Bangalore District Court
The State Of Karnataka vs H.B.Channeshappa on 29 March, 2022
KABC010276742017
IN THE COURT OF THE XXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE ( P.C. Act) BENGALURU
(C.C.H.No.24)
Dated: This the 29th day of March, 2022
:PRESENT:
LAKSHMINARAYANA BHAT K.
XXIII Additional City Civil and Sessions Judge
and Special Judge ( P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.571/2017
Complainant: The State of Karnataka
represented by Police Inspector,
Anti Corruption Bureau, Bengaluru
Urban Police station, Bengaluru.
(By the Public Prosecutor)
V/s
Accused : H.B.Channeshappa,
S/o.Late Byalakalaiah, aged 50
years, Junior Engineer,
Office of the Assistant Executive
Engineer, No.2, Bengaluru Water
Supply and Sewerage Sub-
Division(west),r/a.5th Block, 2nd
Stage, Nagarabhavi, Outer Ring
Ring Road, Bengaluru-560 072.
2 Spl.C.C.571/2017
Permanent resident of No.04, 2nd
Main Road, Madduramma Layout,
Sunkadakatte,
Bengaluru.
(By Sri Harish D.B., Advocate)
JUDGMENT
The Deputy Superintendent of Police, Anti Corruption Bureau, Bengaluru Urban (in short the "ACB") has laid the charge sheet against the accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988 (in short the "PC Act").
2(a). The factual matrix of the case is that, the accused was serving as Junior Engineer in Bengaluru Water Supply and Sewerage Board (in short the 'BWSSB'), Sub-division (west), Nagarabhavi, Bengaluru. CW1 - Mahesh S. - the informant is a plumbing contractor and it is stated that he has filed an application before the BWSSB office on 13.1.2017 on behalf of CW6 - Satish B.K. and his mother Smt. Bebamma for obtaining Kaveri water connection to their commercial building. When the informant in connection with the aforesaid water connection, approached the accused, he alleged to have demanded Rs.30,000/- illegal gratification for measurement of the building and recommending the file 3 Spl.C.C.571/2017 to the higher officer and after negotiation, he had agreed to receive Rs.25,000/-.
2(b). The informant has recorded the conversation made with the accused in his mobile phone and disinclined to the demand, lodged the first information statement on 17.1.2017 before the ACB Police. The concerned ACB police, in pursuance of the said information have registered the case in Crime No.03/2017 against the accused. The trap laying officer secured two independent witnesses, the pre-trap formalities were conducted and the informant, pancha witnesses and the trap laying team proceeded to the office of the accused on 18.1.2017. The accused alleged have demanded and accepted the illegal gratification from the informant, he came out of the office and flashed the instructed signal to the trap laying team. The police apprehended the accused and he was subjected to undergo chemical hand wash test, the tainted currency was recovered from his possession. The police have completed the post-trap formalities, drawn mahazar and arrested the accused and he was produced before the Court. After completion of the investigation and on obtaining the chemical analysis report, voice analysis report, and on securing the required sanction, the police have laid the charge sheet against the accused.
4 Spl.C.C.571/2017
3. After taking cognizance of the offence, presence of the accused was secured and he is furnished with the copies of the charge sheet in compliance to Section 207 of the Cr.P.C. After hearing both the sides, the charges were framed and the accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, the prosecution has examined PW1 - Mr. Tushar Girinath, the Chairman, BWSSB, the sanctioning authority and through him got marked Ex.P2 the sanction order, Ex.P1 proceedings of the board meeting. PW2 - Sri. Kemparaju G. and PW3 - Sri. Bhaskar are the officials and pancha witnesses and they are the signatories to pre-trap and post-trap panchanama. PW-4 is the son of Smt.Bebamma, who is the owner of the building and PW- 4 has entrusted the work to PW5 Mahesh S. to obtain Kaveri water connection to her building. PW5 - Mahesh is the informant and he has been examined to prove the lodging of Ex.P14 first information statement and the entire trap proceedings. PW6 - Ms.Chandrika G. is the Senior Scientific Officer, FSL, Bengaluru and she has issued Ex.P16 voice analysis report. PW7 - Mr. Subramanya Swamy M.L. is the Police Inspector and he deposed regarding the post trap proceeding and conducting later part of the investigation, collecting of the voice sample of the accused and the informant, collection of spot sketch, Scientific examination report, 5 Spl.C.C.571/2017 recorded statement of few witnesses and securing the sanction order from the authority. PW8 - Mr. Ramamurthy B. is the Police Inspector, deposed regarding the registration of the case and conducting the entire trap proceeding, arrest of the accused and recovery of cash etc.
5. After completion of the prosecution side evidence, the incriminating circumstances brought out in the prosecution evidence were put to the accused under Section 313(1)(b) of the Cr.P.C. The accused took up the defence of total denial and did not enter any specific defence.
6. Heard the arguments. The learned Public Prosecutor and the learned advocate appearing for the accused have relied on the following reported judgments.
A. On the side of the prosecution:
1) (2000) 9 Supreme Court Cases 752 State of A.P. Vs. Kommaraju Gopala Krishna Murthy B. On the side of the defence:
1) 2022 LiveLaw (SC) 192 K.Shanthamma Vs. The State of Telangana 6 Spl.C.C.571/2017
2) (2021) 3 Supreme Court Cases 687 N.Vijayakumar Vs. State of Tamil Nadu
3) (2017) 8 Supreme Court Cases 136 Mukhtiar Singh (since deceased) through his Legal representative Vs. State of Punjab
4) (2016) 12 Supreme Court Cases 150 V.Sejappa Vs. State by Police Inspector Lokayukta, Chitradurga
5) (2011) 6 Supreme Court Cases 450 State of Kerala and another Vs. C.P.Rao
6) (2016) 3 Supreme Court Cases 108 Krishan Chander Vs. State of Delhi
7) 2004 2 KCCR 1233 D.Rajendran Vs. State by Police Inspector, B.O.I.
8) (2011) 4 Supreme Court Cases 143 Nilesh Dinkar Paradkar Vs. State of Maharashtra
9) Criminal Appeal No.414/2016 of Hon'ble High Court of Karnataka - Mdesha @ Avva Madesha Vs. State of Karnataka
10) Criminal Appeal No.1215/2010 of Hon'ble High Court of Karnataka - Shivananda Bankolli Vs. State by Lokayukta Police, Mysore District.
6(a) The argument of the prosecution:-
Accused is working as Junior Engineer in BWSSB, has demanded Rs.30,000/- from PW-5, the informant and after negotiation has reduced the
7 Spl.C.C.571/2017 amount and agreed to receive Rs.25,000/-illegal gratification.
There is substantive evidence of PW-5 the informant, supported by the evidence of PWs.2 and 3, the pancha witnesses to prove the demand and acceptance of the illegal gratification.
PW4 is son of the owner of the building Mrs. Bebamma and he has informed PW5 to initiate the criminal proceedings against the accused for demanding the bribe.
In addition to the primary evidence, the prosecution has placed on record the corroborative evidence of PW6 the voice analyst and also the Expert report.
Accused has failed to place probable evidence to prove his defence and in order to substantiate the contention he has not produced any documents and thereby failed to rebut the presumption under section 20 of the P.C. Act.
The contention of the accused that the money was received from PW-5 towards the sale consideration of the two wheeler vehicle is apparently false, unbelievable and hence it is liable to be rejected.
8 Spl.C.C.571/2017 For the aforesaid reasons, the prosecution has prayed for convict the accused.
6(b) The argument of the defence:-
The prosecution has not proved the demand and acceptance of the illegal gratification and demand is sine-qua-non to prove the guilt of the accused.
The IO has directed PW-5 to tender the bribe only on demand but there was absence of demand by the accused.
There was ill feeling and animosity between PW5 and the accused and the explanation offered by the defence regarding the purchase of the two wheeler is probable.
There is delay in registering the FIR and even though there was demand on 13.1.2017 and 16.1.2017, the FIR was registered on 17.1.2017 at 5.00 p.m. No work of PW-4 or PW-5 was pending with the accused and hence there was no occasion for him to demand or to accept the illegal gratification.
9 Spl.C.C.571/2017 For doing the spot inspection of the building, the accused is not the competent authority or to sanction the water connection and thereby the prosecution has failed to prove that the accused has demanded gratification for his part of work.
Non-examination of CW4 and any employee or officers of the BWSSB is fatal to the prosecution case.
The admissions elicited during the cross- examination of PW5 is sufficient to disbelieve the entire case of the prosecution.
The evidence placed by the prosecution regarding the demand is vexatious, omnibus, indefinite and not accurate.
PW2 shadow witness has not heard the conversation between PW5 and the accused since he was standing at a distance of 30 feet.
PW-2 pancha did not accompany with PW5 and hence he has not followed the instructions of the investigating officer.
10 Spl.C.C.571/2017 As per the prosecution evidence there were two demands for bribe dated 16.1.2017 and 18.1.2017 and in support no independent witness is examined.
For the aforesaid arguments, it is submitted that the prosecution has not placed evidence to prove the charge and hence the defence has prayed for the judgment of acquittal.
7. After adverting my careful thought to the rival statements and analytical scrutiny of the documentary and the oral evidence placed on record, at this stage the points that would arise for my determination are :
1. Does the prosecution prove the fact that it has obtained a valid sanction to prosecute the accused as required under Section 19 of the P.C. Act?
2. Does the prosecution beyond reasonable doubt prove the fact that the accused being the public servant on 17.1.2017 has demanded illegal gratification of Rs.30,000/- from PW5 Mahesh S. and on 18.1.2017 at about 1.55 11 Spl.C.C.571/2017 p.m. in the office of the Assistant Executive Engineer, BWSSB, Nagarbhavi, Bengaluru and has received Rs.10,000/- for installing Kaveri water connection to the commercial complex of PW4 B.K.Satish and thereby he is guilty of the offence punishable under Section 7 of the PC Act?
3. Does the prosecution beyond reasonable doubt prove the fact that the accused being the public servant by abusing his official position as such public servant and obtained Rs.10,000/- pecuniary advantage from PW.5 Mahesh S. on 18.1.2017 and thereby committed an offence of criminal misconduct defined under Section 13(1)(d) and punishable under section 13(2) of the P.C. Act?
4. What order?
8. My findings on the aforesaid points are:
Point No.1 : in the affirmative
12 Spl.C.C.571/2017
Point No.2 : in the affirmative
Point No.3 : in the affirmative
Point No.4 : as per the final order
for the following
REASONS
Point No.1 :
9(a). As per the prosecution case, the accused was working as the Junior Engineer in the office of the Assistant Executive Engineer, BWSSB Sub-division (west), Nagarbhavi, Bengaluru. In his defence, the accused has not disputed this fact and hence, he is a public servant within the ambit of Section 2(c)(ii) of the PC Act and he was discharging public duty as prescribed under Section 2(b) of the PC Act. In the result, it is incumbent upon the prosecution to prove the fact that it has secured valid sanction to prosecute the accused.
9(b). In discharge of the burden of proof, the prosecution has examined PW1 - Mr. Tushar Girinath, Chairman, BWSSB, Bengaluru and through him produced and got marked Ex.P1 to 4 documents. PW-1 in his examination-in-chief has deposed that he has received the requisition from the Director General of Police, ACB, Bengaluru seeking sanction to prosecute the accused. He further deposed that along with the aforesaid requisition, he has received the first information statement, FIR, pre-trap and post-trap panchanama, 13 Spl.C.C.571/2017 voice sample of the accused, scientific examination report, statement of the witnesses and case file pertaining to the demand of the bribe. PW1 further deposed that the Board is the competent authority to remove the accused from the service, who is working in the cadre of Junior Engineer. Hence he has placed all the documents sent by the investigating agency before the Board. He further deposed that the Board after appreciation and verification of all the documents, prima-facie satisfied that the accused is involved in demanding and accepting the bribe and therefore accorded the sanction to prosecute the accused. He further deposed that the Board has authorized him as a Chairman of the BWSSB to issue necessary order and to communicate the decision of the Board to the investigating agency. Accordingly, in pursuance of the decision of the Board, he deposed that he has issued Ex.P2 sanction order. During his examination-in-chief Ex.P1, 3 and 4 the other documents were also got marked by the prosecution.
9(c). In defence, the accused has not seriously either disputed the authority of the Board to accord the sanction or the validity of Ex.P-2 the sanction order. During the cross-examination, PW1 has deposed that he is not able to disclose how many members were present in the Board meeting without referring to the required documents. It is suggested to the witness that without 14 Spl.C.C.571/2017 ascertaining the facts and circumstances of the case and to implicate the accused, the Board has mechanically accorded the sanction. However the witness in clear and unambiguous terms has specifically denied the aforesaid suggestion. The suggestion denied is not an evidence in the eye of law.
9(d). The accused when he was examined under Section 313 of the Cr.P.C. for question No.1 and 2 has answered it as false, but he has not disputed the authority of the Board as well as validity of Ex.P2 sanction order. As per Section 125 of the BWSSB Act, no prosecution shall be entertained against any officer or servant of the Board for any act done or purporting to be done under this Act or any rule or regulation made thereunder without the previous sanction of the Board. In the case on hand, the accused was working as Junior Engineer in the office of BWSSB is not in dispute. As per the aforesaid provisions, the Board is the competent authority to remove the accused from his service and PW- 1 in his evidence as well as in Ex.P-2 order has reiterated this fact.
9(e). Ex.P1 is the copy of the proceedings of the Board meeting dated 28.3.2017. The said document shows that the Board has accorded the sanction to prosecute the accused and authorized PW1 , the Chairman to communicate the decision of the Board to 15 Spl.C.C.571/2017 the investigating agency. In Ex.P2 order also there is specific reference that the Board has got the authority to remove the accused from the service. PW1 in his evidence has specifically deposed that in pursuance of the proceedings of the Board, as per Ex.P-1 he has proceeded to issue Ex.P2 order. Ex.P3 and P4 are the correspondences, and PW1 has forwarded the copy of Ex.P1 and P2 order to the concerned investigating agency. From the oral evidence of PW1 and from Ex.P-1 and 2 the documentary evidence, the prosecution has proved that the Board has accorded the sanction to prosecute the accused. From the aforesaid provision of the BWSSB Act, it is further clear that the Board is the competent authority to remove the accused from the service. Hence, it is the authority to accord sanction as required under Section 19 (1)(c) of the PC Act.
9(f). The law presumes that until the contrary is established, the sanctioning authority has acted fairly, objectively and recorded its satisfaction based on materials placed before it by the investigating agency. Ex.P1 and P2 sanction order speaks for itself and hence it is not necessary for the prosecution to examine the authority who has accorded the sanction. Moreover, PW1 being the Chairman of the Board is also one of the member of the Board who had participated in the meeting held as per Ex.P1 on 23.8.2017. Hence, from Ex.P1 and P2 the documents and from the evidence of 16 Spl.C.C.571/2017 PW1, the requirements of Section 19 (1)(c) of the PC Act are established. It is settled law that the grant or refusal to grant sanction is not quasi judicial function and the facts placed before the sanctioning authority prima-facie satisfaction of the authority is sufficient to accord the sanction. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. Therefore, the prosecution has proved that it has obtained the valid sanction order as per Ex.P2 against the accused to prosecute him and hence my findings on the point No.1 is in the 'affirmative'.
Point No.2 and 3 :
10(a). Among the prosecution witnesses examined, PW4 B.K.Satish in his evidence has deposed that in the site standing in the name of his mother Smt. Bebamma situated at Vinayaka layout, Nagarabhavi, Bengaluru, in the year 2017 they have constructed a commercial building. He is looking after the property and he has authorized PW5 - S.Mahesh to secure Kaveri water connection to the aforesaid building. He further deposed that PW5 has informed him that the Junior Engineer working in the BWSSB is demanding bribe for recommending the file for giving the water connection. According to the evidence of PW-4, he has informed PW5
17 Spl.C.C.571/2017 to initiate the required legal action against the said officer for demanding the bribe.
10(b). PW5 - Mahesh S. is the first informant and he is working as the contractor in BWSSB. In his examination-in-chief, he has deposed that PW4 Satish has requested him to secure water connection to their building situated at Vinayaka Layout, Nagarabhavi, Bengaluru. In this connection, when he went to the office of AEE, BWSSB, Nagarabhavi and approached the accused, he has demanded bribe of Rs.30,000/- for recommendation to give water connection and after negotiation, the amount was scaled down to Rs.25,000/-. He further deposed that he has informed the aforesaid demand of bribe by the accused to PW4 and PW-4 has directed him to take appropriate legal action against the accused. PW5 has deposed that he has recorded the conversation with the accused in his mobile phone, and thereafter approached the ACB Police and lodged Ex.P-14 first information statement.
11. PW8 - Ramamurthy B. is the Police Inspector and investigating officer ( in short the IO) and in his evidence he has deposed that on 17.1.2017 at about 5.00 p.m., PW5 appeared before the ACB Police station and has lodged Ex.P14 first information statement ( in short FIS). It is the evidence of PW8 that after receiving Ex.P14 information, he has registered the case as per Ex.P-23 18 Spl.C.C.571/2017 and forwarded the FIR and the FIS to this Hon'ble Court. He further deposed that PW5, at the time of lodging the report has also produced a CD containing the recorded conversation of the accused containing the demand for bribe.
12(a). PW2 - Kempraju and PW3 - Bhaskar are the pancha witnesses and they have deposed in their evidence that on 17.1.2017, in pursuance of Ex.P24 requisition letter they have been deputed as per Ex.P-25 order passed by their higher officer as pancha witnesses. Both of them deposed that on the same day they have appeared before PW8, the police inspector at about 5.30 p.m. in ACB Police station. They further deposed that they have ascertained from PW5 regarding lodging of Ex.P-14 FIS and also heard the recorded audio conversation containing the demand for bribe by the accused.
12(b). PWs.2, 3, 5 and 8 in their examination -in-chief have deposed in detail regarding the pre-trap formality conducted on 17.1.2017. As per their evidence, PW5 the informant has produced Rs.10,000/- cash containing five currency notes of Rs.2,000/- denomination and the said currency notes were treated with phenolphthalein powder on the direction of PW8. Those notes were kept in trouser pocket of PW5 and the investigating officer has informed PW-5 to make payment of the said amount only on 19 Spl.C.C.571/2017 demand by the accused. They have further deposed that PW-3 was nominated as the shadow witness and PW5 was instructed to give signal to the trap team after accused accepts the bribe amount.
12(c). The aforesaid witnesses PWs.2, 3, 5 and 8 have further deposed that during the pre-trap proceedings PW8 by practical demonstration explained to them regarding the use of phenolphthalein and its chemical reaction to the sodium carbonate. In this regard, Ex.P6 pre-trap panchanama was drawn from 5.45 p.m. to 6.30 pm. PWs.2, 3 and 5 have deposed that they are the signatories to the said panchanama. All of them have further deposed that they came to know from PW-5 that the accused has informed PW5 to meet him on the next day. Therefore, as per their evidence PW8 has retained the tainted currency notes and kept it in safe custody and a separate panchanama was drawn in this regard.
12(d). PWs.2, 3, 5 and 8 in their further examination- in-chief have deposed that on 18.1.2017 they went to the office of the ACB, Bengaluru Urban and PW-8 was leading the entire trap team, and they left the ACB Police station at about 11.00 a.m. After reaching the place, they came to know that the accused was not in his office. The accused came to the office around 1.50 p.m. PW5 has deposed that he went to the office of the accused and on inquiry came to know that the accused did not affix his 20 Spl.C.C.571/2017 signature in the file relating to water connection of PW4 B.K. Satish. PW-5 further deposed that the accused has informed him that after receiving the entire payment, he will affix his signature to the report. PW-5 deposed that thereafter he has paid Rs.10,000/- treated currency notes to the accused and requested him to put his signature in the report. PW5 further deposed that the accused has received the tainted cash in his right hand and kept it in his right trouser pocket. PW-5 further deposed thereafter he gave the instructed signal to the trap raiding team.
12(e). It is the evidence of PWs.2, 3, 5 and 8 that thereafter the entire team went to the office and on questioning the accused has admitted before PW8 that he has received the bribe amount from PW5 and he is keeping the said cash in his trouser pocket. As per the evidence of the witnesses, PW8 has directed the accused to undergo chemical examination test and when the accused was directed to dip his fingers (hand) in the sodium carbonate the solution turned to pink colour. As per the evidence of PW,2,3,5 and 8, PW8 has separately collected the said hand wash sample for scientific examination.
12(f). PWs.2, 3, 5 and 8 in their examination-in-chief deposed that as per the instruction of PW8, PW3 has collected the cash from the trouser pocket of the accused and the said amount was found tallying with Ex.P-5 list 21 Spl.C.C.571/2017 and also the details as mentioned in Ex.P6 pre-trap panchanama. The witnesses have deposed that PW8 has seized the cash and after making alternative attire, the trouser of the accused was also came to be seized as per M.O.12 and when the right pocket of the said trouser it was dipped in the sodium carbonate, the solution turned to pink colour.
12(g). PWs.2, 3 and 5 further deposed that the accused has submitted his explanation in writing as per Ex.P-8 to the investigating officer. PW-8 has deposed that he has seized Ex.P13 file pertaining to the water connection of PW5 which was pending with the accused. PW8 has further deposed that he has secured the mobile phone of PW-5 containing the recorded conversation between the accused and PW-5 during the trap and collected the copy of the said conversation in a CD marked as M.O.3. PWs.2, 3, 5 and 8 have deposed that PW-8 has drafted the trap mahazar as per Ex.P-9 in the place of incident and they have affixed their signature to the said document.
13. PW6 - Chandrika G., is the Senior Scientific Officer, FSL, Bengaluru and in her examination-in-chief deposed that on 20.3.2017 she has received 3 sealed covers from SP, ACB, Bengaluru City Division and on 2.6.2017 received another sealed cover with one CD. As per her evidence, after examination of the CD by conducting 22 Spl.C.C.571/2017 aural examination and the semi automatic method, she has issued Ex.P16 voice analysis report. As per her evidence, the respective speeches said to be of suspect found recorded in the CD marked as M.O.2 and the sample speeches of the accused are similar and of the same person. She has also deposed regarding the sample speeches of PW5 the informant and speech contained in article M.O.2 is also similar.
14. PW7 - Subramanyaswamy M.L. is the Police Inspector and he has conducted conclusive part of the investigation of the case. During examination-in-chief he has deposed regarding the collection of Ex.P19 report regarding the duties and liabilities of the accused. He further deposed that on 10.3.2017 collected the sample voice of the accused, sketch as per Ex.P20, Scientific examination report as per Ex.P21. He further deposed that on 7.6.2017 PW-5 appeared before the Magistrate Court and his statement under Section 164 Cr.P.C. was recorded as per Ex.P22. He further deposed that he has sent the letter of requisition to secure the sanction from the competent authority and after obtaining the sanction order, filed the charge sheet against the accused.
15(a). The accused is charged for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the PC Act. The prosecution, in order to bring home the 23 Spl.C.C.571/2017 guilt of the accused under section 7 of the P.C. Act is required to satisfy the following requirements:
(I) The accused was a public servant or expected to be a public servant at the time when the offence was committed;
(ii) The accused accepted, or obtained, or agreed to accept or attempted to obtain illegal gratification from some person,
(iii) For himself or for some other person
(iv) Such gratification was not a remuneration to which the accused was legally entitled.
(iv) The accused accepted such gratification as a motive or reward for
(a) doing or forbearing to do an official act,
(b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions; or
(c) rendering or attempting to render any service, disservice to someone, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or with any public servant, whether named or otherwise.
15(b). The ingredients of Section 13(1)(d) of the PC Act are: public servant should obtain for himself or for 24 Spl.C.C.571/2017 any other person any valuable thing or pecuniary advantage,
i) by corrupt or illegal means or
ii) by abusing his position as public servant or
iii) without any public interest.
16. Before proceeding further in the matter for appreciating the evidence placed by the prosecution and considering the defence of the accused, it is necessary to make note of the fact that the accused during the cross- examination of PWs.2, 3, 5 and 8 has not seriously challenged the procedures followed during Ex.P-6 pre- trap panchanama and Ex.P9 trap panchanama. From the cross-examination of PW-5 one can infer the specific defences of the accused are that,
i) The application filed by PW5 was not entered in the inward register;
ii) PW5 had purchased an old 2 wheeler from the accused on 13.1.2017 and there was discussion in between them on 14.1.2017;
iii) There was no demand for bribe and PW5 has voluntarily paid the tainted amount on 18.1.2017;
iv) The amount he received on 18.1.2017 from PW5 was pertaining to the part sale consideration of the two wheeler and PW5 has agreed to pay the balance amount of Rs,5000/- after few days;
v) When the accused was examined under Section 313 of Cr.P.C. for question No.80, he has specifically 25 Spl.C.C.571/2017 submitted that he is innocent of the charges and a false case has been foisted against him.
17. Ex.P8 is the voluntary explanation of the accused submitted to the PW-8 IO as on the date and at the time of the trap. As per the contents of the said document, it is stated that on 13.1.2017, the accused claimed that he had sold his old two wheeler in favour of PW5 and on 18.1.2017 PW-5 has paid the part sale consideration of Rs.10,000/- and further agreed to pay the balance amount of Rs.5,000/- within few days.
18. During the cross-examination of PW5 it is elicited from his mouth that two days before 18.1.2017, there was an altercation between himself and the accused. The witness further admitted that on 18.1.2017 the accused did not demand any money, but on his own, he had paid the amount to the accused. The learned defence counsel relying upon the above referred admission has vehemently argued that in the absence of the demand, the charges against the accused are not sustainable.
19. However PW-5 was further examined by the learned Public Prosecutor in re-examination. The ambiguity in the evidence of PW5 in examination-in-chief and during the cross-examination was put to the witness and he has specifically deposed that the evidence 26 Spl.C.C.571/2017 deposed in his examination-in-chief is the correct version of the incident and the facts deposed during his cross- examination is not correct. Therefore the argument of the defence counsel as addressed in this regard is not tenable.
20(a). The accused in order to support his defence has relied upon the recent judgment of the Hon'ble Supreme Court of India referred supra in K.Shanthamma case. As per the facts of the said judgment, the shadow witness was waiting outside the chamber of the accused. The Hon'ble Supreme Court noticed that there was inconsistency in the evidence of the complainant and his statement recorded under Section 161 and 164 of Cr.P.C., and hence the accused came to be acquitted. But in the case on hand, PW2 was standing at a distance of 30 feet from PW5 and he was watching all the transactions between PW5 and the accused. PW5 in his evidence has deposed that when he was waiting for the arrival of the accused at about 1.00 - 1.30 p.m., PW2 was with him inside the BWSSB office. Therefore the above facts and circumstances of the case on hand and the facts of the judgment relied are entirely different and hence it is not applicable to the case.
20(b). In the another judgment relied by the accused referred supra in N.Vijaykumar case, as per the facts, the 27 Spl.C.C.571/2017 accused came to be acquitted by the trial court holding as possible view. The Apex court noticed that PW2, the complainant during the cross-examination has admitted that there were ill-will feeling between him and the accused. There were material contradictions in the evidence of PW2 and he developed animosity against the accused. But in the case on hand, no such facts were elicited during the cross-examination of PW5. The alleged quarrel and pacification as elicited during the cross- examination of PW5 is nothing but a built up story after completion of the examination-in-chief of the witness and before he tender himself for the purpose of cross- examination. The evidence of PW5 in his examination-in- chief was recorded on 19-9-2019 and cross-examination was recorded on 28-11-2019 on different dates and therefore the accused got an opportunity to win over the witness. Therefore the ratio laid down in the above referred judgment is not applicable to the facts of the case on hand.
21. The accused in his defence has admitted the receipt of M.O.13 cash of Rs.10,000/- from PW5. But as per his explanation, it was towards the sale of 2 wheeler. Therefore, the onus of proof is on the accused to prove that M.O.13 cash was not an illegal gratification but on the other hand, it is a sale consideration which he was legally entitled to receive from PW5 - the informant. Now the question arises for determination is whether the 28 Spl.C.C.571/2017 accused is able to establish the aforesaid contention either from the cross-examination of the prosecution witnesses or by placing any documentary evidence or from the other circumstances of the case.
22. During the cross-examination of PW5, the informant or PW8 the IO, the accused has not placed any documentary evidence such as copy of the registration certificate or B-extract of the vehicle to show that the alleged two wheeler vehicle before the sale transaction was standing in his name and subsequently it was registered in the name of PW5. The accused could have produced the copy of the registration certificate which is the best piece of evidence in order to prima-facie prove his defence.
23. Moreover, even during the cross-examination of PW5 the accused has not made any efforts to show that after the trap on any date PW5 has paid the balance sale consideration of Rs.5,000/- as mentioned in Ex.P8 explanation. It is true that PW5 during his cross- examination has specifically admitted regarding the purchase of two wheeler from the accused. But in view of my findings already given that there is every possibility PW5 was won over by the accused when he has appeared before the Court to face the cross-examination. In the above circumstances, the aforesaid admission of PW-5 itself is not sufficient to appreciate and accept the 29 Spl.C.C.571/2017 defence of the accused. The evidence of PW5 as deposed in his examination-in-chief and cross-examination taken in its entirety shows that the alleged transaction of sale and purchase of the two wheeler of the accused is apparently false and unbelievable. Therefore the evidence of PW5 as deposed in his examination-in-chief regarding the demand of illegal gratification by the accused and for the said reason he has lodged Ex.P14 the report before the ACB Police and thereafter he went to the office of the accused and the accused has demanded and accepted the bribe amount remains unchallenged. The accused has not made any serious efforts to cross-examine PW-5 touching all the facts as deposed by him during his examination-in-chief.
24. In Ex.P9 trap mahazar, there is specific recital that the informant PW5 has stated before PW8 the IO that the accused has demanded the bribe and thereafter he has paid M.O.13 tainted cash. PW5 is also signatory to Ex.P9 trap mahazar. The contents of Ex.P9 trap panchanama and evidence of PW.2 and 8 show that after the accused has demanded the bribe, PW-5 has made the payment. Further the accused has disclosed that he is going to send the file to the Assistant Executive Engineer after receiving the entire balance amount.
25. The learned defence counsel has vehemently argued that as on the date of trap, the work of PW-5 was 30 Spl.C.C.571/2017 not pending with the accused. The aforesaid argument is contrary to the contents of Ex.P-8 explanation submitted by the accused. In the said document, it is specifically admitted that the work of the informant PW5 was pending with the accused. In this regard, PW5 in his examination-in-chief in clear and unambiguous terms has deposed that as on the date of trap, when he approached the accused, he has demanded the bribe amount and informed that only after payment of the entire balance amount, he is going to affix his signature in the report. Therefore, this part of evidence of PW5 show that his work was pending with the accused.
26. It is the further argument of the accused is that there was no demand for bribe. However PW-5 in his evidence has clearly deposed regarding the demand of the bribe by the accused. Moreover, his evidence reveals that the accused had not affixed his signature to the report and expressed his intention clearly by stating that unless PW-5 makes payment of the balance bribe amount, he is not going to affix his signature and forward the report to his higher officer. Ex.P13 file was recovered from the possession/custody of the accused and that shows that he was retaining the said file in anticipation of demanding and accepting the bribe from PW5 can be inferred. The recovery of the document/file from the custody of the accused is sufficient to draw an 31 Spl.C.C.571/2017 inference that he was keeping the said file in anticipation to obtain the bribe from the informant.
27. In this regard whether the accused can be allowed to contend that no work of the informant PW5 was pending with him can be accepted. This Court referred the judgment of Hon'ble Supreme Court reported in (2012) 8 SCC 527 in case of Syed Ahmed Vs. State of Karnataka. As per the facts of the said judgment, the accused was working as a police officer and demanded illegal gratification from the complainant. Before the Hon'ble Supreme Court, it is contended on behalf of the accused that he had no role to play and there was no occasion for him to demand any gratification from the complainant since he was not investigating the complaint of the complainant. In para-15 and 21 of the said judgment, the Hon'ble Court observed that in view of Section 7(d) of the PC Act, a public servant who is not in a position to do any favour to a person could also be deemed to commit an offence under the PC Act if he demands and accepts illegal gratification. The person demanding and accepting gratification is a public servant, there was demand for gratification and the gratification has been given to the accused is sufficient. In view of Explanation (d) to Section 7 of the P.C. Act whether public servant could or could not deliver results becomes irrelevant. Therefore the argument of the accused that he is not the competent authority to 32 Spl.C.C.571/2017 approve water connection to the building of PW-4 is immaterial and hence the ratio laid down by the Hon'ble Supreme Court is aptly applicable to the facts of the case.
28. The other argument of the accused is that, PW2 the shadow witness was not accompanying with PW5 during the trap and hence his evidence is not acceptable as a witness to the trap proceeding. The aforesaid argument of the accused is contrary to the testimony of PW2. PW2 the shadow witness in para-5 of his examination-in-chief has specifically deposed that he was following PW5 at a distance of 30 feet. As per his evidence, he was watching the conversation between PW5 and the accused and he has seen thereafter PW5 has paid the tainted cash to the accused and the accused has collected the amount and kept it in his trouser pocket. During the cross-examination of PW2 it is not the contention of the accused that the witness did not hear the conversation in between the accused and PW5. In the absence of specific cross-examination touching this aspect, the accused cannot be allowed to contend that PW2 has not heard the conversation between the accused and PW5. It appears during the cross- examination of PW2 in para-13, the accused has tried to establish that the existence of public road and noisy area near the place of offence and thereby he has made an attempt to dislodge the evidence. But in the absence of clear and specific admission, the aforesaid circumstances 33 Spl.C.C.571/2017 are not sufficient and cannot be accepted to disbelieve the evidence of PW-2.
29. In this regard it is necessary to refer the judgment reported in 1998(1) SCC 557 in the case of State of U.P. vs. Zakaullah. In the said judgment the Apex Court in para 14 held:
"nobody over heard the demand made by the respondent for bribe and that the amount was found not in the right pocket but only in the left pocket, are flippant grounds which should never have merited consideration".
The above observation is applicable to the argument of the accused that PW-2 could not hear the conversation between the accused and PW-5. Accordingly the argument of the accused in this aspect is untenable.
30. The learned defence counsel has invited the attention of the Court that during the cross-examination PW2, has admitted at the time of trap at 11.30 a.m. the complainant has not paid cash in the hands of the accused. But as per the entire prosecution case, the evidence of PW5 and 8, the contents of Ex.P9 trap mahazar, PW5 has paid the tainted currency notes to the accused in between 1.50 p.m. and 1.55 p.m. and not at 11.30 a.m. Therefore, the aforesaid stray sentence in the evidence during the cross-examination of PW2 is not an admission which goes to the root of the prosecution case 34 Spl.C.C.571/2017 or would create any advantage to the defence of the accused. The said sentence cannot be read in isolation. In his evidence PW2 has deposed that at 11.30 a.m. when they went to the office, the accused was not present and therefore at that point of time, the question of payment of bribe amount by PW-5 or receipt of the said amount by the accused does not arise.
31. In this connection, PW8 the IO in para-16 of his examination-in-chief has specifically stated that the accused came to his office at 1.50 p.m. As per Ex.P-9 the trap panchanama, there is reference that when PW5 has made phone call to the accused they came to know that at that time the accused was in Vishveshwarayya layout office and he further assured the informant PW5 that he will come to the Nagarabhavi office and directed PW-5 to wait in the said office. During the cross-examination, PW2 has also stated that when PW5 has made a phone call, the accused has informed that he is not in the Nagarbavi office and he is at Vishveshwarayya layout. It is the evidence of PW-2,5 and 8 that on 18.1.2017 at 11.30 a.m. when they went to the office of the accused, he was not in his office. Therefore the above contention of the accused is also deserves to be rejected.
32. The next question to be determined is whether the evidence of PW5 is to be accepted and if so to what extent and whether his evidence is admissible and can be 35 Spl.C.C.571/2017 relied for the purpose of arriving conclusion as to the guilt of the accused. PW5 in his examination-in-chief has fully supported the prosecution case in its entirety however during his cross-examination he has specifically admitted that the accused did not demand the money, but he has paid the tainted cash to the accused on his own. It is not the evidence of PW-5 that the said amount was paid towards the purchase of a two wheeler from the accused. In the event PW5 had actually purchased the two wheeler from the accused, there was no necessity for him to lodge Ex.P14 report against the accused on 17.1.2017. There was no enmity between PW-5 and the accused to implicate the accused in a corruption case. The contents of Ex.P14 further reveal that on 13.1.2017 itself PW5 has filed an application on behalf of Bebamma in the office of BWSSB for obtaining water connection and he approached the accused on 16-1-2017. Therefore, on considering the examination-in-chief, cross-examination and re-examination, this Court can arrive to the definite conclusion that PW5 has deliberately resiled from his stand during the cross-examination in order to bail out the accused. But the learned public prosecutor has rectified the evidence of the witness by subjecting him for re-examination.
33(a). In order to appreciate the evidence of PW5, it is appropriate to refer the judgment referred by the 36 Spl.C.C.571/2017 prosecution in C.M.Sharma case referred supra in para- 18 the Hon'ble Supreme Court held, "corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorised in 3 categories viz., unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe."
As per the facts of the said judgment, the shadow witness did accompany with the complainant but the accused did not allow him to be present in the chamber and hence the Apex Court held that seeking corroboration in such case will encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such a situation. The Apex court further held, it is not necessary that evidence of a reliable witness is necessarily to be corroborated by another witness. In the case on hand PW-5 has fully supported the prosecution case except the above referred version in his cross-examination. The ratio of the decision is applicable to the facts of the case on hand. In the case on hand 37 Spl.C.C.571/2017 PW2 pancha and shadow witness, and PW-5 the informant have supported the case of the prosecution.
33(b). This Court in order to appreciate the evidence of PW5 also finds it proper to refer the judgment of Hon'ble Supreme Court in the case of State of U.P. Vs Dr. G.K. Ghosh reported in (1984) 1 SCC 254. The Apex Court held that the police officer leading the raid party may be said to be an interested witness to a very limited extent. He is interested in the success of trap to ensure protection to the harassed citizen and vindication of the role of his department. A police officer, himself being a Government servant, would rarely resort to perjury and concoct evidence in order to rope an innocent Government servant. As per the facts of the said judgment, the Court held that depending on the basis of oral evidence of the complainant and the police officers even if the trap witnesses turned hostile or are found not to be independent feel safe in accepting the prosecution version on the basis of oral evidence of the complainant. Besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case. If the circumstantial evidence is of such nature that it affords adequate corroboration to the prosecution case, the prosecution case must succeed. In the case on hand, PW5 the informant and PWs.2 and 3, the pancha 38 Spl.C.C.571/2017 witnesses PW-8 the IO have supported the case except that PW5 during his cross-examination to some extent has deviated from his testimony from his examination-in- chief. However the same was set at right during his re- examination by the prosecution.
33(c). In the judgment reported in (2015)3 SCC 220 between Vinod Kumar vs. State of Punjab, the complainant resiled from his previous statement and was cross-examined by the prosecution. But the independent witness have supported the recovery in entirety and stood firm and remained unshaken in the cross- examination and nothing has been elicited to dislodge his testimony and the Apex court upheld the conviction. In the case on hand also even though PW-5 has not fully supported the prosecution case, PW-2 has withstood the test of cross-examination and has fully supported the prosecution case. In the case on hand PW5 was not cross-examined by the prosecution. During the cross- examination of PW5, the accused has not challenged the contents of Ex.P14 first information statement.
33(d). This Court also referred another judgment reported in 2015(11) SCC 213 in the case of Nayan Kumar Shivappa Waghmare Vs. State of Maharastra. As per the facts of the case, the complainant in his examination-in-chief has supported the case however, at the end of the cross-examination, he has stated that the 39 Spl.C.C.571/2017 accused did not demand the amount. In the said judgment the High Court held that the trial court erred in law in giving benefit of reasonable doubt to the accused and it is not a case where two views are possible. The Apex Court observed that there was every reason to believe that the witness had lost interest and was won over by the accused and upheld the conviction by dismissing the appeal. The facts and circumstances of the case in hand and the above facts of the referred decision are almost similar and stands on same footing.
33(e). In Mukhtiar Singh case relied by the accused referred supra the Hon'ble Supreme Court held that the evidence with regard to the demand of illegal gratification is in adequate to comply the pre-requisite to constitute the ingredients of the offence. The evidence that whether money had been brought or not, can by no means constitute demand as enjoined in law. But in the case PW5 has deposed that the accused informed him that if the entire bribe amount of Rs.10,000/- paid, he will affix the signature in the file and there is substantive evidence to prove the demand and the requirement of Section 7 of the PC Act.
33(f). In Sejjappa case referred by the accused the Hon'ble Supreme Court held date of alleged demand, the accused was not in office, and PW2 deposed that the money was given for purchase of diesel and only proving 40 Spl.C.C.571/2017 recovery of money is not sufficient to draw the presumption in the absence of demand.
33(g). In the case of State of Kerala vs. C.P. Rao the Hon'ble Supreme Court held, in a bribery case presence of complainant is necessary and when complainant was not examined, such complaint cannot be relied upon for basing conviction.
33(h). In Kishan Chandar Case the Hon'ble Supreme Court held, the complainant turned hostile before the trial court on two important aspects demand and acceptance of bribe. But in the case on hand, the complainant has supported the prosecution case and he was not treated as hostile witness by the prosecution.
33(i). In D.Rajendran case the Hon'ble High Court of Karnataka observed, the importance of examining the shadow witness to rule out the possibility of complainant accomplishing his revenge against the accused. In the case on hand, the accused has not made out any such circumstances to show that PW5 to take revenge had lodged false report.
33(j). In the Judgment Madesha and others The Hon'ble Hih Court held, the statement of witnesses under Section 164 of Cr.P.C. can be used for purpose of 41 Spl.C.C.571/2017 contradiction and it cannot be said to be the substantive piece of evidence.
The facts and circumstances of the case on hand and the facts of the above referred judgments relied by the learned defence Counsel are entirely different and hence the ratio of those decisions are not applicable.
34. In the case on hand the prosecution from the foundational facts and evidence of PW-2,3, 5 and 8 has proved that the accused has demanded and accepted the bribe. The accused from Ex.P8 explanation and during cross-examination has admitted the receipt of M.O.13 cash from PW-5. Hence, it is not necessary for the prosecution to prove the fact of recovery of the tainted cash from the possession of the accused and the procedural details such as chemical hand wash test conducted during the post trap formalities. The accused in his defence has not disputed the recovery of the tainted amount from his possession.
35(a). As per Section 20 of the PC Act, there is a presumption where it is proved that a public servant accused of an offence has accepted, obtained or attempted to obtain for himself or for any other person any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue 42 Spl.C.C.571/2017 advantage, as a motive or reward for performing or to cause performance of a public duty, improperly or dishonestly either by himself or by any public servant.
35(b). In the decision reported in (2001) 1 SCC 691 in the case of M. Narsinga Rao vs State of A.P. the Hon'ble Supreme Court observed though there was no direct evidence to show that the accused had demanded and accepted the money, yet the rest of the evidence and the circumstances were sufficient to establish that the accused had accepted the amount and that gave rise to a legal presumption under section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth was not accepted. The only condition for drawing such legal presumption is that it should be proved that the accused had accepted or agreed to accept gratification. It is a rebuttable presumption, but if the accused fails to disprove the presumption, then it can be held that the prosecution had proved that the accused received the amount. In para 21 held as follows:
"From those proved facts the Court can legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witness cited against him or by adducing reliable evidence. But if the
43 Spl.C.C.571/2017 appellant fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the appellant received the said amount".
The degree and character of burden of proof which is casted on the accused to rebut the presumption cannot be equated with the degree and character of proof which rests on the prosecution. The accused may rebut the presumption by showing mere preponderance of probability in his favour. It is well settled law that it is sufficient if the accused offers probable explanation of defence and he is not required to prove his defence by the strict standard of proof of beyond reasonable doubt.
In the above referred decision PW-1 and 2 made a volte-face in the trial and denied having paid any bribery to the accused and also denied that the accused demanded the bribe amount. In the case on hand the facts and circumstances are also similar. PW-5 the complainant during cross examination deposed that the accused had not demanded the bribe.
36. In light of stand taken by the accused in Ex.P8 explanation, there is necessity to consider the contention of the accused regarding absence of demand for bribe. Admission of the accused during cross-examination of PW5 is that he has received the amount towards the sale consideration of the two wheeler vehicle. But on the 44 Spl.C.C.571/2017 other hand, evidence of PW5 and all other circumstances show that the accused has voluntarily accepted the money knowing it to be bribe. The accused has failed to prove his defence by probable defence.
37. From the evidence of PWs.2, 3, 5 and 8 this Court can legitimately draw the presumption that the accused received M.O.13 tainted currency notes from PW- 5 as gratification. Hence, this Court has to draw the legal presumption that gratification was accepted as reward for doing public duty. The evidence of PW5 show that the accused did not affix his signature to the file and he has further informed PW5 that if the entire money is paid he will affix his signature and going to recommend the report to his higher officer for giving water connection. Therefore, once it is proved that the money was recovered from the possession of the accused, the burden of rebutting the presumption as contemplated under Section 20 of the PC Act shifts upon the accused. In the case on hand the accused could not rebut the presumption through cross-examination of prosecution witnesses or by adducing reliable and convincing evidence to prove that he had sold the vehicle to PW5 and the amount of Rs.10,000/- received by him was towards the part sale consideration. The defence of the accused in Ex.P8 explanation and during the cross- examination is absolutely silent regarding the date of sale transaction, total sale consideration, identity and 45 Spl.C.C.571/2017 description of the vehicle and its registration number etc. Moreover, the accused could have produced the copy of the registration Certificate or 'B' extract when he was examined under section 313 of the Cr.P.C. to show that before the date of transaction, the vehicle was standing in his name and after sale transaction it was registered in the name of PW5. The degree of proof required for proving the defence is preponderance of probability and it is well settled that the accused is not expected to prove his defence beyond reasonable doubt. The presumption under Section 20 of the PC Act is rebuttable one, but if the accused fails to disprove the presumption, same would stick and then it can be held by the Court that the prosecution had proved that the accused received the bribe amount. In the present case, the efforts made by the accused in his defence to rebut the presumption is failed. Hence, this Court can arrive to the definite conclusion that the accused has miserably failed to rebut the presumption under Section 20 of the PC Act. Accordingly, the presumption as prescribed under law is drawn against the accused.
38(a). During examination of PW-8, the learned defence counsel has raised the objection to mark Ex.P-29 to 43 photos. The prosecution has failed to produce the certificate under Section 65B of the Indian Evidence Act relating to the photos taken during the pre-trap and post trap proceeding. Those photos were marked subject to 46 Spl.C.C.571/2017 the objection and compliance. Hence for non- compliance of the production of the certificate, the photos are not considered in evidence.
38(b). PW-6 voice analyst in her evidence has specifically deposed that at the time of giving Ex.P-16 report the audio authentication software was not available at FSL Bengaluru. Hence audio authentication of the audio recordings in M.O.2 and 3 were not carried out. PW-6 during her cross-examination has specifically admitted that she is not able to say whether MO No.2 and 3 audio recording sent for examination were tampered or not. Hence the electronic evidence produced by the prosecution even though it is admissible the accused is able to create a doubt regarding its genuineness. Therefore the alleged recorded conversation between PW-5 and the accused which is part of Ex.P-6 and 9 panchanama, MO No.2 and 3 CD and oral evidence of PW-6 and Ex.P-16 report are not considered as evidence against the accused.
39. The evidence placed by the prosecution is consistent with the guilt of the accused and inconsistent with his innocence. It is well settled principle of law that minor discrepancies or contradictions in the evidence which do not affect the merits of the case should be ignored. A criminal trial is meant for doing justice to all, the accused, the society, 47 Spl.C.C.571/2017 and a fair chance to prove to the prosecution. Then alone can law and order be maintained. As held by the Hon'ble Supreme court, the courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge.
40. On perusal of the entire prosecution evidence, it is cogent, corroborative, believable and trustworthy. The evidence clearly show that the accused has demanded and accepted undue advantage of Rs. 10,000/- from PW-5. To attract the offence under section 13(1)(d) of PC Act, public servant should obtain for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant. In the case there is evidence to the effect that the accused has obtained pecuniary advantage by corrupt and illegal means by abusing his position as a public servant. In the facts of the case, the ingredients to bring the act of accused within the mischief of section 7 and 13(1)(d) of the PC Act are satisfied. From the evidence let in by the prosecution it is evident that the accused has demanded and obtained illegal gratification from PW-5.
41. It is well settled law that every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the PC Act. But if the 48 Spl.C.C.571/2017 acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the PC Act. The act alleged against the accused of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. After considering the aforesaid evidence and defence of the accused, the prosecution has proved the charges framed against the accused under Section 7, 13(1)(d) of the PC Act. In the result, my findings on point Nos.2 and 3 is in the affirmative.
42. Point No.4 :- In view of the above findings on point No.2 and 3 the accused is liable to be convicted for the offence under sections 7 and 13(1)(d) of PC Act. Accordingly this court proceed to pass the following:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused is convicted of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
49 Spl.C.C.571/2017 The bail bond and surety bond executed by the offender and his surety are hereby stand discharged.
M.O. No.13 cash of Rs.10,000/- (Rupees ten thousand) is ordered to be confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to the ACB Police.
Office is directed to keep M.O. No. 2 to 5CDs, along with the case file.
Office is directed to destroy M.O. No. 6 to 11 sodium carbonate solution bottle, and MO
-12 trouser after completion of the appeal period as the same are worthless.
(Dictated to the judgment writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open Court on this the 29 th day of March, 2022.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
50 Spl.C.C.571/2017 ORDERS The judgment is pronounced finding the offender is guilty of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
2. On the question of quantum of sentence to be imposed, heard the learned Sri. Chandrashekar R.P. Advocate, appearing for the defence. The learned counsel submitted that the offender is suffering from epilepsy and is under constant medication for the past few years. The learned defence counsel has produced medical documents to show that the offender was under
follow-up treatment in Fortis Hopital, Nagarbhavi, Bengaluru. As per the discharge summary, the offender was admitted to the Hospital for seizure disorder for one day in Aug 2015. The learned counsel submitted that on considering these mitigating factors, prayed for an order to impose minimum sentence as prescribed under section 7 of the PC Act. He further submitted that when the offender is sentenced under section 7 of the Act, there is no requirement to pass separate sentence for the offence under section 13(1)(d) read with 13(2) of the PC Act.
51 Spl.C.C.571/2017
3. It is well settled law that as held in the judgment reported in AIR 2004 SC 2317 in the case between N Bhargavan Pillai vs State of Kerala and in State vs Parthiban [(2006) AIR SCW 5267) the provisions of The Probation of Offenders Act do not apply to the offence under the PC Act.
4. In this case incident had occurred on 17-01- 2017. Thus, as per Amended Act No.1 of 2014, which came into effect from 16-01-2014, the offence under section 7 of the PC Act as on the date of offence was punishable with imprisonment which may extend to seven years and with fine and the minimum punishment shall be not less than three years. The offence under Section 13 (2) of the PC Act as on the date of offence was punishable with imprisonment which may extend to ten years and with fine and the minimum punishment shall be not less than four years. The recent amendment to the PC Act by Act No. 16 of 2018 came into force from 26-7-2018 is not applicable to the facts of this case.
5. In the light of the facts and circumstances of the case with particular reference to the nature and conduct of the offender in committing the offence, the quantum of sentence to be imposed has to be determined. The offender by committing the offence under the provisions of the PC Act has invited the risk to himself, and now he 52 Spl.C.C.571/2017 cannot plead for leniency in the sentence to be imposed against him. The facts and circumstances of the case show that, the offender has demanded Rs. 30,000/- illegal gratification and he has accepted Rs. 10,000/- from PW-5 for submitting the report and recommending the file/application to his higher officer for giving water connection. After negotiation, the offender has reduced the demand for Rs.25,000/- and during the trap, obtained tainted cash of Rs.10,000/-. Hence the offender should be punished by apposite sentence, after taking into consideration the submission of the learned defence counsel relating to the ill-health.
6. As per section 31 of the Cr.P.C. when a person is convicted at one trial of two or more offences, the punishment of imprisonment to commence one after the expiration of the other is the rule unless the Court directs that such punishments shall run concurrently is an exception.
7(a). In the judgment reported in 2020 SCC on line 412 in the case State of Gujarath Vs. Mansukhbhai kanjibhaibai Shah the Apex court held Corruption is the malignant manifestation of a malady menacing the morality of men. There is common perception that corruption in India has spread to all corners of public life and is currently choking the constitutional aspirations enshrined in the preamble.
53 Spl.C.C.571/2017 7(b). In the judgment reported in (2006)8 SCC 693 State of M.P. Vs. Shambhu Dayal Nagar Hon'ble Apex court while responding to the plea for a lenient view for a charge of corruption expressed its concern against rampant venality by public servant and observed the public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post.
7(c). In AIR 2013 SC 1682 Niranjan Hemchandra Sashittal case the Apex court held the gravity of the offence under PC Act is not be judged on the measure of quantum of bribe, as corruption is not to be justified in degree.
7(d). In the judgment reported in (2000)8 SCC 571 in the case between Madhukar Bahskarrao Joshi vs State of Maharastra para 18 the Apex court observed:
" When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on
54 Spl.C.C.571/2017 other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given, the sentence shall not be less than the minimum prescribed under the Act. Such a legislative insistence is reflection of parliament's resolve to meet corruption cases with a very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences".
7(e). In the decision reported in AIR 2015 SC 2678 in the case of Shanthilal Meena vs State of NCT Delhi, the Hon'ble Supreme Court exhaustively dealt with penological philosophy behind sentencing under the PC Act. It is held that the punishment for the offences under the PC Act there is any scope for reforming the convicted public servant. Unless the courts awards appropriately deterrent punishment taking note of the nature of the offence and the status of the offender, people lose faith in justice delivery system and very object of the legislation will be defeated. The court has thus a duty to protect and promote public interest and build up public confidence. Misplaced sympathy or unwarranted 55 Spl.C.C.571/2017 leniency will send a wrong signal to the public giving room to suspect the institutional integrity affecting the credibility of its verdict.
8. Therefore after considering the ratio laid down in the above referred judgments, while awarding sentence, this court should bear in mind the expectation of the society to prevent the corruption in the public office by providing prompt conviction and stern sentence. The above referred ratio law laid down by the Apex court are aptly applicable to the facts of the case on hand.
9. The learned defence counsel relied on the judgment reported in 2021 SCC OnLine SC 21 in the case of S. Sundara Kumar vs State of T.N. As per the facts the offence took place before 2004 and the accused was convicted as per judgment dated 23-7-2008. The trial court sentenced the accused for two years rigorous imprisonment but the Apex court reduced the sentence for one year one month on considering the age of the appellant as 70 years.
10. After considering the age of the accused and his health background as submitted by the learned defence counsel, it is necessary at this stage to sentence punishment as prescribed under the PC Act. This Court is not persuaded by the submission of the learned defence 56 Spl.C.C.571/2017 counsel to pass minimum sentence of imprisonment. However it is necessary to strike a balance between the maximum and minimum punishment. In Parthiben case, the Apex Court held that the offence under section 7 and 13(1)(d) of the Act being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty. In the case on hand when the offence proved against the offender are under two different sections 7 and 13(1)(d) of the Act providing different punishments, the offender should not be punished with a more severe punishment than the court could award to the person for any one of the two offences. Therefore, the argument of the learned defence counsel that the offender cannot be sentenced under section 13(1)(d) of the PC Act is not legally tenable.
11. After considering the above ratio laid down by the Apex court, facts and circumstances of the case and reasons stated herein above, it is just and proper to sentence the accused to undergo rigorous imprisonment for a period of four years for the offence under section 7 of the PC Act and rigorous imprisonment for a period of five years for the offence under section 13(2) of the PC Act. This court finds that the above quantum of sentence of imprisonment is proportionate to the gravity of the offence and it would meet the ends of justice.
57 Spl.C.C.571/2017
12. As per section 16 of PC Act where a sentence of fine is to be imposed under section 13(2) of PC Act, the court shall take into consideration the amount or value of the property the accused person has obtained by committing the offence. In the case on hand, the offender has demanded illegal gratification of Rs.30,000/- and has received an amount of Rs.10,000/- from PW-5. Having regard to the amount of demand of bribe, this court finds imposing fine of Rs. 50,000/- to the offender. In the result, this court proceed to pass the following:
ORDER The offender is sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.25,000/- (twenty five thousand) for the offence punishable under Section 7 of the PC Act and in default of payment of fine, he shall undergo simple imprisonment for further period two months and Further the offender is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 25,000/- (twenty five thousand) for the offence punishable under Section 13(1)(d) read with 13(2) of PC Act and in default of payment of fine, he shall undergo simple imprisonment for further period two months.
Both the substantive sentence of imprisonment shall run concurrently.
58 Spl.C.C.571/2017 Acting under section 428 of the Code, the period of detention undergone by the accused during investigation from 18-01-2017 to 24-01-2017 shall be set off against the sentence of imprisonment.
Free copy of the judgment be furnished to the accused forthwith.
(Dictated to the judgment-writer directly on computer, typed by him, corrected, signed and then pronounced by me in the open Court on this the 29 th day of March, 2022.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Thushar Girinath PW 2 : Kemparaju G. PW 3 : Bhaskar PW 4 : B.K.Satish PW 5 : Mahesh S. PW 6 : Chandrika G. PW 7 : Subramanya Swamy M.L. PW 8 : Ramamurthy B.
List of documents marked on behalf of prosecution:
59 Spl.C.C.571/2017 Ex P 1 : Operative portion of the 7th Board proceedings.
Ex P2 : Sanction order Ex P2(a) : Signature of PW 1 Ex P 3 : Covering letter of BWSSB dt.7.9.2017 Ex P 4 : Covering letter of BWSSB dt.17.1.2017 Ex P5 : Currency details sheet Ex P5(a) : Signature of PW 2 Ex P5(b) : Signature of PW 3 Ex P6 : Pre-trap mahazar Ex P6(a) : Signature of PW 2 Ex P6(b) : Signature of PW 3 Ex P6(c) : Signature of PW 5 Ex P6(d) : Signature of PW 8 Ex P7 : Continuation of Pre-trap mahazar Ex P7(a) : Signature of PW 2 Ex P7(b) : Signature of PW 3 Ex P7(c) : Signature of PW 8 Ex P8 : Explanation Ex P8(a) : Signature of PW 2 Ex P8(b) : Signature of PW 2 Ex P9 : Trap mahazar Ex P9(a) : Signature of PW 2 Ex P9(b) : Signature of PW 5 Ex P9(c) : Signature of PW 8 Ex P10 : Seal acknowledgment Ex P10(a) : Signature of PW 3 Ex P11 : Voice sample of complainant dt.10.3.2017 Ex P11(a) : Signature of PW 2 Ex P11(b) : Signature of PW 3 Ex P11(c) : Signature of PW 7 Ex P12 : Voice sample of complainant dt.29.5.2017 60 Spl.C.C.571/2017 Ex P12(a) : Signature of PW 2 Ex P12(b) : Signature of PW 3 Ex P12(c) : Signature of PW 5 Ex P12(d) : Signature of PW 7 Ex P 13 : Attested copy of application Ex P14 : Complaint Ex P14(a) : Signature of PW 5 Ex P15 : 164 Cr.P.C. Statement of P.w.3 Ex P15(a) : Signature of PW 5 Ex P16 : FSL CD report Ex P16(a) : Signature of PW 6 Ex P17 : Sample seal slip Ex P18 : CEPST RAL Sheets Ex P19 : Service particulars of AGO Ex P20 : Request letter dtd.13.4.2017 to EE, PWD.
Ex P21 : FSL report
Ex P22 : Letter addressed to XXII Addl.CMM for
recording 164 Cr.P.C. Statement of
complainant
Ex P23 : FIR
Ex P24 : Request Letter to PW8 to depute 2 witnesses dtd.17.1.2017 Ex P25 : Letter dtd.17.1.2017 deputing 2 witnesses Ex P26 : Attested copy of extract of attendance register for the month of January-2017 Ex P27 : Sheet containing brass seal impression 61 Spl.C.C.571/2017 Ex P28 : Rough sketch Ex P29 to: Photographs Ex.P43 List of material objects marked on behalf of the prosecution:
MO 1 : Metal seal 'W' MO 2 : CD Mobile recording conversation MO 2 (a) Cover MO 3 : CD deemed recording MO 3 (a) Cover MO 4 : CD accused voice sample MO 4 (a) Cover MO 5 : CD voice sample of complainant MO 5 (a) Cover MO 6: Bottle containing sodium carbonate liquid (Article-2) MO 7: Bottle containing sodium carbonate liquid turned pink during pre-trap mahazar (Article-3) MO 8: Bottle containing sodium carbonate solution (Article-4) MO 9: Bottle containing sodium carbonate solution (Article-5) MO 10: Bottle containing sodium carbonate liquid (Article-7) MO 11: Bottle containing sodium carbonate liquid (Article-8) MO 12 : Pant
62 Spl.C.C.571/2017 MO 12 (a) Cover containing pant MO 13 : Cash MO 13 (a) Cover List of witnesses examined on behalf of defence side:
NIL List of document marked on behalf of defence side NIL XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
63 Spl.C.C.571/2017 Judgment pronounced in the open Court vide separate Judgment. The operative portion of the Judgment reads as under:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused is convicted of the offence punishable under Sections 7 and 13(1)
(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bond and surety bond executed by the offender and his surety are hereby stand discharged.
M.O. No.13 cash of Rs.10,000/-
(Rupees ten thousand) is ordered to be confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to the ACB Police.
Office is directed to keep M.O. No. 2to 5 CDs, along with the case file.
64 Spl.C.C.571/2017 Office is directed to destroy M.O. No. 6 to 11 sodium carbonate solution bottle, and MO -12 trouser after completion of the appeal period as the same are worthless.
(LAKSHMINARAYANA BHAT K.), XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ORDER
The offender is sentenced to
undergo rigorous imprisonment for a
period of four years and to pay fine of
Rs.25,000/- (twenty five thousand) for
the offence punishable under Section 7 of the PC Act and in default of payment of fine, he shall undergo simple imprisonment for further period two months and Further the offender is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 25,000/- (twenty five thousand) for the offence punishable under Section 13(1)(d) read with 13(2) of PC Act and in default of payment of fine, he shall 65 Spl.C.C.571/2017 undergo simple imprisonment for further period two months.
Both the substantive sentence of imprisonment shall run concurrently.
Acting under section 428 of the
Code, the period of detention
undergone by the accused during
investigation from 18-01-2017 to 24-01-
2017 shall be set off against the sentence of imprisonment.
Free copy of the judgment be furnished to the accused forthwith.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.