Bangalore District Court
The State Of Karnataka Represented vs Mr. Rajashekar on 24 January, 2023
KABC010073942018
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 23rd day of January, 2023
: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.160/2018
Complainant: The State of Karnataka represented
by the Police Inspector, Karnataka
Lokayukta Police,
(erstwhile Anti Corruption Bureau)
Bengaluru urban, Bengaluru.
(By Sri. S. S. Nagarale
Special Public Prosecutor)
V/s
Accused : 1 Mr. Rajashekar,
Retired Taluk Development Officer,
Karnataka Maharshi Valmiki
Schedule Tribes Development
Corporation, Bengaluru Urban
Dist. Sampangi Ramanagara,
Bengaluru.
R/at. Sri Veerabhadreshwara Nilaya,
3rd Main, 5th Cross,
2 Spl.C.C.160/2018
Gokula Extension,
Tumakuru.
2 Mr. Sinivas C.Y.
F.D.A./Accountant,
Karnataka Maharshi Valmiki
Schedule Tribes Development
Corporation, Bengaluru Urban Dist.
Sampangi Ramanagara,
Bengaluru.
R/at. No.273, 6th Cross, Gutte Palya,
Jayanagara 1st Block,
Bengaluru-11.
3 Smt. M.J.Shantamma,
Typist,
Karnataka Maharshi Valmiki
Schedule Tribes Development
Corporation, Bengaluru Urban Dist.
Sampangi Ramanagara,
Bengaluru.
R/at. No.1, 1st Main Prashantha
Nagara, Near Shobha Hospital,
Vijayanagara,
Bengaluru-40.
(By Sri C.G.Sundar, Advocate)
JUDGMENT
The Deputy Superintendent of Police, the then Anti Corruption Bureau, Bengaluru Urban (in short the "ACB") presently the Karnataka Lokayukta Police wing, has submitted the charge sheet against the accused Nos.1 to 3 for the offences punishable under Sections 7 and 3 Spl.C.C.160/2018 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988 (in short the "PC Act").
2. The short facts of the prosecution case are that Cw.1 - Mr. Ramu P.H. had filed an application to the Karnataka Maharshi Valmiki Scheduled Tribes Development Corporation Limited ( in short the corporation ) under the self-employment scheme for borrowing Rs.1.00 lakh loan The accused being the employees working in the said corporation and even after Cw-1 produced the required documents, they had failed to send the subsidy amount cheque of Rs.35,000/- to the Bank. The accused alleged to have demanded Rs.7,000/- as the bribe from Cw-1 the informant. Therefore he had recorded the telephonic conversation made with the accused and on 4.4.2016 has lodged the first information statement before the ACB Police. The concerned Police registered the case in Crime No.1/2016 against the accused and on the same day laid the successful trap of the accused No.1 and arrested all the accused. After chemical hand wash test, the treated 4 Spl.C.C.160/2018 currency notes were recovered from the possession of the accused No.1. After completion of investigation, and on securing the required sanction, the Police have filed the charge sheet against the accused.
3. After filing of the charge sheet, cognizance of the offences were taken and on securing the presence of the accused, complied the mandatory requirement of Section 207 of the Cr.P.C. After hearing both the sides, the charges were framed and the accused pleaded not guilty and they claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution has examined Pw.1 to 12 witnesses, produced Ex.P-1 to 44 documents and got identified material objects as M.O. No. 1 to 10. After completion of the prosecution side evidence, the accused were examined under Section 313(1) (b) of the Cr.P.C. regarding the incriminating circumstances appearing in the evidence of the prosecution against them. They did not choose to adduce any evidence on their defence.
5 Spl.C.C.160/2018
5. Heard the arguments of both sides. The learned Special Public Prosecutor and the learned defence counsel have filed memorandum of written arguments.
6. After adverting careful thought to the rival arguments, analytical scrutiny of the documentary and the oral evidence placed on record, all the facts and circumstances of the case the points that would arise for the determination are :
1. Does the prosecution prove the fact that it has secured the valid sanction to prosecute the accused Nos.2 and 3 as required under Section 19(1)(c) of the P.C. Act?
2. Does the prosecution beyond reasonable doubt prove the fact that the accused Nos.1 to 3 being the public servants while working as the Taluk Development Officer, First Division Assistant and Typist respectively in Karnataka Maharshi Valmiki Schedule Tribes Development Corporation, Bengaluru in the month of March 2016 6 Spl.C.C.160/2018 have demanded Rs.7,000/- from Pw-10 Mr. Ramu P.H. for issuing subsidy amount cheque and on 4-4-2016 in between 1.00 and 1.10 p.m. in the above referred office the accused No.1 demanded and accepted illegal gratification of Rs.5,000/- on his behalf and on behalf of the accused Nos.2 and 3 and thereby committed an offence under Section 7 of the PC Act?
3. Does the prosecution beyond reasonable doubt prove the fact that on 4-4-2016 in between 1.00 and 1.10 p.m. the accused Nos.1 to 3 being the public servants by abusing their position as such public servants obtained pecuniary advantage of Rs.5,000/- by corrupt means from Pw.10 - Ramu P.H. and thereby committed an offence of criminal misconduct under Section 13(1)(d) read with Section 13(2) of the P.C. Act?
4. What order?
7 Spl.C.C.160/2018
7. The aforesaid points are answered as :
Point No.1 : In the affirmative;
Point No.2 : in the affirmative as against the accused No.1 and 2 and in the negative as against the accused No.3;
Point No.3 : in the affirmative as against the accused No.1 and in the negative as against the accused No.2 and 3;
Point No.4 : as per final order for the following REASONS Point No.1 :
8.1. As per the prosecution case, as on the date of offence on 4.4.2016 the accused No.2 was working as the First Division Assistant and the accused No.3 was working as the typist in the Corporation. Therefore, they are the public servants as defined under Section 2(c) of the PC Act and they were discharging the public duty as defined under Section 2(b) of the PC Act. Therefore, it is incumbent on the prosecution to secure sanction for their prosecution as prescribed under Section 19 of the PC Act.
8 Spl.C.C.160/2018 8.2 Among the prosecution witnesses examined Pw.2 Mr. R.S.Peddappayya who was working as the Managing Director of the Corporation and he has accorded Ex.P-2 sanction to prosecute the accused Nos.2 and 3. However he deposed since the accused No.2 and 3 were working on deputation as per order dated 16.6.2017 he has recalled Ex.P-2 order and thereafter issued Ex.P-3 intimation to the concerned investigating agency. Hence it is not necessary to consider the evidence of Pw-2 and Ex.P-2 sanction order.
8.3. Pw.3 - Mr. R.L.Venkatesh is working as the Chief Engineer and he has accorded the sanction to prosecute the accused No.2 as per Ex.P-4. In his evidence he has deposed that the investigating agency had sent all the materials and sought the prosecution sanction. After verifying all the documents prima-facie revealed that the accused No.2 is involved in the commission of the offence and hence he had proceeded to pass Ex.P4 order by according the prosecution sanction.
9 Spl.C.C.160/2018 8.4. Pw.4 - Mr. Vikash Kumar Vikash was working as the Commissioner, Social Welfare Department. As per his evidence the Director General of Police had sought the prosecution sanction and based on records placed by the investigating agency and on verifying those documents prima-facie made out that the accused No.3 was involved in demand and acceptance of the bribe. Therefore, as the Commissioner of the Social Welfare Department he is the competent authority and hence accorded the sanction as per Ex.P5 order to prosecute the accused No.1.
8.5. During the cross-examination of Pw.3 and 4 it is the specific contention of the accused that there are no allegations against the accused Nos.2 and 3 that they have misused the office of Karnataka State Construction Corporation Limited or the Social Welfare department. It is suggested to Pw.3 that he has no authority to remove the accused No.2 from his office, but the suggestions confronted were denied by the witness. During the 10 Spl.C.C.160/2018 cross-examination of Pw.4 it is contended by the accused that on 22.3.2016 itself the accused No.3 had made recommendation to release the subsidy amount and therefore no work was pending before her as on the date of alleged offence. It is contended on behalf of the accused that Pw.4 has mechanically passed Ex.P5 order, but the said contention has been denied by the witness. 8.6. As per the facts of the case the accused Nos.2 and 3 were working in the Corporation on deputation. The accused No.2 was appointed as FDA in Karnataka State Construction Corporation Limited and the accused No.3 was appointed as the typist in the Social Welfare department. Therefore, the question to be determined is which is the authority competent to accord the sanction to prosecute the accused No.2 and 3. As per Section 19(1)(c) of the PC Act in the case of persons other than the public servant falling under Section 19 (1)
(a) and 19(1)(b) the authority competent to remove the public servant from his office is the authority required to accord the sanction.
11 Spl.C.C.160/2018 8.7. In order to ascertain this aspect, this Court referred the judgment of the Honorable Supreme Court reported in (2013) 14 SCC 299 in the case of State of Uttarkhand Vs. Yogendra Nath Arora and another. As per the facts of the said judgment the accused was appointed by the Government of Uttar Pradesh and on deputation he was posted to the State of Uttarakhand and he was trapped and arrested for accepting the illegal gratification. In the said judgment the Honorable Supreme Court held that 'remove' under Section 19(1)
(c) of the PC Act means removing from the office and putting an end to the employment/government service and hence held that the government of Uttar Pradesh is the competent authority to accord the sanction. Therefore, on applying aforesaid ratio to the facts of the case, the accused Nos.2 and 3 were working in the Corporation on repatriation and in the result Pw.3 and 4 are the disciplinary authority competent to accord the sanction. In the case on hand, the prosecution has shown from the evidence that Pw.3 and 4 are the authority competent to accord the sanction.
12 Spl.C.C.160/2018 8.8. In view of the aforesaid evidence and ratio laid down by the Honorable Supreme Court the burden is heavy on the accused to challenge Ex.P4 and 5 order and authority of Pw.3 and 4 to accord the sanction. They have failed to show the authority competent to pass the order for sanction is somebody else and not Pw.3 and 4. They have failed to make out any such case either during the cross-examination of Pw.3 and Pw-4 or from any other documentary evidence. Moreover, Section 114
(c) of the Indian Evidence Act raises presumption in favour of Ex.P-4 and 5 order that the official act have been regularly performed and the accused has to rebut the said presumption.
8.9. It is the argument addressed on behalf of the accused No.1 that the prosecution ought to have produced the sanction before the court taking the cognizance of the offence against him. In the absence the proceedings initiated is non est in the eye of law. In this regard the learned defence counsel has relied upon 13 Spl.C.C.160/2018 the judgment of the Hon'ble High Court of Karnataka reported in 2022 Crl.L.J. 1516 in State of Karnataka Vs. V. Chandrashekar. In the said decision the Hon'ble High court held that the amendment brought to Section 19 is to be understood as if it came into effect from the date of the PC Act given into effect and therefore a retired public servant also cannot be prosecuted without the sanction.
8.10. In the above background this court referred the judgment reported in 2022 Live Law (SC) 158 in State of Rajasthan Vs. Thejmal Choudhary. In the said decision the Hon'ble Supreme Court held that it is the cardinal principle that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation. The statue dealing the substantive rights is prima-facie prospective. The Apex Court held that a careful reading of both Section 17A and Section 19 do not contain any express provision to show that they are retrospective in nature nor it is so discernible by implication. Therefore in view of the above 14 Spl.C.C.160/2018 binding precedent of the Supreme Court under Article 142 of the constitution it is not necessary to rely upon the ratio of the decision relied by the learned counsel for the accused.
8.11. It is necessary to refer the decision reported in (1999) 5 SCC 690 in the State of Kerala Vs. Padmanabh Nair. In the said case the Hon'ble Supreme Court in para- 6 to 8 of the judgment held that the accused facing the prosecution for the offence under the PC Act cannot claim immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the offence. In another judgment reported in (2020) 2 SCC 153 in SHO CBI/ACB Vs. B.A. Srinvasan and another the Apex Court held that the protection under Section 19 of the PC Act is available to a public servant till he is in employment and no sanction is necessary after the public servant demitted his office.
8.12. After filing of the charge sheet this Court took cognizance of the offence as per order dated 12.3.2018 15 Spl.C.C.160/2018 against the accused. It is the specific case of the prosecution that as on the date of taking cognizance, the accused No.1 was not a public servant and therefore, sanction is not necessary in order to prosecute the case against him. As per Ex.P-36 the accused No.1 was retired from the service on 03-6-2014. Therefore as on the date of trap i.e. on 04-4-2016 he was already retired from the service. He was appointed as per Ex.P-36 on temporary basis on 16-12-2015 for a period of six months or till regular direct appointment whichever is earlier. Therefore, as on the date of offence as well as at the time of the court taking cognizance of the offence, the accused No.1 ceased to be the public servant as he had already retired from the service.
8.13. Section 19 of the PC Act prescribes the mandatory requirement of sanction as on the date of the Court taking cognizance of the offence. Therefore, in the case on hand the prosecution has proved that the accused No.1 was retired from the service as on the date of this court taking cognizance. From the aforesaid 16 Spl.C.C.160/2018 discussion and the reasons this court arrived to the firm conclusion that the prosecution is not required to obtain sanction for prosecuting the accused No.1. 8.14. For the aforesaid reasons this Court arrived to the definite conclusion that prosecution has proved that it has obtained valid sanction as per Ex.P4 and 5 to prosecute the accused No.2 and 3. The validity of sanction is also proved from the oral evidence of Pw.4 and 5. There is no necessity to obtain the sanction for prosecuting the accused No.1 a retired public servant. Hence, point No.1 is answered in the affirmative. Points No.2 and 3 :
Since these two points are interconnected and in order to avoid the repetition of the facts, reasons and for brevity, they are taken up together for common discussion.
The ingredients of the offence:
9.1. The prosecution in order to prove the charge against the accused under Section 7 of the PC Act is required to prove the following ingredients:
17 Spl.C.C.160/2018
(i) The accused were the public servants when the offence was committed;
(ii) They have accepted, or obtained, or agreed to accept or attempted to obtain from Pw-10 gratification other than legal remuneration;
(iii) For themselves ;
(iv) As a motive or reward for doing an official act, or to show favour .
9.2 To establish the guilt of the accused under Section 13(1)(d) of the PC Act, the prosecution is required to prove the following factors.
i) The accused being the public servants by corrupt or illegal means, obtained for themselves any valuable thing or pecuniary advantage from Pw-10; or
iii) by abusing their position as such public servants, obtained for themselves pecuniary advantage; or
iv) while holding the office as public servants obtained pecuniary advantage without any public interest.
10A. The gist of the prosecution side argument:
Even though Pw-10 turned hostile and has not supported the prosecution case, it would not by itself 18 Spl.C.C.160/2018 collapse the whole case in view of the reported judgment of the Hon'ble Supreme Court in Vinod Kumar case.
Pw 5 and 7 panch witnesses and the IO have supported the prosecution case and their evidence is consistent with the guilt of the accused. From the evidence of Pw-5 and 7 the fact of demand and acceptance are proved Hence on proof of foundational facts it is mandatory that the court shall draw the presumption under Section 20 of the PC Act.
10B. The gist of the defence argument :
The subsidy amount cheque of Rs.35,000/- was dispatched from the office on 01-4-2016 to the bank and the amount was credited to the bank account;
No official work of the informant Pw.-10 was pending in the office as on the date of offence i.e. 04-4- 2016 and at the time of registration of the FIR;
Pw-10 has not supported the prosecution case;
19 Spl.C.C.160/2018 The prosecution has failed to prove the demand and acceptance of the bribe;
Pw-5 shadow witness did not enter the office and hence he had not heard the conversation and was not the witness to prove the demand and acceptance. In the absence of demand and acceptance, mere proof of recovery of the amount is not sufficient to bring home the guilt of the accused.
The oral and documentary evidence:
11.1. Among the prosecution witnesses examined Pw.10 is the informant and in his examination-in-chief he deposed that he had filed an application for borrowing loan of Rs.1 lakh from the Corporation and the loan was sanctioned in the year 2016 and out of the said amount, Rs.35,000/- was the subsidy amount. He went to the ACB office with his friend one Mr. Ramu. He is not having acquaintance with the accused and he denied lodging Ex.P-14 first information statement before the ACB police. He has only identified his signature appearing in the Ex.P-14 statement and shown total ignorance 20 Spl.C.C.160/2018 regarding its contents. As per his evidence he does not know to read and write the kannada language. He has denied the entire pre-trap and post trap proceedings, seizure of the currency notes, demand and acceptance of illegal gratification by the accused. The witness was declared as hostile and even during his cross-
examination the learned Special Public Prosecutor could not elicit any material evidence against the accused.
11.2. Among the other prosecution witnesses examined by the prosecution, Pw.5 Mr. Raghunandan is the shadow witness and Pw.7 Mr. Ramesh Nayak is the co-pancha. In their evidence both of them have deposed that on 4.4.2016 they went to the ACB Office and Pw.10 was present in the Police Station. After the IO introduced them to Pw-10, they had read the contents of Ex.P14 first information statement and from the contents of it they came to know that the accused had demanded the bribe from Pw.10 for the purpose of release of the subsidy amount. Both of them have deposed that they have heard the recorded audio conversation contained in 21 Spl.C.C.160/2018 the mobile phone produced by Pw.10 and the police secured the copy of the said conversation in Ex.P-6 C.D. and seized the said CD.
11.3. Pw.6 Mr. B.S.Abdul Khadar is the Dy.S.P. and he is the trap laying officer (in short the IO). In his examination-in-chief he deposed that on 04.4.2016 Pw.10 appeared before the ACB police station and has lodged Ex.P14 first information statement and also produced the mobile phone containing the recorded audio conversation regarding the demand made by the accused for the bribe. In pursuance of the said information he has registered the case and forwarded Ex.P15 F.I.R. to the Honorable Court. He further deposed that after registering the case he had secured the presence of Pw-5 and 7 two witnesses for the proposed trap.
11.4. Pw.5 and 7 in their evidence have deposed that Pw.10 the informant has produced cash of Rs.5,000/-. As per the instruction of the IO his assistants have smeared the phenolphthalein powder 22 Spl.C.C.160/2018 to the currency notes and Pw-7 has kept the tainted cash in shirt pocket of Pw.10. Pw.7 was subjected to undergo the chemical hand wash test and the IO explained to them the chemical reaction of the phenolphthalein powder with sodium carbonate solution. After completion of the entire pre-trap proceedings Ex.P- 8 pre-trap mahazar was drawn and they had affixed their signature to the said document as witness. Pw.5 has deposed that he was nominated by the IO as shadow witness with instruction to accompany with Pw.10 during the trap.
11.5. Pw.5 to 7 further deposed that after completion of the pre-trap formalities they proceeded to trap the accused and after reaching the place, Pw.10 went inside the room and Pw.5 was accompanying with him as the shadow witness. Pw.5 deposed that he was following Pw-10 and when he was about to enter the room, the accused No.1 with Pw-10 came out of the office and they were talking with each other in the passage outside the office. He had heard their 23 Spl.C.C.160/2018 conversation and the accused No.1 has demanded and accepted the bribe . Pw.10 has paid the tainted currency notes from his shirt pocket and thereafter given necessary signal to the trap team.
11.6. Pw.5 to 7 deposed that immediately after receiving the signal from Pw-10, the trap team went to the place and the police had secured the custody of the accused No.1 and he was subjected to undergo the chemical hand wash test and M.O.-10 currency notes were recovered from his shirt pocket. During the chemical hand wash test, the sodium carbonate solution turned to pink colour. Pw.7 deposed that he took the cash from the shirt pocket of the accused No.1 and it was tallying with the pre-trap mahazar and the IO has seized the cash as per MO.No.10.
11.7. Pw-5 and 7 in their evidence have stated that during the post trap panchanama the I.O. has seized M.O.6 shirt of the accused No.1. All the accused have submitted their explanation statement marked as Ex.P-9 24 Spl.C.C.160/2018 to 11 to the IO regarding the trap incident. Pw- 5 to 7 have stated that Pw.10 informed the IO that during the trap he forgot to switch on the voice recorder and hence the conversation was not recorded in the instrument provided to him. After the trap the police have drawn Ex.P-13 trap mahazar and the witnesses had affixed their signature on the said document as witnesses. During the post-trap proceedings the accused No.2 has produced Ex.P-18 file pertaining to Pw.10 and the IO has seized the said file.
11.8. Pw.8 - Smt. C. Srividya is the Assistant Director of FSL, Bengaluru. During her examination-in- chief she has deposed regarding scientific analysis of the disputed and sample voice recording and thereafter she has given Ex.P-23 report. As per her evidence, she had received one CD containing the disputed conversation of the accused No.1 to 3 and three CDs containing the sample speeches of the accused. As per her evidence, the respective speeches said to be of the 25 Spl.C.C.160/2018 accused No.1 to 3 found recorded in Ex.P-6 CD and the sample speeches are similar.
11.9. Pw.9 Mr. B.R.Venugopal is the Dy.S.P. and he conducted further investigation of the case. During his evidence he deposed that he had collected spot sketch, service records of the accused No.2 and 3 as per Ex.P27 and 28. He had sent the articles seized during the investigation for chemical examination and secured Ex.P30 and 36 documents relating to the duties and responsibilities of the accused No.1, drawn Ex.P22 mahazar and preparation of Ex.P21 transcript conversation contained in Ex.P-6 CD in the presence of witnesses. He has also deposed regarding drawing of Ex.P37 mahazar and collection of the sample voice of the accused, securing of the FSL report, CDR and CAF pertaining to the accused as per Ex.P32 and 34. After obtaining the sanction and completion of the investigation he has filed the charge sheet against the accused.
26 Spl.C.C.160/2018 11.10. Pw.11 Mr. G.Srinivasappa and Pw-12 Mr. Tarun Kumar are the witness to Ex.P37 mahazar. As per their evidence they were present in the ACB Police station at the time of collecting the sample voice of the accused in three CDs marked as Ex.P24 to 26. Pw.12 deposed that the police had delivered to his custody M.O.9 metal seal and he has produced the said material object before the court. Pw-1 Mr. Girish N. is the assistant Engineer and he deposed that after spot inspection he has prepared Ex.P-1 sketch of the place of incident.
The demand and acceptance:
12.1. Among the documents produced on record by the prosecution Ex.P14 is the first information statement dated 4.4.2016 lodged by Pw.10 Mr. Rama P.H. In pursuance of the said information Pw.6 has registered the case against the accused and submitted Ex.P-15 first information report to the court. It is appropriate to mention that names of all the accused No.1 to 3 are appearing in column No. 6 of Ex.P-15 FIR. It is true, Pw.10 during his examination-in-chief itself has 27 Spl.C.C.160/2018 totally denied the contents of Ex.P14 first information statement except admitting his signature appearing in the document. However the evidence on record reveals that after lodging of Ex.P14 first information statement, Pw.6 has registered the FIR, secured the presence of PW- 5 and 7 two panchas, drawn Ex.P8 pre-trap mahazar and laid the successful trap of the accused No.1 and also drawn Ex.P-13 the trap mahazar.
12.2. Pw.10 in his evidence has not denied his signature appearing in the pre-trap and trap mahazar. In his evidence he has not forwarded any reason behind lodging of Ex.P-14 report against the accused. He has not been cross-examined by the accused. After commencement of the trial the presence of Pw-10 could not be secured even after issuing the summons and bailable warrants on consecutive six hearing dates. Thereafter on execution of non-bailable warrant he has been arrested and produced before the court. Therefore the witness for the reasons best known to him was 28 Spl.C.C.160/2018 deliberately evading his presence from the process of the court is apparently clear from the record. 12.3. Pw-10 in his self employment application and the copy of the said application is available in Ex.P-18 had disclosed his educational qualification as SSLC and hence he is not an illiterate or uneducated. The testimony of Pw-10 shows that he has been won over by the accused. It appears from the evidence of Pw-10 for the reasons best known to him he has joined hands with the accused to bail them out from the charge. He has been bribed by the accused cannot be ruled out. Therefore the testimony of Pw-10 is in noway helpful to the case of the prosecution to prove the charges framed against the accused. Therefore it is necessary to analyze the remaining evidence placed on record by the prosecution to prove the demand and acceptance of the illegal gratification by the accused.
13.1. Pw.5 and 7 examined by the prosecution are the pancha witnesses and in their evidence they have 29 Spl.C.C.160/2018 deposed that on 4.4.2016, when they went to the ACB police station Pw.10 was present and after reading the contents of copy of Ex.P14 first information statement, they had agreed to assist the police as witness in the proposed trap proceedings. Both Pw.5 and 7 during their examination-in-chief have fully supported the prosecution case regrading drawing of Ex.P-8 and 13 pre-trap and post-trap mahazars and procedures followed during the entire trap proceedings. Therefore, from the evidence of Pw.5 and 7 pancha witnesses, Pw-6 the IO it is clear that Pw.10 had lodged Ex.P14 first information statement, production of mobile phone containing the recorded audio conversation, production of Rs. 5,000/- currency notes, smearing of the phenolphthalein powder, and the entire process of the pre-trap proceedings and the same.
13.2. As per the evidence of Pw.5 and 7, Pw-6 the IO has given instruction and Pw.5 was nominated as the shadow witness during the trap. Pw.5 in para-10 and 11 of his evidence has specifically deposed that during the 30 Spl.C.C.160/2018 trap incident he was accompanying with Pw.10. The evidence of Pw-5 shows that when Pw-10 went inside the office, the accused No.1 came out from the office with Pw-10, and in the passage the accused No.1 has demanded and accepted the tainted cash from Pw-10 and after counting the currency notes he had kept the said amount in his shirt pocket. It is the evidence of Pw.5 in para-11 that when he was about to enter the office along with Pw.10, the accused No.1 with Pw.10 came out from the office and in the passage they were discussing the subject relating to the subsidy amount and sending of the cheque. Therefore, the presence of Pw.5 shadow witness in the place of incident along with Pw.10 and he had heard the conversation in between Pw.10 and the accused No.1 is proved from his evidence.
13.3. The learned defence counsel has cross- examined the prosecution witness Pw-5 to7 at length and tried to make out discrepancy regarding the place of incident and presence of the accused No. 1 to 3 as shown in Ex.P-1 and 20 spot sketch. As per his 31 Spl.C.C.160/2018 argument Pw-5 the shadow witness did not enter the office with Pw-10 and hence he was not the witness during the alleged trap. However even as per the definite case of the prosecution, from the contents of Ex.P13 trap mahazar and evidence of Pw.6 in para-13 the accused No.1 has demanded and accepted the bribe from Pw-10 in the passage outside the office. During cross-examination of Pw.5 to 7, the presence of Pw.5 along with Pw.10 in the place of incident has not been disputed. It is the definite evidence of Pw-5 that when he was about to enter the office, the accused No.1 with Pw10 came out from his office. The evidence of Pw-5 shows that he had heard the conversation between Pw- 10 and the accused No.1 and witnessed the incident of demand and acceptance of the illegal gratification by the accused No.1 from Pw-10. Therefore, the minor discrepancy in the sketch regarding failure to show the presence of shadow witness in the place of incident is insignificant. The question to be considered by the court is not the correctness or otherwise of Ex.P-1 and P-20 sketch prepared by the Asst. Engineer and the IO 32 Spl.C.C.160/2018 instead to ascertain from the evidence the actual presence of Pw-5 shadow witness during the trap in the place of incident. This fact has been clearly proved from the evidence of Pw-5 to 7 without any shadow of doubt.
13.4. As per the evidence of Pw.5 after obtaining the MO.No. 10 the illegal gratification from Pw-10, the accused No.1 has counted the currency notes and kept it in his shirt pocket. He further assured with Pw-10 that he is going to send the cheque relating to the subsidy amount to the bank on the next Friday. Therefore the aforesaid portion of the testimony of Pw-5 reveals his presence in the place of incident and he has clearly over heard the conversation between the accused No.1 and Pw-10. Secondly the work of Pw-10 relating to sending of the subsidy amount cheque to the bank was pending and he received the bribe as a motive and reward for doing the official act is established. It is settled law that mere acceptance of money would not be an offence under Section 7 of the PC Act. But it must be as a motive or reward for an official act. The motive refers to 33 Spl.C.C.160/2018 a future act while the reward is to a past service. What is forbidden under Section 7 is the receiving of any gratification as a motive to do or as a reward for having done any official act. In the case on hand the accused No.1 has obtained illegal gratification is connection with sending of subsidy amount cheque as a motive is made out from the evidence of Pw-5 and 6.
13.5. The prosecution in order to prove the recovery of M.O.10 tainted cash from the possession of the accused No.1 has produced Ex.P29 report issued by the Chemical Examiner, Public Health Institute, Bengaluru. As per the document the Expert has given opinion regarding the detection of phenolphthalein in both the right hand and the left hand finger washes of the accused No.1 and in articles Nos.3, 7 and 8. During the investigation the shirt worn by the accused No.1 at the time of the trap has been seized as per M.O.6. and Pw.5 in his evidence has identified the said shirt. Therefore, from the evidence of Pw.5 to 7 seizure of M.O.6 shirt belongs to the accused No.1 is proved. In 34 Spl.C.C.160/2018 Ex.P29 report the chemical examiner has detected the presence of phenolphthalein in the said shirt. 13.6. Pw-7 in his cross examination has admitted that the official who has done the hand wash procedure in the ACB police station has done the hand wash during the trap. Pw-6 in his evidence para 12 specifically deposed that after the pre-trap all the investigating assistants, pancha witness, the informant and himself have clearly washed their hands. During cross- examination of Pw-7 the accused could not elicit any damaging admission regarding the recovery of the tainted cash and process of subjecting the accused to undergo the hand wash test. In the judgment relied by the accused reported in AIR 1973 SC 2773 in the case of Kali Ram vs State in para 25 the Hon'ble Supreme Court held that the reasonable doubt regarding guilt of the accused, the accused must have the benefit of that doubt, but the doubt should be reasonable and not based on surmises, conjectures or fanciful considerations. Therefore the attempt made by the 35 Spl.C.C.160/2018 accused to dislodge Ex. P-29 report and evidence of Pw- 7 is failed.
13.7. After the trap Pw.6 the IO had given an opportunity to the accused to submit their explanation regarding the incident. Ex.P-11 is the explanation statement of the accused No.1 and the contents are reproduced in Ex.P13 trap mahazar and it reads as under;
ಮಮಲಲಲಡ ವಷಯಕಕಲ ಸಲಬಲಧಸದಲತಕ ರರಮಮ ಇವರಮ ಯರವವದಕಮ ವಚರರವನಮನ ನಮಡದಕ ಬಲವಲತವರಗ ಹಣವನಮನ ನಮಡರಮತರತರಕ. ಇದರ ಸಲಬಲಧ ರರಮಮರವರನಮನ ಹಣ ಕಕಮಳರಮವವದಲಲ. ಸಲಬಲಧಪಟಟ ದರಖಲರತಗಳಮ ಕಛಕಮರಯಲಲ ಇರಮತತವಕ. ಈ ಕಡತಕಕಲ ಸಲಬಲಧಪಟಟಲತಕ ಯರವವದಕಮ ವಲಕಮ ನಮಮಲಲ ಇರಮವವದಲಲ. ಯರವವದಕಮ ಇವರಲದ ಡಮರಮಲಡಡ ಮರಡರಮವವದಲಲ ಎಲಬ ಅಲಶವನಮನ ತಮಮ ಅವಗರಹನಕಗಕ ಒಪಪಸರಮತಕತಮನಕ.
The accused No.1 when he was examined under Section 313 of Cr.P.C. to question No.29, 64 and 91 has stated regarding the demand and acceptance of the bribe as false. But the evidence shows that the accused did not make any efforts to object to the act of Pw-10 regarding 36 Spl.C.C.160/2018 alleged forcible thrust of money into his pocket. Moreover there was no animosity for Pw-10 to falsely implicate the accused by trapping them. Moreover during drawing of the trap mahazar, Pw-5 and 10 have stated before Pw-6 IO that the explanation statement of the accused No.1 is false and these details are recorded in the trap mahazar. Therefore the explanation statement of the accused No.1 is apparently false.
13.8. It is important to consider that during the cross-examination of Pw.5 to 7, it is not the defence of the accused No.1 that Pw.10 had forcibly thrust the tainted cash into his shirt pocket. Moreover, even when the accused No.1 was examined under Section 313 of the Cr.P.C. he did not forward any such explanation. From the above evidence of Pw-5 to 7 the prosecution has succeeded in showing that after voluntarily obtaining M.O.10 tainted cash knowing it to be the bribe the accused No.1 had kept those currency notes in his shirt pocket. Hence this fact is proved from the oral evidence of Pw-5 and Ex.P-29 circumstantial evidence. Therefore, 37 Spl.C.C.160/2018 from the aforesaid evidence, the prosecution has proved that as on the date of incident the accused No.1 had demanded and accepted the illegal gratification from Pw.10, counted the currency notes by using both hands and thereafter kept it in his shirt pocket. From the evidence of Pw.5 to 7 and Ex.P-29 report the prosecution has proved that the accused No.1 has demanded and accepted M.O.10 tainted cash of Rs.5,000/- from Pw-10 and the said amount was recovered from his possession.
The pendency of the work 14.1. According to the prosecution case, and the allegations made in Ex.P-14 first information statement the accused No.1 to 3 in order to send the cheque of Rs.35,000/- towards subsidy amount related to the loan borrowed by Pw.10 to the Bank, they had demanded Rs.7,000/- as the bribe and after negotiation they agreed to accept Rs.5,000/-. The prosecution further contended that Pw.10 was not inclined to make such payment of the bribe as demanded by the accused, 38 Spl.C.C.160/2018 hence he has lodged Ex.P-14 report before the ACB police and thereafter the accused have been successfully trapped.
14.2. During the trial it is the specific defence of the accused that Ex.P15 FIR was registered on 4.4.2016, but as on the date of registration of the FIR and during the trap, the work of Pw.10 regarding sending of the subsidy amount cheque to the bank was not pending before any of them. Hence, in the absence of any pending work or an opportunity to show official favour, they cannot be convicted for the charges framed against them. In this regard, the learned defence counsel has relied upon the following decisions.
1. 2016(1) KCCR 815R. R. Srinivasan and another vs State.
2. 2012(1) KCCR 414 R. Malini vs State of Karnataka.
3. 2010(3) KCCR 1851 State of Karnataka vs M. Gopalakrishnaiah and others.
14.3. In order to ascertain whether as on the date of the trap the work of the informant was pending before 39 Spl.C.C.160/2018 the accused, Pw.6 in his evidence para-25 has specifically stated that during the post-trap proceeding the accused No.2 has produced the file and he has seized the certified copy and it is marked as Ex.P18. It is very important to note that at the time of seizure, Ex.P18 file contained the original cheque bearing No.508887 drawn in Syndicate Bank dated 1.4.2016 for Rs.35,000/-. Therefore, as on the date of trap on 4.4.2016 the original cheque was found in the custody of the accused No.2 is proved from Ex.P-18 documentary evidence. Therefore, the contention of the accused during cross-examination of Pw.5 to 7 and 9 that the cheque relating to the subsidy amount had been sent to the Bank on 1.4.2016 is apparently false.
14.4. The other relevant fact requires to be considered in Ex.P18 document is the availability of the copy of inward and outward register in page No. 55A to 55C. In the said document entry dated 15.5.2015 shows that Pw.10 had filed an application under self- employment scheme to do cloth business and applied 40 Spl.C.C.160/2018 for loan. In page 55B entry dated 5.4.2016 in the 'To register' cheque No.508887 relating to Pw.10 has been sent to the Branch Manager, Syndicate Bank, Yeswanthpur. Therefore from the outward register also it is proved that the subsidy amount cheque was in the custody of the accused No.2 14.5. The prosecution has produced and got marked Ex.P30 and 31 documents through Pw.9. In Ex.P31 column-1 the District Manager, of the Corporation has specifically stated that even though the cheque was signed by him and sent on 1.4.2016, the accused No.2 has retained the cheque till 4.4.2016. The relevant portion of answer given by the District Manager by way of information furnished to the IO reads as under:
ಪಪಭರರ ಜಲರಲ ವಮವಸರಸಪಕರಮ ಅದಕಮ ದನ ಸದರ ಟಪಪಣ ಅನಮಮಮದಸ, ಚಕಕಡಗಕ ಸಹ ಮರಡ ಲಕಕಲ ವಭರಗದ ಪಪಥಮ ದರಕರ ಸಹರಯಕರರದ ಶಪಮ ಶಪಮನವರಸಡ ಸ.ವ.
ರವರಗಕ ಚಕಕಡನ ವವರಗಳನಮನ ದರಖಲಸಕಕಕಲಡಮ ರವರನಕ ಶರಖಕಗಕ ನಮಡಲಮ ಹಸರತಲತರಸಲರಗದಕ. ಆದರಕ ಸದರ ಶಪಮ ಸ.ವ. ಶಪಮನವರಸಡರವರಮ ಚಕಕಲನಮನ ರವರನಕ ಶರಖಕಗಕ ನಮಡದಕ ದನರಲಕಕ4-4-2016 ರ ವರಕಗಕ ತಮಮ ಬಳಯಮ ಇರಸಕಕಕಲಡರಮತರತರಕ. ನಲತರ ಸಲಡಕಕಮಟಡಬರಮಲಕಡ, ಯಶವಲತಪವರ ಶರಖಕ, ಇವರಗಕ 41 Spl.C.C.160/2018 ದಕ1-4-2016 ರ ದನರಲಕ ಇರಮವ ಸದರ ಚಕಕಡ ಸಲಖಕಮಕ508887 ನಮನ (ಸಹರಯಧನ ರಕ.35,000/-) ದನರಲಕಕ 5-4-2016 ರಲದಮ ರವರನಕ ಶರಖಕಗಕ ಸಲಲಸದಮದ, ಸಕಕತ ಪರಶಮಲನಕ ನಲತರ ದನರಲಕಕ 12-4-2016 ರಲದಮ ಬರಮಲಕಗಕ ಕಳಮಹಸಲರಗದಕ.
Therefore it is clearly proved by the prosecution from the documentary evidence that the cheque had been sent to the bank on 12-4-2016 after eight days from the date of trap.
14.6. The contents of Ex.P18 page-44 office note sheet reflect that the accused No.3 has discharged her part of the work on 22.3.2016. It appears in Ex.P-31 column No. 1 answer given by the District Manager due to typographical and clerical error the date in connection with the work of the accused No.3 is wrongly mentioned as 22-1-2016 instead of 22-3-2016. In Ex.P-9 explanation the accused No.3 has stated that she had sent the file relating to Pw1- to the accounts branch without any delay. The prosecution has failed to show from any of the 42 Spl.C.C.160/2018 documents that as on the date of trap 4.4.2016 the official work of the accused No.3 was pending.
14.7. The accused No.2 when he was examined under Section 313 of the Cr.P.C. regarding question No.29, 64 and 91 has answered as false. In Ex. P-10 the accused No2 has admitted he was required to send the subsidy amount cheque related to Pw-10 to the bank. 14.8. Therefore, for the forgoing reasons it appears from the facts and circumstances of the case that the accused No.2 was deliberately retaining the cheque with him from 1.4.2016 to 4.4.2016 in expectation of the bribe from Pw.10. There is no proper and satisfactory explanation forthcoming from the accused No.2 in Ex.P- 10 explanation or during the trial. The contention taken by the accused No.2 that the cheque was sent to the bank on 01-4-2016 is proved to be false. This is one of the strong circumstance appearing in the prosecution evidence against the accused No.2.
43 Spl.C.C.160/2018 14.9 As per the contents of Ex.P14 statement and the prosecution evidence crediting of the subsidy amount to the Bank was the condition precedent for the release of the loan amount in favour of Pw.10. From the aforesaid documents it is proved by the prosecution that the accused No.2 was retaining the file containing the cheque dated 1.4.2016 without sending it to the Syndicate Bank, Yeswanthpur branch.
15.1. Pw.6 the IO in his evidence has stated that he has seized Ex.P-6 CD containing the recorded audio conversation regarding the demand for the bribe by the accused. Pw.5 and 7 in their evidence have also stated with regard to the seizure of Ex.P6 CD containing the conversation and the procedures followed during the said seizure. As per their evidence at the time of drawing Ex.P-8 pre-trap mahazar Pw-10 has produced his mobile phone containing the recorded audio conversation. Even though Pw-10 has denied these 44 Spl.C.C.160/2018 facts, the evidence of Pw-5 to 7 touching these facts is admissible and can be considered.
15.2. The prosecution has drawn Ex.P-37 mahazar dated 20.8.2016 at the time of collecting the sample voice of the accused and examined Pw.11 and 12 witnesses to prove the drawing of the said mahazar. As per the evidence of Pw.9, on 30.6.2016 he has drawn Ex.P-22 mahazar and prepared the transcript of the conversation contained Ex.P-6 CD as per Ex.P-21.
15.3. In Ex.P14 first information statement Pw-10 has specifically alleged that on 24.3.2016 he had recorded the telephonic conversation made with the accused No.1 to 3 in his mobile phone. In Ex.P14 Pw-10 has admitted that he is the customer of mobile phone No.7348897783 and he has called the accused No.1 to his mobile phone No.9742544408.
15.4. In this regard during the investigation Pw.9 has secured Ex.P33 the call detail register of mobile phone 45 Spl.C.C.160/2018 belongs to the Pw.10. As per the said document there is specific reference that on 24.3.2016 Pw.10 has made telephone call to the accused No.1 to his mobile No.9742544408 at 10.40 a.m. and the duration of call is shown as 100 seconds. Ex.P-43 is the customer application form and Ex.P-44 is the CDR pertaining to the mobile phone number of the accused No.1 bearing No.9742544408. In Ex.P44 there is corresponding entry regarding the incoming phone call received by the accused No.1 from Pw-10 in connection with entries made in Ex.P33 extract. Therefore even in the absence of evidence of Pw-10 the prosecution has proved the exchange of the telephonic conversation in between Pw- 10 and the accused No.1.
15.5 The prosecution has produced Ex.P21 the transcript of the recorded conversation. In the said document there is specific reference that Pw.10 had asked the accused No.1 what is the amount and the accused No.1 had informed Pw.10 to make arrangement for the amount and the exact words used 46 Spl.C.C.160/2018 is "5 ರಕಡ ಮರಡಕಕಕಳಮಳತತಮಯ". From the aforesaid conversation and from the other facts and circumstances of the case it is clear that the accused No.1 has demanded Rs.5,000/- from Pw-10 as the illegal gratification. Ex.P-21 recorded conversation between Pw-10 and the accused No.1 is consistent with the prosecution case and contents of Ex.P-14 regarding the demand of Rs. 5,000/- as the illegal gratification. Similarly in Ex.P-21 transcript the accused No.2 has also demanded Rs.5,000/- illegal gratification from Pw-10.
15.6. In Ex.P33, there is reference to show Pw.10 through his mobile phone has called land line No.080- 22220867, twice on 24.3.2016 at 11.06 a.m. at 12.17 p.m., call duration is shown as 94 and 141 seconds respectively. Ex.P35 is the call detail register and as per the document there are corresponding entries. All these documents shows exchange of phone call from the mobile number of Pw.10. Ex.P34 is the certificate issued by the Junior Telecom Officer as required under Section 65-B of the Indian Evidence Act. Ex.P-21 contains 47 Spl.C.C.160/2018 transcript of two audio recorded conversations held between the accused No.3 and Pw.10. In the said conversation Pw.10 has made repeated attempts to ascertain the bribe amount, but the accused No.3 has answered that she cannot disclose those aspects through the phone. In the entire conversation prima- facie there is absence of specific conversation regarding the demand on the part of the accused No.3 for illegal gratification from Pw. 10.
15.7. Pw.8 is the voice analyst and she is the author of Ex.P-23 voice analysis report. As per her evidence, the respective speeches of the accused Nos.1 to 3 and the sample speech recorded in the CD are similar. During the cross-examination of Pw-8 the accused have contended that the word 'demand' was not contained in the audio recordings. Pw.8 has answered that she has examined the similarities in the voice and not the contents.
15.8. Pw.8 during her cross-examination has admitted that she had not issued any certificate under Section 48 Spl.C.C.160/2018 65B of the Indian Evidence Act. It is proper to mention here that at the time of examination of the witness and marking of Ex.P-23 report, the accused have not raised any objection to the effect that in the absence of production of certificate under Section 65B of Indian Evidence Act the report is inadmissible. In the event the accused had raised any such objection, the prosecution had the opportunity to secure the required certificate under Section 65B of Indian Evidence Act.
15.9. In this connection referred the decision reported in (2017) 8 SCC 570 Sonu alias Amar vs State of Haryana. In the said case the Hon'ble Supreme Court held that objection relating to or method of proof has to be raised at the time of marking of the document. Hence the objection raised by the accused in the later stage during the final argument is untenable. Therefore from the aforesaid facts, reasons and circumstances the prosecution has proved the telephonic conversation between Pw-10 and the accused. Ex.P-21 and 23 are the circumstantial and corroborative evidence produced 49 Spl.C.C.160/2018 to prove the demand for bribe made by the accused No.1 and 2 .
16.1. In view of the forgoing reasons, facts and circumstances and the evidence let in by the prosecution the question remains for the determination is whether in the absence of evidence of Pw.10 can the court arrive to the conclusion regarding guilt of the accused. In this regard the learned Special Public Prosecutor has relied upon the judgment of the Hon'ble Supreme Court reported in (2015) 3 SCC 220 in the case of Vinod Kumar Vs. State of Punjab. As per the facts of the said judgment the complainant has not supported the prosecution case and shadow witness in his examination-in-chief supported the case and in the cross-examination was taken the path of prevarication. It was contended by the defence that when the informant had not supported the case of the prosecution it is not justifiable to record conviction. However the Hon'ble Supreme Court rejected the defence contention, believing the evidence of shadow witness convicted the 50 Spl.C.C.160/2018 accused. The facts of the aforesaid judgment and facts of the case on hand are similar. In the present case also Pw.10 the informant turned hostile except identifying his signature appearing in Ex.P14 statement, Ex.P-8 and Ex.P13 pre-trap and post-trap mahazar. He has not deposed anything in support of the prosecution case. The case on hand is comparatively in better footing since Pw.5 and 7 two pancha witnesses in unequivocal terms fully supported the prosecution case. Therefore, the ratio laid down in the aforesaid judgment is aptly applicable to the facts of the case on hand.
16.2. The learned Special Public Prosecutor has relied upon the judgment reported in (1980) 2 SCC 390 in the case of Hazari Lal Vs. State. As per the facts of the said judgment, the informant was declared as hostile by the prosecution but the official witnesses supported the prosecution case. The Hon'ble Supreme Court by drawing the presumption available under Section 114 of Indian Evidence Act held that it is not necessary that the passing of money should be proved 51 Spl.C.C.160/2018 by direct evidence, it may be proved by circumstantial evidence. By applying the aforesaid ratio to the facts of the case as on the date of the trap, the accused No.1 has demanded and accepted the tainted currency notes from Pw.10, counted the notes and voluntarily kept it in his shirt pocket knowing it to be the bribe. Pw-5 the shadow is an eye witness to the demand and acceptance of the bribe and it is primary evidence. His evidence is of unimpeachable character. As per Section 134 of the Indian Evidence Act no particular number of witness is necessary to prove any fact. The requirement of law is quality of evidence and not the quantity.
16.3. In the judgment reported in (2001) 1 SCC 691, in the case of N. Narasinga Rao Vs. Stae of A.P. as per the facts Pw.1 and 2 have not supported the prosecution case but the Hon'ble Supreme Court arrived to the conclusion that even in the absence of evidence to show the demand and acceptance considering rest of the evidence and circumstances, sufficient to establish 52 Spl.C.C.160/2018 the accused had accepted the amount and thereby drawn presumption under Section 20 of the Act. 16.4. The learned advocate appearing on behalf of the accused in support of his argument has relied upon the following reported judgments.
i) (2015) 10 SCC 152 P. Satyanarayana Murthy Vs. the State;
ii). (2011) 6 SCC 450 The State of Kerala Vs. C.P. Rao. As per the facts in both these cases the complainant was not examined during the trial. In C.P. Rao case the existence of previous animosity with the accused was made out and the accused during the trap has shouted objecting thrusting of the bribe money. There are no such circumstances made out in the case on hand.
iii) (2014) AIR SCW 5740 M.R.Purushotham Vs. State of Karnataka the complainant turned hostile and has not supported the prosecution case.
iv) (2000) 5 SCC 21 in Meena Vs. State of Maharashtra the defence version was that the currency note was attempted to be thrust into the hands of the accused, 53 Spl.C.C.160/2018 one shadow witness was not examined and the witness examined was treated as hostile.
v). (2014) AIR SCW 2080 in B.Jayaraj Vs. State of A.P., the complainant disowned making of the complaint and there was no other evidence to prove the demand and acceptance of the bribe.
vi). 2021 Crl.L.J. 1353 in N.Vijayakumar Vs. State of Tamil Nadu the Hon'ble Supreme Court noticed substantive evidence adduced by the prosecution was not reliable. Vii) (2011) 12 SCC 294 in P. Parusharami Reddy Vs State the complainant was driven out of room when he approached the accused, the treated currency notes were thrown by the accused was not recovered and hence the Hon'ble Supreme Court held that convicting the accused on the sole ground of sodium carbonate turned to pink colour is not sufficient. In the above referred decisions the prosecution has failed to prove the demand by the accused and hence the Hon'ble court held that mere recovery without proof of demand would not attract the offence and mere recovery of tainted money is not sufficient to convict the 54 Spl.C.C.160/2018 accused. The decisions relied has no bearing on the facts and circumstances of the case as in the case on hand the demand and acceptance of the bribe are proved by the prosecution.
The Presumption 17.1 As per Section 20 of the PC Act, there is a statutory presumption wherein it is proved that a public servant accused of an offence has accepted or obtained or agreed to accept or attempted to obtain for himself or for any other person any undue advantage it shall be presumed, unless the contrary is proved, that he accepted or obtained that undue advantage, as a motive or reward for performing or to cause performance of a public duty, improperly or dishonestly either by himself or by any other public servant.
17.2. The learned Special Public Prosecutor has relied upon the judgment reported in (1995) 3 SCC 567 M.W. Mouhiuddin vs State of Maharastra and in the said case the Hon'ble Supreme court held that once the complainant parted with the tainted money and the 55 Spl.C.C.160/2018 same comes under the control and possession of the accused, the requirement is satisfied and the only inference to be drawn is that the accused has obtained the pecuniary advantage. In the absence of any explanation from the accused regarding the currency notes obtained by him the irresistible inference must follow that he has voluntarily accepted the amount.
17.3. In the recent constitutional bench judgment of the Hon'ble Supreme Court reported in 2022 SCC OnLine SC 1724 in the case of Mr. Neeraj Dutta Vs. State, in para-68 held that in order to bring home the guilt of the accused the prosecution has to prove the fact of demand and acceptance of illegal gratification either by direct evidence (oral or documentary) or by circumstantial evidence. In case of obtainment, the prior demand by the public servant and bribe giver tenders the demanded illegal gratification has been received by the public servant has to be proved by the prosecution. When the foundational facts are proved, the presumption of facts by way of inference may be 56 Spl.C.C.160/2018 drawn. In the event the complainant turns hostile, demand of illegal gratification can be proved by letting in either oral or documentary or circumstantial evidence. On proof of the fact in issue, Section 20 mandates the court to raise the legal presumption that the illegal gratification was received for the purpose of a motive or reward. It is open to the accused to show that the gratification was legally due to him or it is lawful. The burden resting on the accused would not be as light where a presumption is raised under Section 114 of the Indian Evidence Act. The reasonable and probable explanation offered is not sufficient and it is the burden of the accused to show that the explanation is true. The presumption has to be rebutted by proof and not by plausible explanation. In the case on hand from the documentary and oral evidence of Pw-5 the demand and acceptance of the illegal gratification by the accused No.1 is proved. In order to bring home the guilt of the accused No.2, the prosecution has placed convincing and acceptable documentary and circumstantial evidence. In view of relying upon the 57 Spl.C.C.160/2018 above referred judgment of the constitutional bench of the Hon'ble Supreme Court in Neeraj Dutta case, this court finds there is no need to refer the facts and ratio laid down in each of the decisions referred by the learned Special Public Prosecutor and the learned defence counsel.
17.4. As per Section 7 of the PC Act if the public servant agrees to accept or attempts to obtain any illegal gratification amounts to an offence. The Parliament in its wisdom at the time of drafting Section 7 has taken care to prosecute not only the public servant who accepts or obtains but also who agrees to accept or attempts to obtain within the ambit of the law with equal punishment. The twin requirement of demand and acceptance are required in the case in which both the ingredients are present. In the case on hand the prosecution has proved by documentary and circumstantial evidence against the accused No.2 that he has only attempted to obtain the illegal gratification from Pw-10. The presumption under Section 20 can be 58 Spl.C.C.160/2018 raised for the offence under Section 7 of the PC Act if the prosecution proves that the public servant has attempted to obtain the illegal gratification. The law makers had no intention to exclude the public servant who agreed to accept or attempted to obtain illegal gratification from the clutches of the law. In the above referred judgment of the Hon'ble Supreme court in Neeraj Dutta case held that if the public servant makes a demand and the bribe giver accepts the demand and tenders the gratification which in turn is received is a case of obtainment. In the case on hand there is no obtainment of illegal gratification by the accused No.2. Hence the prosecution has failed to prove the charge against the accused No.2 under Section 13(1)(d) of the PC Act.
18.1. The presumption under Section 20 of the Act is obligatory and it is a presumption of law and cast an obligation on the court to apply in every case under Section 7 of the Act. In the present case it is proved from the evidence that the accused No.1 has obtained MO.10 59 Spl.C.C.160/2018 cash from Pw-10. The prosecution has proved from the evidence that the accused No.2 had made attempts to obtain illegal gratification from Pw-10. The prosecution from the documentary and oral evidence placed on record has failed to prove the charges against the accused No.3.
18.2. Therefore on application of the above rules to the facts of the case on hand, from the proved facts, this court proceeds to legitimately draw a presumption that the accused No.1 and 2 had demanded and the accused No.1 on 4-4-2016 has obtained Rs.5,000/- illegal gratification from Pw-10. Accordingly, the presumption as prescribed under law is drawn against the accused No.1 and 2. Both the accused failed rebut the presumption appearing against them. When the accused have failed to rebut the presumption, it can be held that the prosecution has proved that the accused No.1 has obtained the illegal gratification and the accused No.2 has attempted to obtain the gratification as motive or reward for the performance of public duty.
60 Spl.C.C.160/2018 In the case on hand the accused have miserably failed to rebut the presumption appearing against them under Section 20 of the PC Act.
The Conclusion:
19. After Pw-10 approached the ACB Police and on lodging of Ex.P-14 first information statement they have registered the FIR as per Ex.P-15. It is not the defence of the accused that Pw-10 is in the habit of implicating the innocent public servants in false prosecutions. If the accused had not demanded the illegal gratification, there was no necessity or occasion for Pw-10 to approach the ACB police station. From the entire evidence it is proved that he was throughout present during the entire pre-trap and trap proceedings and affixed his signature to the prosecution documents.
During his examination even to the Court questions he has answered not aware of the consequences of deposing false evidence for implication of public servants in criminal prosecution. Hence in the interest of justice this court finds it necessary to initiate 61 Spl.C.C.160/2018 separate proceedings against Pw-10 Mr. Ramu P.H. for giving false evidence punishable under Section 193 of the Indian Penal Code. Pw-10 and the persons responsible behind him should learn a lesson the consequences of deposing false evidence.
20. The evidence placed on record by the prosecution is consistent with the guilt of the accused No.1 and 2 and inconsistent with their innocence. The minor discrepancies and contradictions appearing in the evidence which do not affect the merits of the case should be ignored. It is quite natural that the accused is ably assisted by a seasoned lawyer and he has tried to find fault in the prosecution case by cross-examination to project the contradictions in the evidence. 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 and both these aspects are the duty and the responsibility of the court.
62 Spl.C.C.160/2018
21. On appreciation of the entire prosecution evidence, it is cogent, corroborative, believable and trustworthy. The evidence clearly show that the accused No.1 has demanded and obtained the illegal gratification of Rs.5,000/- from Pw-10 and the accused No.2 had made attempt to obtain the gratification. The act alleged against the accused No.1 of demanding and obtaining the illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. There is evidence to the effect that the accused No.1 has obtained the pecuniary advantage from Pw-10 by corrupt and illegal means and by abusing his position as such public servant. There is no obtainment on the part of the accused No.2 and hence he is found guilty only for the offence under Section 7 of the PC Act. The ingredients to bring home the act of accused No.1 within the ambit of Section 7, and 13(1)(d) of the PC Act and that of the accused No.2 under Section 7 of the P.C. Act are fulfilled. The prosecution has failed to prove any of the charges framed against the accused 63 Spl.C.C.160/2018 No.3 and she is entitled for the benefit of doubt regarding her guilt in the prosecution case.
22. After considering the aforesaid evidence and defence of the accused, this court arrived to the conclusion that the prosecution has proved the charges framed against the accused No.1 under Section 7, and 13(1)(d) of the PC Act and against the accused No.2 under Section 7 of the PC Act. The prosecution has failed to prove both the charges under Section 7, and 13(1)(d) of the PC Act as against the accused No.3. In the result, point No.2 is answered in the affirmative as against the accused No.1 and 2 and in the negative as against the accused No.3 and point No.3 is answered in the affirmative as against the accused No.1 and in the negative as against the accused No.2 and 3 .
23. Point No.4 :- In view of the above findings on point No.2 and 3, the accused No.3 is entitled for an order of acquittal. The accused No.1 is liable to be convicted of the offence under sections 7, and 13(1)(d) 64 Spl.C.C.160/2018 of the PC Act and the accused No.2 is liable to be convicted of the offence under section 7 of the PC Act. Accordingly this court proceed to pass the following:
ORDER Acting under Section 248(1) of the Code of Criminal Procedure 1973 the accused No.3 is acquitted for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.
Acting under Section 248(1) of the Code of Criminal Procedure 1973 the accused No.2 is acquitted for the offence under Section 13(1)
(d) read with Section 13(2) of the PC Act.
Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused No.1 is convicted of the offence under Sections 7 and 13(1)(d) read with Section 13(2) and the accused No.2 is convicted of the offence under Section 7 of The PC Act.
Office is directed to register a separate Criminal Misc. case against Pw-10 Mr. Ramu P.H. and issue notice to show cause why he should not be prosecuted for the offence punishable under Section 193 of the Indian Penal Code for giving false evidence before 65 Spl.C.C.160/2018 this court on 10-3-2022 and direct him to appear in person before this court on 31-1- 2023.
The bail bonds executed by the accused No.3 and the offenders No.1 and 2 and their sureties are hereby stand discharged. Office is directed to destroy M.O. No. 1 to 5 sodium carbonate solution bottles, and MO -6 shirt after completion of the appeal period as the same are worthless.
Office is directed to keep M.O. No. 7 CD with cover along with the case file.
Office is directed to return M.O. No.8 and 9. metal seal to the Karnataka Lokayukta Police. M.O. No.10 cash of Rs.5,000/- (Rupees five thousand) is confiscated to the State after expiry of the appeal period.
(Dictated to the judgment writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open Court on this the 23 rd day of January 2023.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
66 Spl.C.C.160/2018 24.01.2023 The judgment is pronounced by finding that the offender No.1 is guilty of the offence under Sections 7 and 13(1)(d) and the offender No.2 is guilty of the offence under Section 7 of the PC Act.
2. Heard the offender No.1 and 2 in person and the learned Sri. C.G. Sundar advocate appearing for the offenders on the quantum of sentence proposed to be imposed against them. The learned defence counsel has submitted that by virtue of 2018 amendment to the PC Act, the offence under Section 13(1)(d) is deleted from the enactment and the said offence is presently incorporated in Section 7 of the P C Act. In the present case on hand, the incident occurred on 4-4-2016 prior to the coming into force of the amended P.C. Act. Section 7 of the PC Act was punishable with imprisonment for 7 years and the offence under Section 13(1)(d) was punishable with imprisonment for 10 years. Therefore he prayed this court for an order to extend the benefit of the amendment to the offenders and to sentence 67 Spl.C.C.160/2018 them only as prescribed under Section 7 of the amended P C Act.
3. In the case of The State vs Parthiban reported in 2006 Crl.L.J. 4772 the Hon'ble Supreme Court held that demanding and accepting the illegal gratification constitutes an offence both under Section 7 and 13(1)
(d) of the PC Act and the offence being single transaction but falling under two different sections, the offender cannot be liable for double penalty and the benefit of Probation of Offenders Act cannot be extended for the offenders under the PC Act.
4. 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 held that the punishment for the offences under the PC Act, there is no scope for reforming of the convicted public servant.
5. As per the facts of the case, the offence was committed in the month of March 2016 and on 04-4- 2016. Thus, as per Amended Act No.1 of 2014, which 68 Spl.C.C.160/2018 came into effect from 16-01-2014, the offence under section 7 of the PC Act was punishable with imprisonment for seven years and the minimum sentence of not less than three years. Similarly the offence under Section 13 (2) of the PC Act was punishable with imprisonment for ten years and the minimum punishment of not less than four years.
6. In the light of the facts and circumstances of the case the designation of the offenders the quantum of sentence to be imposed has to be determined. The offender No.1 is presently aged 69 years. At the relevant period of the commission of the offence he was working as the Taluk Development officer. The offender No.2 is presently aged 55 years and he was working as the the first division assistant. Pw-10 is a tailor by profession and he had applied for loan of Rs. 1.00 lakh and for the release of subsidy amount of Rs.35,000/- the offenders deliberately delayed the payment and demanded and accepted the bribe. Hence they should be punished by 69 Spl.C.C.160/2018 apposite sentence of imprisonment, after taking into consideration of the age and other mitigating factors.
7. In the judgment reported in (2006) 8 SCC 693 State of M.P. Vs. Shambhu Dayal Nagar, the Hon'ble Supreme Court expressed its concern against passing of lenient sentence on conviction of public servants under the P.C Act. In AIR 2013 SC 1682 Niranjan Hemchandra Sashittal case the Apex court held that the gravity of the offence under PC Act is not judged on the measure of quantum of bribe, as corruption is not to be justified in degree.
8. After the amendment of the PC Act the offence under Section 13(1)(d) has been deleted. Therefore, after the amendment, the demand and acceptance of the bribe by the public servant is punishable only under Section 7 of the Act.
9. In this regard, whether the accused are entitled to avail the benefit of the aforesaid amendment it is apposite to refer the judgment reported in (2020) 10 70 Spl.C.C.160/2018 SCC 763 in the case of Trilokchand Vs. State of Himachal Pradesh. In the said decision the Hon'ble Supreme Court held that if the amendment is beneficial to the accused it could be applied with respect to earlier cases as well as which are pending in the Court. If the amendment of the act reduces the punishment for an offence, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigor of law. The aforesaid ratio laid down by the Hon'ble Supreme Court is applicable to the facts of the case on hand.
10. The minimum punishment prescribed for the offence under Section 7 of the PC Act is imprisonment for 3 years and the maximum punishment is for 7 years. After considering the above aspects this Court finds that it is just and proper to strike a balance between the maximum and minimum punishment prescribed under Section 7 of the PC Act. The offender No.2 is found guilty of the charge of attempting to obtain the illegal 71 Spl.C.C.160/2018 gratification and he is still in service. Hence the sentence imposed upon him is having an impact on his remaining service and on the other public servants involved in corruption. After considering the age of the offender No.1 it is proper to sentence him to undergo imprisonment for four years. Accordingly, the offender No.1 is liable to undergo simple imprisonment and the offender No.2 is liable to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.10,000/- each for the offence under Section 7 of the PC Act. In view of extending the benefit of the 2018 amendment of the PC Act, this court is not proceeding to separately sentence the offender No.1 for the offence under Section 13(1)(d) read with 13(2) of the PC Act. Accordingly, proceed to pass the following:
ORDER The offender No.1 is sentenced to undergo simple imprisonment and the offender No.2 is sentenced to undergo rigorous imprisonment for a period of four years and both of them are liable to pay fine of Rs.10,000/- (Rupees ten thousand) each for the offence under Section 7
72 Spl.C.C.160/2018 of the PC Act. In default of payment of fine, they shall undergo simple imprisonment for further period one month.
Acting under section 428 of the Cr.P.C the period of detention undergone by the offenders during investigation from 04.4.2016 to 06-4- 2016 shall be set off against the sentence of imprisonment.
Free copy of the judgment be furnished to both the offenders forthwith.
(Dictated to the judgment-writer directly on computer, typed by him, corrected, signed and then pronounced by me in the open Court on this the 24 th day of January, 2023.) (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 : Girish N.
PW 2 : R.S.Peddappaiah
PW 3 : R.L.Venkatesh
PW 4 : Vikash Kumar Vikash
PW 5 : Raghunandana
73 Spl.C.C.160/2018
PW 6 : B.S.Abdul Khadar
PW 7 : Ramesh Naik
PW 8 : Smt. C. Srividya
PW 9 : B.R.Venugopal
PW 10 : Rama P.H.
PW 11 : G.Srinivasappa
PW 12 : Tharun Kumar
List of documents marked on behalf of prosecution:
Ex P1 : Engineer sketch
Ex P1(a) : Signature of PW 1
Ex P2 : Sanction order of A-2 and A-3
Ex P2(a) : Signature of PW 2
Ex P3 : Recalling Sanction Order dtd.6.9.2017
Ex P4 : Sanction order
Ex P4(a) : Signature of PW 3
Ex P5 : Sanction order dtd.9.11.2017
Ex P5(a) : Signature of PW 4
Ex P6 : CD containing conversation between accused
and the complainant (Article-1)
Ex P6(a) : Cover
Ex P7 : Sheet containing currency note numbers
Ex P7(a) : Signature of PW 5
Ex P8 : Pre-trap mahazar dtd.4.4.2016
Ex P8(a) : Signature of PW 5
Ex P8(b) : Signature of PW 6
Ex P8(c) : Signature of PW 7
Ex P8(d) : Signature of PW 10
74 Spl.C.C.160/2018
Ex P9 : Written explanation of A-3
Ex P10 : Written explanation of A-2
Ex P11 : Written explanation of A-1
Ex P12 : Metal seal receipt acknowledgment
Ex P13 : Trap Mahazar dtd.4.4.2016
Ex P13(a) : Signature of PW 5
Ex P13(b) : Signature of PW 6
Ex P13(c) : Signature of PW 7
Ex P13(d) : Signature of PW 10
Ex P14 : Complaint
Ex P14(a) : Signature of PW 10
Ex P15 : F.I.R. dt.4.4.2016
Ex P16 : Letter of T.L.O.
Ex P17 : Letter dt.4.4.2016
Ex P18 : File related to the complainant
Ex P19 : Sample seal
Ex P20 : Rough sketch
Ex P21 : CD containing Transcription of conversation
Ex P22 : Mahazar dtd.30.6.2016
Ex P22(a) : Signature of PW 7
Ex P23 : FSL report dt.3.2.2017
Ex P23(a) : Signature of PW 8
Ex P24 : CD containing sample voice of A-3 Ex P24(a) : Cover Ex P25 : CD containing sample voice of A-1 75 Spl.C.C.160/2018 Ex P25(a) : Cover Ex P26 : CD containing sample voice of A-2 Ex P26(a) : Cover Ex P27 : Service particulars of A-2 Ex P28 : Service particulars of A-3 Ex P29 : Chemical examiner's report dt.25.4.2016 Ex P30 : Work allotment of the accused dt.6.5.2016 Ex P31 : Duty allotment letter dtd.16.5.2016 Ex P32 : Certificate u/S.65-B of Indian Evidence Act issued by Nodal Officer Ex P33 : Call details register of Mob.No.7348897783 Ex P34 : Certificate u/S.65-B of Indian Evidence Act issued by BSNL Nodal Officer Ex P35 : Call details register of BSNL Land Line No.080-22220867 Ex P36 : Letter dtd.2.8.2016 with regard to allotment of duties Ex P37 : Sample voice recording mahazar dt.20.8.2016 Ex P37(a) : Signature of PW 9 Ex P37(b) : Signature of PW 11 Ex P37(c) : Signature of PW 12 Ex P38 : Brass seal receipt acknowledgment Ex P39 : Certificate u/S.65-B of Indian Evidence Act issued by Airtel Nodal Officer Ex P40 : Call details register of Mob.No.9206757330 76 Spl.C.C.160/2018 Ex P41 : Prepaid customer engagement form Ex P42 : Certificate u/S.65-B of Indian Evidence Act issued by Vodafone Nodal Officer Ex P43 : Postpaid customer application form of Mob.No.9742544408 Ex P44 : Call details register of Vodofone Mob.No.9742544408 List of material objects marked on behalf of the prosecution:
MO 1: Bottle containing colourless sodium carbonate solution (Article-2) MO 2: Bottle containing hand wash of CW.3 Ramesh Naik (Article-3) MO 3: Bottle containing right hand wash of accused No.1 (Article-5) MO 4: Bottle containing left hand wash of accused No.1 (Article-6) MO 5: Bottle containing sample colourless sodium carbonate solution (at the time of trap) (Article-4) MO 6 : Shirt MO 6 (a) Cover MO 7 : CD containing videography of trap proceedings (Article-9) MO 7(a) : Cover MO 8 : Metal seal 'A' MO 9 : Metal seal 'G' MO 10 : Cash of Rs.5,000/-
77 Spl.C.C.160/2018 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.
78 Spl.C.C.160/2018 Judgment pronounced in the open Court vide separate Judgment. The operative portion of the Judgment reads as under:
ORDER Acting under Section 248(1) of the Code of Criminal Procedure 1973 the accused No.3 is acquitted for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.
Acting under Section 248(1) of the Code of Criminal Procedure 1973 the accused No.2 is acquitted for the offence under Section 13(1)(d) read with Section 13(2) of the PC Act.
Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused No.1 is convicted of the offence under Sections 7 and 13(1)(d) read with Section 13(2) and the accused No.2 is convicted of the offence under Section 7 of The PC Act.
Office is directed to register a separate Criminal Misc. case against Pw-10 Mr. Ramu P.H. and issue notice to show cause why he should not be
79 Spl.C.C.160/2018 prosecuted for the offence punishable under Section 193 of the Indian Penal Code for giving false evidence before this court on 10-3-2022 and direct him to appear in person before this court on 31-1-2023.
The bail bonds executed by the
accused No.3 and the offenders No.1
and 2 and their sureties are hereby
stand discharged.
Office is directed to destroy M.O. No. 1
to 5 sodium carbonate solution bottles, and MO -6 shirt after completion of the appeal period as the same are worthless.
Office is directed to keep M.O. No. 7 CD with cover along with the case file.
Office is directed to return M.O. No.8 and 9. metal seal to the Karnataka Lokayukta Police.
M.O. No.10 cash of Rs.5,000/- (Rupees five thousand) is confiscated to the State after expiry of the appeal period. XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
80 Spl.C.C.160/2018 Order on sentence pronounced in the open Court vide separate order.
The operative portion of the order reads as under:
ORDER The offender No.1 is sentenced to undergo simple imprisonment and the offender No.2 is sentenced to undergo rigorous imprisonment for a period of four years and both of them are liable to pay fine of Rs.10,000/- (Rupees ten thousand) each for the offence under Section 7 of the PC Act. In default of payment of fine, they shall undergo simple imprisonment for further period one month.
Acting under section 428 of the
Cr.P.C the period of detention
undergone by the offenders during
investigation from 04.4.2016 to 06-4-
2016 shall be set off against the
sentence of imprisonment.
Free copy of the judgment be
furnished to both the offenders
forthwith.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.