Bangalore District Court
State Of Karnataka Represented By vs C. Kumara S/O K. Chennaswamy on 8 August, 2017
IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU. (CCH-24)
Dated this the 8th day of August, 2017
PRESENT:
Shri GOPAL, B.Com.LL.B.,
XXIII Additional City Civil and Sessions Judge and
Special Judge,
Bengaluru Urban District, Bengaluru
SPL.C.C. NO.111/2013
Complainant: State of Karnataka represented by
Police Inspector, Karnataka
Lokayuktha Police Wing City Division,
Bengaluru.
(By Sri D. Ramesh Babu, Public
Prosecutor)
V/s
Accused: 1. C. Kumara S/o K. Chennaswamy,
Aged about 48 years, Assistant Drugs
Controller, Drugs Control
Department, Palace Road, Bengaluru.
R/at No.7/1, 5th Cross, Nagappa
Street, Palace Guttahalli, Bengaluru.
2. Smt. Vishalakshi V, W/o Mahesha,
Drugs Inspector, Drugs Control
Department, Palace Road, Bengaluru.
R/at No.49, S.O.S, Balagrama,
2 Spl.C.C.No.111/2013
Bannerghatta Road, S.O.S. Post,
Bengaluru - 76.
3. Satya B. S/o Basavegowda, Aged
about 24 years, R/at No.26, 1st Main
Road, Kalyana Nagara, T. Dasarahalli,
Bengaluru - 57.
(By Sri P.N. Hegde for A.1, Sri C.G.
Sundar fur A.2 and Sri I.S. Pramod
Chandra for A.3, Advocates)
JUDGMENT
1. Police Inspector, Karnataka Lokayuktha, City Division, Bengaluru has submitted charge sheet against Nos.1 to 3 for the offences punishable under section 7, 8, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988.
2. Case of the prosecution in brief is that the accused Nos.1 and 2 being public servants working as Assistant Drugs Controller and Drugs Inspector respectively in the office of the Drugs Control Department, Bengaluru. Accused No.3 is the private individual. CW.1 Dr.K.N. Gopinath being Doctor and running a medical shop 3 Spl.C.C.No.111/2013 under the name and style "Dhanalakshmi Medicals and General Stores" at HSR Layout, Hosapalya Main Road, Bengaluru. Accused NJos.1 and 2 visited his medical stores once in three months and demanded mamool (bribe) of Rs.20,000/- and threatened that he has not maintained medical stores properly and to cancel the licence of the medical stores. On 31.7.2012 and 5.11.2012, accused Nos.1 and 2 have demanded mamool from him. When he failed to pay the bribe, they have issued notice and gave torture to him unnecessarily. On 16.11.2012, they again visited the medical stores of CW.1 and threatened him to cancel his medical stores licence and issued notice calling for explanation about incorrectly maintaining the medical stores. On 30.11.2012 again accused Nos.1 and 2 pestering for bribe amount from him, for which he contacted another medical stores owner by name Dharmendra Amba Bhavani who is CW.5. He has also told him that the accused Nos.1 and 2 have given 4 Spl.C.C.No.111/2013 trouble to him and pestering for bribe from him for running the medical stores in HSR Layout. On 3.12.2012, CW.1 Dr. K.N. Gopinath, CW.5 Dharmendra Amba Bhavani went to the office of the accused Nos.1 and 2 and approached the second accused Vishalakshi. CW.5 tender of Rs.3,000/- to her, she demanded Rs.5,000/- bribe from him. On 5.12.2012 at about 12.00 p.m., CW.1 went to the office of the accused and when he gave explanation to the notice issued by the accused Nos.1 and 2, first accused made a gesture to pay Rs.20,000/- as illegal gratification and instructed to give explanation to their notice and the same has been recorded in the pen camera. Unwilling to pay bribe amount, he approached Lokayuktha police station and lodged a report with CW.17 Police Inspector on 5.12.2012.
3. It is further case of the prosecution that CW.17 Police Inspector pursuant to the report of CW.1 registered 5 Spl.C.C.No.111/2013 the case in Cr.No.86/2012 for the offences punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act against the accused Nos.1 and 2. A trap was organized, secured official witnesses CW.2 Harish and CW.3 Girish as trap witnesses. Cw.1 produced one currency notes of the denomination of Rs.1,000/- and 38 currency notes of the denomination of Rs.500/- each totally Rs.20,000/- before CWs.2, 3 and CW.17. Numbers of the said currency notes have been noted on a sheet of paper separately. Thereafter, phenolphthalein powder was applied to the currency notes and the same was kept on the left side shirt pocket of CW.1 Dr. Gopinath through CW.3 Girish. Thereafter, sodium carbonate solution was prepared and both the hands of CW.3 were immersed in the solution which turned pink colour and the same has been kept in a separate bottle. CW.17, Investigating Officer Ravishankar gave instructions to CW.1 Dr. Gopinath to pay the tainted 6 Spl.C.C.No.111/2013 currency notes to the accused on demand and instructed CW.16 WPC Smt. Sowmnya to follow CW.1 and after giving the tainted currency notes to the accused give a phone call as a signal and instructed CW.2 Harish to stand on the main door of the chamber of the office of the accused. After following the due procedures, CW.17 Investigating Officer drew the pre- trap mahazar in the Lokayuktha police Station.
4. Thereafter, CW.1 Dr. Gopinath, CWs.2 and 3 Harish and Girish, CW.5, CW.17 Investigating Officer and his raiding staff went to the office of the accused and stopped their vehicle in front of a Lassi Bar. Again CW.17 gave instructions to CWs.1 to 3 and CW.16 WPC. CW.17 has given button camera to CW.1. As per the instructions of CW.17 Investigating Officer, CW.1 and CW.16 WPC Smt. Sowmya went inside the chamber of the first accused and CW.2 Harish was standing on the main door of the chamber of the 7 Spl.C.C.No.111/2013 accused. Thereafter, CW.1 approached the first accused and when he proceeded to give reply to the notice, first accused made a gesture to give amount to the third accused who is in the chamber of the first accused. As per his instructions, he gave the tainted currency notes to the third accused who counted the same and kept in his pant pocket and went outside. Immediately, CW.16 WPC Smt. Sowmya went outside and gave pre-arranged signal by making phone call to CW.17. CW.17 and his raiding staff and witnesses came inside the chamber of the first accused. CW.1 told him that the third accused has received the tainted currency notes on the instructions of the first accused. CW.17 showed his identity card to the first accused and introduced himself as Lokayuktha police. Thereafter, the third accused was secured and brought to the chamber of the first accused and his both hands were immersed in the solution which turned pink colour and the same has been kept in separate bottle. 8 Spl.C.C.No.111/2013 CW.17 asked the third accused about the tainted currency notes for which he told him that the tainted amount was kept in the right side pant pocket. On the instructions of CW.17, CW.2 Harish took the amount from the pant pocket of the third accused and counted and tallied the number of the currency notes recorded on a sheet of paper in the Lokayuktha police station and after tallying the said currency notes of Rs.20,000/- was kept in a cover and seized by the Investigating Officer CW.17. After search, he found Rs.45,000/- from the pant pocket of the third accused. The said amount was also seized in a separate cover. CW.17 prepared rough sketch in the chamber of the first accused. The second accused Smt. Vishalakshi was in the room of the first accused. CW.1 told CW.16 that the second accused was also pestering for bribe from him and received Rs.20,000/- forcibly from him and also Rs.5,000/- from CW.5 Dharmendra Amba Bhavani. The first accused has produced the records 9 Spl.C.C.No.111/2013 pertaining to CW.1. CW.17 has taken the attendance certificate of the accused persons for the month of December in the office of the accused and they returned to police station along with the accused persons as there was inconvenience to draw mahazar in the office. After returning to Lokayuktha police station, a separate pant was arranged to the third accused and his pant was recovered and kept it in a cover and sealed it. On enquiry, accused Nos.1 and 2 have given their explanations. Higher Officer of the accused has recognized the voice of the accused persons and gave his statement to CW.17. Thereafter, CW.17 drew trap mahazar and copy of the trap mahazar was given to the accused Nos.1 to 3.
5. It is further case of the prosecution that the accused Nos.1 to 3 were produced before the home office on 5.12.2012 and they were remanded to judicial custody. Later, accused Nos.1 to 3 were released on bail vide 10 Spl.C.C.No.111/2013 order dated 13.12.2012. The Investigating Officer recorded the statement of the witnesses and obtained sanction order to prosecute the accused Nos.1 and 2 and thereafter laid the charge sheet for the alleged offences against the accused Nos.1 to 3.
6. The accused Nos.1 to 3 were secured and supplied copies of the charge sheet as contemplated under section 207 Cr.P.C. and the case was posted to hear before charge. On 6.3.2014 the third accused filed an application under section 451 Cr.P.C. to release the amount of Rs.45,000/- in his favour. On 20.3.2014 accused No.2 filed an application under section 227 Cr.P.C. seeking her discharge from the alleged offences. Both the said applications came to be rejected on merits vide order dated 2.9.2014. In the meantime, the second accused filed Crl. Petition before the Hon'ble High Court of Karnataka in Crl. Petition No.4977/2013 to quash the proceedings in 11 Spl.C.C.No.111/2013 Spl.C.C.No.111/2013. The accused No.2 got the said criminal petition withdrawn by filing memo before the Hon'ble High Court of Karnataka. Thereafter, on 20.7.2015 my learned predecessor framed the charge for the offences 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act against accused Nos.1 and 2 and framed charge for the offence under section 8 of the Prevention of Corruption Act against accused No.3 and it was read over and explained to the accused persons who pleaded not guilty and claimed to be tried.
7. The prosecution to prove the guilt against the accused examined seven witnesses as PWs.1 to 7 and got marked documents at Exs.P.1 to P.28 and MOs.1 to 14 and 14(a). After closure of the prosecution side, the accused Nos.1 to 3 were separately examined under section 313 Cr.P.C. wherein they have denied the incriminating circumstances appeared against them as 12 Spl.C.C.No.111/2013 false and they have not chosen to adduce evidence in support of their defence.
8. The following points arise for my consideration: are,
1. Whether the prosecution proves that the accused Nos.1 and 2 being public servants working as Assistant Drugs Controller and Drugs Inspector, Drugs Control Department, Palace Road, Bengaluru and third accused being private person, prior to 5.12.2012 accused Nos.1 and 2 visited 'Dhanalakshmi Medical and General Stores' Hosapalya Main Road, HSR Layout, Bengaluru run by PW.5/CW.1 Dr. Gopinath and demanded illegal gratification and issued three show cause notices to CW.1 with regard to the said medical stores and on 5.12.2012 accused No.1 has demanded illegal gratification and instructed to pay Rs.20,000/- bribe to the third accused who received and counted and kept it in 13 Spl.C.C.No.111/2013 his pant pocket to extend official favour to CW.1 and thereby accused Nos.1 and 2 have committed the offence punishable under section 7 of the Prevention of Corruption Act ?
2. Whether the prosecution proves that on the said date, time and place the accused Nos.1 and 2 being public servants working as Assistant Drugs Controller and Drugs Inspector respectively have abused their official position as public servants on 5.12.2012 by receiving pecuniary advantage of Rs.20,000/- from PW.5/CW.1 Dr. K.N. Gopinath by instructing to pay the amount to accused No.3 who received the same, without public interest and thereby accused Nos.1 and 2 have committed the offence punishable under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 ?
14 Spl.C.C.No.111/2013
3. Whether the prosecution proves that on the said date, time and place the accused Nos.3 in the chamber of accused No.1 has received Rs.20,000/-
from CW.1 Dr. Gopinath on the instructions of the first accused as a motive or reward for inducing accused No.1 to exercise official functions of accused Nos.1 and 2 to show official functions and to show official favour to PW.5/CW.1 Dr. Gopinath and thereby accused No.3 has committed the offence punishable under section 8 of the Prevention of Corruption Act ?
4. What order ?
9. Having heard and perused the evidence on record, my findings on the above points are as under:
Point Nos.1 and 2: Partly in the affirmative.
(Affirmative against
accused No.1 and
negative against
accused No.2.)
15 Spl.C.C.No.111/2013
Point No.3: In the affirmative.
Point No.4: As per final order, for the following:
REASONS
10. Point Nos.1, 2 and 3: Case of the prosecution is that CW.1/PW.5 Dr. Gopinath was running Pooja Hospital at Hosapalya Main Road, HSR Layout, Bengaluru and also running medical stores in the name and style 'Dhanalakshmi Medical and General Stores'. CW.5/PW.4 Dharmendra Ambavani is also running medical stores in Hosapalya Main Road, HSR Layout, Bengaluru. In Ex.P.15, pages 62, 64 and 65 are the certificates and retail licence issued to Dhanalakshmi Medical and General Stores which belongs to PW.5 Dr. Gopinath, produced by the prosecution. Undisputed fact is that the accused Nos.1 and 2 being Assistant Drugs Controller and Drugs Inspector respectively in the office of the Drugs Control Department, Palace Road, Bengaluru. Accused No.3 is a private person. 16 Spl.C.C.No.111/2013 Ex.P.24 proves the occupation and working place of accused Nos.1 and 2 in the office of the Drugs Control Department, Palace Road, Bengaluru. Running of Pooja Hospital and medical stores by PW.5 Dr. Gopinath and running medical stores by PW.4 Dharmendra Ambavani in Hosapalya Main Road, HSR Layout, Bengaluru and occupation and working place of accused Nos.1 and 2 are not in dispute.
11. According to the prosecution, accused Nos.1 and 2 being Assistant Drugs Controller and Drugs Inspector respectively were frequently visiting the medical stores of PW.5 Dr. Gopinath and pestering for bribe from him and threatened to cancel the licence if he failed to pay bribe amount once in three months at Rs.20,000/- as mamool and issued show cause notice stating that the medical stores has not been properly maintained. On 5.12.2017, CW.1/PW.5 Dr. Gopinath approached the first 17 Spl.C.C.No.111/2013 accused. When PW.5 proceeded to give explanation to the show cause notice, accused No.1 made a gesture to pay Rs.20,000/- as bribe. Unwilling to pay the bribe amount, he approached the Lokayuktha police and gave a report to PW.6 Investigating Officer. Accused Nos.1 and 3 were caught red handed while demanding and accepting bribe amount of Rs.20,000/- on 5.12.2012 in the office of the Drugs Controller Department, Palace Road, Bengaluru. Defence of the accused persons are denial of the case of the prosecution.
12. Before going to decide the merits of the case, let me discuss the competency and validity of the sanction order to prosecute the accused Nos.1 and 2 for the alleged offences alleged under the Prevention of Corruption Act, 1988. Question of sanction to prosecute the accused No.3 does not arise as he was a private person. Ex.P.7 is the sanction order dated 18 Spl.C.C.No.111/2013 3.5.2013 issued by PW.2 Smt. K.N. Hariniyamma who was the Under Secretary to the Government of Karnataka. She deposed that on 7.3.2013 she received a letter from the Additional Director General of Police seeking for issuance of sanction order to prosecute the accused Nos.1 and 2 along with the prosecution papers such as FIR, complaint, pre trap mahazar, trap mahazar, sketch, statements of witnesses and the records pertaining to the complainant and the explanation of the accused persons. The said record has been placed before the Chief Secretary and then to Joint Secretary, thereafter to Additional Secretary, then to Section Officer and then came to her. The said officer in the section has verified the records and made a note. After preparing the draft, it was sent to the Joint Secretary, then Chief Secretary who after verifying the same, placed before the concerned Minister who accorded sanction to prosecute the accused Nos.1 and 2. After receipt of the record, PW.2 19 Spl.C.C.No.111/2013 issued sanction order at Ex.P.7 in the name of the Governor of Karnataka. It is elicited that she and the Section Officer jointly prepared the draft sanction order. She admits that there is no mention about verification of pre trap and post trap mahazar in Ex.P.7. She admits that in the note sheet, concerned Minister has not reduced it into writing with regard to issuance of sanction order. Accused persons have not disputed the competency of the sanction order issued by PW.2 on behalf of the Government in the name of the governor to prosecute the accused Nos.1 and 2 for the alleged offences. Merely because the concerned Minister has not reduced into writing specifically while issuing sanction order, it cannot be said that the concerned Minister or any other officers have not verified the prosecution papers. She clearly deposed that the Chief Secretary, Additional Secretary and Joint Secretary and the concerned minister have made a note in the tippani and finally by putting signature by 20 Spl.C.C.No.111/2013 the concerned Minister to issue sanction order to prosecute the accused, she issued the sanction order at Ex.P.7. There is no irregularity or illegality elicited by the accused persons from the mouth of PW.2 to prove that the sanction order at Ex.P.7 is invalid sanction order.
13. I need to note that after trap was laid, accused Nos.1 and 2 were transferred from their original place of working at Palace Guttahalli, Bengaluru. In the decision in L. Narayanaswamy V/s State of Karnataka dated 6.9.2016 in Crl. Appeal No.721/2016 wherein their Lordships of the Hon'ble Supreme Court of India have held that no sanction order is necessary when the accused persons in consequent to transfer from one place to another place after laiding a trap. On perusal of the evidence of PW.2, I do not find any irregularity or illegality or lapses on the part of PW.2 while issuing sanction order 21 Spl.C.C.No.111/2013 at Ex.P.7. Under these circumstances, I hold that the prosecution has proved the sanction order at Ex.P.7 issued by PW.2 in the name of Governor of Karnataka to prosecute against the accused Nos.1 and 2 is a valid sanction.
14. Now the point that arises for my consideration is whether the accused persons have demanded illegal gratification from the complainant and they have voluntarily accepted the same to do official favour. It is well settled law that demand and acceptance of amount as illegal gratification is sine qua non for constituting the offence under the Act. In the decision in (2017) 1 Supreme Court Cases (Cri) page 317 in Mukhtiar Singh V/s State of Punjab, their Lordships have held as under:
" Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988 - Ss.7 and 13(1)(d) 22 Spl.C.C.No.111/2013 read with section 13(2) - Illegal gratification - Proof of demand and voluntary acceptance of - Sine qua non for conviction under Ss.7 and 13(1)(d) r/w S. 13(2). Aforementioned twin requirements of demand and acceptance of illegal gratification - Proved against accused on basis of evidence adduced by prosecution, beyond reasonable doubt."
15. In the decision in (2014) 4 SCC (Cri) page 136 in State of Punjab V/s Madan Mohan Lal Verma, their Lordships of the Hon'ble Supreme Court of India have held in para 11 as under:
" The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe.23 Spl.C.C.No.111/2013
Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution."24 Spl.C.C.No.111/2013
16. In view of the said decision of the Hon'ble Supreme Court the paramount consideration is that the prosecution has to prove the demand and acceptance of illegal gratification from the complainant to constitute an offence under section 7 of the Prevention of Corruption Act. It is well settled law that there is a statutory presumption under section 20 of the Act which requires to be disloged by the accused by brining some evidence on record either directly or circumstantial that the money was accepted other than the motive or reward as stipulated under section 7 of the Act. It is obligatory on the part of the Court to consider the explanation offered by the accused under section 20 of the Act and consideration of the explanation has to be on the anvil of preponderance of probabilities.
17. The prosecution to prove the demand and voluntary acceptance of illegal gratification has relied 25 Spl.C.C.No.111/2013 upon the evidence of PW.5 complainant Dr. Gopinath, PW.1 official witness Harish, PW.7 WPC Smt. Sowmya, PW.6 Police Inspector K. Ravishankar. Ex.P.9 is the report lodged by PW.5 against the accused Nos.1 and 2 with regard to pestering for illegal gratification by the accused Nos.1 and 2. On reading of Ex.P.9 discloses that he was running Pooja Hospital along with Dhanalakshmi Medical and General Stores at Hosapalya Main Road, HSR Layout, Bengaluru. Six months prior to lodging of report to Lokayuktha police, accused Nos.1 and 2 were frequently visiting his medical stores and demanding 'maamool' i.e., bribe i.e., Rs.25,000/- once in three months and threatened that if he fails to pay maamool once in three months, they will going to cancel the licence of medical stores and issue show cause notice and totally three show cause notices were issued stating that he has not properly maintained the medicals in his store. The complaint further reveals that on 30.11.2012 he contacted PW.4 Dharmendra 26 Spl.C.C.No.111/2013 Ambavani who is running medical stores under the name and style "Maa Medicals' in the locality. He told him that the accused Nos.1 and 2 have pestering for bribe from him. Both PW.5 Dr. Gopinath and PW.4 Dharmendra Ambavani went to the office of the accused on 3.12.2012 and approached the second accused Vishalakshi and when PW.5 went to pay amount of Rs.3,000/-, she demanded Rs.5,000/- stating that she is having commitment. Then PW.5 paid an amount of Rs.5,000/- and instructed to keep the same in his bag and received the same. On 5.12.2012 at about 12.00 noon PW.5 Dr. Gopinath went to the office of the accused and approached first accused and when he attempted to give explanation for his show cause notice, he made a gesture to pay Rs.20,000/- bribe and also gave information the manner in which the reply to his show cause notice. The said conversation has been recorded in his pen camera and then the contents are transferred to CD 27 Spl.C.C.No.111/2013 and approached the Lokayuktha police station on 5.12.2012 and lodged report at Ex.P.9 with PW.6 Police Inspector of Lokayuktha police station.
18. Pursuant to Ex.P.9 report of PW.5, PW.6 Police Inspector registered the case in Cr.No.86/2012 for the offences punishable under section 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. A trap was organized and secured official witnesses PW.1 Harish and CW.3 Girish to act as trap witnesses. PW.4 Dharmendra Ambavani also accompanied PW.5 at the time of lodging report to PW.6. PW.5 produced one currency note of denomination of Rs.1,000/- and 38 currency notes of denomination of Rs.500/- each, totally Rs.20,000/- before PW.6, PW.1, PW.4 and PW.7. Thereafter, numbers of the currency notes have been recorded on a sheet of paper separately as per Ex.P.1. Phenolphthalein powder was applied to the currency notes and the said currency notes were kept 28 Spl.C.C.No.111/2013 in the shirt pocket of PW.5 Dr. Gopinath through CW.3 Girish. Thereafter, his hands were washed with sodium carbonate solution which turned pink colour. After following due procedure PW.6, the Investigating Officer drew pre trap mahazar Ex.P.2 on 5.12.2012.
19. PW.5 Dr. Gopinath who is the complainant, PW.1 Harish, eye witness and PW.6 Investigating Officer and PW.7 WPC Sowmya stated to be shadow witness have deposed about the conduct of Ex.P.2 pre trap mahazar after following due procedure by PW.6 in the Lokayuktha police station. The conduct of Ex.P.2 pre trap mahazar is not disputed by the accused persons in the course of the cross-examination of the prosecution witnesses as well as in the course of their arguments. Thus, the prosecution has provedEx.P.2 pre trap mahazar conducted by PW.6 in the presence of PWs. 1,5, 7 and CW.3 Girish in the Lokayuktha police station.
29 Spl.C.C.No.111/2013
20. PW.5 Dr. Gopinath complainant has deposed that at the time of pre-trap mahazar PW.6 instructed PW.7 WPC Smt. Sowmya to accompany PW.5 Gopinath and after giving tainted currency notes to the accused, give signal by giving missed call to PW.6 Investigating Officer and instructed PW.1 Harish to follow PW.1 and PW.7 and observe by standing near the door of the chamber of the accused. Accordingly, PW.1, Harish, PW.5 Dr. Gopinath, PW.4 Dharmendra Ambavani, PW.7 WPC Sowmya, PW.6 Investigating Officer and his raiding staff went to the office of the accused situated at Palace Road, Bengaluru. They have parked their vehicle in front of Lassi Bar situated in front of the office of the accused. PW.6 again gave instructions to them. PW.5 Dr. Gopinath, PW.7 Smt. Sowmya who is stated to act as sister of PW.5 in the office of the accused, went inside the chamber of the accused No.1. PW.1 Harish followed PW.5. PW.1 stood on the door of the chamber of the accused. When PW.5 Dr. 30 Spl.C.C.No.111/2013 Gopinath proceeded to give explanation to the show cause notice, accused No.1 made a gesture through his hand to pay bribe to third accused Sathya who was in the chamber of the first accused. On the instructions of the accused No.1 PW.5 gave the tainted currency notes to accused No.3 who received, counted and kept the same on his right side hip pant pocket. PW.7 went outside the chamber of the accused No.1 and gave pre-arranged signal. Immediately, PW.6 and his raiding staff came inside the chamber of the accused No.1 and learnt that the tainted currency notes is with the third accused who was in another room. He was called to the chamber of the first accused and questioned about the tainted currency notes. He states that on the instructions of the accused No.1 he received the tainted currency notes and kept those notes in the hip pocket of his pant. Both hands of the third accused has been immersed in the solution which turned pink colour and the said solution was kept in a 31 Spl.C.C.No.111/2013 separate bottle and it was seized by PW.6. On the instructions of PW.6 the Investigating Officer, CW.3 Girish took the amount from the pant pocket of the third accused, counted and tallied the said currency notes with the numbers entered on a sheet of paper. Thereafter, the tainted currency notes has been seized by the Investigating Officer. Then returned to the police station along with the accused persons and separate pant was arrange4d to the accused No.3 and the pant was removed and seized in a cover. PW.6 summoned the officer of the accused Nos.1 and 2 who recognized the voice of the accused Nos.1 and 2 and given his statement to PW.6. On being search, found extra Rs.45,000/- from the third accused and the same was also seized by PW.6. On enquiry, accused Nos.1 to 3 have given their explanations as per Ex.P.18 to
20. After following due procedure, PW.6 drew trap mahazar as per Ex.P.4 in the Lokayuktha police station. 32 Spl.C.C.No.111/2013
21. As per the oral evidence of PW.1 when he tendered his explanation to the show cause notice of the accused No.1, he made a gesture through hand to give bribe to third accused who was in his chamber. Accordingly, on his instructions, he paid the tainted currency notes through third accused who received, counted and kept it on the hip pocket of his pant. PW.5 in para 4 of his chief examination has stated that he and PW.7 went inside the chamber of the first accused and gave tainted currency notes of Rs.20,000/-, then the first accused received the said amount and gave it to one small boy who was inside the chamber. The said boy was not in the Court as an accused. Lokayuktha police have seized the tainted currency notes from the said boy who was in the chamber. He states that he has not paid the amount to the second accused who visited his clinic and issued show cause notice to him. PW.5 was treated hostile witness deposed against prosecution. In the course of 33 Spl.C.C.No.111/2013 the cross-examination made by the prosecution, he clearly admitted about the manner in which the payment of bribe was received by the first accused and on his instructions, he paid the tainted currency notes to the accused No.3 who received, counted and kept on the hip pocket of his pant. In the course of he cross-examination by the accused No.1, he admits that Dhanalakshmi Medicals and General Stores, licence stands in his name. The licence was taken for 4-5 years. The accused has not issued notice for renewal of licence of medical stores. He states that he has not received the notice shown by the accused in page 68 of the notice. He admits that the accused has issued three notices since 2009 stating that he has violated the rules for maintaining the medical stores. He has not given explanation to the accused He admits that he contacted PW.4 Dharmendra Ambavani and discussed with regard to lodging of report to the Lokayuktha police station against the accused for bribe of 34 Spl.C.C.No.111/2013 Rs.2000/- once in three months. He admits that Ex.P.9 report was got it typed in the Lokayuktha police station. He admits that he and PW.4 jointly lodged report at Ex.P.9. Lokayuktha police have not given instrument to him before going to the chamber of the accused. He denied the fact that the accused has not demanded bribe in his chamber. He admits that in the chamber of the first accused, third accused was also in the chamber of the first accused. In para 32 of his cross-examination, he admits that there is no pendency of work with the first accused at the time of lodging report Ex.P.9 to the Lokayuktha police. He denied the fact that he has afraid about the closure of his medical stores on account of giving repeated notices by the accused Nos.1 and 2.
22. It is elicited by the second accused that he has not paid the amount to the second accused on the day of alleged trap. The second accused has given 35 Spl.C.C.No.111/2013 repeated number of notices to him since 2009. He denied the fact that the second accused was not working prior to lodging of the report. He admits that the second accused has not demanded amount from him. PW.5 is deposing that he says first time in the court that the second accused has received Rs.2,000/- from him by visiting his medical stores.
23. The third accused has elicited that he does not know the third accused prior to lodging of Ex.P.9 report to the Lokayuktha police. He and PW.7 WPC Smt. Sowmya were in the chamber of the first accused. He states that when he went to the chamber of the accused, accused No.1 was alone in his chamber. He denied the suggestion that the third accused came to the chamber of the first accused from another room. He further states that third accused was also in the chamber of the accused when he and PW.7 entered the chamber of the first accused. He 36 Spl.C.C.No.111/2013 denied the fact that he forcibly thrusted the tainted currency notes into the pant pocket of the third accused when he was proceeding to go outside the chamber of the first accused. He admits that at the time of giving signal, the third accused went away to another room when PW.7 was giving signal to the Lokayuktha police.
24. From the evidence of PW.1 proves that when he entered the chamber of the first accused and proceeded to give explanation to the notice of the first accused, he made a gesture by hand to pay bribe amount to the third accused who was in his chamber. On his instructions, PW.5 Dr. Gopinath paid the tainted currency notes to the third accused who received, counted and kept it on the hip pocket of his pant. PW.5 clearly admits that the second accused has not demanded money from him nor he paid the amount to her in the course of cross-examination. Accused Nos.1 37 Spl.C.C.No.111/2013 and 3 have not denied the seizure of tainted currency notes from the pant pocket of accused No.3 in the office of the first accused and his both hands were immersed in the solution prior to the seizure of currency notes and the same has been kept in a separate bottle and seized. Thus, issuance of repeated notices to PW.5 with regard to his medical stores has been admitted by the accused persons. PW.5 himself has produced notices issued by the accused No.1 at Ex.P.10 and 11 dated 16.11.2012 and 5.11.2012 along with the report given to the Lokayuktha police. The accused persons themselves admitted that accused Nos.1 and 2 have given repeated notices to PW.5 for not properly maintaining the medical stores and to cancel the licence. PW.5 has not given explanation to the show cause notice issued by the accused Nos.1 and 2. Except bare denial by the first accused, nothing has been elicited with regard to the demand of bribe by the first accused in his chamber. Thus, the 38 Spl.C.C.No.111/2013 evidence of PW.1 clearly proves that on the demand of first accused and on his instructions, he paid the tainted currency notes to the third accused who received and kept it on the hip pocket of his pant.
25. In support of the evidence of PW.5 to prove the demand and voluntary acceptance of illegal gratification by the first accused, the prosecution has relied upon the oral evidence of WPC PW.7 Smt. Sowmya who deposed about the conduct of Ex.P.2 pre trap mahazar in the Lokayuktha police station after following due procedure. She deposed that PW.6 Investigating Officer has instructed her to accompany with PW.5 Dr. Gopinath as his sister and instructed PW.1 Harish to follow her and PW.5 and watch by standing near the door of the chamber of the accused. In para 5 of her chief examination, she specifically deposed that she and PW.5 went inside the chamber of the first accused who asked PW.5 about bringing of 39 Spl.C.C.No.111/2013 purchase and sales bills. He told him that he will produce it on the next day morning. Accused No.1 also told him to produce the bills along with the explanation to the notice. When PW.1 proceeded to pay money, one person who is the third accused came with file and stood on the right side of the first accused. The first accused made a gesture to PW.5 to pay money to the third accused and asked about her for which he told that she is his sister and she came for registration. The third accused has received the amount of Rs.20,000/- and kept it on the right side hip pocket of his pant and went outside along with the file. Further, she deposed about the seizure of tainted currency notes from accused No.3 by PW.6 in the presence of the witnesses. It is elicited that the alleged gesture made by the first accused for paying money to the accused No.3 has not been stated in her statement given to the Investigating Officer. She denied the suggestion that she is deposing falsehood 40 Spl.C.C.No.111/2013 against the accused. She denied the suggestion that the third accused has not received money from PW.5 on the instructions of the first accused. The evidence of PW.5 supports the oral testimony of PW.1 with regard to demand and acceptance of illegal gratification by the first accused.
26. PW.1 Harish has clearly deposed in his evidence that he was standing on the passage at a little distance from the chamber of the accused No.1, PWs.5 and 7 went inside the chamber. Further, he specifically deposed that the accused No.1 instructed accused No.3 by conveying message with right hand. Thereafter, PW.5 gave tainted notes to the accused No.3 who received with right hand and kept the same on the right side hip pocket of his pant and came out of the chamber of the first accused. PW.7 WPC Smt. Sowmya made a signal to PW.6 through her cell phone. In the course of the cross-examination also, he 41 Spl.C.C.No.111/2013 clearly deposed that he has seen the amount given by the accused No.3 on the instructions of the first accused by PW.5. Except bare denial, nothing has been elicited from the mouth of PW.2 by the accused persons as to why he has to depose falsehood against the accused persons. Thus, the evidence of PW.1 with regard to demand and voluntary acceptance of illegal gratification has been supported by the eye witness PW.7 WPC Smt. Sowmya and another shadow witness PW.1 Harish.
27. PW.6 has deposed about the conduct of investigation after receipt of the report Ex.P.9 from PW.5 and after following due procedure, he conducted Ex.P.2 pre trap mahazar in the Lokayuktha police Station and gave instructions to PWs.5, 7 and PW.1 Harish. Further, he deposed that the seizure of tainted currency notes from accused No.3 and his both hands were immersed in the solution which turned pink 42 Spl.C.C.No.111/2013 colour and the same has been kept and seized in separate bottle. It is elicited that on being enquired, accused Nos.1 to 3 gave their explanations as per Exs.P.18 to 20. It is elicited in the course of the cross- examination of PW.5 Dr. Gopinath that the licence of the medical stores stands in the name of Puttalingaiah who gave Form No.19 for renewal of his licence. Six months prior to lodging of Ex.P.9 report to the Lokayuktha police, PW.6 came to know that the first accused has received an amount of Rs.20,000/- from PW.5. He admits the name of a boy has not been mentioned in Ex.P.9. He admits that the names of the accused Nos.1 and 2 have been mentioned in the FIR as accused. The Drugs Controller has found out the lapses of maintaining the medical stores by PW.5 on 2.2.2009. PW.5 has admitted his mistake and gave a letter undertaking to follow the rules and regulations for maintaining the medical stores. Further, PW.6 admitted that on 21.2.2009 again notice was issued to 43 Spl.C.C.No.111/2013 PW.5 for not properly maintaining the medical stores. He admits that on 17.2.2011, 25.5.2011, 6.6.2011, 27.3.2012, 31.7.2012 and 5.11.2012 the accused persons were served with notices to PW.5 alleging that the medical stores was not properly maintained by him. He admits that the complainant has not filed an application for renewal of his licence. When the first accused repeatedly served notices on PW.5, he lodged a false complaint to the Lokayuktha. The said suggestion has been denied by PW.6. PW.6 admits that there was a pending work with the first accused as on the day of the trap. The accused No.1 has not disputed the seizure of tainted currency notes in the chamber of the first accused by PW.6. It is also elicited that accused No.2 served two notices to PW.5 Dr. Gopinath. It is also elicited by the second accused about recording of conversation and video in the course of the cross-examination. Third accused has 44 Spl.C.C.No.111/2013 denied the chief examination of PW.6 in the course of his cross-examination.
28. From the evidence of PW.6 proves that the accused Nos.1 and 2 have served repeated notices on PW.5 Dr. Gopinath for not properly maintaining the medical stores by following the rules and regulations. PW.5 also has admitted that repeatedly notices were issued to him by accused Nos.1 and 2 by visiting his medical stores and pestering for bribe once in three months to the extent of Rs.20,000/-. The accused Nos.1 and 2 except serving notices to PW.5 complainant repeatedly not taken any action by canceling the medical stores licence or initiated any suitable action enumerated under the law. The oral evidence on record does not prove that the accused developed enmity or vengeance against the accused Nos.1 and 2 on account of serving number of notices to him with regard to the medical stores. He lodged a 45 Spl.C.C.No.111/2013 report Ex.P.9 with the Lokayuktha police by discussing with PW.4 Dharmendra Ambavani only for the reason that they are demanding bribe from him. If really PW.5 developed vengeance, he could have directly paid the tainted currency notes to the first accused or placed on his table. The eye witness and the complainant have clearly deposed that on the instructions of accused No.1, PW.5 paid tainted currency notes to the accused No.3.
29. The learned counsel for the accused has argued that PW.5 complainant has deposed that he got the report typed in the Lokayuktha police station, but in Ex.P.9 in last para discloses that he got it typed the report in the High Court complex. Ex.P.4 trap mahazar states that accused No.1 has made a gesture to give bribe amount of Rs.20,000/- to accused No.3, but in para 4 of his cross-examination, a person called by accused Sathya in the court. PW.5 in para 18 of his 46 Spl.C.C.No.111/2013 cross-examination has stated that he has not given statement as per Ex.P.28 to PW.6 complainant. PW.3 is a material witness. He has deposed that accused Nos.1 and 2 visited the shop of PW.5 and told PW.5 that he is not maintaining the medical shop and that he would cancel the medical stores licence. He has deposed that for not canceling the licence, accused have demanded bribe. He does not know the person who received Rs.20,000/- from PW.5. Earlier demand of bribe has not been proved by the prosecution. There is a material contradiction appears in the oral evidence of PWs.3 and 5 and the documentary evidence at Ex.P.4 and P.9. Therefore, the first accused is entitled for benefit of doubt and acquittal from the alleged offences.
30. The learned counsel for the second accused has argued that there is no official favour pending from the accused No.2. Shadow witness is a stock witness of 47 Spl.C.C.No.111/2013 the prosecution. No work of the complainant is pending with the accused. There is a contradiction appears in the evidence of prosecution witnesses. PW.3 does not know the transaction of the accused and PW.5. The prosecution has not proved the earlier demand made by the accused Nos.1 and 2. Therefore, the second accused is entitled for acquittal.
31. The learned counsel for the third accused has argued that the complainant has not identified the third accused in the chamber of the first accused. No evidence to show that the third accused has collected amount from PW.5 as bribe money. Accused No.3 filed an application to release the amount of Rs.45,000/- seized by the Investigating Officer. Section 8 of the Prevention of Corruption Act is not at all applicable against the accused No.3. Therefore, accused No.3 is entitled for acquittal.
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32. The learned Public Prosecutor submits that the Court can infer certain things based on the oral evidence on record. Accused No.3 was in the chamber of the accused No.1 on 5.12.2012 and he received the tainted currency notes from PW.5. Apart from tainted money extra money of Rs.45,000/-possessed by the third accused has been seized by the Investigating Officer. As per the instructions of accused No.1, tainted currency notes was given by PW.5 to accused No.3 and there was a nexus between accused Nos.1 and 3. Burden is on the accused persons for proving the fact within their knowledge as per the provisions contemplated under section 106 of the Evidence Act. The evidence of material witnesses prove the demand and voluntary acceptance of illegal gratification from PW.5 by the accused No.1 and accused No.3 induced accused No.1 for taking the bribe amount. Accused No.2 has demanded bribe amount from PW.5 by visiting his medical stores frequently prior to lodging of 49 Spl.C.C.No.111/2013 Ex.P.9 report to the Investigating Officer and thus, all the accused persons have committed the alleged offences and they are liable to be convicted.
33. It is true that some minor contradictions occur in the oral testimony of PW.5 complainant, PW.7 shadow witness and PW.1 eye witness. On reading of Ex.P.4, particularly in page No.2 clearly mentions that when he has gone to pay the amount, accused No.1 instructed to pay the same to third accused who received and kept on the right side hip pocket of his pant. PW.5 complainant, PW.7 WPC Smt. Sowmya, shadow witness, PW.1 trap witness Harish have deposed about demand of bribe by accused No.1 and on his instructions, PW.5 paid the tainted currency notes to accused No.3. The said witnesses clearly depose that the accused No.1 made a gesture to pay the bribe amount to accused No.3 on 5.12.2012 in his chamber. Accused persons have not denied the seizure of tainted 50 Spl.C.C.No.111/2013 currency notes from the pant pocket of accused No.3 by PW.6 in the presence of the witnesses and accused persons. It is an admitted fact that the accused Nos.1 and 2 have repeatedly served notices to PW.5 with regard to not properly maintaining the medical stores by following the rules and regulations enumerated under the Drugs Control Act. Neither accused Nos.1 and 2 nor their higher officers have not initiated any action against PW.5 for not properly maintaining his medical stores. PW.5 has clearly deposed that when the accused Nos.1 and 2 by visiting his medical stores and pestering for bribe, he fed up and approached the Lokayuktha police station by discussing with PW.4 Dharmendra Ambavani. Who is also a victim from accused Nos.1 and 2 for demanding bribe amount from him also. PW.4 in the oral evidence has deposed that he was retail distributor in medicines. On account of issuing repeated notices by accused Nos.1 and 2 to his medical shop, he sustained loss and closed his 51 Spl.C.C.No.111/2013 business of running retail/wholesale medical business. Minor contradictions and omissions are bound to occur when they have deposed about the truth of the facts after lapse of nearly more than five years from the date of incident. Merely on the basis of minor contradictions and omissions the accused persons are not entitled for acquittal. Absolutely there is no oral evidence with regard to demand and acceptance of illegal gratification along with accused Nos.1 and 3 by the second accused on the date of trap on 5.12.2012. When the prosecution has proved the demand of bribe which is sine qua non to constitute the offence under section 7 of the Prevention of Corruption Act, presumption arises under section 20 of the Prevention of Corruption Act.
34. The Investigating Officer PW.6 on being enquiry, accused Nos.1 to 3 have given their explanations at Exs.P.18 to 20 voluntarily. It is obligatory on the part 52 Spl.C.C.No.111/2013 of the Court to consider the explanation offered by the accused in view of the decision of the Hon'ble Supreme Court of India in the case of K.S. Panduranga V/s State of Karnataka reported in 2013 SAR Cri 487 SC. Ex.P.18 is the explanation of the first accused dated 5.12.2012 given to the Investigating Officer voluntarily which discloses that he had issued notice to Dhanalakshmi Medicals, Bengaluru. Details of purchase and sales particulars have not been furnished pursuant to the notice. He had not demanded any money from any one and he has not demanded any money from any one and he did not even take money from any one.
35. Ex.P.19 is the explanation of accused No.2 Smt. Vishalakshi which discloses that she told PW.5 to pay the renewal of licence fee, totally of Rs.5,000/-. Ex.P.20 explanation of accused No.3 Sathya which reveals that on 5.12.2012 at about 4.30 p.m. when 53 Spl.C.C.No.111/2013 Assistant Drugs Controller putting his signature to the records, one person gave amount to him. He received the amount. He is a private individual. He was having Rs.45,000/-. The said explanation of accused Nos.1 to 3 clearly proves the presence of PW.5 in the chamber of the accused No.1 and also the presence of accused No.3 in the chamber of the accused No.1. Accused No.1 has not stated about the money received by the third accused in his chamber from PW.5. Accused No.3 has not stated that PW.5 has thrusted money into his pocket as suggested by the learned counsel for the third accused in the course of cross-examination of the prosecution witnesses. Why he has received the amount from the person in the chamber of the first accused has not been disclosed in Ex.P.20 explanation by the third accused. The accused persons have not come forward to depose that they have not demanded bribe amount from the complainant prior to lodging of report or subsequent to lodging of report to 54 Spl.C.C.No.111/2013 Lokayuktha police. The accused persons have not rebutted the evidence of the prosecution witnesses. There is no contra evidence placed by the accused to discard the oral evidence of the prosecution witnesses.
36. The prosecution to prove the demand of bribe by the accused persons has relied upon the secondary electronic evidence such as Exs.P.3 and P.6, conversation transcriptions, Ex.P.23, FSL report, MOs.4, 5, 12, 13 and 14 conversations and video CDs. The Investigating Officer has not complied with the provisions enumerated under section 65-B of the Evidence Act to rely upon the electronic secondary evidence. For want of compliance for the said provision and in view of the decision of the Hon'ble Supreme Court reported in (2014) 10 Supreme Court Cases page 473 in the case of Anvar P.V. V/s P.K. Basheer and others, the court cannot looked into the said electronic secondary evidence.
55 Spl.C.C.No.111/2013
37. From the oral evidence on record, proves the following facts:
a. Demand of bribe by the first accused by making a gesture through hand to pay money to the accused No.3.
b. On the instructions of the first accused PW.5 Dr. K. Gopinath complainant gave tainted currency notes to the third accused who received, counted and kept it on the right side hip pocket of his pant.
c. Both hands of the accused No.3 were immersed in the solution which turned pink colour.
d. Thereafter, tainted currency notes were recovered from the pant pocket of the accused No.3.
e. Number of notices have been issued to PW.5 by accused Nos.1 and 2 repeatedly and also visiting the medical stores of PW.5.56 Spl.C.C.No.111/2013
f. Inaction on the part of the first accused basing on the several notices.
g. Inference can be drawn that he has accepted bribe from the complainant for smooth running of the medical stores.
h. Neither the accused No.1 nor the accused No.3 have not stated about the seizure of tainted currency notes in their explanation and also not adduced contra evidence to rebut the evidence of the prosecution witnesses.
38. The said fact has not been disloged by the accused persons by adducing contra evidence nor in the evidence of the prosecution witnesses in cross- examination. PW.5 complainant has clearly admitted that the accused No.2 neither demanded nor received money from him on the date of alleged trap. There is insufficient evidence placed before the Court to hold 57 Spl.C.C.No.111/2013 that accused No.2 also entered into criminal conspiracy with other accused to demand bribe from PW.5, I am of the considered opinion that accused No.2 is entitled for the benefit of doubt for want of oral and documentary evidence.
39. The prosecution has not proved the earlier demand and acceptance of bribe amount from PW.5. Merely because earlier demand and acceptance of amount is not proved, the whole case of the prosecution would not fail i.e., the remaining part of the case can be accepted in view of the decision reported in 2009(5) SCC page 117 in State of Andhra Pradesh V/s M. Radhakrishna Murthy. When the accused Nos.1 and 3 have not dislodged the presumption raised under section 20 of the Prevention of Corruption Act and under section 114 of the Evidence Act, it can be easily said that on the basis of the oral evidence of the prosecution witnesses that the 58 Spl.C.C.No.111/2013 accused No.1 has demanded illegal gratification from the complainant PW.5 to extend his official favour and on his instructions, he paid the tainted currency notes of Rs.20,000/- to the hands of accused No.3 who received, counted and kept it on the right side hip pocket of his pant. Accused No.1 being public servant, holding the post of Assistant Drugs Controller on the day of trap dated 5.12.2012 misused his official position by voluntarily accepting the illegal gratification from PW.5 as stated supra and committed criminal misconduct.
40. On reading of section 8 of the Prevention of Corruption Act, 1988, defines taking gratification, in order, by corrupt or illegal means, to influence public servant, it is necessary to extract the said provision herein as under:
"Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any 59 Spl.C.C.No.111/2013 person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government........."
41. In view of the said provisions, it is not necessary that the person who receives the gratification should have succeeded in inducing the public servant. It is not even necessary that the recipient of the gratification should in fact have attempted to induce the public servant. Recipient of the gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means will complete the offence, but it is necessary that the accused should be 60 Spl.C.C.No.111/2013 at animus or intent at the time when he receives gratification that it is received as a motive or reward for inducing a public servant by corrupt or illegal means in view of the decision reported in 1988 Cri.L.J. page 1005 in Dwan alias Vasudevan V/s State.
42. Admittedly, the accused No.3 being a private individual and on the date of trap he was in the chamber of the first accused. Third accused himself has suggested to PW.5 that the third accused entered the chamber of the first accused along with the register and went out of his chamber. Neither accused No.1 or accused No.3 have not stated the transaction or nexus between them in their explanation at Exs.P.18 and 20, but perusal of Ex.P.24, the report given by the officer of the first accused by name Vadivelu to Lokayuktha police station goes to show that accused No.3 Sathya is not the Drugs Control Department regular employee. He was working as a part time 61 Spl.C.C.No.111/2013 menial staff in Bengaluru Circle 6, Bengaluru for some time. It proves that earlier he was working as menial staff in the Drugs Control Department, but he was not a regular employee. Therefore, there was a nexus between the accused No.3 and accused No.1 and allowed the accused No.3 to work with his office even though he was not an employee. Keeping a non- employee, third accused by the accused No.1, inference can be drawn that in order to collect bribe amount, accused No.1 allowed accused No.3 to work with him in his office. Third accused was working at the instance of the first accused as on the date of trap. Receiving bribe amount proves that he induced the public servant for taking illegal gratification from the complainant PW.5. Therefore, section 8 of the Prevention of Corruption Act is aptly applicable against the accused No.3 and is also liable for conviction. Thus, the prosecution has proved the guilt against the accused No.1 for the offence punishable under section 62 Spl.C.C.No.111/2013 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act by placing cogent, corroborative and consistent evidence and the prosecution has proved the guilt against the accused No.3 for the offence punishable under section 8 of the Prevention of Corruption Act, 1988 and the prosecution has not proved the guilt against the accused No.2. Accordingly, I answer the point Nos.1 and 2 partly in the affirmative against the accused No.1 and point No.3 in the affirmative against accused No.3.
43. Point No 3: In the result, I proceed to pass the following:
ORDER Acting under section 248(1) Cr.P.C, the accused No.2 Smt. Vishalakshi V is acquitted of the offences punishable under Section 7, 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988. She 63 Spl.C.C.No.111/2013 is set at liberty. Her bail bond stands cancelled.
I find the accused No.1 C. Kumara has committed the offences punishable under Section 7, and 13(1)(d) punishable under section 13(2) of Prevention of Corruption Act, 1988 and accused No.3 Sathya B. has committed the offence punishable under section 8 of the Prevention of Corruption Act, 1988.
Case is posted to hear regarding sentence on accused Nos.1 and 3.
(Dictated to the Judgment Writer, transcripted and computerized by him, corrected, signed and then pronounced by me in open Court on this the 8th day of August, 2017) [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 64 Spl.C.C.No.111/2013 ORDER REGARDING SENTENCE Accused is present.
Sri NBG, learned advocate for accused No.1, Sri MND, for accused No.3 and Sri D. Ramesh Babu, the learned Public Prosecutor are present.
Heard with regard to sentence.
Sri NBG, learned advocate for the accused No.1 submits that the accused No.1 has got only seven years of service and his entire family is depending upon his earnings and hence the learned counsel prayed to show lenient view while imposing sentence on him. Sri MND, the learned counsel for the accused No.3 submits that the accused No.3 is a private individual and is unemployed and has no source of livelihood and hence, prayed to show lenient view while imposing sentence on him.
The learned Public Prosecutor submits that the prosecution has proved the case against the accused Nos.1 and 3. The corruption is a cancer. Therefore no lenient view be shown to the accused Nos.1 and 3 while imposing sentence and pray to impose maximum sentence to the accused Nos.1 and 3.65 Spl.C.C.No.111/2013
Having heard the arguments on both sides and perused the evidence on record. This Court has already held that the accused Nos.1 and 3 have committed the offence punishable under the Prevention of Corruption Act, 1988. The accused No.1 being public servant has not discharged his duty entrusted on him in accordance with law. He involved in a corruption while discharging his duties as public servant. Accused No.3 being private individual induced accused No.1 by corrupt or illegal means and obtained bribe of Rs.20,000/- for accused No.1 from the complainant PW.5 Dr. Gopinath. Corruption is a violation of human rights. The said corruption as stated by the learned Special Public Prosecutor is a disease of cancer spread over to the society. Taking into consideration of nature and gravity of the offences committed by the accused Nos.1 and 3 they are not entitled for any leniency from this Court. Hence, I proceed to pass the following:
SENTENCE Acting under section 248(2) Cr.P.C, the accused No.1 C. Kumara is sentenced to undergo simple imprisonment for a period of 6 months (six months) for the offence punishable under section 7 of the Prevention of Corruption Act and to pay fine of 66 Spl.C.C.No.111/2013 Rs.10,000/- (Rupees ten thousand) in default, to undergo Simple imprisonment for 1 (one) month.
The accused C. Kumara is further sentenced to undergo simple imprisonment for a term of 1 (one) year for the offence punishable under section 13(1)(d) read with 13(2) of the Prevention of Corruption Act and to pay fine of Rs.15,000/- (Rupees fifteen thousand) in default, to undergo simple imprisonment for 2 (two) months.
Acting under section 248(2) Cr.P.C, the accused No.3 Satya B. is sentenced to undergo simple imprisonment for a period of 6 months (six months) for the offence punishable under section 8 of the Prevention of Corruption Act and to pay fine of Rs.5,000/- (Rupees five thousand) in default, to undergo Simple imprisonment for 1 (one) month.
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The substantive sentences of imprisonment shall run concurrently.
MO.9 cash of Rs.20,000/- (Rs.1,000/- X 1, 500/- X 38) and MO.10 cash of Rs.45,000/- (Rs.1,000/- X 9, 500/- X 72) shall be confiscated to the State, MOs. 1, 4, 5, 12, MO.13 and MO.14 shall be returned to the Karnataka Lokayuktha, Bengaluru and Mos.2, 3, 4(a), 5(a), 6, 7, 7(a), 8, 8(a), 9(a), 10(a), 11, 11(a), 12(a), 13(a) and 14(a) be destroyed after the appeal period is over. Furnish free copy of the Judgment to the accused forthwith.
(Dictated to the Judgment Writer, transcribed by him, printout taken, corrected, signed and then pronounced by me in open Court on this the 8th day of August, 2017) [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 68 Spl.C.C.No.111/2013 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1: Harish PW.2: Smt. K.N. Hariniyamma PW.3: Veerabhadra PW.4: Dharamendra Ambavani PW.5: Dr. K.N. Gopinath PW.6: K. Ravishankar PW.7: Smt. Sowmya
List of documents marked on behalf of prosecution:
Ex.P.1: Sheet containing details of currency notes Ex.P.1(a): Signature of PW.1 Ex.P.1(b): Signature of PW.6 Ex.P.2: Pre-trap mahazar Ex.P.2(a): Signature of PW.1 Ex.P.2(b): Signature of PW.6 Ex.P.2(c): Signature of PW.5 Ex.P.3: Button camera transcription sheet Ex.P.3(a): Signature of PW.1 Ex.P.3(b): Signature of PW.6 Ex.P.4: Trap mahazar Ex.P.4(a) to 4(k): Signatures of PW.1 Ex.P.4(l): Signature of PW.6 Ex.P.4(m): Signature of PW.5 Ex.P.5: CD containing seizure mahazar contents 69 Spl.C.C.No.111/2013 Ex.P.5(a) and (b): Signatures of PW.1 Ex.P.5(c): Signature of PW.6 Ex.P.6: CD containing transcription sheet Ex.P.6(a): Signature of PW.1 Ex.P.6(b): Signature of PW.6 Ex.P.7: Sanction order Ex.P7(a): Signature of PW.2 Ex.P.8: Mahazar dated 12.12.2012 Ex.P.8(a): Signature of PW.3 Ex.P.8(b): Signature of PW.6 Ex.P.9: Complaint Ex.P.9(a): Signature of PW.5 Ex.P.9(b): Signature of PW.6 Ex.P.10 and 11: Notices dated 16.11.2012 and 5.11.2012 Ex.P.12: Requisition letter dated 5.12.2012 Ex.P.13: Demand recording transcription Ex.P.13(a): Signature of PW.6 Ex.P.14: Sketch Ex.P.15: Attested copies of documents Ex.P.16: Attested copy of attendance register Ex.P.17: Reply to notice dated 5.12.2012 Ex.P.18 to 20: Explanations of Accused Nos.1 to 3 Ex.P.18(a) to 20(a): Signatures of PW.6 Ex.P.21: Report of Vadivelu Ex.P.22: Specimen seal letter Ex.P.23: FSL Report 70 Spl.C.C.No.111/2013 Ex.P.24: Work distribution particulars Ex.P.25: PWD Engineer's sketch Ex.P.26: Service particulars of accused Nos.1 and 2 Ex.P.27: Portion of the statement of PW.5 Ex.P.28: Another portion of the statement of PW.5 List of material objects marked on behalf of the prosecution:
MO 1: Metal seal
MO.2: Bottle containing sample solution drawn during
pre trap mahazar
MO.3: Bottle containing hand wash solution of witness
Girish
MO.4: CD containing trap recordings
MO.4(a): Cover
MO.5: CD containing demand recordings
MO.5(a): Cover
MO.6: Bottle containing sample solution drawn during
trap mahazar.
MO.7: Bottle containing right hand wash of accused
No.3
MO.7(a): Bottle containing additional solution of right hand wash of Accused No.3.
MO.8: Bottle containing left hand wash of accused No.3 MO.8(a): Bottle containing additional solution of right hand wash of accused No.3.
71 Spl.C.C.No.111/2013
MO.9: Cash of Rs.20,000/- (Rs.1000 X 1 plus 500 X 38)
MO.9(a): Cover
MO.10: Cash of Rs.45,000/- (Rs.1000 X 9 plus 500 X 72)
MO.10(a): Cover
MO.11: Pant of accused No.3
MO.11(a): Cover
MO.12: CD containing button camera recordings
MO.12(a); Cover
MO.13: CD containing trap video recordings
MO.13(a): Cover
MO.14: CD containing pen camera recordings
MO.14(a): Cover
List of witnesses examined on behalf of accused:
Nil List of documents marked on behalf of accused:
Nil [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU.