Bangalore District Court
The State Of Karnataka vs No.1 : Mr. Shekar K on 21 December, 2022
KABC010268492018
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 20th day of December, 2022
:PRESENT:
LAKSHMINARAYANA BHAT K.
XXIII Additional City Civil and Sessions Judge
and Special Judge ( P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.693/2018
Complainant: The State of Karnataka
represented by erstwhile Police
Inspector, Anti Corruption Bureau,
Bengaluru Urban Police station,
Bengaluru. Now Karnataka
Lokayukta, Bengaluru Urban,
Bengaluru.
(By Sri. Santosh S. Nagarale
the Special Public Prosecutor)
V/s.
Accused No.1 : Mr. Shekar K.
S/o.Late Kalaiah, aged about 46
years, First Division Assistant,
Cash Branch, Office of the
Chief Engineer, Communication
and Building (South),
Public Works, Port and Inland
Water Transportation Department,
K.R.Circle, Bengaluru.
2 Spl.C.C.693/2018
Resident of Kharadya,
Nyamanahalli,
Nagamangala Post,
Mandya.
(By Sri Dinesh Kumar, Advocate)
Accused No.2 Mr. Chethan M.M.
(since dead- abated)
JUDGMENT
The Police Inspector, Anti Corruption Bureau, Bengaluru Urban (in short the "ACB") has laid the charge sheet against the accused Nos.1 and 2 for the offences punishable under Sections 7, 8, 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988 (in short the "PC Act").
2(a). The short facts leading to the filing of the charge sheet are that, the accused No.1 is working as the first division assistant in the office of the Chief Engineer, Public Works, Port and Inland Water Department, ( in short the Public Works Department) KR Circle, Bengaluru and the accused No.2 was working on contract basis as the computer operator in the said office. The first informant Cw.1 Mr. Basana Gowda Police Patil is 3 Spl.C.C.693/2018 a Class-III licensed civil contractor and through on-line he has applied for grant of Class-II license to the Chief Engineer, the Public Works Department on 24.11.2017 and deposited the required fee on 12.1.2018. The grievance of the informant is that after complying the aforesaid requirements, the accused No.1 through the accused No.2 has demanded bribe of Rs.15,000/- to put up the file for granting the license. The informant Cw.1 has stated that in pursuance of the demand on 12-01- 2018 he had paid Rs.4,000/- to the accused No.1 through the accused No.2.
2(b).It is further case of the prosecution that again on 03.2.2018 the accused No.1, has directed Cw-1 to deposit Rs.5,000/- bribe amount to his bank account and furnished the account details. The informant has recorded the conversation with the accused No.1 demanding the bribe in his mobile phone. As he was not inclined to make the payment of the bribe, on 8.2.2018 he lodged the first information statement before the ACB police and they registered the case against the accused in 4 Spl.C.C.693/2018 Crime No.6/2018 for the aforesaid offences. After fulfilling the pre-trap formalities, on 9.2.2018 the police laid the trap and accused No.1 came to be arrested and the tainted currency notes alleged to have been recovered from his possession. The arrested accused were produced before the court and later they were released on bail. After completion of the investigation, the police filed the charge sheet against the accused.
3. After taking cognizance of the offence, presence of both the accused were secured and complied with Section 207 of the Cr.P.C. by furnishing the copy of the charge sheet and other prosecution papers. After hearing both the sides, the charges were framed and the accused pleaded not guilty and claimed to be tried.
4. Pending this proceeding, the accused No.2 died on 13-5-2021 and as per order dtd.27.7.2021 the proceedings against him stands abated.
5 Spl.C.C.693/2018
5. In order to bring home the guilt of the accused, the prosecution has examined P.W.1 to 8 witnesses, got marked Ex.P-1 to P-66 documents and MO No.1 to 9 articles were identified. After completion of the prosecution side evidence, necessary questions were framed regarding the incriminating circumstances appearing in the evidence against the accused No.1 and he was examined as required under Section 313(1)(b) of the Cr.P.C. In defence, during cross-examination of the prosecution witnesses the accused got marked Ex.D1 to D6 documents. He did not chose to adduce any ocular evidence.
6. Heard the arguments of both sides. The learned Public Prosecutor and the learned defence counsel have filed memorandum of written arguments.
7. After analyzing the oral and documentary evidence placed on record by the prosecution and after considering the defence of the accused, at this stage the points that would arise for the determination are :
6 Spl.C.C.693/2018
1. Does the prosecution beyond reasonable doubt prove the fact that the accused No.1 being the public servant working as the FDA, in the office of the Chief Engineer, Department of Public Works, Port and Inland Water Transport, KR Circle, Bengaluru on 12.1.2018 through the accused No.2 has demanded Rs.15,000/- as bribe and received Rs.4,000/- and on 3.2.2018 demanded Rs.5,000/- and on 9.2.2018 demanded and accepted an undue advantage of Rs.5,000/-
for himself in his office from Pw.1
Mr. Basanagowda P. Patil and
thereby he is guilty of the offence
punishable under Section 7 of the
PC Act?
2. Does the prosecution beyond
reasonable doubt prove the fact
that the accused No.1 being the
public servant by abusing his
official position as such public
servant obtained Rs.5,000/-
pecuniary advantage from PW.1 Mr.
Basanagowda P. Patil on 9.2.2018
7 Spl.C.C.693/2018
and thereby committed an offence
of criminal misconduct defined
under Section 13(1)(d) punishable
under section 13(2) of the P.C. Act?
3. What order?
8. The aforesaid points are answered as:
Point No.1 : in the affirmative Point No.2 : in the affirmative Point No.3 : as per the final order for the following REASONS The requirement of the sanction
9. The prosecution in this case has examined PW2 -
Mr. Srinivas R., the retired Chief Engineer and produced Ex.P10 documentary evidence to prove securing of the valid sanction to prosecute the accused. After framing of charge and recording the evidence, the accused has challenged the validity of Ex.P10 sanction order. After appreciating the merits of the case and evidence of Pw2 and Ex.P10 documentary evidence, this Court as per order dated.17.8.2021 held that Ex.P10 sanction order 8 Spl.C.C.693/2018 secured by the prosecution is valid. The said order has reached finality. Therefore the prosecution has proved the mandatory requirement of the valid sanction to prosecute the accused.
Point No.1 and 2 :-
10.1. Since both the aforesaid 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.
10.2. 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:
(i) The accused must be a public servant when the offence was committed;
(ii) He should accept, or obtain, or agrees to accept or attempts to obtain from any person;
(iii) For himself or for some other person;
(iv) any gratification other than legal remuneration;
(v) as a motive or reward for doing or forbearing to do any official act,or to show any favour or disfavour.
10.3. Similarly 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.
9 Spl.C.C.693/2018
i) The accused must be a public servant;
ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant obtains for any person any valuable thing or pecuniary advantage without any public interest.
11.1. In order to prove the charge against the accused, the prosecution has examined Pw.1 the informant and in his evidence he deposed that he is a Class-III civil contractor and in order to obtain Class-II contractor's license, on 24.11.2017 through on-line he had filed an application to the office of the Chief Engineer. Thereafter, on 12.1.2018 he came to Bengaluru and personally met the accused and deposited the required fee of Rs.6,000/- and Rs.250/- towards the smart card. As per his evidence after payment of the aforesaid amount, the accused No.1 through the deceased accused No.2 has demanded the bribe of Rs.15,000/-. When he contacted 10 Spl.C.C.693/2018 through telephone, the accused No.1 has directed him to pay whatever the amount he is having with the accused No.2 and to make the balance amount later. Pw- 1 deposed on that day he had paid Rs.4,000/- with the accused No.2.
11.2. As per the evidence Pw-1 thereafter, on 3.2.2018 when he had contacted the accused No.1 through phone, he had demanded to make payment of Rs.5,000/- and directed Pw-1 to deposit the amount to his bank account and furnished the bank account details. Since Pw-1 was not interested to make the payment as demanded by the accused, on 8.2.2018 he went to the ACB police station and lodged the report. 11.3. Pw.6 - Mr. Balaraju B. is the Dy.S.P. and as per his evidence on 8.2.2018 at 5.00 p.m. Pw.1 appeared before the ACB Police station and lodged Ex.P1 first information statement. As per his evidence after receiving the said information he has registered the case and submitted the FIR to the Court. Pw.1 in his evidence has deposed 11 Spl.C.C.693/2018 regarding lodging of Ex.P1 first information statement to Pw-6 in the ACB, Police station.
11.4. Pw.7 Mr. G.S.Anil Kumar is the Police Inspector and the Investigating Officer(in short the IO). In his evidence he deposed that on 8.2.2018 he took further investigation of the case from Pw.6 and sent requisition as per Ex.P41 to secure the presence of two government officials as witnesses to the proposed trap proceedings. 11.5. Pw.3 - Mr.Kalyani and Pw.5 - Mr. Shivakumar are the independent panchas to the trap proceedings. In their evidence they have deposed that on 09.2.2018 at about 9.00 a.m. they went to the ACB police station and reported before Pw.7. In the police station Pw.1 was present and the IO has introduced them with each other. 11.6. Pws.1, 3 and 7 in their evidence have deposed regarding the detailed procedures followed during the drawing of Ex.P-6 entrustment mahazar. They deposed that Pw.1 has produced currency notes of Rs.5,000/-, preparation of Ex.P14 list containing the details of 12 Spl.C.C.693/2018 currency notes, treating of those notes with phenolphthalein powder, preparation of Ex.P12 and 13 transcript of conversation recorded by Pw.1 in Ex.P17 and 18 CD etc. As per their evidence, thereafter Pw.3 has kept those notes in the trouser pocket of Pw.1 and the IO has given them necessary instructions to be followed during the trap proceeding. They further deposed that Pw.3 was subjected to undergo chemical hand wash test and the IO has explained to them with demonstration, the chemical reaction of the phenolphthalein powder with the sodium carbonate. After completing the pre-trap formalities Pw.7 has prepared Ex.P6 pre-trap mahazar and they are signatories to the said document. 11.7. Pw.1, 3 and 7 in their evidence further deposed that after completing the pre-trap procedure they went to the office of the Chief Engineer, KR Circle, Bengaluru. The IO has nominated Pw.3 as the shadow witness by directing him to accompany with the informant Pw.1 during the trap. Pw-1 and 3 further deposed that the accused No.1 has collected the amount, counted the 13 Spl.C.C.693/2018 currency notes and kept it on his table. Thereafter at about 1.05 p.m. Pw.1 came out of the office of the accused and he has given the predetermined signal to the trap team. Pw.7 immediately after receiving the signal from Pw-1, went inside the office, arrested the accused No.1 and 2. As per their evidence, the accused No.1 was subjected to undergo the chemical hand wash test and in the examination, the solution turned to pink colour. Pw.1, 3 and 7 have deposed regarding recovery of MO.8 the tainted cash of Rs.5,000/- from the possession of the accused No.1.
11.8. Pw.1, 3 and 7 in their evidence further deposed that the accused has submitted his explanation statement in writing as per Ex.P37. As per their evidence the IO has collected the conversation of Pw.1 with the accused No.1 recorded during the trap, in Ex.P-19 CD, preparing of Ex.P-22 the transcript of conversation, seizure of Ex.D5 file relating to the application of Pw-1, collection of voice sample of the accused and Pw.1, seizure of mobile phone of the accused No.1 etc. The 14 Spl.C.C.693/2018 witnesses further deposed regarding drawing of Ex.P-8 trap mahazar and they are the signatories to the said document.
11.9. Pw.5 the other witness to the trap proceeding has deposed regarding his presence during the pre-trap and the trap proceeding. He is also one of the signatories to Ex.P6 and P-8 mahazars. He deposed that the IO has delivered MO-7 metal seal to his possession with a direction to produce the said material object during the investigation and during the trial.
11.10. Pw.7 the IO in his evidence further deposed regarding the remaining part of the entire investigation, collection of Ex.P47 sketch relating to the place of incident, recording of the statement of the witnesses. After completion of the investigation, he deposed that he had sought the sanction to prosecute the accused and after securing the order filing of the charge sheet. 12.1. Pw.4 - Ms. Chandrika G. is the Assistant Director of FSL, Bengaluru and she has deposed regarding 15 Spl.C.C.693/2018 issuance of Ex.P15 voice analysis report of the accused and Pw-1. As per her evidence, the respective speeches contained in the CD sent for examination and the sample voice of the accused No.1 and Pw-1 are similar and belong to the same person.
12.2. Pw.8 - Mr.Stanley Agnelo is Nodal Officer working in Bharti Airtel and he deposed regarding issuance Ex.P61 to 64 CAF, CDR and certificate under Section 65(B) of the Indian Evidence Act. Demand and Acceptance 13.1 In the constitution bench judgment of the Apex Court dated 15-12-2022 in Neeraj Dutta case held that proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a is sine qua non in order to establish the guilt of the accused. The mere recovery of currency notes will not constitute the offence unless the prosecution proves beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be the bribe. Therefore, in the case on hand, it is for the prosecution to 16 Spl.C.C.693/2018 prove that on 09.2.2018 the accused No.1 has voluntarily accepted Rs.5,000/- as illegal gratification from Pw-1 the informant in connection with the grant Class-II license.
13.2. The prosecution documents reflect that Pw.1 the informant has lodged Ex.P-1 first information statement on 8.2.2018. As per the contents of the said statement it is the specific allegation of Pw-1 that on 24.11.2017 he had filed an application seeking grant of Class-II civil contractor's license. Pw-1 has produced Ex.P-2 endorsement dated 27.11.2017 issued on behalf of the Chief Engineer regarding submission of the application seeking Class-II civil contractor's license before the police at the time of lodging Ex.P-1 statement. 13.3. The accused is working as the FDA/case worker in the office of the Chief Engineer, Public Works Department, K.R. Circle, Bengaluru is undisputed. As per the evidence of Pw.1 and the averments made in Ex.P-1 first information statement on 12.1.2018 the accused No.1 had collected Rs.6,000/- towards fee and issued 17 Spl.C.C.693/2018 three receipts for Rs.5,000/-, Rs.300/- and Rs.250/- respectively. Ex.P-3 to 5 are the copies of the receipts dated 12.1.2018 produced by Pw.1 before the police for having deposited the required fee.
13.4. It is the specific allegation of Pw.1 in Ex.P-1 statement that on 12.1.2018 the accused No.1 through the accused No.2 had demanded Rs.15,000/- as the bribe for forwarding the application of Pw-1 to the higher officer in order to issue the Class-II license. Pw.1 in his evidence deposed that on 12.1.2018 in pursuance of the said demand of the accused No.1 he had paid a sum of Rs.4,000/- through the accused No.2.
13.5. It is the evidence of Pw.1 that on 12-01-2018 when he had contacted through phone, the accused No.1 had demanded Rs.15,000/- as illegal gratification. Ex.P- 64 is the CDR produced by the prosecution contains specific entry to show that on 12.1.2018 at about 17.10 hrs. there was a conversation between Pw.1 and the accused No.1. Pw.1 in his evidence claimed that he had recorded the said conversation containing the demand 18 Spl.C.C.693/2018 for the bribe made by the accused No.1. Ex.P13 is the transcript of conversation and the relevant portion containing the demand for the bribe reads as under:
ಪರರರದ ----------------ಅಮಮಮಟಟಒಮದಟಸಸಲಲ ಹಹಹಳಟಬಡಡ ಸರಟ, ಸಸಲಲ ಕಡಮ ತಮದಹನ ಅದದಡ ಸಲದವರಗ ಆರಹರಹಪ ಅಲರಲ ಕಮಮ ತಮದದಹಡ ತಹರಮದರಹ ಇಲರಲ, ನಹವಟ ಊರಗಹ ಹಹರಹಗದಟ ಹರಕದವರಟ ಬಡಡ, ಈಗ ಇರವಷಟಷ ಕಹರಟಟಹಹರಹಗಡ , ಆಮಹಲಟಬಹಹಕರದಹಡ ಬರಬಮಕಟಅಕಮಮಟಹಟ ಹರಕಟಬದಡದರ ಪರರರದ ಸರರಟ ಬರಳರ ಆಗಹಗತಹ ಸರಟ, ಅದದಡ ಸಲದವರಗ ಸಸಲಲ ಕಡಮ ಮರಡಹರಡಳ ನಮಗಟ ಹಹಹಳದಹದ ಆರಟ ಸರವರ ಹಹಹಳದದಡ ಸರಟ, ನರನಟ ಅದದಡ ಸಲದವರಗಹ ಆರಟ ಸರವರ ಇಟಹರಡಮಡಟಬಮದದಹದ ಸರರಟ, ಅದದಕಹಡ ಆರಹರಹಪ ಅದದ ಜಡಟ.ಪ. ಬದಕಟರಹ, ಮರಡಕಡಲರಲ ಅಷದಷಕಹಡ ಪರರರದ ಏನಟಸರರಟ ಆರಹರಹಪ ಅದದ ಜಡಟ.ಪ. ಬದಕಟಗಹ ಅವಟಡ ಮರಡಲರಲ, ಮಹನಹಹಜರಟ ಇತರರರಹ, ನಹವಟಬಹಹಕರದಹಡ ಅವಡಗಹ ಹಹಹಳಡಳ ತಹರಮದಹಡ ಇಲರಲ ------------------
ಆರಹರಹಪ ------------------ಅಲರಲಲರಲ, ನನಗಹ ಆ ವಚರರದಲಲ ನನಗಹಹನದ ಕಹರಡಹಡಹಡ ನರನಟ ಪಪಟಟ ಅಪಟ ಮರಡಹರಡಹಡಡಹನ, ನಹವಟ ಅವಡತಡ ಮರಡದಸಹರಡಳಡ ತಹರಮದರಹ ಇಲರಲ.
ಪರರರದ ನನಗಟಅಮದದದಡ ಸರಟ, ನರನಟಅದಹಡ ಚಲನಟಗಹ ಆರದ ಮತಟಅದದಕಟಆರದ ಅಮತ ತಮದದದ ಸರರಟ ನರನದ ಆರಹರಹಪ ತಹರಮದರಹ ಇಲರಲ, ಈಗ ಬಹಹಡರ ನಮತಡನಹಹ ಕಹರಡದರಹ ಹಹರಹಗ ಪರರರದ ಇಲರಲ ಸರರಟ ಮತಟಮತಟಬರಕಟಆಗಲರಲ ಸರರಟ ಅದದಕಹಡ ಆರಹರಹಪ ಬಬಹಹರಡಡ ಅಲಟನಹವಪ, ಅಕಮಮಟಟನಮಬರಟ ಕಹರಡಡಹನ ಅದದಕಟಹರಕಡಡಡ ನಹವಪ ಸರಕದ ಪರರರದ ಹರಮ........ಸರರಟ, ಇನರದ ಎಷಟಷ ಕಹರಡಹಡಹಕಟಸರಟ ಆರಹರಹಪ ಅಲಹಲಹಳಡಹನ, ಈಗ ಎಷಹರಷಹ ಅಲಟಕಹರಟಹರಷಹಗರ ಆಮಹಲಟನರನಟಫಹನಟ ಮರಡಡಹನ ನಮಟ ಹಹಹಳಳಹನ ಪರರರದ ಹರಮ ಸರಟ...............ಚಹಹತನಟಕಹಗಗಹ ಕಹರಡಡಹನ ಸರರಟ. -----------------
In the above referred recorded conversation apparently there is demand for the bribe on the part of the accused
19 Spl.C.C.693/2018 No.1 with Pw-1. He further instructed Pw-1 to make the payment to the accused No.2 and also to credit the remaining amount to the bank account.
13.6. Pw-1 in his evidence and in Ex.P-1 statement has alleged that on 12.1.2018 he had paid a sum of Rs.4,000/- to the accused No.2 in pursuance of the demand made by the accused No.1. The above referred conversation contained in Ex.P-13 further reveals that Pw.-1 has deposited the required fee of Rs.6,000/- for the registration of his application and had brought the additional amount of Rs.6,000/- appears to be for the purpose of payment towards the bribe. The accused No.1 informed Pw.1 that Rs.6,000/- is not sufficient and further instructed Pw-1 to deposit the balance amount to the bank account. Moreover the accused No.1 has not disputed furnishing of his bank account details to the informant Pw-1.
13.7. During cross-examination of Pw.1 in para-29 the explanation of the accused is that in order to avoid Pw-1 has to travel all the way to Bengaluru from Koppal 20 Spl.C.C.693/2018 District, he had furnished his bank account details to Pw- 1 for depositing the legal fees in connection with his application filed for obtaining the class- II contractors license. But Pw.1 has specifically denied the said contention of the accused. Moreover, Pw.1 has not deposited any amount to Ex.P-66 the bank account of the accused. Secondly on 12-01-2018 itself Pw-1 has deposited the required fees as directed by the accused No.1 and it is evident from Ex.P-3 to 5 documents. It is further contended by the accused No.1 that he had informed Pw.1 to deposit the difference amount of fees and hence shared his bank account details but Pw.1 the witness has specifically denied the said suggestion. During cross-examination of Pw.1 and Pw.7, the accused has failed to make out as on 3.2.2018 Pw.1 was in due for depositing fee Rs.5,000/- to the Government in connection with his application for Class-II civil contractors license.
13.8. The prosecution has produced Ex.P12 transcript of recorded conversation dated 3.2.2018. The relevant portion of the said conversation reads as under:
21 Spl.C.C.693/2018 ಫರರರದ ------------------ಹರಮ ಸರಟ ಎಷರಷಗದತಹಡ ಆರಹರಹಪ ಅದಹಹ ಇನಟ ಐದಟ ಐದಟ ಹರಕ, ಹರಮ, ನರನಟ ರಹಡ ಮರಡಟ ಬಟದಷ ಸಹರಹಮವರರ, ಮಮಗಳವರರದಲಲ ರಹಡ ಮರಡಸಡಹನ ಬಡದದಲರಲ ಖಮಡತರ ಮರಡಸಡಹನ, ಅದಹಡ ನಹವಹಹ ನಹರಹಡಡಳ ಅಮತರ ನಮಟ ಹಹಹಳದಹಡ, ನಮಟ ತವಹಹನದದಹಡ ಹಹರರತದ -----------------
As per the aforesaid conversation, there is specific reference that the accused No.1 directing Pw.1 to deposit the amount and the demand is for Rs.5,000/- as the bribe can be inferred from the facts and the circumstances of the case. He had further assured to complete the work of the informant pending for grant of class II license with in few days. The aforesaid recorded conversation also reflects existence of the demand for the bribe.
13.9. In order to prove the factum of demand and acceptance of the bribe, the prosecution is mainly relying upon the testimony of Pw.1 and 3. Both the witnesses in their examination-in-chief have fully supported the prosecution case. During their cross-examination, the accused has failed to elicit any material admission to discard their testimony. Both of them have reiterated that at the time of trap, the accused No.1 has demanded and 22 Spl.C.C.693/2018 accepted the bribe. The evidence of Pw.3 shows that at the time of the trap he was standing along with Pw.1 and he had heard the conversation between the informant and the accused. Therefore he is a witness to the incident and his primary evidence regarding the demand and acceptance of the bribe by the accused can be safely accepted.
13.10. The accused in his defence during the course of cross-examination has tried to establish that Pw-1 without obtaining class-II license, and renewal of his Class -III license he had undertaken several civil contract work exceeding the limit of Rs.20 lakhs. In this connection he has secured Ex.D-1 document under the Right To Information Act (in short the RTI Act) and the said document has been confronted to Pw-2 and marked during the cross-examination.
13.11 However whether Pw.1 has undertaken the contract work in violation of the terms and conditions prescribed for Class-III license is a matter beyond the scope and limits of the present case and defence of the 23 Spl.C.C.693/2018 accused. Even if it is admitted that Pw.1 had undertaken the civil contract work which is exclusively to be carried out by the Class-II contractors, the accused is nothing to do with the said irregularities in the transaction for the charges framed against him. It is for the concerned authority to ascertain who had entrusted the civil work in favour of Pw.1.
13.12. Therefore, the alleged irregularity in the tender process is a subject between the department and Pw.1. The accused is only concerned with his part of work relating to the pending application of Pw-1 seeking class II license. The major portion of cross-examination of Pw.1 is utilized for challenging these aspects. In the result, the cross-examination of Pw.1 touching those aspects are not relevant and requires no attention. 13.13. The accused in support of his defence has produced Ex.D-6 copy of document obtained under the RTI Act. From the said document it is proved that in pursuance of order dated 14.2.2018 the application filed by Pw.1 came to be allowed and class II license was 24 Spl.C.C.693/2018 granted in his favour. In the event the defence of the accused that Pw.1 is not eligible for obtaining Class-II license, his application ought to have been rejected by the concerned authority. Moreover, the accused being the case worker has also not made any such note in Ex.D6(a) note sheet proceedings that Pw.1 is not eligible for obtaining the Class-II license. Therefore the defence raised by the accused during the trial are all after thought contentions. This is also one of the strong circumstance to disbelieve the contentions of the accused taken during the cross-examination of Pw.1. 13.14. The other defence of the accused is that at the time of the trap he had not received the tainted currency notes instead Pw.1 has kept those currency notes on the table. It is argued that on 9.2.2018 before the trap Pw-1 shook hands with the accused and at that time the possibility of transmitting phenolphthalein powder to his hands is possible. Pw.1 and 2 in their evidence specifically denied the aforesaid contention of the accused.
25 Spl.C.C.693/2018 13.15. The accused during cross-examination of Pw.1, 3 and 7 has contended that at the time of the trap he had refused to receive the amount, but inspite of his refusal Pw-1 has placed the amount on the table. In this connection, the learned counsel appearing on behalf of the accused has failed to bring to the attention of the Court regarding any such possibility in any of the prosecution documents, more particularly in the recorded conversation. Therefore, the defence of the accused that even after his refusal to receive the amount Pw-1 had kept the currency notes on the table is apparently false and unbelievable.
13.16. In the above background of the forgoing defence of the accused, it is necessary to refer Ex.P43 chemical analysis report. As per the said document, the Chemical Examiner has detected the presence of phenolphthalein in both the right hand and left hand finger washes of the accused. In the event the defence of the accused that Pw.1 had shook his hands is true, the possibility of left hand finger wash of the accused 26 Spl.C.C.693/2018 showing positive test for phenolphthalein is highly improbable. The specific evidence of Pw.1 and 3 is that the accused No.1 after collecting the tainted amount from Pw-1, he has counted the currency notes and thereafter kept it on his table. Therefore the defence of the accused is proved to be false and it is not probable. Ex.P-43 chemical examination report is admissible in evidence as prescribed under Section 293 of the Cr.P.C. 14.1. The IO during the trap, has given an opportunity to the accused to submit his explanation regarding the incident. The accused in his handwriting has submitted Ex.P-37 voluntary explanation statement. In the said statement, he has admitted that Pw.1 has filed an application for grant of Class-II license and deposited necessary fee to the Government. Pw-1 was in due for depositing Rs.2,700/- and since he is the resident of Koppal district and therefore the accused admitted that he had informed Pw.1 through phone to deposit the balance amount to the bank account. The accused further submitted that on 3.2.2018 itself he had 27 Spl.C.C.693/2018 recommended the file to his higher officer for grant of Class-II license. Therefore there was no any necessity or occasion for him to demand and accept the bribe from the informant.
14.2. The accused in his Ex.P37 explanation has stated that he had informed Pw.1 to deposit the fee amount to the bank. But in Ex.D6(a) note the accused has not made any such endorsement that Pw.1 is still required to deposit the balance fee amount of Rs.2,700/- as shown in Ex.P37 explanation. Therefore, the possibility of the accused has received the amount during the trap as legal remuneration or Pw-1 has kept the amount on the table in spite of refusal by the accused are all false. There is no attempt on the part of the accused No.1 to make repayment of the excess Rs.2,300/- to the Pw-1. Hence the explanation of the accused that Pw-1 was in due for depositing Rs.2,700/- towards fee is apparently false and unbelievable.
15.1. Ex.P15 is the voice analysis report and Pw.4 the expert has specifically deposed that the disputed and the 28 Spl.C.C.693/2018 sample speeches of the accused No.1 sent for examination are similar and belongs to the same person. The accused when he was examined under Section 313 of the Cr.P.C. has not disputed the collection of his sample voice. Pw.4 has deposed that at the time of giving the report the audio authentication software was not available and hence she has not conducted the audio authentication test. But during the cross-examination of Pw.4, the accused has not raised any defence regarding this aspect to show that in the absence of audio authentication the report cannot be relied and appreciated in evidence. The witness has specifically denied she has mechanically given Ex.P-15 report without examining the articles.
15.2. The accused has submitted that the IO has failed to seize the mobile phone of the informant. However the failure of the IO to seize the mobile phone of Pw-1 makes no difference in the prosecution case. Pw.1 has recorded the conversation in his mobile phone and burnt the contents of recorded conversation to the CD. The prosecution has produced Ex.P-49 the certificate under 29 Spl.C.C.693/2018 Section 65(B) of Indian Evidence Act in compliance to the mandatory requirement.
16.1. The offence under Section 7 of the PC Act is attracted when any public servant accepts, obtains or agrees to accept or attempts to obtain any gratification for himself or for any other person. The conversation recorded during the pre-trap stage and during the trap shows that the accused has disclosed with Pw-1 the bribe amount has to be paid to other officers. In this regard, the conversation dated 9.2.2018 in the trap mahazar reads :
ಪರರರದ ----------------ಇವತರಡದದಡ ಆಗದತರಡ ಸರರಟ ಆರಹರಹಪ-1 ಬಬಹಹರಕದ ರಜಸರಷಸರಟ ಬಬಹಹರಕದ ........ ರಜಸರಷಸರಟ ಇದರರನಹರಹ, ರಜಸರಷಸರಟ ಇದರರಹನಹರಹ (ಇತರಹ ಸಬಡಮದಗಹ) ಪರರರದ ಮತಹಡ ಆಗದತಹಡ ಶದಕಡವರರ ತಗಹರಮಡಟ ಹಹರಹಗಹರಹಣ ಅಮತ ಬಮದಹ ಸರರಟ, ಏನಟಮರಡಲ ಸರರಟ ಆರಹರಹಪ-1 ಅವಪಟರದ ಬರದಹ ಇರಹರಹದನದ ಏನಟ ಹಹಹಳಲ ಹಹಹಳ,.....ನರನಟ ಎಲರಲ ರಹಡ ಮರಡ ಬಟಷದದಹನ, ನಹವಟ ಕಹರಟಷರಹರಹದನದ ನರಲಟಡ ಸರವರ ರರಪರಯ ಕಹರಟಷದದನ-----------
16.2. In the aforesaid conversation there is specific reference to the effect that the accused disclosing he has already paid the amount Rs.4,000/- received from Pw-1 to the Registrar. The aforesaid conversation is 30 Spl.C.C.693/2018 inconsonance with the oral evidence of Pw.1 and the allegations made in Ex.P1 first information statement.
Pw.1 in his evidence has specifically deposed that on 3.2.2018 he had paid a sum of Rs.4,000/- to the accused No.1 through the deceased accused No.2. Therefore from the above referred recorded conversation acceptance of Rs. 4,000/- by the accused No.1 from Pw-1 is also proved by the prosecution.
16.3. The relevant portion of other part of the further conversation recorded on 9.2.2018 reads:
ಆರಹರಹಪ-1 --------------ಇಮಗಹಲರಲ ಖಚದರ ಮರಡಹರಡಮಡದ ಬರಹರಹದದ ಬಹಹಕರಗಲಲಪಲ ನಹವಟ, ಎರಡಟಸರರ ಮರರಟ ಸರರ ಬಮದಹಡ ಎರಡಟಮರರಟ ಸರವಡ ಖರಟರ ಆಗಲರಸ ನಮಟ ಪರರರದ ಜರಸಡನಹಹ ಆಯದಡ ಬಡ ಸರರಟ ಆರಹರಹಪ-1 ಮತಹಡ .......ನಮಟ ರರವಟರಹತ ಹಹಹಳಹಡಹಕಹರಹ ಗಹರತರಡಗಲಲ ಪರರರದ ಇಲರಲ ಇಲರಲ ಅವತಟಡ ಇದದಲರಲ ಸರರಟ .....ಅವನದ ಆರಹರಹಪ-1 ರರಕಟ ಮರರಟ ಸರರ ಸದಮಟ ಸದಮಟನಹ ರರಕಪಲ ಬಮದಡ, ಮನಮಮಟ ಅಮದಹಡ ಎರಡಟಸರವಡ ಎರಡಟ ಸರವಡ ಅಮದಹಡ ಆರಟ ಸರವಡ ಖರಟರ ಆರರಡಪಲ ಪರರರದ ಆಯದಡ ಸರರಟ ಆರಹರಹಪ-1 ಏನಟನಮರಟ ತಮದಮಗಲಲ, ನರವಪ ತನದಗಲರಲ ಏನಟಪಡಯಹಜನರ, ನಹವಟ ಬಮದದ ರರಕಟ ಬರಹರಹಕಹ ಹಹರಹದಡ .....ಫಸಟಷ ಕಹಲಲ ಆಗಹರಹದಕಹಡ ನಹರಹಡಹರಹಕಲರಲ ನಹವಟ------------
31 Spl.C.C.693/2018 The aforesaid conversation shows that there was an attempt on the part of the accused anticipating to accept the gratification from Pw-1 as a reward for the performance of the public duty can be inferred.
16.4. It is vehemently argued by the learned defence counsel that the accused has completed his part of work on 03-02-2018 itself and hence there was no occasion or opportunity for him to demand and accept the illegal gratification on 09-02-2018. However the accused in his defence did not forward any explanation for the reason behind the application filed by Pw.1 was pending till 09-2-2018 even though the fee was deposited on 12-1-2018. The documents produced along with Ex.P-
1 statement as per Ex.P-3 to 5 show that Pw-1 had deposited the required fee on 12.1.2018. Pw.1 further deposed that he had paid Rs.4,000/- on 12.1.2018 with the accused No.2 as directed by the accused No.1 towards the bribe. The accused No.1 has submitted that he has done his part of work on 3-2-2018 by making a note in Ex.D-5 and Ex.D-6 and placed the file before his 32 Spl.C.C.693/2018 higher authority for further orders. In this regard, the conversation recorded contained in trap mahazar reads:
ಆರಹರಹಪ --------------ನರನಟ ಏನಟ ಹಹಹಳದಹಡ ನಮಮನಟ ಎಲರಲ ಓಬಲಹಗಜಟ ಮರಡದದನ, ನರನಟಅವತಟಎಷದಷ ದನ ಆಯದಡ ಫಹಗಲಟ.....ನಹವಟಹಹರಹಗ ನಹರಹಡಟಹಹರಹಗ ಅಲಹಲಹ ಆಯಡ ಇನದದನರ ಪರರರದ ಹಮದದ ಸರರಟ ಆರಹರಹಪ-1 ನರನಟಎಷಟಷ ....ಹಗಟನಹವಟಹಹಹಳದದನದ ಅದದ ಇದದಲರ ತಗಹರಹಮಡಡ ಅಮತ ಅದನದದ ಕಹರಟಷದದನ ನರನದ ಬರಲಲಲ ಅಮದಹಡ ನರನಟಏನಟಮರಡಲ, ನರನಟ ಇನದದ ತಲಹ ಕಹರಹದದ ಅವಡ ಹತಡ .......ಅಲರಸ ನನಹಟ ಅರರ ಆಗದಹ ಅಮದಹರಡಮಡದದನ--------------
Therefore the accused has deliberately delayed the performance of his part of work from 12-1-2018 to 3-02- 2018 in order to extract the bribe from Pw-1 is more probable.
17.1. The accused during cross-examination of Pw-1 in para-21 has contended that the witness was in due to pay Rs.4,500/- balance fee towards the renewal of his Class-III license. The entires in Ex.D6(a) endorsement show that on 14.2.2018 Pw.1 has deposited the said amount. But the relevant entries marked as Ex.D6(a) prima-facie show that it was subsequently inserted after passing of the order dated 14.2.2018. Pw.1 was not cross-examined touching this aspect. Whether Pw-1 has 33 Spl.C.C.693/2018 actually deposited the said amount of Rs.4,500/- or not is also doubtful. In order to defend the charge and to show that Pw.1 was in due for payment of Rs.4,500/-, there is every reason to suspect that the accused had managed to create Ex.D6(a) notes in the document and that possibility cannot be totally ruled out. Therefore, Ex.D6(a) creates serious doubt regarding correctness of the said entry.
17.2. The other argument of the accused is that as on 3.2.2018 he had already made an endorsement in the note sheet as per Ex.D5(a) and submitted the file to his higher authority, therefore no work was pending before him. According to the accused, in view of the above circumstances the basic requirement to prove the charge under Section 7 of the PC Act regarding work pending is not proved by the prosecution.
17.3. It is appropriate to mention here that as on the date of trap i.e. 09.2.2018 Pw.1 had not received Class-II contractor's license. The order was not passed in furtherance of Ex.D5(a) endorsement. Therefore as on 34 Spl.C.C.693/2018 the date of trap, Ex.D5 file relating to Pw.1 was pending with the Registrar is not sufficient to escape the criminal liability of the accused.
17.4. The evidence of the prosecution shows that the accused had assured Pw.1 to get the order from his higher authorities. Whether the accused has received the bribe amount for himself or for his higher officers is not the burden of the prosecution to prove by placing sufficient evidence. In this regard the accused remained silent and has failed to forward any explanation. The orders on the application of Pw-1 seeking Class-II license came to be passed on 14.2.2018 and therefore the work of Pw-1 was pending in the said office.
17.5. In the judgment of the Hon'ble Supreme Court reported in (2012) 8 SCC 527 in the case of Syed Ahmed Vs. State of Karnataka held that in view of Section 7(d) of the PC Act, a public servant who is not in a position to do any favour to a person could also be deemed to commit an offence if he demands and accepts illegal gratification. There was demand for 35 Spl.C.C.693/2018 gratification and the gratification has been given to the accused is sufficient in view of Explanation (d) to Section 7 of the P.C. Act. Whether the public servant could or could not deliver results becomes irrelevant. As per Section 7 explanation(d) of the PC Act a person who receives the gratification as a motive or reward for doing what he does not intend or is not in a position to do comes within this expression. Therefore, the argument of the accused that he is not the competent authority to grant the license in favour of Pw-1 or he had completed his part of work on 3.2.2018 and submitted the file to his higher authority itself are not sufficient to avoid the charge.
17.6. In order to establish the charge the prosecution is required to prove that an illegal gratification was demanded or accepted as a motive or reward for an official act. The word motive evidently refers to future act while the word reward is manifestly intended to apply to past service. The law prohibits receiving of any gratification either as a motive to do or as a reward for 36 Spl.C.C.693/2018 having done the official act. Therefore, the bribe when obtained or accepted before doing an official act is motive and if it is obtained or accepted after doing the official act it becomes reward. In the case on hand therefore, the submission of the accused that he had already sent the file to the Registrar or no work of Pw-1 was pending before him cannot be accepted. The demand and acceptance of the bribe even after completion of the official duty by the public servant as a reward also amounts to illegal gratification. 17.7. During cross-examination of Pw-1 in para-38 the accused has contended that he had informed Pw-1 is required to deposit twice the amount of the fee of the Class-III contractor's license as fine, but the informant has refused to deposit the said amount. But in support of the said contention the accused has failed to prove the fact from any of the prosecution documents. Moreover, the defence has also failed to make out Pw.1 was having any animus to implicate the accused in the trap. It is not the defence of the accused that his relationship with Pw.1 37 Spl.C.C.693/2018 prior to 9.2.2018 was not cordial. Moreover, the accused has further failed to make out that M.O.8 cash of Rs.5,000/- was received towards registration or license fee to be deposited by Pw.1 as legal remuneration. 17.8. The learned defence counsel has vehemently argued that Pw.7 during his cross-examination has admitted that there is no demand of bribe in the recorded conversation as on the date of trap. But the said recorded conversation shows that there was no express demand in specific words to make payment. But the entire conversation reveal that the accused had the intention to obtain the illegal gratification and he has voluntarily accepted the currency notes from Pw-1. Moreover, the contents of Ex.P-1 statement, Ex.P12 and 13 recorded conversations and the oral evidence of Pw.1 show that there is specific evidence regarding the demand and acceptance of the bribe. It is not necessary for the prosecution on each stage of the proceeding to prove the demand and acceptance of the bribe.
38 Spl.C.C.693/2018 The Presumption:
18.1. As per Section 20 of the PC Act, there is a legal presumption that when it is proved that a public servant accused of an offence has accepted, obtained or attempted to obtain for himself or for any other person any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he had accepted or obtained or attempted to obtain 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 public servant.
18.2. The learned advocate appearing on behalf of the accused has relied upon the judgment in Criminal Appeal No. 100-101/2021 dated 3.2.2021 arising out of SLP (Crl) Nos.4729-4730 of 2020 in the case of N. Vijay Kumar Vs. State of T.N. In the said case the Hon'ble Supreme Court has concurred with the conclusion arrived by the trial court by holding the possible view and acquittal of the accused, there was animosity between the witness
39 Spl.C.C.693/2018 and the accused and there was delay in conducting the phenolphthalein test. However these circumstances are absent in the case on hand and hence, the ratio laid down in the decision is not applicable to the facts of the case.
18.3. In the other judgment of the Honorable Supreme Court of India in Criminal Appeal No.1578/2011 dated 24.9.2014 in the case of M.R.Purushotham vs. State of Karnataka, relied by the accused the complainant did not support the prosecution case, disowned making complaint and he was declared hostile. Therefore in the absence of evidence to prove the demand the accused came to be acquitted. But in the case on hand, Pw.1 and 3 the informant and the shadow witness have fully supported the prosecution case and the accused has failed to elicit any material admission during their cross- examination. Therefore, the aforesaid judgment is also not applicable to the facts of the case on hand. 18.4. The accused was examined under Section 313 of the Cr.P.C. and he has failed to forward any satisfactory 40 Spl.C.C.693/2018 explanation regarding incriminating evidence appearing against him. In the case on hand, the prosecution from the foundational facts and evidence of PW-1, 3, and 7 proved that the accused No.1 through the accused No.2 on 12-01-2018 had demanded Rs.15,000/- and accepted Rs.4,000/- and thereafter on 09-2-2018 he had demanded and accepted Rs. 5,000/- the bribe from PW-1. In defence during the trial the cash kept on the table was recovered is not disputed. Hence, it is not necessary for the prosecution to prove the factum of recovery of the tainted cash from the accused. The accused has not disputed the recovery but his contention is that it was not accepted as the bribe or as the illegal gratification. 18.5. In the judgment relied by the learned Special Public Prosecutor reported in (2001) 1 SCC 691 in the case of M. Narsinga Rao vs State of A.P. the Hon'ble Supreme Court held that once the demand and acceptance are proved, it gives rise to the legal presumption under Section 20 of the P.C. Act that the accused has accepted the illegal gratification, particularly 41 Spl.C.C.693/2018 when the defence theory put forth by the accused is not accepted. The only condition for drawing such legal presumption is that it should be proved that the accused had accepted or agreed to accept the gratification. It is a rebuttable presumption, but if the accused fails to rebut the presumption, then it can be held that the prosecution had proved that the accused received the amount. 18.6. In view of the above ratio of the Hon'ble Supreme Court on application to the facts of the case on hand, from the proved facts, this Court can legitimately draw a presumption that the accused has accepted MO No.8 cash of Rs. 5,000/- from Pw-1 on his own volition and secondly he could not rebut the presumption either through cross-examination of the prosecution witnesses or from Ex. D -1 to 6 documents. Therefore this court is of the definite opinion that the accused has miserably failed to rebut the presumption appearing against him under section 20 of the PC Act.
18.7. In Madhukar Bhaskar rao Joshi case reported in (2000)8 SCC 571 relied by the prosecution also the 42 Spl.C.C.693/2018 Hon'ble Supreme Court held that once the prosecution establishes that the gratification has been paid or accepted by the public servant, the court is under legal compulsion to presume that the said gratification was paid or accepted as a motive or reward to do any official act.
18.8. In the judgment of the Apex Court in Neeraj Dutta case para 68 held that the presumption of fact with regard to the demand and acceptance of an illegal gratification may be drawn on proof of foundational facts. However Section 20 of the PC Act mandates the court to raise the presumption of law that the illegal gratification was accepted as a motive or reward for performance of the public duty. In the case on hand the accused had demanded and accepted the illegal gratification from Pw- 1 in connection with his pending application for securing Class II license is proved from the evidence. Hence the ratio of the judgment is aptly applicable to the facts of the case.
43 Spl.C.C.693/2018 19.1. From the oral evidence of PWs.1, 3, and 7, the documents produced by the prosecution and for the detailed reasons discussed herein above this Court arrived to the conclusion to draw the legal presumption against the accused that he has received M.O. 8 tainted currency notes of Rs.5,000/- from PW-1 as the gratification for doing the public duty. Therefore, once it is proved that the money was recovered from the possession of the accused, the burden of rebutting the presumption as contemplated under Section 20 of the PC Act shifts on the accused. In the present case, the efforts made by the accused in his defence to rebut the presumption is failed and the explanation put forwarded during the trial is not probable and acceptable. Hence, this Court arrived to the definite conclusion that the accused has miserably failed to rebut the presumption under Section 20 of the PC Act. Accordingly, the presumption as prescribed under law is drawn against the accused.
44 Spl.C.C.693/2018 19.2. Therefore on analyzing the entire evidence placed on record the case of the prosecution is consistent with the guilt of the accused and inconsistent with his innocence. The discrepancies and contradictions appearing in the evidence as highlighted by the accused are very minute in nature and they are natural variations. They do not affect the merits of the case and hence should be ignored. It is said that the criminal trial is meant for doing justice to all, the accused, the society, and a fair chance to prove to the prosecution and then alone can law and order be maintained in the society. As held by the Hon'ble Supreme court, the courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape from the clutches of law. Both these aspects are public duties of the judge in dispensation of justice in criminal proceedings.
19.3. In view of the above discussion on perusal of the entire prosecution evidence, it is cogent, corroborative, believable and trustworthy. The evidence clearly show 45 Spl.C.C.693/2018 that the accused No.1 through the accused No.2 had demanded Rs.15,000/- as bribe on 12-01-2018 and on the same day accepted Rs. 4,000/- and thereafter on 09- 02-1018 demanded and accepted Rs.5,000/- from Pw-1 knowing it to be the bribe in order to perform the public duty.
19.4. The prosecution in order to attract the offence under section 13(1)(d) of PC Act, is required prove that the public servant should obtain for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as such public servant. In the instant case there is evidence to the effect that the accused has obtained the pecuniary advantage by corrupt and illegal means by abusing his position as the public servant. The ingredients to bring home the guilt of the accused within the ambit of Section 7 and 13(1)(d) of the PC Act are satisfied. From the evidence let in by the prosecution it is evident that the accused has demanded and accepted the illegal gratification from PW-1.
46 Spl.C.C.693/2018 19.5. It is well settled law that every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the PC Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the PC Act. The act alleged against the accused of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. After considering the aforesaid evidence and defence of the accused, this court is of the definite opinion that the prosecution has proved the charges framed against the accused No.1 under Section 7, 13(1)(d) of the PC Act. In the result point Nos.1 and 2 are answered in the affirmative.
20. Point No.3 :- In view of the above findings on point Nos. 1 and 2, the accused No.1 is liable to be convicted of the offence punishable under sections 7 and 13(1)(d) of PC Act. Accordingly proceed to pass the following:
47 Spl.C.C.693/2018 ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused No.1. is convicted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bond and surety bond executed by the offender and his surety are hereby stand discharged.
M.O. No.8 and 9 cash of Rs.5,000/- (Rupees five thousand) and Rs. 7,700/- (seven thousand seven hundred) are ordered to be confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.7. metal seal to the Karnataka Lokayukta Police. Office is directed to destroy M.O. No.1 to 5 sodium carbonate solution bottle, and M.O. No.6 cotton swab, after completion of the appeal period as the same are worthless. (Dictated to the judgment writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open Court on this the 20 th day of December, 2022.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
48 Spl.C.C.693/2018 21.12.2022 ORDERS The judgment is pronounced by finding that the offender No.1 is guilty of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
2. Heard the learned Sri RA Advocate, appearing for the defence and the Special Public Prosecutor on the point of the quantum of sentence. The learned defence counsel has submitted that the offender is the only bread earning member of his family, himself and his wife are suffering from ill-health. On considering these factors, he prayed for an order to impose only fine as prescribed under the law.
3. As per the judgment reported in AIR 2004 SC 2317 in the case between N Bhargavan Pillai vs State of Kerala and in State vs Parthiban (2006) AIR SCW 5267) the provisions of The Probation of Offenders Act do not apply to the offence under the PC Act. In the decision reported in AIR 2015 SC 2678 in the case of Shanthilal 49 Spl.C.C.693/2018 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 the convicted public servant.
4. As per the facts of the case, the offence was committed on 12-01-2018 and 09-02-2018. Thus, as per Amended Act No.1 of 2014, which came into effect from 16-01-2014, the offence under section 7 of the PC Act is punishable with imprisonment for seven years and the minimum punishment not less than three years. Similarly the offence under Section 13 (2) of the PC Act is punishable with imprisonment for ten years and the minimum punishment not less than four years.
5. In the light of the facts and circumstances of the case with particular reference to the nature and conduct of the offender in committing the offence, the quantum of sentence to be imposed has to be determined. The offender by committing the offence under the provisions of the PC Act has invited the risk to himself, and now he 50 Spl.C.C.693/2018 cannot plead for leniency in the sentence to be imposed against him. The facts and circumstances of the case show that, he has demanded Rs. 15,000/- illegal gratification and accepted Rs. 9,000/- from Pw-1 . Hence he should be punished by apposite sentence, after taking into consideration the submission of the learned defence counsel.
6. 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.
7. The PC Act has been amended as per Prevention of Corruption (amendment) Act 2018 with effect from 26-7-2018. By virtue of the said amendment the offence 51 Spl.C.C.693/2018 under Section 13(1)(d) has been deleted. Therefore, after amendment the demand and acceptance of the bribe by the public servant is an offence punishable only under Section 7(a) of the amended PC Act. The minimum punishment prescribed for the said offence is imprisonment for 3 years and the maximum punishment is for 7 years.
8. In this regard, in order to ascertain whether the accused is entitled to avail the benefit of the aforesaid amendment referred the judgment reported in (2020) 10 SCC 763 in the case of Trilokchand Vs. State of Himachal Pradesh. In the said decision the Hon'ble Court held that if the amendment is beneficial to the accused persons 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 rigour of law.
52 Spl.C.C.693/2018 The aforesaid ratio laid down by the Hon'ble Supreme Court is applicable to the facts of the case on hand.
9. After considering the above aspects this Court finds that it is just and proper to sentence the offender No.1 to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.25,000/- for the offence under Section 7 of the PC Act. The quantum of sentence of imprisonment imposed is proportionate to the nature and gravity of the offence. In view of extending the benefit of the 2018 amendment of the PC Act, the offender is not sentenced for the offence punishable 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 rigorous imprisonment for a period of five years and to pay fine of Rs.25,000/- (twenty five thousand) for the offence under Section 7 of the PC Act and in default of payment of fine, he shall undergo simple imprisonment for further period two months.
53 Spl.C.C.693/2018 Acting under section 428 of the Cr.P.C the period of detention undergone by the offender No.1 during investigation from 9.2.2018 to 17.2.2018 shall be set off against the sentence of imprisonment.
Free copy of the judgment be furnished to the offender 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 21 st day of December, 2022.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Basanagowda Pampana Gowda Police Patil PW 2 : Srinivas R. PW 3 : Kalyani PW 4 : Chandrika G. PW 5 : Shivakumar PW 6 : Balaraju B. PW 7 : G.S.Anil Kumar PW 8 : Stanli Agnilo 54 Spl.C.C.693/2018 List of documents marked on behalf of prosecution:
Ex P1 : Complaint Ex P1(a) : Signature of PW 1 Ex.P2 to 5 : Copy of letter of PWD dt.27.11.2017 Ex.P3 : Copy of Challan dtd.12.1.2018 Ex.P4 : Copy of Challan dtd.12.1.2018 Ex.P5 : Copy of Cash Receipt dtd.12.1.2018 Ex P6 : Pre-trap mahazar Ex P6(a) : Signature of PW 1 Ex P6(b) : Signature of PW 3 Ex P6(c) : Signature of PW 5 Ex P6(d) : Signature of PW 7 Ex P7 : SMS details sheet Ex P8 : Trap mahazar Ex P8(a) : Signature of PW 1 Ex P8(b) : Signature of PW 3 Ex P8(c) : Signature of PW 5 Ex P8(d) : Signature of PW 7 Ex P9 : Statement u/Sec.164 of Cr.P.C. of PW1 Ex P9(a) : Signature of PW 1 Ex P10 : Sanction order Ex P10(a) : Signature of PW 2 Ex P11 : Notification dtd.29.6.2015 Ex P12 : Transcript conversation between complainant and accused dtd.3.2.2018 Ex P13 : Transcript conversation between complainant and accused dtd.12.1.2018 55 Spl.C.C.693/2018 Ex P14 : Sheet containing currency note numbers Ex P15 : FSL report dtd.18.5.2019 Ex P15(a) : Signature of PW 4 Ex P16 : Sample seal Ex P17 : CD containing conversation between complainant and accused dtd.3.2.2018 Ex P17(a) : Cover Ex P18 : CD containing conversation between complainant and accused (Article-2) Ex P18(a) : Cover Ex P19 : CD containing conversation between complainant and accused (Article-9) Ex P19(a) : Cover Ex P20 : CD containing Sample voice of Accused No.1 (Article-12) Ex P20(a) : Cover Ex P21 : CD containing Sample voice of Complainant (Article-13) Ex P21(a) : Cover Ex P22 : Transcript of conversation between Pw.1 & A-1 Ex P23 : Transcript conversation sheet of sample speech of accused No.1 Ex P24 : Transcript conversation sheet of sample speech of Pw.1 Ex P25 to: Photographs Ex.P36 Ex P37 : Written explanation of accused No.1 Ex P38 : Written explanation of accused No.2 56 Spl.C.C.693/2018 Ex P39 : Sample seal impression Ex P40 : F.I.R.
Ex P41 : Letter dtd.8.2.2018 of Pw.7 Ex P42 : Letter dtd.8.2.2018 for deputing 2 persons to act as witnesses Ex P43 : Chemical examination report dtd.22.2.2018 Ex P44 : Acknowledgment dtd.20.2.2018 of FSL Ex P45 : Acknowledgment dtd.20.2.2018 of FSL Ex P46 : Covering letter dtd.26.3.2018 Ex P47 : Engineer sketch Ex P48 : Service register of accused Ex P49 : Certificate under Section 65(B) of Indian Evidence Act issued by P.W.1 Ex P50 : Certificate under Section 65(B) of Indian Evidence Act issued by P.W.7 Ex P51 : Certificate under Section 65(B) of Indian Evidence Act issued by Suresh K. Ex P52 : Letter dtd.4.4.2018 of Pw.7 to Chief Engineer, K.R.Circle, Bengaluru.
Ex P53 : Letter dtd.5.4.2018 of Chief Engineer to ACB Ex P54 : Letter dtd.19.2.2018 of P.W.7 to Chief Engineer Ex P55 : Letter dtd.22.3.2018 of Chief Engineer to ACB Ex P56 : Letter dtd.19.2.2018 of P.W.7 to Chief Engineer Ex P57 : Letter dtd.22.3.2018 of Chief Engineer 57 Spl.C.C.693/2018 Ex P58 : Letter of Chief Engineer to AEE Ex P59 : Letter dtd.6.4.2018 of Chief Engineer to ACB Ex P60 : Letter dtd.12.3.2018 of S.P. ACB to Nodal Officer, Airtel.
Ex P61 : Attested copy of CAF held in the name of A-1 Ex P62 : Attested copy of CDR of A-1 Ex P63 : Attested copy of CAF held in the name of Pw.1 Ex P64 : Attested copy of CDR of Pw.1 Ex P65 : Certificate under Section 65(B) of Indian Evidence Act issued by Nodal Officer, Airtel Ex P66 : Letter dt.23.5.2018 of SBI of Mysore University Campus Branch to Pw.7 List of material objects marked on behalf of the prosecution:
MO 1: Bottle containing sodium carbonate solution (Article-3) MO 2: Bottle containing hand wash of witness (Article-4) MO 3: Bottle containing clear sodium carbonate solution (Article-5) MO 4: Bottle containing right hand wash of the A-1 (Article-6) MO 5: Bottle containing left hand wash of the A-1 (Article-7) MO 6 : Cotton swab (Article-9) MO 6 (a) Cover
58 Spl.C.C.693/2018 MO 7 : Metal seal 'S' MO 8 : Cash of Rs.5,000/- (Article-8) MO 8(a) Cover MO 9 : Cash of Rs.7,700/- (Article-8) MO 9(a) Cover List of witnesses examined on behalf of defence side:
NIL List of document marked on behalf of defence side Ex.D1 - Work done Certificate Ex.D2 - Government order dtd.27.10.1994 Ex.D3 - Class-III Contractor License Ex.D4 - Restriction of contractors Ex.D5 - Case papers documents " D5(a) - Notes Ex.D6 - RTI documents Ex D6(a) : Portion of Notes Ex D6(b) : Portion of the "ಒಪಲದಹ" ಭರಗ Ex D6(c) : Challan for Rs.5,000/- dt.12.1.2018 XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
59 Spl.C.C.693/2018 Judgment pronounced in the open Court vide separate Judgment. The operative portion of the Judgment reads as under:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused No.1. is convicted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bond and surety bond executed by the offender and his surety are hereby stand discharged.
M.O. No.8 and 9 cash of Rs.5,000/-
(Rupees five thousand) and Rs. 7,700/- (seven thousand seven
hundred) are ordered to be confiscated to the State after expiry of the appeal period.
Office is directed to return M.O.
No.7. metal seal to the Karnataka
Lokayukta Police.
60 Spl.C.C.693/2018
Office is directed to destroy M.O.
No.1 to 5 sodium carbonate solution
bottle, and M.O. No.6 cotton swab,
after completion of the appeal period as the same are worthless.
(LAKSHMINARAYANA BHAT K.), XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru. 61 Spl.C.C.693/2018 Orders on sentence pronounced in the open Court.
ORDER The offender No.1 is sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.25,000/- (twenty five thousand) for the offence under Section 7 of the PC Act and in default of payment of fine, he shall undergo simple imprisonment for further period two months.
Acting under section 428 of the Cr.P.C the period of detention undergone by the offender No.1 during investigation from 9.2.2018 to 17.2.2018 shall be set off against the sentence of imprisonment.
Free copy of the judgment be furnished to the offender forthwith.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.