Bangalore District Court
The State Of Karnataka vs T.T.Poojari on 28 December, 2020
IN THE COURT OF LXXVIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE (P.C.Act), BENGALURU
(C.C.H-79)
Present: Sri.Gopalakrishna Rai.T, B.A.(Law), LL.B.,
LXXVIII Addl.City Civil & Sessions Judge
& Special Judge (P.C.Act.), Bengaluru.
Dated: 28th day of December 2020
Spl.C.C.No.162/2017
Complainant: The State of Karnataka, represented by
Police Inspector, Karnataka Lokayukta,
City Division, Bengaluru.
(By Public Prosecutor)
vs.
Accused: T.T.Poojari,
Administrative Officer,
Technical Education Department,
Palace Road, Bengaluru.
R/at No.315, Krishna Block,
National Games Village,
Bengaluru.
(By Sri.R.N.Advocate)
Date of commission of offence : 16.09.2015
Date of report of occurrence : 18.09.2015
Date of arrest of accused : 18.09.2015
Date of release of accused on bail : 01.10.2015
Date of commencement of evidence : 14.02.2019
Date of closing of evidence : 21.09.2020
Name of the complainant : Smt.Janabai
Offences complained of : under sections 7, 13(1)(d) r/w
section 13(2) of Prevention
of Corruption Act.
Opinion of the Judge : Accused has committed the
offence.
Date of Judgment : 28.12.2020
2
Spl.CC.No.162/2017
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed charge sheet against accused T.T.Poojari for the offences punishable under sections 7, 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988. (in short PC Act).
2. The brief facts of the prosecution case are as under:-
The accused T.T.Poojari was working as Administrative Officer in Technical Education Directorate, Bengaluru. On 16.09.2015 when complainant Smt.Janabai W/o Late Rajkumar approached him along with Sudhakar and requested for issuing appointment order on compassionate grounds, he demanded and received bribe of Rs.5,000/-. Further, for giving posting in the same district, the accused has demanded further bribe of Rs.45,000/-. On 18.09.2015 between 2.20 p.m. to 2.30 p.m in the office of Technical Education Directorate, Palace Road, in the chamber of accused in room no.304 he again demanded and accepted Rs.40,000/- from Sudhakar on behalf of complainant as gratification other than legal remuneration as a reward to do official favour to the complainant. So, the investigating officer having conducted successful trap and trap mahazar on obtaining the required sanction at a later stage from the competent authority to prosecute accused has laid the charge sheet.
3. Cognizance of offences is taken. In response to the summons accused has appeared and secured bail. The copies of prosecution papers are furnished to the accused as contemplated under section 207 of Cr.P.C. After hearing both sides, this court has duly framed the charges for the alleged offences against the accused. The accused 3 Spl.CC.No.162/2017 having denied the charges leveled against him has claimed to be tried and accordingly the prosecution in order to establish the guilt of the accused has examined totally 11 witnesses as PW.1 to 11 and has produced documents at Ex.P.1 to 36 and 16 material objects.
4. After completion of prosecution evidence, statement of accused as required under section 313 of Cr.P.C. is duly recorded. He denied incriminating circumstances appearing against him and he has not chosen to lead any evidence on his behalf.
5. Heard the arguments of learned PP for the State and Sri.P.N.Hegde for Sri.R.N.advocate for the accused and perused the records.
6. Now, points that are arisen for the due consideration of this court:-
1) Does the prosecution proves the fact that it has obtained valid sanction to prosecute accused as required under section 19 of P.C.Act?
2) Does the prosecution beyond reasonable doubt proves the fact that the accused as a public servant working as in-charge Administrative Officer has demanded and accepted an illegal gratification of Rs.40,000/- from PW.2 and thereby committed an offence punishable under section 7 of PC Act 1988?
3) Does the prosecution proves beyond reasonable doubt that the accused has committed criminal mis-
conduct as defined under section 13(1)(d) of PC Act which is punishable under section 13(2)?
4) What Order?
7. My findings on the above points are:-
Point no.1 : in the affirmative Point no.2 : in the affirmative 4 Spl.CC.No.162/2017 Point no.3 : in the affirmative Point no.4. : as per final order for the following:
REASONS
8. Introduction: To prove charge against the accused for the offences punishable under sections 7, 13(1)(d) read with section 13(2) of PC Act, prosecution has examined as many as 11 witnesses as P.Ws.1 to 11. Now the endeavour of this court is to ascertain whether sufficient evidence is forthcoming from the side of prosecution against the accused to make out case against him for the offence alleged.
8.(a). The PW.1 Smt.Janabai being the complainant has deposed that her request for securing job on compassionate ground was pending with the accused, at the first instance he demanded and received illegal gratification of Rs.5,000/- and subsequently he demanded Rs.45,000/- to post her to same district. She has further deposed that she and Sudhakar were not willing to pay bribe amount and hence, they have lodged complaint to lokayukta police as per Ex.P.1. Based on Ex.P.1 on 18.09.2015 lokayukta police have laid a trap and was successful as the accused demanded and accepted bribe of Rs.40,000/-.
8.(b). The PW.2 Sudhakar being the uncle of Janabai deposed that the request of Janabai for securing job on compassionate ground was pending with the accused. He has further deposed that the accused demanded and accepted illegal gratification of Rs.5,000/- at the first instance. It is also his evidence that when Janabai requested the accused to post her to Bidar District, once again he demanded bribe of 5 Spl.CC.No.162/2017 Rs.45,000/-. He has further deposed that as they were not willing to pay bribe amount, he and Janabai lodged complaint to lokayukta police. On 18.09.2015 the accused has demanded and accepted Rs.40,000/- as bribe. The lokayukta police have laid trap and was successful.
8.(c). The PW.3 K.C. Thimmaiah is a shadow witness has deposed with regard to laying of trap by lokayukta police. He has also deposed that trap was successful.
8.(d). The PW.4 S.Venkatesh being Under Secretary to the Government has deposed that after the examination of investigation materials, he by acting under Rule 19 of the Karnataka Government (Transaction of Business) Rules 1977, signed and issued Ex.P.7 Prosecution Sanction Order.
8.(e). The PW.5 H.U.Talawar, Director of Technical Education, has deposed that accused T.T.Poojari was working as in charge Administrative Officer of Technical Education Directorate. He has deposed with regard to issuance of Ex.P.11 file relating to Smt.Janabai to get the job under compassionate ground. He has further deposed that as per Ex.P.11, work of Janabai to secure job under compassionate ground was pending with T.T.Poojari.
8.(f). The PW.6 Smt.Srividya, in-charge Assistant Director, FSL, Bengaluru has deposed with regard to issuance of Ex.P.12 Report. According to her, her examination revealed that the respective speeches of male speaker-1 T.T.Poojari found recorded in micro SD card of mobile phone marked as article no.1 and CD marked as article 6 Spl.CC.No.162/2017 no.12 and the sample speeches recorded in CD marked as article no.A are similar.
8.(g). The PW.7 Srikanth, DGM of BSNL has deposed that he has issued Ex.P.14 CDR of mobile No.8088887135 and Ex.P.15 certificate under section 65B of Indian Evidence Act .
8.(h). The PW.8 Prashant, Legal Head of Vodafone has deposed that he has issued Ex.P.16 CDR of mobile No.9986312827 and Ex.P.17 certificate under section 65B of Indian Evidence Act.
8.(i). The PW.9 R.Sudhir. Investigating Officer has deposed that based on Ex.P.1 complaint he has registered the case against the accused. It is also his evidence that by following procedure he has laid trap on 18.09.2015. He has further deposed that on that day the accused has demanded and accepted illegal gratification of Rs.40,000/- from Sudhakar on behalf of complainant and accordingly trap was successful.
8.(j). The PW.10 Vasanth Shankar Bhagawath, Police Inspector of Karnataka Lokayukta has deposed that he has received Ex.P.7 Prosecution Sanction Order and filed charge sheet against the accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act.
8.(k). The PW.11 K.Suresh then Police Inspector of Karnataka Lokayukta has deposed that he has received Ex.P.14 to Ex.P.18 documents and placed the file along with Final Report before learned ADGP to secure Prosecution Sanction Order.
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8.(l). To bring home the guilt of the accused for the offence punishable under section 7 of PC Act, prosecution has to prove that the accused being a public servant demanded and accepted illegal gratification. The prosecution must also prove that the demand and acceptance of illegal gratification is for doing some official act or favour to the complainant. Under section 20 of PC Act, there is a presumption available in respect of offence punishable under section 7. On proving acceptance of pecuniary advantage by the accused without any public interest by abusing his position as a public servant, criminal mis-conduct of accused under Section 13(1)(d) of PC Act will also to be established. Further, it is statutory obligation on the part of prosecution to show that it has obtained valid sanction as required under section 19 of PC Act to prosecute the accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act.
9. Point No.1: About Sanction
9.(a). The learned defense counsel attacking the order of sanction has submitted that, the order at Ex.P.7 was practically drafted by Lokayukta police. In fact, at the time of cross- examination of PW.4 a specific suggestion was directed to him suggesting that along with letter seeking prosecution sanction, ADGP Lokayukta has sent a draft sanction order. But PW.4 has categorically denied this suggestion. It is settled proposition of law that denied suggestion is not evidence in the eyes of law. Therefore, the arguments of learned defense counsel does not 8 Spl.CC.No.162/2017 survive for consideration. It is further argued that PW.4 without application of mind merely basing on the report of lokayukta police has proceeded to subscribe his signature on Ex.P.7 sanction order. However, learned PP submits that the sanction order in question was given by PW.4, only after verification of records and on application of mind. So, there can be no ground to treat the order of sanction on hand as bad in law. In view of the above submissions it is incumbent upon the court to examine the evidence of PW.4 in the light of the documentary evidence placed on record.
9.(b). The fact that the accused was working as in-charge Administrative Officer of Technical Education Directorate as on the date of trap and earlier it is not in dispute. Therefore, the accused is a public servant as defined under section 2(c) of PC Act. Hence, it is for the prosecution to show that, it has obtained a valid sanction as required under section 19 of PC Act. Similarly, it is incumbent for the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. That process can be established by the prosecution by producing original Sanction Order which contains the facts constituting the offence and the grounds of satisfaction and also by adducing the evidence of the author who has issued Order of Prosecution Sanction.
9.(c). Before adverting to the facts and evidence placed on record, it is just and necessary to place reliance on a decision 9 Spl.CC.No.162/2017 reported in 2013 (8) SCC 119 in the case between State of Maharastra through CBI Vs. Mahesh.G.Jain. In the said decision the Apex Court has held that "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. An order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity. When there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused."
9.(d). In the present case to substantiate the fact that it has obtained a valid sanction to prosecute accused, the prosecution has examined one S.Venkatesh, as PW.4. It is his evidence that while discharging his duties as Under Secretary to the Government, he has received a letter from ADGP, Lokayukta along with materials collected while conducting investigation in Cr.No.65/2015 seeking prosecution sanction to prosecute T.T.Poojari for the offence punishable under section 7, 13(1)(d) r/w section13(2) of PC.Act. According to him, it is the Government which is empowered to pass orders for removal of the accused. In fact his evidence would clearly indicate that by virtue of Rule 19 of the Karnataka Government (Transaction of Business) Rules 1977, on behalf of Government he has signed and issued Ex.P.7 Prosecution Sanction Order. Though PW.4 is subjected to the test of cross-examination, nothing is 10 Spl.CC.No.162/2017 suggested to him that he is not authorised to sign and issue Ex.P.7. Therefore, the authority of PW.4 to sign and issue Ex.P.7 on behalf of Government is remained unchallenged.
9.(e). It is the evidence of PW.4 that he has examined copy of complaint, FIR, letter addressed for deputation of panchas, entrustment panchanama, description of currency notes, typed format of conversation between the accused and complainant, trap panchanama and other documents at sl.no.7 to 32 as shown in Ex.P.7. According to PW.4 after verification and careful scrutiny of records and on application of his mind he found that there are sufficient materials to accord sanction to prosecute T.T.Poojari. Though PW.4 has deposed in a mathematical precision with regard to duty discharged by him, nothing worthwhile is elicited from his mouth to show that he has not examined the materials produced by the investigating agency and not applied his mind before issuance of Ex.P.7 Order. A meaningful reading of evidence of PW.4 would clearly establish that he has stated as to what he has done after the receipt of request letter and materials collected by the investigating agency. Therefore, to disbelieve or to discard the testimony of PW.4 there are no reasons much less good reasons.
9.(f). In addition to the above factual aspect of the matter, law presumes that until the contrary is established, the authority has acted fairly and objectively and recorded its satisfaction based on the materials placed before it. In the present case also the conjoint reading of the evidence of PW.4 and 11 Spl.CC.No.162/2017 contents of Ex.P.7 would establish the fact that, on applying its mind, the authority constituted under Karnataka Government (Transaction of Business), Rules 1977 has issued Ex.P.7 Sanction Order. Hence, there is no reason to accept the contention of the accused that P.W.4 has issued Ex.P.7 mechanically.
9.(g). In 2014(14) SCC 295 in the case between CBI Vs. Ashok Kumar Agarwal, the Apex Court of this Nation has held that, "the prosecution has to satisfy the Court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or to withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions with regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought".
12Spl.CC.No.162/2017
9.(h). It is also to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the public servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
9.(i). Consideration of the material implies application of mind. Therefore, the order of sanction must ex-facie disclose that the sanctioning authority had considered the evidence and other materials placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant materials i.e, FIR, disclosure statement, recovery memos, draft chargesheet and other materials on records were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind.
9.(j). There is an obligation on the Sanctioning Authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. The 13 Spl.CC.No.162/2017 prosecution must therefore send the entire relevant record to the Sanctioning Authority including FIR, disclosure Statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favor of the accused and on the basis of which, the Competent Authority may refuse action. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently by applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant materials. In every individual case, the prosecution has to establish and satisfy the Court by leading evidence that entire relevant facts had been placed before the Sanctioning Authority and the authority had applied its mind on the same and that sanction had been granted in accordance with law. From the study of above decision it is clear that the prosecution is under obligation to place entire records before Sanctioning Authority and satisfy the Court that, the authority has applied its mind. Similarly, the Sanctioning Authority has to do complete and conscious scrutiny of whole record placed 14 Spl.CC.No.162/2017 before it. The Sanction Order should show that the authority has considered all the relevant facts and applied its mind. The reading of Ex.P.7 would show that the prosecution has placed investigation materials before PW.4 and he has applied his mind.
9(k). Thus, as per the discussions made herein above, it is evident that the prosecution has proved that Ex.P.7 order was issued by the competent authority after due application of mind by placing reliance on the materials produced before it. Even otherwise on independent appreciation of investigation materials, this court is also of the opinion that there are sufficient materials to accord prosecution sanction as the accused being the public servant demanded and accepted gratification other than legal remuneration. Hence, the infirmities in respect of Ex.P.7 sanction order pointed out by the learned counsel for the accused are not sufficient to hold that the prosecution did not secure a valid sanction to prosecute the accused. Further the oral and documentary evidence produced by the prosecution subjected to the scrutiny of this court complies the parameters imposed by the Hon'ble Apex Court in the decisions referred to above. Resultantly, it is held that the prosecution has secured a valid sanction to prosecute accused T.T.Poojari for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act. Accordingly, point no.1 is answered in the affirmative.
15Spl.CC.No.162/2017
10. Points No.2 & 3:
I proceed to consider these points together for the purpose of convenience and to avoid repetition of facts as they are inter-related.
10(a). In order to bring home the guilt of the accused for the offence punishable under section 7 of PC Act, prosecution has to prove that accused being a public servant demanded and accepted illegal gratification. The prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to the complainant. Under Section 20 of PC Act, there is a presumption available in respect of offence under section 7. The benefit of presumption can be extended in favour of prosecution and onus can be shifted upon accused only when prosecution discharges initial burden of proving that accused has demanded and accepted illegal gratification. Under Section 13(1)(d), accused receiving pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant or receiving any pecuniary advantage without any public interest would constitute the offence.
10(b). In various decisions of the Hon'ble Supreme Court it has been held that the demand of illegal gratification by the accused is sine qua non to constitute offence under Section 7 and even under section 13(1)(d) of PC Act. Further, learned counsel for the accused has placed reliance on the decision reported in 2015 (16) SCC 350 in the case between Khaleel 16 Spl.CC.No.162/2017 Ahmed Vs. State of Karnataka and argued that it is golden principle of criminal law that the burden of proof required to be discharged by the prosecution is one of "proof beyond reasonable doubt". Further argued that suspicion however grave it may be, cannot take the place of proof, and there is large difference between something that may be proved and something that will be proved by placing reliance on the decision reported in 2013 (12) SCC 406. No doubt, it is true that as has been held in Khaleel Ahmed's case demand of illegal gratification is a sine qua non for the offence under section 7 and 13(1)(d) of PC Act. In view of the above settled proposition of law, it is for the prosecution to comply the ratio of the decisions.
10(c). Therefore, without proving demand for illegal gratification by the accused, prosecution cannot proceed further. For the offence under Section 7 of PC Act even an official act or favour to be done by the accused to the complainant and demand of bribe to do such official act or favour is also to be established.
10(d). It is the evidence of PW.1 Smt.Janabai that her husband Rajkumar died on 11.03.2012 while working as a teacher in Government Primary School, Kadepura, Basavakalyana. The investigating officer during the course of investigation has seized true copies of documents that were available with the accused as per Ex.P.11, consisting of true copy of death certificate of Rajkumar. As per the certificate 17 Spl.CC.No.162/2017 issued by the village accountant of Dannura Village, Basavakalyana Taluk, Rajkumar was died on 11.03.2012.
10(e). It is the evidence of PW.1 that in view of death of her husband she had given an application to Education Department for securing job on compassionate grounds. This aspect of the matter is not denied by the accused at the time of her cross-examination. In fact PW.1 has reiterated that the file pertaining to her request came to Technical Education Directorate, Bengaluru in the month of April 2015 where the accused T.T.Poojari was working as Administrative Officer. PW.5 H.U.Talawar being the Director of Technical Education Directorate in categorical terms deposed that accused T.T.Poojari was working as in-charge Administrative Officer of Technical Education Directorate and file of Janabai seeking job on compassionate ground was pending with him. Though PW.5 is subjected to cross-examination no suggestion is made to him denying this aspect of the matter. It is not the contention of the accused that PW.5 was in inimical terms with him and hence he has given evidence against him. Therefore, the evidence of PW.5 that accused was working as incharge Administrative Officer and file of Smt.Janabai was with him is worthy to accept. Moreover, to discard this piece of evidence of PW.5, nothing worthwhile is elicited from his mouth at the time of his cross-examination. Resultantly, the evidence of PW.5 that the work of PW.1 was pending with the accused is accepted. Further, learned counsel for the accused has argued that Ex.P.8 18 Spl.CC.No.162/2017 Statement of PW.5 is not admissible in evidence. To support his submissions, he has placed reliance on the decision reported in AIR 1973 SC 2773 in the case between Kaliram Vs. State of HP. Admittedly, Ex.P.8 is the statement made by PW.5 to the investigating officer during investigation. Therefore, the same is inadmissible in evidence. Hence, the submissions that Ex.P.8 is inadmissible is accepted. However, the oral evidence of PW.5 inspire confidence in the mind of the court that he has deposed truth before the court.
10(f). The reading of Ex.P.11 true copy of office notes of the office of Technical Education Directorate would clearly reveal the fact that PW.1 Smt.Janabai has filed an application seeking job on compassionate ground in view of death of her husband. The note sheet as per Ex.P.11 at page no.3 would show that the accused has signed the file on 07.09.2015 itself. According to accused, the work of PW.1 has already been completed. It is the definite evidence of PW.1 that when she has requested the accused to post her to Bidar District he demanded bribe of Rs.50,000/-. Similar to the evidence of PW.1, it is the evidence of PW.2 Sudhakar that when he and PW.1 requested the accused to attend the work and to give postings in Bidar District, the accused has demanded bribe of Rs.50,000/-. It is pertinent to note that, though as per Ex.P.11 there was an approval to appoint PW.1 Smt.Janabai as S.D.A, there is no evidence from the side of the accused to show that said order was communicated to her much prior to 16.09.2015. Even 19 Spl.CC.No.162/2017 Ex.P.11 file is also very much silent with regard to this aspect of the matter. Had there any evidence showing dispatch of appointment order prior to 16.09.2015 then the accused was right in contending that work of PW.1 was not pending with him. Hence, the contention of the accused that the work of PW.1 was not at all pending with him as on 16.09.2015 is not probable to accept.
10.(g). In fact, the evidence of PW.5 H.U.Talawar did inspire confidence in the mind of the court that his evidence itself is sufficient to hold that the work of PW.1 was pending with the accused as on 16.09.2015. No doubt, the learned defense counsel has pointed out minor contradictions and omissions that were found in the testimony of PW.1 & 2.
Further, he has also pointed out that the contents of Ex.P.1 complaint is very much silent with regard to the fact that prior to 16.09.2015 PW.2 has approached the accused at Bengaluru. The minor contradictions and omissions found in their testimony itself is suffice to hold that they are natural witnesses and not tutored. Admittedly, PW.1 & 2 are hailing from Basavakalyana. Had the accused issued appointment order to PW.1, there was no need or occasion for PW.1 & 2 to come over to Bengaluru on 16.09.2015 and stay till 18.09.2015. Therefore, one and only conclusion that can be arrived is that since the work of PW.1 was pending with the accused, they all the way came from Basavakalyana and stayed in Benglauru for two 20 Spl.CC.No.162/2017 days. Thus, there is clear credible evidence which establish the fact that the work of PW.1 was pending with the accused.
10.(h). Now let me examine the alleged demand made by the accused. It is the evidence of PW.1 that on 16.09.2015 along with her uncle Sudhakar she came to Bengaluru and requested the accused to clear her file by expressing her financial difficulties. It is also her evidence that accused has asked her to pay money and hence she has paid Rs.5,000/- to him. Similar to the evidence of PW.1 it is the evidence of PW.2 Sudhakar that on 16.09.2015 he along with PW.1 came to the office of the accused and requested him to attend her work and at that time they have paid Rs.5,000/- to the accused. The evidence of PW.2 is in corroboration with the evidence of PW.1. It is not the out of place to mention here itself that at the time of cross- examination of PW.1 and 2, accused did not deny the factum of their visit to his office on 16.09.2015 and payment of Rs.5,000/-. The evidence of PW.1 & 2 with regard to their visit to the office of the accused on 16.09.2015 and payment of Rs.5,000/- do inspire the confidence in the mind of this court.
10(i). It is the definite evidence of PW.1 that the accused has told her that if appointment is to be given in her district she has to pay Rs.50,000/- and asked her to pay balance amount of Rs.45,000/- on 18.09.2015. However, PW.1 in her cross- examination has deposed that she has not given any application to the accused to post her to Bidar District. Similarly, PW.2 in his cross examination has deposed that on 16.09.2015 they have 21 Spl.CC.No.162/2017 not requested the accused to give appointment in Bidar District itself.
10(j). The reading of Ex.P.1 complaint lodged at the earliest point of time would show that it is the accused who has demanded Rs.50,000/- so as to give posting to PW.1 in Bidar District. Therefore, the evidence of PW.1 & 2 that they did not request the accused to give posting to PW.1 in Bidar District is not fatal to the case of the prosecution. On the other hand, the careful scrutiny of the evidence of PW.1 & 2 in its entirety and the contents of Ex.P.1 complaint would itself is sufficient to hold that it is the accused who has demanded bribe of Rs.50,000/- to give posting to PW.1 in Bidar District.
10(k). It is the evidence of PW.1 & 2 that since accused has demanded bribe of Rs.45,000/-, they have decided to lodge complaint to lokayukta police and on 18.09.2015 PW.1 has lodged Ex.P.1 complaint. It is the evidence of PW.9 R.Sudhir that on 18.09.2015 as per the instructions of Superintendent of Police, he received Ex.P.1 complaint from PW.1 Smt.Janabai and based on which he registered the case in Cr.No.65/2015 and transmitted Ex.P.19 FIR to the court. Learned counsel for the accused has pointed out that according to PW.1 she and PW.2 met Lokayukta SP on 16.09.2015 itself, whereas PW.2 has deposed that they have visited Lokayukta Office only on 18.09.2015. No doubt, there is contradiction in the evidence of PW.1 & 2. However, this contradiction is not fatal to the case of prosecution or to disbelieve its theory in its entirety.
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10.(l). It is the definite evidence of PW.9 that he has examined genuineness of the allegations made in Ex.P.1 and on being satisfied the same, registered the case against the accused. A reading of Ex.P.1 complaint would reveal the fact that seeking job on compassionate ground, PW.1 & 2 came to Bengaluru on 16.09.2015 and approached the accused and paid Rs.5,000/- to him. As per Ex.P.1, the accused further demanded Rs.50,000/- to give posting to PW.1 in Bidar District. From the contents of Ex.P.1 it is also clear that the conversation made by the accused with regard to demand for bribe of Rs.50,000/- was recorded in Samsung Duos mobile of PW.2. In fact, PW.9 has in categorical terms deposed that along with complaint, PW.2 has produced Samsung mobile containing conversation that were taken place between the complainant and the accused with regard to demand for bribe.
10.(m). In fact, it is the evidence of PW.9 that after registration of the case, he secured panchas by name K.C.Thimmaiah and D.C.Nagaraju from the office of Director of Woman and Child Welfare Department. Said K.C.Thimmaiah being PW.3 has deposed that he visited the office of lokayukta and gone through the complaint averments. According to him the conversation that were available in the mobile was transmitted into a CD and the same was transcribed as per Ex.P.4. The genuineness or otherwise of Ex.P.4 transcription is not denied by the accused. A meaningful reading of Ex.P.4 would show that the accused has demanded bribe of 23 Spl.CC.No.162/2017 Rs.45,000/-. No doubt, there are minor contradictions in the evidence of PW.1 & 2 and the contents of Ex.P.1 & 4. However, these contradictions are not fatal to the case of prosecution.
10.(n). It is the evidence of Smt.Janabai that on the instructions of investigating officer, PW.2 Sudhakar has produced Rs.40,000/- in denominations of Rs.1000X36 and Rs.500X8. It is also her evidence that though accused has demanded Rs.50,000/-, Rs.5,000/- was already given to him and they have told him that they will give Rs.40,000/- only. In addition to the evidence of PW.1, it is the evidence of PW.2 that after paying Rs.5,000/- to the accused on 16.09.2015, they have agreed to pay Rs.40,000/- on 18.09.2015. It is the definite evidence of PW.2 that though they have collected Rs.40,000/- as demanded by the accused, as they were not interested to give bribe, they went to lokayukta office and met Superintendent of Police Sonia Narang and then Inspector Sudhir. The PW.2 has further deposed that on the instructions of investigating officer he produced Rs.40,000/- in denominations of Rs.1000X36 and Rs.500X8. This evidence of PW.1 & 2 is reiterated by PW.3 K.C.Thimmaiah. According to him, PW.2 Sudhakar produced amount of Rs.40,000/- in denominations of Rs.1000X36 and Rs.500X8. This process of production of Rs.40,000/- is stated by PW.9 investigating officer. The evidence of PW.1 to 3 and 9 is inconsonance with the theory of prosecution. Though PW.2 is subjected to cross-examination, nothing is suggested to him that he did not produce Rs.40,000/-. Similarly, it is not the 24 Spl.CC.No.162/2017 contention of the accused that only to help the complainant, PW.3 being a Government servant has given false evidence. Thus, it emanates from the evidence of PW.1 & 2 that since they were not interested to give bribe, they went to lokayukta office and lodged the complaint as per Ex.P.1.
10.(o). It is the evidence of PW.9 that as per his instructions, his staff has noted currency note numbers & denominations in computer and printout was taken as per Ex.P.5. The evidence of PW.9 is corroborated by the evidence of PW.3 Thimmaiah. The perusal of Ex.P.5 would reveal the fact that currency note numbers as well as denominations of Rs.40,000/- is mentioned therein bearing signature of PW.3 & 9. The contents of Ex.P.5 and the evidence of PW.3 & 9 is in corroboration with the evidence of PW.2 that as per the instructions of investigating officer he has produced cash of Rs.40,000/-.
10.(p). It is the contention of the prosecution that on 18.09.2015 entrustment panchanama was drawn as per Ex.P.2. It is the definite evidence of PW.2 & 3 that after production of a sum of Rs.40,000/-, phenolphthalein powder was smeared on both sides of currency notes and D.C.Nagaraju kept the tainted notes in the right side front pocket of the pant of PW.2. It is the evidence of PW.1 Janabai that after smearing phenolphthalein powder, once again CW.4 has counted the same and kept in the right side front pocket of the pant of PW.2. The process of smearing of phenolphthalein powder on currency notes is 25 Spl.CC.No.162/2017 reiterated by PW.9. The PW.1, 2, 3 and 9 were subjected to cross-examination by the counsel for the accused. However, nothing worthwhile is elicited from their mouth which is capable of nullifying their testimony. Therefore, the process of smearing of phenolphthalein powder on Rs.40,000/- and keeping the same in the right side front pocket of pant of PW.2 is established by the prosecution.
10.(q). The PW.2 has deposed that the investigating officer has drawn Ex.P.2 mahazar. According to him, this document bears his signature as per Ex.P.2(b). Similar to the evidence of PW.2 it is the evidence of PW.3 that pre-trap mahazar was drawn as per Ex.P.2 and it bears his signature as per Ex.P.2(c). According to PW.9 entire process of drawing up of entrustment mahazar was videographed. This fact is reiterated by PW.2 & 3. It is also made clear from the evidence on record that before keeping tainted notes in the right side front pocket of pant worn by PW.2, CW.4 Nagaraju got it confirmed that no other currency note is available in the pocket. Thus, the evidence placed on record clearly indicate that after taking due precautions tainted notes were kept in the right side front pocket of pant worn by PW.2.
10.(r). It is the definite evidence of PW.9 that he has instructed the complainant and her relative to visit the office of the accused, enquire with him with regard to the work of the complainant. It is also his evidence that he reminded PW.2 Sudhakar to pay the bribe amount on demand made by the 26 Spl.CC.No.162/2017 accused. PW.1 Smt.Janabai has deposed that Sudhakar was instructed to meet accused and to enquire about the work and to give the amount only in case of demand. Similar to the evidence of PW.1 & 9, PW.2 Sudhakar has given evidence to the effect that the IO has instructed him to meet the accused and to give the tainted notes only in case of demand. Further, it is the evidence of PW.3 K.C.Thimmaiah that the police inspector instructed CW.1 & 2 to go the office of the accused, meet him and to give the tainted notes only in case of demand. Though PW.1, 2, 3 & 9 were subjected to cross-examination the process of instructions that were given to PW.2 is not at all denied by the accused. Therefore, the cogent evidence produced by the prosecution discussed above would clearly establish the instructions that were given to PW.1 & 2.
10.(s). It is the evidence of PW.1 & 2 that the IO has instructed PW.3 to play the role of shadow witness, to observe the activities and to report later. In fact PW.9 has also categorically stated in his evidence that he has instructed K.C.Thimmaiah to act as shadow witness, to follow the complainant Sudhakar, watch the happenings and report the same later. The instructions referred in this para is also not challenged by the accused. Therefore, it is clear from the evidence narrated above that PW.3 Thimmaiah has been asked to act as shadow witness. Though PW.3 is cross-examined, nothing is suggested to him to the effect that he was not at all present in the office of PW.9 and no instructions were given to 27 Spl.CC.No.162/2017 him. In the absence of such contention, absolutely there are no reasons to disbelieve the corroborative testimony of PW.3 & 9. Thus, it is proved that PW.3 acted as shadow witness as per the instructions of PW.9.
10.(t). It is the evidence of PW.1, 2, 3 & 9 that after completion of pre-trap mahazar as per Ex.P.2, they have proceeded towards Technical Education Department and reached there at 2.10 pm. Similarly, they have in single voice have deposed that they went to the office of the accused which was in room no.304 in third floor of the building of Technical Education Department. The fact that the office of the accused is situated in room no.304 in third floor of the said building is not denied by the accused. Further, the accused did not dispute that at the given point of time he was working as administrative officer in Technical Education Department, Bengaluru.
10.(u). The PW.1 & 2 have deposed that as the door of room no.304 was closed, they pushed the door, entered inside and found that the accused was looking after some file near almirah. It is also their evidence that both of them have seated in front of the table of the accused. It emerges from the evidence of PW.1 & 2 that the accused has asked them to give the amount if they have brought the same. In similar lines PW.3 has deposed that PW.1 & 2 have went inside the chamber of the accused and sat on chair in front of him, however, he could not hear the conversation between them. Throughout it is the case of the prosecution that PW.3 was instructed to act as shadow 28 Spl.CC.No.162/2017 witness. It is the evidence of PW.9 that during the course of his investigation he has prepared a rough sketch as per Ex.P.22 and secured a sketch from PWD as per Ex.P.29. The genuineness or otherwise of the same is not denied by the accused. As per Ex.P.22 and Ex.P.29 one window is situated on the front side of the chamber of the accused. It is the definite evidence of PW.3 that he has observed the happenings inside the chamber of the accused through the window from outside. The fact that a window is situated to the chamber of the accused is not denied by him by making reference to Ex.P.22 and Ex.P.29. Learned counsel for the accused has argued that PW.3 has deposed that he has observed the happenings through window, whereas PW.2 has deposed that PW.3 has been observing the happenings by slightly opening the door. No doubt, there is contradiction in the evidence of PW.2 & 3. However, the documents at Ex.P.22 & 29 coupled with the definite evidence of PW.3 would show that he has observed the happenings through window. The evidence of PW.3 would inspire confidence in the mind of the court. The evidence of PW.3 that though he has observed the happenings, he could not hear the conversation would show that his evidence is trustworthy. Had he intended to support the case of the prosecution as narrated by it, PW.3 could have stated that he has heard the conversation. Hence, the contradictions that were pointed out by learned counsel for the accused is not fatal to the case of the prosecution. Thus, the evidence produced by the prosecution would clearly establish the fact that PW.1 & 2 29 Spl.CC.No.162/2017 entered into the chambers of the accused and the accused has demanded money from PW.2.
10.(v). It is the evidence of PW.1 that Sudhakar took out tainted notes and gave it to accused. It is also her evidence that after receiving tainted notes, accused has kept the same in his right side pant pocket and asked them to take the order copy on the next day. Her evidence would also reveal that thereafter she and Sudhakar came out from the chamber of the accused and Sudhakar flashed the signal to the trap team by removing his spectacle. No doubt, at the time of cross-examination of PW.1 it is suggested that accused did not demand for money. This suggestion is denied by PW.1. It is also suggested to her that the accused has not received the money and he never kept the same in his right side pant pocket. This suggestion is also denied by PW.1. It is pertinent to note here itself that though PW.1 is cross-examined, to impeach credibility of her testimony nothing worthwhile is elicited. The evidence of PW.1 clearly indicate that the accused has demanded money and Sudhakar has paid the same.
10.(w). Similar to the evidence of PW.1, it is the evidence of PW.2 that the accused asked him whether he has brought the amount and accordingly he took out tainted notes from his pocket and gave it to accused. It is also his evidence that accused took the amount in both the hands, counted it and then kept the same in his right side pant pocket and told that he will give copy of the order on the next day. It is also his 30 Spl.CC.No.162/2017 evidence that by thanking the accused he and PW.1 came out and flashed the signal to the raid team by removing his spectacle. Similar suggestions were made to PW.2 that accused did not demand and accept a sum of Rs.40,000/-, but he has denied the same. The evidence of PW.2 that the accused demanded and accepted tainted notes of Rs.40,000/- appears trustworthy.
10.(x). It is the contention of the prosecution that PW.3 K.C.Thimmaiah acted as shadow witness. It is the evidence of PW.3 that Sudhakara took out the tainted notes from his pant pocket and gave it to the accused who is present before the court. It is also his evidence that accused took the notes and kept the same in his right side pant pocket. The evidence of PW.3 further reveals the fact that Janabai and Sudhakar came out from the chamber of the accused and Sudhakar flashed the signal by removing his spectacle. It is very pertinent to note that PW.3 is not an interested witness to the case of prosecution. Further, he has no enimity with the accused. Therefore, without any reasons, his evidence cannot be discarded lightly. It is suggested to him that since he is working as government servant under the impression that lokayukta police may trouble him, he has given false evidence. Solely on this suggestion it cannot be said that at the instance of lokayukta police PW.3 has given false evidence. Under the circumstances, the evidence of PW.3 instill confidence of the court that he has deposed truth.
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10.(y). It is the evidence of PW.9 that he and other members of trap team were standing in the passage situated in third floor as third parties. It is also his evidence that about 2.30 pm Sudhakar came out from the chamber of the accused to varandah and by removing his spectacle has given signal to them. At the time of cross-examination of PW.9 nothing is suggested denying the factum of the process of Sudhakar passing signal to the raid team. Further, the evidence of PW.9 is in tune with the evidence of PW.1, 2 & 3. Learned counsel for the accused has placed reliance on the decision reported in 2016 Crl.L.J 3066 and argued that in a trap case complainant is an interested witness and hence his evidence needs corroboration in material particulars and this is where corroboration by shadow witness assumes importance. In the present case the evidence of PW.3 Thimmaiah that he has seen the happenings through a window, is inaccordance with the sketch prepared as per Ex.P.22. No doubt, PW.2 has stated that PW.3 was observing the happening by slightly opening the door. However, the evidence of PW.3 that he has been observing happenings through a window inspire confidence in the mind of the court. Hence, on this score it cannot be said that evidence of PW.2 lacks corroboration. Therefore, the ratio of the above decision is not applicable to the facts and circumstances of this case.
10.(z). It emanates from the evidence of PW.1 to 3 & 9 that after Sudhakar passing signal, entire trap team entered into the chamber of the accused T.T.Poojari. It is the evidence of 32 Spl.CC.No.162/2017 PW.9 that Sudhakar has shown him T.T.Poojari as the person who has demanded and received the bribe amount and kept the same in his right side pant pocket. According to PW.9 on enquiry accused has disclosed that he has kept the bribe amount in his right side pant pocket. The evidence of PW.9 further disclose the fact that as per his instructions CW.4 D.C.Nagaraju taken out the tainted notes from the right side pant pocket of the accused. It is the evidence of PW.1, 2 & 3 that as per the instructions of police inspector, CW.4 D.C.Nagaraju has taken out the tainted notes from the right side pant pocket of the accused. Therefore, conjoint reading of the evidence of PW.1, 2, 3 & 9 would clearly establish the fact that the tainted notes that were found in the right side pocket of the pant worn by the accused and the same was taken out by D.C.Nagaraju as per the instructions of PW.9.
10.(aa). It is the evidence of PW.9 that total amount that was found in the right side pant pocket of the accused was Rs.40,000/-. His evidence also disclose the fact that after confirmation that currency notes that were found in the list, pre- trap panchanama and the currency notes recovered from the right side pant pocket of the accused are one and the same, the currency notes were kept in a cover, packed, sealed and labeled as article no.9. It is also his evidence that after confirmation, an endorsement was made in Ex.P.5 to the effect that the currency notes that were mentioned in Ex.P.5 and currency notes that were recovered from the possession of the accused are one and 33 Spl.CC.No.162/2017 the same. It is very relevant to mention here itself that currency note numbers and denominations were mentioned in Ex.P.2 pre- trap panchanama. In addition to it, the investigator has prepared a list of currency notes as per Ex.P.5. In Ex.P.5 there is a specific endorsement to the effect that the note numbers of currency notes recovered from the accused and note numbers that were mentioned in Ex.P.5 are one and the same. In so far as preparation of Ex.P.5 list of note numbers and tallying the same is concerned, nothing is elicited from the mouth of PW.1 to 3 &
9. Even this process is not at all denied by the accused.
10.(ab). It is the evidence of PW.9 that through PW.5 H.U.Talawar he has collected true copy of Attendance Register of the accused as per Ex.P.9. In Ex.P.9 the signature made by the accused on 18.09.2015 is marked at Ex.P.9(a). Similarly, according to PW.9 he has received true copy of Cash Declaration Register as per Ex.P.23. As per this document on 18.09.2015 the accused has declared cash of Rs.1,000/-. It is relevant to note that the accused has not denied the contents of Ex.P.9 and Ex.P.23. Thus, Ex.P.9 would establish that the accused was discharging his duty on 18.09.2015. Further, Ex.P.23 would establish that on 18.09.2015 accused has declared cash of Rs.1,000/-. The recovery of a sum of Rs.40,000/- from the right side pant pocket of the accused is proved by the prosecution through cogent and convincing evidence. It is for the accused to explain as to how he came into possession of Rs.40,000/-. It is the evidence of PW.9 that when 34 Spl.CC.No.162/2017 he enquired the accused, he has stated that he has no defense. In fact learned prosecutor requested the court to mark a copy of explanation so given by the accused. Since, said document is xerox copy, this court has declined to accept the submissions of learned prosecutor to mark the same as an exhibit. The xerox copy of explanation dated 18.09.2015 so available in the file would show that the accused has expressed his inability to say anything about the incident that has happened on 18.09.2015. Hence, it is clear that the accused has not pleaded any defense as on 18.09.2015. Regarding possession of Rs.40,000/- the accused has not offered any satisfactory explanation. Since, the accused being a responsible public servant failed to offer any explanation for the possession of Rs.40,000/-, the only option available for this court is to accept the credible and trustworthy evidence of PW.1 to 3 & 9. No doubt, it is true that the evidence of PW.1, 2 & 9 is interested one. However, there is no reason to discard or to disbelieve the evidence of PW.3. Nothing is elicited from the mouth of PW.3 to the effect that only to help the police he has given false evidence. Thus, the evidence of PW.3 is in corroboration with the evidence of PW.1, 2 & 9.
10.(ac). It is the evidence of PW.1, 2, 3 & 9 that entire trap proceedings was done in room no.304 as per Ex.P.3. So far as Ex.P.3 trap panchanama is concerned even a suggestion is also not directed to PW.1 denying the same. The evidence of PW.2 with regard to trap panchanama and seizure of cash of Rs.40,000/- as per M.O.3 from the right side pant pocket of the 35 Spl.CC.No.162/2017 accused is in accordance with the contents of Ex.P.3 trap panchanama. At the time of his cross-examination also the process of trap panchanama is not denied by the accused. Further, the evidence of PW.3 would clearly show that on recovery of tainted notes of Rs.40,000/- as per M.O.3 from the accused trap panchanama was drawn as per Ex.P.3. However, at the time of cross-examination of PW.3 nothing is elicited to discard the contents of Ex.P.3 or to disbelieve his evidence.
10.(ad). Therefore, from the discussions made herein above this court is of the firm view that MO.3 a sum of Rs.40,000/- which was subjected to pre-trap panchanama as per Ex.P.2 and list as per Ex.P.5 was recovered from the accused and subjected to seizure in the presence of PW.1, 2 & 3 as per Ex.P.3 trap panchanama.
10.(ae). In addition to the above oral evidence, the prosecution has also placed reliance on scientific evidence to prove demand and acceptance of bribe amount by the accused. In her complaint as per Ex.P.1 at the earliest point of time Janabai has alleged that while demanding illegal gratification, the conversation between them and the complainant was recorded in a Samsung Duos mobile. Complainant being PW.1 has deposed that while giving complaint they have produced Samsung Duos mobile in which their conversation with the accused was recorded. She has also deposed that the investigating officer transcribed the conversation recorded in the mobile through computer and recordings were transmitted to 36 Spl.CC.No.162/2017 a CD. Similar to the evidence of PW.1, PW.2 Sudhakar has deposed that he has handed over his mobile to lokayukta police as it was containing their conversation with the accused. According to him, the recordings that were found in the mobile was transmitted to CD. Further, PW.3 K.C.Thimmaiah has deposed that the recordings of conversation found in the mobile was transmitted to CD and through computer transcription was prepared as per Ex.P.4. In fact PW.3 in his cross-examination has deposed that in CD so prepared the conversation between complainant, Sudhakar and the accused was found. However, the reading of Ex.P.4 would show that the conversation of the complainant does not finds place. As per Ex.P.4 there is conversation between the accused and Sudhakar. The PW.3 in his cross-examination has admitted that Sudhakar is not the complainant. According to PW.3 the conversation that were found in Ex.P.4 does not completely tally with the allegations that were found in Ex.P.1 complaint. It is true that a comparative study of the contents of Ex.P.1 & 4 would show that there is no verbatim re-production of conversation in Ex.P.1 complaint. However, a careful reading of Ex.P.4 would show that the work of the complainant was pending with the accused and at the first instance he has demanded Rs.60,000/- and subsequently agreed for Rs.45,000/-. Therefore, the minor contradictions and omissions that were found in the evidence of P.W.3 itself is not suffice to discard entire theory of prosecution.
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10.(af). Further, the investigating officer in his evidence has deposed that after the registration of the case he has seized Samsung Duos mobile and through data cord stored the conversation in the computer and transmitted the data to a CD and labeled as article no.1. According to PW.9 on 18.09.2015 also complainant called the accused through mobile no.8088887135 to his land line number 080-22250656. It is pertinent to note that the investigating officer has transmitted the conversation to a CD and labeled as article no.2.
10.(ag). Further, it is the evidence of PW.9 that the trap proceedings was also videographed and visuals that were available in cyber shot 14.1 megapixel camera was transmitted into CD and labeled as article no.12. The evidence of PW.9 would further demonstrate the fact that PW.5 H.U.Talawar after hearing the conversation has identified the voice of one person as that of T.T.Poojari. In fact PW.5 H.U.Talawar being the higher officer of the accused has deposed that he had conversation with the accused on several occasions as he was working in Technical Education Directorate. According to him, on 18.09.2015 lokayukta police inspector displayed the conversation through a laptop and he recognised the voice of T.T.Poojari. It is suggested to PW.5 that the lokayukta police have not played the voice of the accused before him. But PW.5 has denied this suggestion. Apart from this suggestion nothing is elicited from the mouth of PW.5 that he is not conversant with the voice of the accused. Admittedly, PW.5 is the higher 38 Spl.CC.No.162/2017 officer of the accused. He being a responsible officer has deposed that he has identified the voice of the accused found in the recordings. There is no evidence on record to show that PW.5 is in enimical terms with the accused. Therefore, it is highly improbable to believe the contention of the accused that PW.5 has not identified his voice.
10.(ah). According to PW.9 on 16.11.2015 he has summoned the accused to give his sample voice and on his appearance accused made to read the transcription that was prepared on 16.09.2015 in the presence of K.C.Thimmaiah and D.C.Nagaraju and thereafter said voice of the accused was transcribed as per Ex.P.30 and made the panchas to read the same. In fact PW.3 K.C.Thimmaiah has deposed that on 16.11.2015 accused T.T.Poojari was present in the office of lokayukta police inspector and he was asked to read the conversation for six times and a mahazar was prepared as per Ex.P.6. In so far as Ex.P.6 mahazar is concerned, except a suggestion denying the same, nothing is elicited from the mouth of PW.3. Therefore, from the evidence of PW.3 & 9 it is clear that the sample voice of the accused was taken and transmitted into a CD and marked as article 'A' under Ex.P.6 panchanama. This CD at article 'A' is marked as MO.15 during the course of evidence of PW.9.
10.(ai). The evidence of PW.9 further disclose the fact that he has sent article no.1, 2, 12 & A to FSL, Bengaluru for voice sample analysis. To substantiate the fact that article 39 Spl.CC.No.162/2017 no.1,2,12 & A are containing the voice of the accused, the prosecution has examined one Smt.Srividya, in-charge Assistant Director, FSL, Bengaluru as PW.6. It is her evidence that on 13.01.2016 article no.1, 2, 12 & A are received from lokayukta police to examine the voice and give report. According to her, after the examination of article no.1,2,12 & A she has issued Ex.P.12 Report. It is her definite evidence that after examination of CD's she has opined that comparison of respective voices based on Auditory and Feature Extraction methods have revealed that the respective features said to be have male speaker-1 T.T.Poojari found recorded in micro SD card of mobile phone marked as article no.1 and CD marked as article no.12 and the sample speeches recorded in CD marked as article A are similar in nature.
10.(aj). This witness was subjected to cross-examination, however, her competency to examine the articles in scientific manner has not been challenged by the accused. PW.6 in her cross-examination has admitted that along with her Report she has not sent graphs and other materials which she has used at the time of examination of article no.1, 2, 12 & A. It is also her evidence that if graph is examined, the measurements can be easily ascertained. It is suggested to PW.6 that at the instance of police at lokayukta she has given a false Report as per Ex.P.12 without examining articles. It is pertinent to note that the evidence of PW.6 and the contents of Ex.P.12 would show that seals affixed to the articles were found intact and thereafter she 40 Spl.CC.No.162/2017 has examined article no.1, 2, 12 & A scientifically. However, no data was available in article no.12. If really, PW.6 has not examined the articles scientifically there was no chance to her to state that article no.12 does not contain any data. Hence, the evidence of PW.6 is one of the strong circumstances to hold that article no.1 & 2 did contain the voice of the accused.
10.(ak). In so far as CD's are concerned the investigating officer has produced a certificate as per Ex.P.34 as required under section 65B of Indian Evidence Act. The certificate at Ex.P.34 is not seriously challenged by the accused. Thus, from the evidence of PW.5 & 6 and through Ex.P.12 prosecution is able to establish that the CD's so prepared by the IO did contain the voice of the accused. Hence, in addition to oral evidence of PW.1 to 3 & 9, the prosecution has also produced the evidence of PW.5 and PW.6. Therefore, the above evidence both oral and scientific would clearly establish the fact that as the work of the complainant was pending with the accused, he has demanded bribe and received tainted amount of Rs.40,000/- from PW.2.
10.(al). It is also the evidence of PW.9 that entire trap proceedings was videographed and visuals were transmitted into CD and seized as per article no.11. The evidence of PW.1 to 3 would also demonstrate the fact that entire trap proceedings was videographed. At the time of examination of PW.9 article no.11 is marked as MO.6. After hearing the arguments of rival sides, this court has viewed CD as per MO.6. This CD clearly reveal the factum of seizer of tainted notes from the accused. It 41 Spl.CC.No.162/2017 is very relevant to note that the genuineness or otherwise of MO.6 is not at all denied by the accused. It is not the contention of the accused that MO.6 got manipulated by PW.9. Further, at the time of cross-examination of PW.1 to 3 & 9 the accused did not take any contention that the trap proceedings was not videographed. As discussed above, the investigating officer has produced certificate as per Ex.P.34 as required under section 65B of Evidence Act. The visuals available in MO.6 is yet another strong circumstance to show that accused has accepted bribe and subsequently tainted notes were recovered from him.
10.(am). It is the evidence of PW.9 that during the course of his investigation he has collected sample sodium carbonate solutions. His evidence also reveals that he has collected sodium carbonate solution which turned into pink colour. According to PW.9 he has labeled those 7 bottles as per article no.3, 4, 6, 7, 7A, 8 and 8A. Further, he has deposed that those bottles available before the court as per MO.9 to 14 respectively. It is the evidence of PW.9 that he has sent MO.3, 4, 6, 7, 8, 9 and 10 to FSL and received a Report as per Ex.P.32. The Report of FSL, Bengaluru available as per Ex.P.32 would clearly demonstrate the fact that the presence of both phenolphthalein and sodium carbonate is detected in the articles.
10.(an). It is the evidence of PW.9 that after recovery of tainted notes from the possession of the accused his right and left hand fingers were immersed in separate bowls containing 42 Spl.CC.No.162/2017 sodium carbonate solution and solution turned into pink colour. The evidence of PW.9 would further disclosed that he has seized the solution as per article no.7 & 8 respectively. In fact this process is reiterated by PW.1 to 3. However, at the time of their cross-examination, nothing is suggested to them denying the process of collection of solution as per article no.7 & 8. It is borne out from the evidence of PW.1 to 3 that accused has received tainted amount of Rs.40,000/- by two hands and kept the same in his right side pant pocket. Thus, it is clear that as the accused has touched the currency notes containing phenolphthalein powder, while washing his hands, solutions turned into pink colour. The Report as per Ex.P.32 would show the presence of both phenolphthalein and sodium carbonate detected in article no. 7 & 8.
10.(ao). It is the theory of the prosecution that as the accused has received tainted notes and kept the same in his right side pant pocket, by making alternate arrangement, the pant was seized as article no.10. The Report as per Ex.P.32, clearly indicate that both phenolphthalein and sodium carbonate detected in article no.10. Thus, it is clear that since the accused has kept the tainted notes in his right side pant pocket, phenolphthalein and sodium carbonate detected in it.
10.(ap). The Learned counsel for the accused has argued that mere recovery of tainted notes is not sufficient to bring home the guilt of the accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act. He has placed 43 Spl.CC.No.162/2017 reliance on the decision reported in AIR 1979 SC 1191 in the case between Panalal Damodar Rathi Vs. State of Maharastra and argued that PW.2 is an accomplice and hence his evidence require corroboration. As has been discussed above, the evidence of PW.2 is corroborated by the evidence of PW.3 Thimmaiah. Therefore, this court is of the opinion that the ratio of the above decision is not applicable to the facts and circumstances of this case. Further, learned counsel has placed reliance on the decision reported in 2000 (5) SCC 21 and argued that the testimony of PW.2 require corroboration. But in the present case the evidence of PW.1 & 2 is in tune with the evidence of PW.3. Therefore, to disbelieve their testimony there are no reasons. In the same line, learned counsel has placed reliance on the decision reported in 2015 (10) SCC 152 in the case between P.Sathyanarayanamurthy Vs. District Inspector of Police. In the said decision it is held that when prosecution has failed to prove demand for illegal gratification, mere possession or recovery of currency notes is not sufficient to prove the offence alleged. But in the present case the evidence of PW.1 & 2 is in corroboration with the evidence of PW.3. Therefore, to discard the evidence of PW.1 to 3 with regard to demand and acceptance of bribe, there are no reasons. Thus, the ratio of the above decision is not applicable to the facts and circumstances of this case.
10.(aq). As discussed above, more particularly as per the evidence of PW.5 and the contents of Ex.P.10 & 11 the work of 44 Spl.CC.No.162/2017 the complainant was pending with the accused. Hence, the defense of the accused that no work of the complainant was pending with him is highly improbable to accept. Thus, taking an overall view of the evidence of PW.1 to 3, 5 and 9 and circumstantial evidence it is not possible to believe the theory of the accused that he has been falsely implicated in the case.
10.(ar). As discussed above, the evidence of PW.1, 2 & 3 with regard to demand for illegal gratification by accused is consistent. Normally a citizen is always reluctant to lodge complaint against an officer in the cadre of Administrator even if illegal gratification is demanded. This observation is made because complainant was expecting appointment order on compassionate ground from the accused. Hence, question of she falsely implicating the accused does not arise as she has to work under him even after her appointment. Therefore, it is clear that the complainant along with Sudhakar all along came from Basavakalyana to Bengaluru and as they were fed up with the attitude of the accused and as they were not interested to pay bribe amount of Rs.40,000/-, have approached lokayukta police and lodged complaint as per Ex.P.1. Hence, no fault can be attached to the action initiated by PW.1 & 2.
10.(as). Unlike other cases, in a trap case, the complainant has to provide her own currency notes for arranging trap. In addition to it, she has to comply with several formalities. Added to it, she has to remain away from her job or work. Therefore she has to sacrifice her time and effort while 45 Spl.CC.No.162/2017 doing so. Further she has to attend the court at the time of trial and withstand the test of cross-examination. It is borne out from the evidence on record that the complainant is a widowed lady. Therefore, her intention to falsely implicate the accused is very remote. Ordinarily, it is only when a citizen feels oppressed by a feeling of being commission of wrong, he adopts the course of approaching Lokayukta. Hence, without any reason, a citizen lodging the complaint against a public servant with malafide intention is cannot be accepted. Further, in the present case, the evidence of PW.1 & 2 inspire confidence in the mind of the court that they have deposed truth before the court.
10.(at). The well established principles of law by catena of decisions of Hon'ble Apex Court is that only when the initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then burden of proving the defense shifts upon the accused and a presumption will arise under section 20 of Prevention of Corruption Act. Here in this case the evidence of the complainant coupled with corroborated version of PW.2 & 3 throw much light as to the demand and acceptance of illegal gratification by the accused and the same is proved by way of cogent and convincing evidence. Thus, the prosecution is justified in contending that the presumption contemplated under section 20 of PC Act that the accused has accepted undue advantage as a motive to issue appointment order in favor of PW.1 Janabai is to be drawn, is accepted. Resultantly, it is held that the contention of the 46 Spl.CC.No.162/2017 accused that presumption cannot be drawn is not accepted. Accordingly, presumption is drawn to the effect that accused has accepted illegal gratification for performing his public duty as contemplated under section 20 of PC Act.
10.(au). While invoking the provisions of section 20 of the Act the court is required to consider the explanation offered by the accused, if any, only on the touchstone of the preponderance of the probability and not on the touchstone of proof beyond reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. In the present case the defense theory that PW.2 did thrust money into his pocket is not supported by any evidence.
10.(av). Before parting with discussions, it is relevant to note that at the time of recording his statement as required under section 313 of Cr.P.C., the accused has filed his written statement and contended that since complainant Janabai intended to secure job in Bidar District, to pressurize him she has filed a false complaint. He has annexed xerox copies of documents at A1 to A11 to his written statement. He wanted to point out that there was procedural irregularity in securing job on compassionate ground. Further, he contended that the complainant has concocted SSLC Marks Card. The scope of the present case is limited to the extent of evidence produced by the prosecution. The narration made in the written statement is not 47 Spl.CC.No.162/2017 capable of destroying consistent evidence produced by the prosecution. When the prosecution has established the guilt of the accused by producing cogent and convincing evidence much reliance cannot be given to the explanation of the accused. From the reading of written statement and the documents produced by the accused this court is of the opinion that the same is an after thought. This observation is made because at the time of cross-examination of PW.1 & 2 such defense has not been taken by the accused. In addition to it, at the time of trap also accused did not offer any explanation. Hence, the written statement and documents produced by the accused will not come to his rescue and to establish that he has not committed the offence.
10.(aw). So the overall careful scrutiny of the entire oral and documentary evidence make this court to feel that none of the authorities quoted for the accused can be made applicable to the case on hand to base the order of acquittal. On the other hand, thoughtful view of this court is that the prosecution has satisfactorily able to establish alleged demand and acceptance of illegal gratification and consequently the alleged mis- conduct. With this, the only conclusion would be that the prosecution has satisfactorily proved the guilt of the accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act beyond reasonable doubt. Accordingly, point Nos.2 and 3 are answered in the affirmative.
48Spl.CC.No.162/2017
11. Point No. 4:- In view of my findings on point no.1 to 3 in the affirmative, I proceed to pass the following ORDER Accused is found guilty of the offences punishable under section 7, 13(1)(d) r/w section 13(2) of Prevention of Corruption Act, 1988.
His bail bonds stands cancelled and he is taken to custody.
Hand over M.O.1-Samsung Duos mobile to PW.2 Sudhakar after expiry of appeal period.
M.O.3-Cash of Rs.40,000/- is confiscated to the State after expiry of appeal period.
Destroy M.O.2, 4 to 16 after expiry of appeal period as they are worthless.
Put up for hearing on quantum of sentence to be imposed on the accused.
(Dictated to the Stenographer on computer, typed by her, corrected, signed and then pronounced by me in the Open Court on 28th day of December 2020).
(Gopalakrishna Rai.T), LXXVIII Addl. City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru.
*** 49 Spl.CC.No.162/2017 ORDER ON SENTENCE Heard the accused and his counsel and Learned Public Prosecutor on sentence to be imposed on accused.
2. Accused and learned counsel for accused have submitted that accused is aged 61 years and is suffering from age old ailments and is having dependent family and he has to look after them and is having huge responsibilities and therefore, lenient view may be taken in sentencing him.
3. On the other hand, Learned Public Prosecutor has submitted that the accused being a public servant has committed heinous offence of taking bribe and he is involved in corrupt practice and therefore maximum punishment is to be imposed.
4. The commission of offence by accused under section 7, 13(1)(d) r/w section 13 (2) of Prevention of Corruption Act is proved in this case and accused is found guilty for said offences. Offence under section7 of Prevention of Corruption Act is punishable with minimum imprisonment of 6 months and maximum of 5 years and also with fine. Offence under section13 (1)(d) which is punishable under section 13 (2) of Prevention of Corruption Act, is punishable with minimum imprisonment of 1 year and maximum of 7 years and also with fine. As per section 16 of Prevention of Corruption Act, where sentence of fine is imposed under section 13 (2) of Prevention of Corruption Act, the court in fixing amount of fine shall take into consideration amount which accused has obtained by committing the offence. Even though by way of recent 50 Spl.CC.No.162/2017 amendment, minimum and maximum imprisonment provided for the offence punishable under section 7 and 13(2) of Prevention of Corruption Act are enhanced, those amended provisions are not applicable to this case, as offences alleged against accused was committed prior to coming into force of amendment.
5. The accused was an Administrate Officer in Technical Eduction Department, Bengaluru at the time of trap. Now he is retired and suffering from age old ailments. The fact that he is having depending family is not in dispute. So far as imposition of sentence is concerned the court has to look into unamended provisions of PC Act. The accused had demanded illegal gratification of Rs.45,000/- and at the time of trap, he received Rs.40,000/-. Though accused is retired, the offence committed by him is serious in nature. However, a duty is cast upon the court to take into consideration the age of the accused and his health condition and his family status while imposing sentence.
6. On considering all these aspects and looking to the facts and circumstances of the case and gravity of the offence and its consequences on the society and the leniency prayed by the accused, it is proper to sentence the accused to undergo simple imprisonment for 1 year and to pay fine of Rs.50,000/- for the offence under section 7 of Prevention of Corruption Act. Further, he shall undergo simple imprisonment for 1 year and to pay fine of Rs.50,000/- for the offence under section 13 (1)(d), punishable under section 13 (2) of Prevention of Corruption 51 Spl.CC.No.162/2017 Act. If that is done it will sub-serve justice. Accordingly, the following ORDER Acting u/s 235(2) of Cr.P.C. accused-T.T.Poojari is convicted for the offences punishable under Sections 7, 13(1)(d) r/w section 13(2) of Prevention of Corruption Act, 1988. Accused is sentenced to undergo simple imprisonment for 1 (One) year and to pay fine of Rs.50,000/- ( Rupees Fifty thousand only) for the offence punishable under section 7 of Prevention of Corruption Act, in default of payment of fine, he shall undergo further simple imprisonment for 6 months. Accused is sentenced to undergo simple imprisonment for 1 (One) years and to pay fine of Rs.50,000/- (Rupees Fifty thousand only) for the offence under section 13(1)(d), punishable under section 13 (2) of Prevention of Corruption Act, in default of payment of fine, he shall undergo further Simple imprisonment for 6 months.
The substantive sentences of imprisonment shall run concurrently.
Accused is entitle for the benefit of set-off under section 428 of Cr.P.C. for the period for which he was in judicial custody in this case.
Furnish a copy of this judgment to the accused free of cost forthwith.
(Gopalakrishna Rai.T) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru.
52Spl.CC.No.162/2017 ANNEXURE List of witnesses examined for the prosecution:
P.W.1 - Janabai P.W.2 - Sudhakara P.W.3 - K.C.Thimmaiah P.W.4 - S.Venkatesh P.W.5 - H.U.Talawar P.W.6 - Srividaya P.W.7 - K.G.Srikanth P.W.8 - Prashanth P.W.9 - R.Sudhir P.W.10 - Vasanth Shankar Bhagawath P.W.11 - K.Suresh
List of documents exhibited for the prosecution:
Ex.P1 - Complaint Ex.P.1(a) - Sign. of P.W.1 Ex.P.1(b) - Sign. of P.W.9 Ex.P2 - Pre-trap Mahazar Ex.P.2(a) - Sign. of P.W.1 Ex.P.2(b) - Sign. of P.W.2 Ex.P.2(c) - Sign. of P.W.3 Ex.P.2(d) - Sign. of P.W.9 Ex.P3 - Trap Mahazar Ex.P.3(a) - Sign. of P.W.1 Ex.P.3(b) - Sign. of P.W.2 Ex.P.3(c) - Sign. of P.W.3 Ex.P.3(d) - Sign. of P.W.9 Ex.P4 - Transcription of audio recordings Ex.P.4(a) - Sign. of P.W.3 Ex.P.4(b) - Sign. of P.W.9 Ex.P5 - Sheet containing note numbers Ex.P.5(a) - Sign. of P.W.1 Ex.P.5(b) - Sign. of P.W.2 53 Spl.CC.No.162/2017 Ex.P.5(c & d) - Sign. of P.W.9 Ex.P6 - Sample Voice Mahazar Ex.P.6(a) - Sign. of P.W.3 Ex.P.6(b) - Sign. of P.W.9 Ex.P7 - Prosecution Sanction Order Ex.P.7(a) - Sign. of P.W.4 Ex.P.7(b) - Sign. of P.W.10 Ex.P8 - Letter of P.W.5 H.U.Talawar Ex.P.8(a) - Sign. of P.W.5 Ex.P.8(b) - Sign. of P.W.9 Ex.P9 - Copy of Attendance Register Ex.P.9(a) - Sign. of P.W.5 Ex.P10 - Copy of Movement Register. Ex.P11 - Copy of file pertaining to work of complainant. Ex.P.11(a) - Sign of P.W.5 Ex.P12 - Report of FSL Ex.P.12(a) - Sign of P.W.6 Ex.P13 - Sample Seal Chit Ex.P.13(a) - Sign of P.W.6 Ex.P14 - Call details Ex.P15 - Certificate u/section 65B of Evidence Act. Ex.P.15(a) - Sign. of P.W.7 Ex.P16 - Call details Ex.P.16(a) - Sign. of P.W.8 Ex.P17 - Covering Letter of Vodafone Mobile Services Ex.P.17(a) - Sign of P.W.8 Ex.P18 - Certificate u/section 65B of Evidence Act Ex.P.18(a) - Sign. of P.W.8 Ex.P19 - FIR Ex.P.19(a) - Sign of PW.9 Ex.P20 - Letter addressed to Director of Women & Child Welfare Department Ex.P.20(a) - Sign of PW.9 54 Spl.CC.No.162/2017 Ex.P21 - Letter of Joint Director (Administration), Women and Child Welfare Department, Bengaluru. Ex.P.22. - Rough sketch Ex.P.22(a) - Sign of PW.9 Ex.P.23. - True copy of Cash Declaration Register Ex.P.23(a) - Sign of PW.9 Ex.P.24. - Sample Seal Chit Ex.P.24(a) - Sign of PW.9 Ex.P.25. - Endorsement for sample seal Ex.P.26. - Explanation of accused Ex.P.26(a) - Sign of accused Ex.P.27. - Metal seal Ex.P.28. - P.F.No.138/2015 Ex.P.28(a) - Sign of PW.9 Ex.P.29. - Sketch of PWD Ex.P.29(a) - Sign of PW.9 Ex.P.30. - Transcription of voice sample Ex.P.30(a) - Sign of PW.9 Ex.P.31. - P.F.No.165/2015 Ex.P.31(a) - Sign of PW.9 Ex.P.32. - Chemical Examination Report Ex.P.32(a) - Sign of PW.9 Ex.P.33. - Service particulars of accused Ex.P.33(a) - Sign of PW.9
Ex.P.34. - Certificate under section 65B of Evidence Act Ex.P.34(a) - Sign of PW.9 Ex.P.35. - Requisition letter for call details to BSNL Ex.P.35(a) - Sign of PW.11 Ex.P.36. - Requisition letter for CDR to Vodafone Ex.P.36(a) - Sign of PW.11 55 Spl.CC.No.162/2017 Evidence adduced on behalf of the defence:
NIL Documents marked on behalf of the defence:
Nil Material Objects marked by Prosecution:
M.O.1 - Pant of accused
M.O.1(a) - Cover
M.O.2 - Samsung Duos Mobile
M.O.2(a) - Cover
M.O.3 - Cash of Rs.40,000/-
M.O.3(a) - Cover
M.O.4 to 7 - 4 CDs
M.O.8 to 14 - 7 bottles containing solution
M.O.15 & 16 - 2 CDs
(Gopalakrishna Rai.T),
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (P.C.Act),
Bengaluru. (CCH-79)
***