'1° had lent a sum of Rs.40,000/- to PW2.
"I-tccused demanded PW2 to repay loan amount to
'V submitted by accused that as on the date of
trap, ;»vi;t=,fi he was drinking coffee, PW2 offered the amount
AA payable to DW1. The accused asked PW2 to wait till the
"arrival of DW1. After some time, PW2 told accused that he
could not wait any longer. The accused went to a telephone
booth and contacted DWI over phone. At that
~ 28
followed the accused to t.elephone booth and
amount into right side pocket of trousers*'..f:§f
falsely implicate him.
30. From the evidence of»PW2
accused on 11.07.2001 oVer"'sp:hone "an'd_f_1'=w2 "asked
meet accused at Lodge on the
following day has not Though accused
had filed three pages, he has
not stated' that he would
meet him 'Va.r11_.:"an--12.O7.2OO1 along with a sum of
Rs.40;U{)p(f)/1- to DW1. Therefore, evidence of
PV3/02' regarding"meet;'.ng PW2 and accused at 8.30 a.m. on
in Ramakrishna lodge was at the instance of
. 'accfus.ed.,vVca.iimot be discarded.
31. V.__vD'JV<:lsC.Ramesh has deposed; at the relevant time, he
.1 was ;Class--I PWD Contractor and he had executed works
if worth Rs.30--4O lakh under the supervision of accused. DW1
has deposed; he knew PW2, who was also o he PWD
5 .:
' . ' '£}°r» K/¥--£;'
{\i
--29
Contractors; PW2 approached DW1 for financial"jassistance
at the behest of accused; PW2 had assured'A.':I.;")W
loan by April 2001; PW2 did not :I"E§A15'cl'_'y'< loan eyentv after. 0 j 0
of 2 or 3 months; DWI asked accausedlto see _that
repaid by PW2 as loan :0" P_W"2_a't: tiagedvhehest oi'?
accused; accused insisted PW2 to-repay loanvto DW1; during
first week of July 200'i;'aecusled DWI and asked
him to go oVer:to__Ran1a1{rishna'A.I;g0dge Kapali theatre at
about 9 collect money from PW2;
Dw1L,«ge'ach§:d at about 10 am. on
12.0f;200_l;' nor PW2 was present in the
said place; during afternoon, he came to know that accused
heelitrappedv. ..... .. <
3 'crossmexamination, DWI has deposed; PW2
DW1:f._i_irere not competitors of any work executed by
thenjJ'DW1 has deposed; he had not come in Contact with
prior to the year 2001 and there was no money
Vftransaction between DWI and PW2 prior to 2001; PW2 had
. DW1 did
not approached DWI for any financial assistan
»30
not insist security from PW2 for lending i'inancia1"assistance;
DW1 requested PW2 for repayment of loan. 5.
or 6 times; PW2 had told DW1';:tha_t_hjjr3
amount after receiving payment o'1"g_his billos;*'V'h- didulnotr,
take any coercive steps: it seems that VP".V2'iii'ad':repaid loan
amount during the vmonth_'iof_Sctwteniber DW1 has
admitted that Contractors'doCo{oj:ieratiVelfSo'ciety at Bangalore
would lend niofreyto of the society.
32. order ap;b)_rec.i'ate.'_thecontention of defence and
evidence of .it<is*n_ece_ssa'ry to state that DWI and PW2
were icontractors':httndei' the accused. If PW2 was in
need n1or1'ey_,V"he would have directly contacted DW1. It
{colts E"h:ighly_._improbable that accused had reasons to offer
1 for repayment of loan to DW1 by PW2.
DWI wa's.a7'Class--I PWD contractor, he has admitted to have
Ayexecuted contracts worth of Rs.30--4O lakh under the
"Vst1pferVision of accused. In the circumstances, if DW1 had
'lent a sum of Rs/10,000/-- to PW2, DW1 would have reflected
the same in his books of accounts and income--tax returns
mi fly ' N, Fwy.
fr
A9
._ 31 _
filed by him. DW1 has not produced a scrap of
that he had lent Rs.40,000/-- to PW2 on the
by accused.
33. In the Written statement
that PW2 had brought the to .fepa.y--g1j'¢»_-I DWl ; A
in that connection herrriet };2arnakrish'na Lodge at
8.30 a.m. or 9 a.rn. on 'l"fi'i:sl"st;ateme11t is highly
incredible. has Visited the house
of PW2 thelllhouse of DW1. In the
ci1-cumstance;é, approached the accused to return
the loartamourat; there was no impediment for the
aceu'sed tolask_lPW2 to go to the house of DW1 to repay loan
i'Iie1'efore, the statement made by accused when he
p was e$9.aniin.ed.~v'under section 313 Cr.P.C., about availment of
loan and evidence of DW1 are clear after thoughts to
up Wiggle 1' out of the situation. DW1, who is a C1ass--I PWD
~..Vl'Co.rit1'actor had executed works worth Rs.30«~4O lakh on
glsupervision of accused. In the circurnstances, it looks
probable that DW1 has given false evidence to help accused.
N
~._.flf-"L mwtéx ,
32
Therefore, version put forth by accused through evidence of
DW1 falls to ground. On the other hand, it would the
evidence of PW1, PW2 & PW6 regarding
acceptance of bribe by accused.
The defence version that
Rs.40,000/~ into right sideltlrfiusersl when it
he was talking to DWA__i. over: -iQQk§'ifigginlyqpiinprobable.
The accused was in the
Directorate 0f_'1'.S_€I1'c:i1It'i'11"'?:5} Class--III PWD
Contractor. V V 'in"=--_vtheKcircurnstances, situation of PW2
overpowering the accused to thrust tainted currency notes of
Rs.§40,000/-- int_o right side trouser pocket of accused against
_of«.accused looks highly improbable. It is obvious,
are invented by accused to Wriggle out of the
situati_on.-.
Title version of accused that PW2 was impatient to wait
it gltilliarrival of DWI looks improbable, more particularly in the
xcontext of relative positions of accused and PW2. If PW2 had
borrowed a sum of Rs.40.000/-- at the intervention of
«K3. "'*""""C('"'
33 _
accused and if he had come to repay the loan it
looks improbable that PW2 had betrayed ,to
wait for arrival of DWI. Therefore, the con.t.eifi_fL.;;.on.yAg:fl\
cannot be accepted. The evideneeAAof;_lDY'V'1~ a
sum of Rs.40,000/-- to
from PW2 and without"'=%aintaining
regarding alleged loantransaction caimot bevaccepted.
34. The learned fory'.:a_ccii5f3;¢i1.llféglying on decisions
reported of Tsubramanian
Vsfstate 1985 SC 79 {in the case of Khilli
Ram 2005 scc {C11} 151 {in the case
gfsrate 1Vs.!:T.Venkateswara Rao) and (2009) 3 sec
case of C.M.Girish Babu Vs. CBI, Cochin, High
would submit that in the absence of proof of
iudemandv and acceptance of illegal gratification, merely based
'A .«upori recovery of tainted currency notes from his possession,
if "accused cannot be held guilty. _ "I
("\M"_ "'\..\_E/LL.~--
--- 34
35. The learned counsel for accused would submit that
evidence of PW2 regarding demand and acceptancedo_es_ not
find corroboration from the evidence of
learned trial Judge was not justified in
guilty of aforestated offences.
In a decision reported»En:l2OO6).V'l case' i
of T.Subramanian Vs. State of-~Tctmil";'\{adu).t the complainant
was due in arrears of 'rent to fthve temple and accused had
reasons to acc_:ep_t the'ar11ou.nt,tfromV- complainant towards
arrears of _» d'
In AIR 1985 SC 79 (in the case of
Khtlllt"Ram Vs-,l_VSVtate: of Rcyfasthan}, the complainant had
Constable attached to the police station
..o_nf.dernand, paid him some money by way of bribe
to""exped'ite:'s'ubmission of chargesheet. The Supreme Court
has recorded a finding that evidence of the panchas was not
if =.Vava.illable to support the prosecution case. There were
V. ,....discrepancies in many material aspects. The place and the
f\,RC~. '
3
a
/\
35
had official favour to seek from accused, so also;'accus--e_d31ad
official favour to discharge in favour of
PW1, PW2 8: PW6 that as per
accused, PW2 had come Ramakrisl*in_a" Lodgefrat::8:30:"; a..'1n..,"x'
on 12.07.2001, accordingly}'raiding PW(i
proceeded to suffer from
discrepancies. The accurfied as an Assistant
Engineer his office is
situate meeting of accused
and at 8.30 a.m., was neither
accidental nor It was pre--arrar1gement made
at the insta_1:ice..of accused. If accused had not demanded
. p b'rilje§Fhe't~ wouldvffnotv have asked PW2 to meet him at the
replace and time. Therefore, place of meeting and
Aarfrangenieiift of meeting of PW2 and accused at the instance
of accused itself is a strong incriminating piece of evidence
x _ag"ainst accused. The story put forth by accused that he had
arranged loan from DWI to PW2 and DW1 lent loan to PW2
on the security of accused and it was responsibility of
J\).<3£'jL.x_.pLx,\_Q.-\_.
37 -
accused to seek repayment of loan by
unnatural. If DWI had lent loan to
certainly maintained records. I :P'V''i[»2':l.to '
each other. They had visitedcthe of a,
was no need for either to Lodge for
repayment of loan. .'l'i'i.e_re Evidence to
prove so called loan of accused as
a public conduct that he
had interfiiened. DW1 to PW2, who in
fact werec'*.volrj'~,<ing::fa's c"ontractors"'under his supervision.
36. Thus on o\lferall:_4'a--p_preciation of evidence, I find that
prosecution" has proved that PW2 had executed certain items
of"lvnlon.«."itenider worlislin the Government Cocoon Market at
Chlfltafilglrilll =at"_i.the instance of accused and accused was
expected.ltoisubmit a report to prepare Work order, in that
connection, accused demanded illegal gratification from
The prosecution has proved that on 12.07.2001 at
l 0:30 am. or 9.00 a.m. accused demanded and accepted
illegal gratification of Rs.40,000/~ from PW2 in a telephone
'"k-- awfili
__ 33 _
booth situate in Ramakrishna lodge as a motive orreW_a1=d to
take steps for issuance of work order and
of works executed by PW2. _
37. The learned trial Judge
evidence has held accused offeiices.undderusections '7 V
& 13{1){d]{ii), punishiabie tinder.:':€se:ct.i_on di3{2) the Act.
Therefore, I do not interfere with the
impugned judgment V_ answer points 2 to 4
d L V
Regarding sentemi
38. has sentenced accused to
Lirijdfifgo rigorous imprisonment for a period of one year and
» ifipay _Rs.20,000/~, in default to undergo rigorous
di_msprisoI1men't. for a period of three months for an offence
. section 7 of the Act and to undergo rigorous
V " .cimprisonment for a period of two years and pay a fine of
'1°1<é.2o,o00/ --, in defauit to undergo rigorous imprisonment
T for a period of six months for an offence under section
13{1](d][ii], punishable under section 13(2) of the 'ct.
5
pt"¥Wc'£\'
;anlE
imposed by the trial Court.
N1 39 :17
39. It is seen an offence under section 7 is
punishable with imprisonment, which shall be
six months but which may extendto fiVe_years shall also i T
be liable to fine. An offence ».
punishable under section 13'{2jV""of the Act'
imprisonment for a stern: wl1i'c1iVl_s'ha;ll. be not-less than one
year but which may e:'kte.n'd"t-o and shall also be
liable 7}'
_ regardv_ tfofminimuni sentence provided under
'f if Act and the"a'osence of extenuating factors in favour of
sentence of imprisonment imposed by the
'trial C_oi,i1*i1_. is not severe. Therefore, I maintain the sentence
E i
- z
6" I
L '\-- "-- £'\ 4
41. In the result, I pass the following-
ORDER
The appeal is dismissed. The confirmed.