Karnataka High Court
Shri S Habeebulla vs The State Of Karnataka on 3 August, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.1360/2010
BETWEEN:
SHRI S HABEEBULLA
AGE: 48 YEARS
R/O BOCHAPURA VILLAGE
HIRIYUR TALUK
CHITRADURGA DISTRICT ...APPELLANT
(BY SRI SHANKAR P HEGDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY THE LOKAYUKTA POLICE
CHITRADURGA ...RESPONDENT
(BY SRI VENKATESH S ARBATTI, SPL.PP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED:24.12.2010 PASSED BY THE PRINCIPAL DISTRICT
& SESSIONS JUDGE, CHITRADURGA IN SPL.C. (P.C.A.)
NO.1/2008-CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 7 AND
SECTION 13(1)(d) READ WITH SECTION 13(2) OF
PREVENTION OF CORRUPTION ACT, 1988. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
SIMPLE IMPRISONMENT FOR THREE YEARS AND PAY A
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FINE OF Rs.50,000/- IN DEFAULT OF PAYMENT OF FINE HE
SHALL UNDERGO SIMPLE IMPRISONMENT FOR FURTHER
PERIOD OF SIX MONTHS-FOR THE OFFENCE PUNISHABLE
UNDER SECTION 7 OF PREVENTION OF CORRUPTION ACT,
1988. THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR FIVE YEARS AND
PAY A FINE OF Rs.1,00,000/- IN DEFAULT OF PAYMENT OF
FINE HE SHALL UNDERGO FURTHER SIMPLE
IMPRISONMENT FOR ONE YEAR-FOR THE OFFENCE
PUNISHABLE UNDER SECTION 13(1)(d) READ WITH
SECTION 13(2) OF PREVENTION OF CORRUPTION ACT,
1988. BOTH SUBSTANTIVE SENTENCES SHALL RUN
CONCURRENTLY. THE APPELLANT/ACCUSED PRAYS THAT
HE BE ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appeal is directed against the Judgment dated 24.12.2010 in Spl.C.(PCA) No.1/2008 on the file of learned Principal District and Sessions Judge at Chitradurga wherein accused was found guilty for having committed offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.
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2. In order to avoid confusion and overlapping, parties are referred to as per their ranking before the trial court.
3. Complaint came to be lodged against a public servant- S.Habeebulla, former Circle Inspector of Police, residing at Bochapura Village, Hiriyur Taluk, Chitradurga District.
4. The complainant is one A.Manohar, S/o Aiyyappa Swamy, Proprietor, Aiyyappa Swamy Minerals and Traders, Gangavathi, Koppal District. The complaint is dated 12.03.2007 registered in Crime No.8/2007 for the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as `P.C Act' for short).
5. The complainant states that for the previous one year he was running the business of iron ore and 4 wanted to extend his business to Hosadurga. He was thinking of speaking and discussing the matter with other traders. This came to the notice of Sri Habeebulla, Police Inspector, Hosadurga, five days prior to the filing of complaint. He secured the complainant to a room in Megha Lodge where he was staying and enquired about the business. The complainant gave his visiting card and revealed that he had made all the preparations to start business. The accused stated it was not possible, as according to him to run business, he has to pay monthly cash of Rs.1,00,000/- like others were paying. The starting of business will be subject to payment of money. The complainant explained that his business will be run on small scale and it would be difficult to pay that much of amount and requested the inspector to reduce it. He refused to reduce the amount and directed the complainant that the latter was bound to pay 5 Rs.1,00,000/- and the complainant agreed without any alternate.
6. Complaint was filed by the complainant in the Lokayuktha Office, Bengaluru and it was registered in Crime No.8/2007 for the offence, punishable under Section 7 and 13(1)(d) read with Section 13(2) of P.C. Act.
7. The learned trial Judge was accommodated with the oral evidence of PWs-1 to PW-11, documentary evidence of Exhibits P-1 to P-18 and M.Os.1 to 8.
8. On the side of defence, DW-1 and DW-2 were examined and documentary evidence of Exhibits D-1 to D-5 were marked.
9. After completion of investigation, final report came to be filed against the accused for the offences 6 punishable under Sections 7, 13(1)(d) read with Section 13 (2) of Prevention of Corruption, 1988.
10. Out of the eleven witnesses examined, PW3 is the complainant - A.Manohar (hereinafter referred to as complainant), PW2 Puttalakkegowda, entrustment Mahazar and Shadow witness (hereinafter referred to as Shadow witness), PW9-M.G. Subbarao is Investigating Officer. PW11- Smt. Dr.K.R. Rekha is Pathologist, K.C. General Hospital, Bengaluru.
11. PW3 is the complainant, Manohar A. He iterates the substance of the complaint-Ex.P10 to the effect that after coming to know that complainant wanted to start business relating to mining sector at Hosadurga, as he wanted to extend his business from Hospet in Ballary District, accused sent word to the complainant to meet him at Hosadurga. The accused was in occupation of a room at Megha Lodge, Hosadurga and 7 upon the complainant going to accused, the latter ascertained from the complainant about his new venture of mining to be started at Hosadurga, and after getting positive response from the complainant, the accused asked that in order to run mining enterprise at Hosadurga, he would have to pay Rs.1,00,000/- per month once the enterprise starts, in the same manner, other traders who are doing. The complainant explained that he was hard pressed for money, hence it was not possible for him to arrange Rs.1,00,000/-. The accused told him that no rebate was possible and the complainant agreed for the same. It was thereafter, complainant being not inclined to pay the bribe of Rs.1,00,000/- to the accused, filed the complaint- Ex.P10 before the ADGP, Karnataka Lokayukta, M.S. Building, Bengaluru. The matter was said to have been assigned to the Officer, M.G.Subbarao. In this connection, mahazar 8 proceedings were conducted in the chambers of Mr.M.G. Subbarao. Two witnesses one Shivajirao and Puttalakkegowda were secured by the Officer M.G.Subbarao.
12. The complainant deposes to have narrated the details of the complaint and speaks about the proceedings conducted under entrustment mahazar, which is marked as Ex.P1. He states regarding securing the witnesses and the inspector asking the complainant regarding the grievance after introducing the complainant to the witnesses and complainant narrating the contents of the complaint. Further the complainant was asked to tender the amount of Rs.1,00,000/-. He also evidences regarding noting of serial numbers of currency notes in denomination of Rs.1,000 x 100 and thereafter, asking one of Lokayukta staffs to smear phenolphthalein powder on both the sides of all the currency notes. Thereafter, 9 came to the hands of the witness by name Puttalakke Gowda. Certain solution was prepared, wherein a particular chemical was mixed into a liquid and a sample was taken out in a bottle and sealed. Meanwhile, witness Puttalakke Gowda was asked to verify the notes that were smeared with powder. After preserving the sample solution bottle, Puttalakke Gowda was asked to dip his fingers in the remaining solution, upon which the colourless solution turns into pink colour.
13. The coloured solution was also seized. He deposes regarding instructions being given to the witnesses, role of each of the witness, complainant, regarding the procedures to be followed by them, be it maintaining the amount, going to office of the accused to tender the amount which was demanded by the accused. The items in his chief examination is marked as under:
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Cover containing currency notes - M.O-7 Bottles containing Solution - M.Os-4, 5 and 6.
14. His further evidence is that they left Lokayukta office, Bengaluru at about 12.30 p.m. for Hosadurga. According to this witness, the entire team led by Police Inspector, Lokayukta, consisting of complainant, Lokayuktha staff and witnesses reached Hosadurga by 7.30 p.m. According to him, he and Shivajirao went to the accused who was in a Room No.109 at II Floor of Megha Lodge. The complainant states that accused asked the complainant whether he had brought Rs.1,00,000/- and the complainant replied in the affirmative. Meanwhile, accused asked the complainant who was the other man with him (Shivajirao, witness). The complainant stated that he was one Ravi, a friend of complainant's partner Kumaraswamy. Accused asked him to go out and Shivajirao went out. The accused bolted the door from inside, came to complainant and stated that 11 complainant has to conduct the business very carefully. The complainant took out Rs.1,00,000/- and gave it to accused.
15. The complainant says that he asked for Rs.10,000/- for buying fuel. However, the accused counted the currency and said OK and accused told him that the amount was correct and we should go out and rejected the request of the complainant. Having come out of the room the complainant gave signal to Lokayukta police by making the gesture that was instructed to him earlier.
16. The Lokayukta team went inside the room, held the accused by his shoulder and Lokayukta Dy.SP introduced himself and the purpose of the visit regarding raid and the accused was apprehended as he had received the bribe of Rs.1,00,000/-. The accused denied.
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17. A solution that was prepared in the Lokayukta office was again prepared in the room of the accused and a sample was collected in a bottle and sealed. In the remaining solution the accused was asked to dip his fingers in the solution. He did so. The colourless solution changed to pink colour.
18. His further evidence is, on questioning again, though accused stated that he had not received any amount, he tells that the amount is at the bottom of the bed. After verification it was seized in the cover. He further says that complainant might have kept it below the bed. However, complainant and independent witnesses volunteers and tell he has not kept money and accused has demanded and received the money. The complainant identifies his signature - Ex.P6(c).
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19. He has been cross examined by the learned counsel for the accused. First phase of cross examination is in respect of business and business partnership. This witness was treated as hostile in part. He admits that he has no business establishment in Hosadurga. He was further questioned relating to viability of his business and his knowledge regarding housing of lokayuktha office at Hosadurga. It is elicited from him that he spoke to his friend Somashekhar and told the incident. He had taken Somashekhar also along with him when he went to the Lokayukta office. It appears, this witness has noted the date on his palm.
20. Meanwhile, it is seen after recovering the amount apart from Rs.1,00,000/- another sum of Rs.1,23,000/- was sighted in the room and it was also seized. Insofar as availability of cash of Rs.1,00,000/- is concerned, in the beginning accused tells he has not 14 received and later volunteers to tell that the amount was kept by the complainant himself and he had no role to play. Further evidence is receiving of notes by the accused from the complainant.
21. In the cross examination, it is elicited from complainant that accused did not count the currency. The complainant states that the accused was wearing a dhothi and a shirt and police officials were present outside the room. Thus, the witness speaks in detail about the demand of bribe in connection with mining business of complainant and accused demanding and receiving the said amount by cash. The serial numbers of currency notes tallied with the slip that was prepared in Lokayukta office. According to him, accused gave his explanation denying his role. He asserts that he has business at Sandur as well. 15
22. Insofar as PW1 is concerned, he is B.M.Shivajirao, prosecution witness. He tells that he and other witness Puttalakkegowda are the officials from Slum Clearance Board. They have been called as witnesses on behalf of prosecution. He affirms that he attended the proceedings in the office of Lokayuktha regarding his introduction to the complainant and thereafter, complainant being introduced and he narrating the grievance, demand for bribe and the complaint being filed bearing the version of complaint against the accused, demonstration of entrustment mahazar by stage wise also confirms the participation of complainant, witnesses, lokayuktha staff, drawing the mahazar as per Ex.P1 and complainant producing the currency, details of which were collected and the instructions passed on by the investigating officer. This witness was partly treated as hostile.
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23. This witness turns hostile in his unique style at the end of the deposition to a question by the learned counsel for accused that on entering into the room, whether there was any talk regarding amount being brought by the complainant, this witness response is that he was sent out by the accused. Thus, this witness becomes hostile. However, during cross examination by learned public prosecutor, this witness admits the suggestions made.
24. The another sum of Rs.1,23,000/- is said to have recovered from the custody of the accused from his room. It is necessary to mention that bribe amount was Rs.1,00,000/-. The Dy.S.P. in his wisdom took a decision to seize that amount of Rs.1,23,000/- and same is not subjected to any offence so far. Thus the amount recovered connecting bribe is Rs.1,00,000/-. In so far as Rs.1,00,000/- is concerned, currency was subjected to entrustment mahazar and that was 17 given by complainant. Insofar as Rs.1,23,000/- is concerned, even according to the prosecution said amount belonged to the accused. This amount which the witness refers as the amount other than Rs.1,00,000/- that was demanded and received by the accused.
25. PW2 - Puttalakkegowda is the other prosecution witness. He is also an official from Slum Clearance Board. He tells about he being requisitioned to Lokayuktha office and attending proceedings wherein entrustment mahazar was conducted. He speaks regarding his presence in Lokayuktha office, Bengaluru on 12.03.2007 at 11.30 a.m. Complainant was introduced to him, details of complaint were informed. Complainant told about details of the complaint regarding demand of bribe by the accused. On enquiry by the police, complainant said that he has brought Rs.1,00,000/- that was demanded by the 18 accused. Solution was prepared, currency notes were verified, Phenolphthalein powder was smeared and it was counted. There were 100 currency notes of Rs.1,000/- each. This witness was asked to keep the amount in the pocket of complainant. He kept it on the right side pocket. Solution was prepared. Thereafter chemical test was conducted by dipping the fingers of this witness. The colourless solution turned into pink. They were sealed after the proceedings. He also tells about handing over of cover with instructions. PW-1 was informed to observe movement of the complainant and accused and report the matter. He also tells about trap mahazar. According to him team left Bengaluru and reached Hosadurga Taluk, Chitradurga at about 8 P.M. The vehicle was stopped at a distance of one furlong from Megha Lodge where the accused was said to be staying. Complainant was sent to Megha Lodge. 19 Witness was asked to wait and the inspector and other police took their position. Complainant who entered into the room came and wiped his head. Immediately the team entered into a room where the accused was staying. This witness identified the accused as well. Introduction of the police inspector to the accused and on entry the accused started shouting and screaming, his hands and legs were tied with clothes, this witness felt fear. Prior to it the inspector disclosed regarding the complaint received against the accused. A solution was prepared in porcelain cup and a sample of it was collected in a bottle. He further deposes regarding dipping fingers of both the hands of the accused into the solution and colourless solution turning into pink. At that time this witness suffered variation in BP and sugar and he came back. Police were telling to take the money. He also helped for searching and there was Rs.1,00,000/- below the bed. 20 Said currency was the same that was the subject matter during entrustment mahazar.
26. After verifying, the witness states that the same was sealed. Statement of the accused was also asked, he gave statement. When Shivaji Rao PW-1 shadow witness was enquired he said accused asked him to stay out and he came out. Even fingers of both the hands of complainant was also washed in the solution wherein the colourless solution turned into pink colour. Apart from the said amount of Rs.1,00,000/- there was also Rs.1,23,000/- that was in a kit bag. His further evidence is that he tells about the formalities conducted and events that happened after his entry into room.
He has been cross examined at length by the learned counsel for the accused. It is elicited from him regarding part of the proceedings and turns hostile regarding seizure and identifying of the 21 solution. However during cross examination by learned Public Prosecutor he admits the suggestions made. No significant contradictory versions are elicited through his cross examination.
27. PW4 - is one Banna who is police constable who participated in the proceedings at Lokayuktha office on 12.03.2007. PW5 - is Paramesh another police constable who carried seized articles to FSL. PW6 - is Thimmegowda, Assistant Engineer, PWD, at Gubbi - who has prepared the sketch. PW-7 -Jagadeeshwar - police head constable who has carried sealed cover to the court.
28. PW-8 -M.Surendra Shetty is the owner of the lodge. He deposes for having accommodated the accused. The demeanor of the witness is also noted that he is taking too much of time for answering and 22 states that on 01.01.2007 it appears accused was in room No.109 and had remained there till 12.03.2007.
29. PW-9- M.G.Subba Rao is the Investigating Officer who deposes regarding formalities. He tells about the formalities after registering the case in Crime No.8/2007 for the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of P.C Act. He deposes regarding entrustment mahazar and the trap mahazar, narrates the aspects of participating and handling the proceedings as stated in mahazar.
30. PW-10 - L.Kumarappa -Police Circle Inspector, Tumakuru, is examined and he speaks regarding transfer of the case file from Bengaluru, Lokayuktha Police office to Chitradurga and states and identify Ex.P-15 containing records pertaining to transfer of the case. He also speaks for having submitted necessary records and seeking sanction to prosecute 23 the accused who was police inspector working at Hosadurga taluk, Chitradurga. The sanction order which is marked as Ex.P-18 was said to have been received. PW-10 states that he obtained the sanction to prosecute the accused from CW-12 and obtained sanction as per Exhibit P-18. However, sanctioning authority DGP died subsequent to issuance of sanctioning order.
31. PW11 - Dr.K.R.Rekha has examined the articles that were sent for chemical examination and submitted her report which is as under:
"1. The Article No.1 was a colorless solution, and found negative for Phenolphthalein, positive for Sodium Carbonate on test.
2. The second article was pink in colour, and found positive both for Phenolphthalein and Sodium Carbonate.24
3. The third article was a colourless solution, found negative for Phenolphthalein, and positive for Sodium Carbonate.
4. The Fourth article was light pink in colour, found positive both for Phenolphthalein, and Sodium Carbonate on test.
5. The Fifth article was a very light pink in colour, and found positive for Phenolphthalein on Ether extract Test and positive for Sodium Carbonate on test.
6. Article No.6 was a cover, with currency notes, they were the currency notes of Rs.1000 denomination and 100 in number. On test, they were found to be positive for Phenolphthalein and negative for Sodium Carbonate.
Article No.7 was pink colour solution and found positive for both Phenolphthalein and Sodium Carbonate on test. When I compared the series, numbers and denomination of the currency notes, sent for chemical examination, they tallied with those of currency notes, said to have been seized during the trap."25
32. After registering the case, the police inspector- Sri M.G. Subba Rao, (hereinafter referred as `Inspector') entrustment mahazar was conducted on 12.03.2007 in the Lokayuktha Office, IV Floor, Dr.B.R.Amedkar Road, in the Chambers of Sri.M.G.Subba Rao, Police Inspector. The mahazar witnesses were (1)B.M.Shivaji Rao, 53 years, S/o Manoji Rao, Clerk-cum-Typist, Slum Clearance Board, Risaldhar Street, Sheshadripuram, Bengaluru and resident of No.168/2, 6th Cross, 6th Main, Chamarajpet, Bengaluru-18, (2) Puttalakke-gowda, 53 years, S/o Appegowda, First Division Assistant, Slum Clearance Board, Risaldhar Street, Sheshadripuram, Bengaluru, residing at No.57, Health Layout, Annapoorneshwari Nagar, Srigandhakaval, Bengaluru-
91. Entrustment mahazar was conducted in the presence of the said witnesses- B.M.Shivaji Rao and 26 Puttalakkegowda and the complainant. They were introduced to each other. The contents of complaint were explained regarding demand of bribe of Rs.1,00,000/- by the accused and the registration of case. The witnesses were made to verify the veracity of complaint from the complainant. The complainant was asked by the inspector to produce the amount of Rs.1,00,000/- and it was done. Serial numbers of the notes were taken note of. Phenolphthalein powder was smeared on both the sides of all the currency notes by Lokayuktha Constable-M.Nagaraju. Thereafter the currency notes were given to witness - Puttalakkegowda, (hereinafter called the first witness/shadow witness). He was asked to verify currency notes after smearing Phenolphthalein powder. Thereafter constable -M.H.Banna was asked to prepare Sodium Carbonate solution in a neat porcelain cup.
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33. Thereafter sample of said solution was collected in a bottle, lid was closed and the bottle was sealed, the witnesses were asked to sign. In the remaining solution, the first witness was asked to dip his fingers in the solution, upon which colourless Sodium Carbonate Solution turned to pink colour. That was collected in a bottle and was sealed. Witnesses signed on the said label. The said bottles and the remaining Phenolphthalein powder were seized.
34. Thereafter the complainant and the witnesses were instructed by the inspector to approach the accused, ask about the matter and the amount should be given by the complainant to the accused only in case it was demanded by him.
35. On such demand and giving, the complainant to pass a signal by touching his head and nicing. First witness(shadow witness) was instructed to follow the 28 complainant. He was further instructed to observe if the amount was received and the place where the accused would be keeping it after all the procedure.
36. The entrustment mahazar was conducted as per Ex.P1. The proceedings of mahazar were typed from 12.15 p.m. to 1.45 p.m. when the mahazar was conducted.
37. The witness, B.M.Shivajirao was instructed to follow the complainant and observe the movements of the complainant and the accused and their talks.
38. The trap mahazar was conducted and during the trial it was marked as Ex.P6. The witnesses B.M.Shivajirao and Puttalakkegowda were asked to assist the proceedings. In pursuance to the entrustment mahazar, the team proceeded from Lokayukta office. The trap mahazar Ex.P6 said to have been conducted between 9.15 p.m. to 11.45 29 p.m. on 12.03.2007. As per the trap mahazar Ex P6, same witnesses who participated in the entrustment mahazar also participated as witnesses to trap mahazar as well. The team said to have left Bengaluru at 2.15 p.m. and reached Hosadurga and its town at 7.30 p.m. and accused was said to be in a hotel. At 8.00 p.m. the entire team went towards Megha lodge at Hosadurga in which the accused was said to be staying in room as per mahazar. The instructions that were given earlier were reminded to witnesses. The shadow witness followed the complainant. At 8.30 p.m. the complainant came out and wiped his head with hand and signaled indicating the demand made and payment of bribe to the accused. Upon the entry of the Investigating Officer, complainant showed the accused who was sitting on the cot and told it was the said accused who demanded and received the bribe amount of 30 Rs.1,00,000/-. The Inspector showed identity card and introduced all of them to the accused. The accused did not co-operate and showed stiff resistance and even did not co-operate to further proceedings. However, the Investigating Officer and Lokayuktha police prevailed and convinced the accused to co- operate with the trap mahazar and thereafter continued. The accused gave his identity, address and other details including the address of Megha Lodge. Again, the formalities substantially similar to that of those conducted during entrustment mahazar were done. It is stated that the constable Dayanand prepared sodium carbonate solution in two porcelain cups. A sample solution was taken in a bottle and after it was tightened it was sealed and thereafter it was seized. The signature of mahazar witnesses and articles were collected. The accused was asked to get fingers washed in the solution by dipping the right 31 hand, upon doing this the colourless solution turned to light pink colour. That was collected in a bottle and the solution was tightened and sealed. It is stated that the accused was asked about the tainted money.
39. The complainant was asked to wash his right hand fingers by dipping in sodium carbonate solution, upon which the colourless solution turned to pink colour. The articles were sealed and assigned number as "AC".
40. The accused said to have given explanation denying the demand and the receipt of bribe and stating that the person who is not known to him abruptly entered his room and offered a bundle containing currency notes of Rs.1,000/- each and the accused refused stating that there was no occasion to receive the amount from an unknown person and asked the person to go out and he went to bathroom and when he came out and saw the said person who 32 introduced himself by shaking hands with accused that he is from Ballary and wants to do mining business and went outside. Thereafter Lokayuktha police said to have entered the room and seized the bundle of currency notes that were below the bed.
41. The currency notes that were seized consisting of Rs.1,000/- in a bundle and the witnesses were asked to produce notes subjected to mahazar and entrustment mahazar and they were covered, sealed, signed and the details were written and seized.
42. The further claim of the prosecution is that the complainant entered the room of the accused and told that he brought Rs.1,00,000/- and when accused asked who was the other person along with him "referring to B M Shivajirao". For that the complainant responded that he was one Ravi a friend of complainant's partner Kumaraswamy. Accused 33 asked the said person to go and stay outside. Thereafter, the accused bolted his room from inside and then complainant gave money of Rs.1,00,000/- and came back.
43. The Lokayukta Team went inside the room and the complainant showed the accused and said that he was the person who received the bribe and the accused was surrounded by Lokayuktha police. It is also stated that he stated to give the statement in future. However, explanation said to have been given by the accused is marked as Ex.P-4 during the trial.
44. The versions of the complainant and shadow witness have been denied by the accused under Ex.P4 and made it clear that the bribe amount of Rs.1,00,000/- was not demanded and received by the accused from the complainant. The trap mahazar said to have been conducted on 12.03.2007 between 9.15 34 p.m. to 11.45 p.m. and the participants signed the Mahazar. After arresting the accused, he was sent in a escort to be produced before the Special Judge.
45. Accused as on the date of offence i.e. on 12.03.2007 was serving as police inspector falling within definition of `public servant'. The allegation against him as on the date was he committed the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of P.C Act, 1988.
46. By virtue of section 19 of the said Act, the competent authority of the department wherein the accused was serving should satisfy regarding necessity of prosecution and issue sanction order to prosecute the accused. Regarding the grant of sanction for prosecution of the accused the sanctioning authority is CW12 -Srinivas DGP who died subsequent to issuance of sanction order-Exhibit P-18. 35 Hence, there was no possibility to examine the said authority. It is also seen that in this connection objection was raised by the learned counsel for accused during examination of PW-10 regarding getting the document of sanction marked at Ex.P-18 on the ground that CW-12 was not examined as such sanction order cannot be marked.
47. The objections raised are not regarding sanction. There are cases wherein the competency of the Sanctioning Authority is disputed. In some cases the validity of sanction order is questioned. In some of the cases the sanction order was not issued by the person named therein.
48. In the instant case, neither validity nor competency of the sanction order is questioned. On the other hand, it is non-examination of the Sanctioning Authority.
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49. In the circumstances, the contents on record submitted before Sanctioning Authority is said to have been perused by the Authority and the order was issued. Further, more particularly, whenever the Sanction Order is challenged on the ground which may include the above mentioned validity or tenability of the sanction order itself is not a judgment. In the circumstance, I do not find any infirmity, illegality or invalidity in the sanction order. Further, I do not find any reason to accept the objections raised regarding the sanction.
50. It is necessary to mention Section 20 of P.C Act which is as under:
20. Presumption where public servant accepts gratification other than legal remuneration.-
(1) Where, in any trial of an offence punishable under section 7 or section 11 or 37 clause (a) or clause (b) of sub-section(1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section 12 or under clause(b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the 38 contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
51. In this connection, it is necessary to analyze the substance of the explanation given by accused. In the said explanation accused says that an unknown person sneaked into his room and he was a stranger. He offered a bundle of currency notes of Rs.1,00,000/- and on questioning he went away. The 39 accused thereafter went inside the room to answer nature call. He came out and went outside. At that time, he pointed towards stranger who approached him. He said that he wants to do the mining business and gave the said bundle of currency notes in the hands of the accused and went away.
52. According to the accused that is how the cash passed from the complainant to him. However, it is seen that there is no explanation from the accused regarding what he did with currency bundle that was kept in his hands. The answer is while searching, the police took the said bundle of notes that was below the bed. Thus, this is the explanation offered by the accused according to Ex.P4. When the Court posed a question to learned counsel for accused as to Ex.P4 explanation, it is accepted by the accused and denied to the extent of usage of the word 'stranger'. The 40 averments made by the accused must be credible to answer the questions with reasonability.
53. The tone and tenure of evidence of PW-1-Shivaji Rao shows his hostility towards the prosecution and also exhibits his inclination to turn hostile and states that the amount of Rs.1.23,000/- excluded the amount seized by Lokayukta police. The attitude of this witness is to move one step forward and two steps backward either towards prosecution or towards the accused and admits certain questions incriminating the accused. He admits attending meeting of entrustment mahazar, activities conducted during entrustment mahazar, hearing the complainant, Lokayukta Dy.SP passing instructions connecting demand by the accused and also the activities that took place in Room No.109 of Megha Lodge, Hosadurga. For Example, this witness tells that when he and the complainant went inside room 41 No.109 he was asked to go out by the accused and when he came out lokayukta police and PW2 were standing outside. After 5 to 10 minutes, the complainant came out and passed the signals. He did not try to know what exactly was going inside the room. When the complainant came out of the room, he did not see whether the accused was inside.
54. He speaks virtually like a defence witness but his hostility is not direct. On the other hand, it appears to be calculated approach in answering after knowing the case of the prosecution and that of the accused and narrating versions wherein proceedings are admitted but not accepted. In strict sense for each and every answer it appears that he tried to stuff them by pleading ignorance however gets stumped by truth at the end.
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55. His further version is, when having said he did not see the accused, he tells he saw the accused inside the room when the complainant came out. Again he takes U turn and says he did not see the accused when the complainant came out. He did not speak to complainant when he came out. He was not asked anything by the police.
56. Regarding the money available below the bed, he states that when all of them searching they recovered sum of Rs.1,23,000/- excluding Rs.1,00,000/-. Further he ensures to stamp his previous version be left in ambiguity. Regarding drawing of mahazar, it is necessary to mention the proceedings were conducted in room No.109. In furtherance of his hostility during his cross examination for the second time after turning hostile, he answers that mahazar was not signed by him in Room No.109. Immediately, he turns and says he 43 signed in the next room. By that, it means that at the time of signing the mahazar the printed mahazar was well within the reach and there are no delay in signing the same at Megha lodge. His negative intelligence further goes to the extent of telling that, he did not see computer, printer nor writing being made on computer in Room No.109. But incidentally, he remembers that he made signature in the adjoining room of room No. 109.
57. PW2 is Puttalakke Gowda. In his evidence has stated regarding summoning him as witness in the proceedings in respect of the complaint lodged by PW3-V.Manohar, production of currency notes in the Lokayuktha Office by the Complainant, authorizing certain details from the complaint, counting of currency notes, formalities of chemical test and the related procedures. He also confirms the presence of the Complainant and other witnesses. He also states 44 regarding trap mahazar. He states that they left Bangalore at about 12.30 PM and reached Hosadurga and proceeded towards Mega Lodge, wherein accused stayed. He endorses all the details stated by the Complainant which happened during his presence either during entrustment mahazar or trap mahazar. Further, regarding Complainant entering the room where the accused was stayed and coming out and passing signal that was instructed to him earlier, by nicing the head. Upon which, the team entered inside the room of the accused. This witness further state that when he and police went inside the room and on enquiry the Complainant identified the accused that it was he to whom the Complainant gave money. When enquired the accused was shouting and screaming too much and hence his hands and legs were tied. This witness states that he became tensed. However, he further confirms regarding the preparation of solution 45 and taking sample from it and the accused was asked to dip his fingers in solution, upon which the solution turned to pink colour. He identifies the signature on the trap mahazar. He also confirms that the Police Inspector asked the Complainant about PW1, who stated that the explanation given by the accused, was marked at Ex.P4. The said document is in Kannada.
58. As I am conversant with Kannada, I am able to read and understand the document and present the substance of the same in English language. The said document is said to be the explanation of the accused after he was caught red handed and the amount of Rs.1,00,000/- was recovered. The explanation of the accused is that he was working as Police Inspector and that at 8.30PM on the said day he was staying in the room some stranger came to his room and gave him a bundle of currency notes of Rs.1,00,000/-. 46
59. When accused asked why it is given to him and he does not require any money, for that the said person forced him to receive the same. That person was not known to him and asked that person why he was giving cash to him when there was no nexus between them. But, the person who was offering did not answer. Later, accused asked him to go out. Thereafter, accused went to answer nature call. He came out of the room. At that time, the person who offered the money told that he wants to start mines business at Hosadurga. Saying so, he gave the cash to the accused. Thereafter, the Lokayuktha Police entered and searched the room and took out one bundle of currency from below the bed. He does not know the person who came to his room. He further states that when he went inside bathroom, he does not know who kept the money below the bed. 47
60. The learned counsel for appellant would submit that the group may be naxalites and may come to his room on vengeance against him as he had served earlier in the naxalite area.
61. The explanation is worse than no explanation when it is false. An explanation as though the conduct of the person making it stands exposed. The learned counsel for accused would further submit that accused in his explanation at Ex.P4 states that he does not know as to who kept the currency notes bundle below the bed when he had gone to attend nature call. The explanation which is similar to one given by the accused would only tell that such kind of defense or explanation are not acceptable. Further, when a person wants to suppress, he gets stumped by some other person. Further submission of the learned counsel is to the effect that accused denied the explanation in so far as usage of the word `stranger'. 48 This contention is not only unacceptable but not proper.
62. The learned counsel for accused would further submit that there was no substance worth reliable in the complaint filed by the complainant to the effect that he was not running any business. As a matter of fact even today there is no business run by him and the complainant was totally a stranger to the accused. In this connection, it is necessary to observe that the place where complainant met the accused is Room No.109 of Mega Lodge. Further it is a private lodge, wherein the accused being the Police Inspector was entitled to privacy in the room. However, when a new person abruptly enters the room and gave bundle of currency notes of Rs.1,00,000/-, same cannot be expected to take it so cool. Further on the second occasion when he meets the accused outside the room the complainant states that he was a business man 49 from Ballary and wants to do mining business at Hosadurga and kept the bundle in the hands of the accused. The accused was aged 53 years at that time, sitting Inspector of Police at Hosadurga and allows the complainant to keep the currency notes bundle in his hands and allows the complainant go away. It was thereafter the amount according to him was recovered below the bed. This aspect of recovery of the amount was seriously questioned by the learned counsel for appellant.
63. The presence of the complainant, accused, Lokayuktha Police in Room No.109 of Mega Lodge on 12.03.2007 is not disputed. There was also chemical test conducted and colourless solution turned to pink colour and the payment of Rs.1,00,000/-.
64. The accused-Police Inspector, public servant has gone on record saying that he never asked money, rather he shouted towards complainant, still when he 50 came out complainant came and kept amount of Rs.1,00,000/- in his hands. He does not know how he reacted, as he does not say what happened thereafter and later according to him the amount was recovered below the bed. It is necessary to observe that apparently accused does not tell anything regarding currency notes just after they were kept in his hands by the complainant, because the exact location of the cash, as could be seen is below the bed.
65. The explanation given by the accused, which is not the confession statement, on the other hand it pertains to his stand and it cannot be termed as confession statement. When a particular explanation is given by the accused in the first opportunity (during trap mahazar) and he changes later as the first one may not be convenient for his defence. The explanation cannot be considered as extra judicial confession.
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66. The complainant states that the amount was received by the accused. In so far as the complainant is concerned, his version is that he handed over the money on demand by the accused. The shadow witness present along with him was asked to go out by the accused and accordingly, at that movement only complainant and accused were present in the room. Further the shadow witness appears to be too cautious in answering the question. According to him, when this witness and the complainant went inside the Mega Lodge, the room was bolted. On opening the door, accused asked complainant as to who are you. Thereafter, he was not asked. Interestingly, PW-2 does not specifically say that he came out of the room. But says when he came out PW-1 and Lokayuktha Police were not there. They were at down stairs. They do not speak to this witness. Again he says that he was standing outside for 5 to 6 minutes 52 and complainant came and passed the signal to the persons who were outside. Thus, if he had stayed inside he had every opportunity to see that the amount was hidden below the bed. However, by his evidence it cannot be claimed that whether himself or other members of the team deliberately placed the amount below the bed. Interestingly, he states that he does not know from which corner the amount was seized. He tells about change of colour of the solution when fingers of both the hands of the accused was washed.
67. The learned counsel for accused raised an objection for the conduct of the Lokayuktha Police in tying the hands of the accused. The accused was raising hue and cry in the room. He was shouting and screaming. At that time when the complainant had already signaled regarding receipt of the money through cash, it was necessary to protect that portion 53 of the body from getting delinked with the chemical material aspect. In that direction if the hands are tied or immediate force of tying happens with cloth, it does not take away the vested rights of the accused. On the other hand, it can only prevent if there was a possibility of attempting to disappear the evidence.
68. The learned counsel for accused would submit that according to the complainant the accused was not holding cash in both the hands or counted. But after washing the hands, both the hands changed the colour.
69. The learned counsel for accused would further submit that discrepancy in the version of the complainant in the evidence and the contents of trap mahazar at Ex.P6 are worth to be considered, as it is the version of the complainant during the evidence that when he himself and shadow witness went to the room it was closed and on being knocked, the door 54 was opened. The witness said that he has brought the money. Thereafter the accused asked who was the shadow witness and asked him to go out.
70. In so far as the defense is concerned, basically there is a material contradiction.
71. Further, the closing or opening the door itself is focus point in the context of the case. The accused is a Police Officer, who hired room in Mega Lodge, Hosadurga, and his stay therein is not disputed. Even, the version of other witness PW8 - M.Surendra Shetty confirms the same. Whether the door opened or not, but the material aspect is two persons going inside the room and when the door was knocked the accused asked who are outside and complainant replied. There was no objection by the accused to open the door. Further the accused did not reside in a guest house or official quarters, he was in Room No.109 of Mega Lodge, which is not a notified place 55 for the availability of the accused. But the complainant when referring to others regarding the validity of the stay of the accused, directly goes there and respond to the question that he was Manohar. This goes to show that accused staying in the said room was known to the complainant and the conduct of the accused in his gesture confirms that the complainant was going to arrive.
72. It is surprising that in this case an amount of Rs.1,23,000/- which was said to be in a kit in the room of the accused was seized and that is not the money that was subjected to entrustment mahazar. It is not understandable as to why the police officials seized the valuables or cash during the raid conducted for the offence punishable under Sections 7 & 13(1)(ix) of the Act and seizing the amount other than the subject matter of the case and not subjecting it to PF and non registering of case in that connection or 56 conduct any enquiry in that regard. However, Rs.1,23,000/- seized in this case is said to have been returned to the accused on his claim by allowing application filed under Section 457 of Cr.P.C.
73. In so far as the discrepancy regarding version of the complainant or witnesses, whether they are sitting or standing inside the room and the discrepancies, more particularly, whenever there are minor discrepancies or hyper technical, which achieve significance are to be eschewed in favour of the accused or prosecution.
74. Insofar as the evidence of PW.1-Shivaji Rao is concerned, he appears to be a seasoned witness. More particularly, the tone and tenor of his chief examination in the first part relating to the entrustment mahazar (Ex.P1), he answers events of the proceedings chronologically. However, during the next part of examination, regarding trap, it appears 57 he made good rehearsal for answering the question in favour of the accused. However, without pleading ignorance of the state of affairs, he is so selective in his answers. Amidst his hostility, he states that hands of the accused were tied because he had received bribe.
75. As observed earlier, it is only PW.1, the shadow witness stands exposed for his unreliability. However, contextual reading of the admissions in the proceedings is in respect of the entrustment mahazar (Ex.P1) and trap mahazar (Ex.P6) regarding custody of the amount in the pocket of the complainant is tainted currency [MO No.7(c)]. The seizure of those currency notes is established by the prosecution. Accused gave explanation as per Ex.P4, but he suspected the complainant to be a naxal amidst all the defence evidence in the form of examining three witnesses- DWs. 1 to 3, which requires to be 58 analyzed. Among them, DW.1-Udayashankar the Deputy Director of Mines and Geology, is also examined on behalf of the accused, but he turns hostile to the defence and he tells about the illegalities mentioning the area of mining and naxal. It is not forthcoming for what purpose he was examined by the learned counsel for the accused. He denied suggestions made against his version. DW.2-Jayavelu is said to be a Nodal Officer of Bharati Airtel Limited. He produced the particulars of mobile numbers i.e., 9845013888 and 9902767665. Again on perusal of the evidence of DW.2, it appears that the specific purpose for citing him as a witness does not relate to material fact within the scope of the case.
76. Learned counsel further submits that the deposition reveal that the accused and the complainant have spoken to each other subsequent to the date of offence. In a nutshell, the evidence of 59 DWs.1 & 2 or Exs. D1 to D5, which do not bear any kind of relevance to the scope of the case. Further, the accused while examined under Section 313 of Cr.P.C., filed a set of document with a list and states that, as he has filed document numbering 1 to 127, though they are unexhibited, they are available in the file.
77. The said documents consist of certified copies of certain documents regarding the lorries which were connected to the mining department, copy of the NSC Certificate, memos, copy of the FIR, Index Sheet of final report of a criminal case, copy of the complaints, statement recorded under Section 161 of Cr.P.C. in C.C.No.78/1997, certified extract of the diary, call register, call detail extract, copy of the cases made under of Right to Information Act, copy of the Attendance Certificate, copy of the rowdy sheeter, wherein the name of a person is stated as 60 'Palaniswamy', copy of the notice issued to State Information Commissioner, copies of the applications, etc. However, no purpose or relevancy of any of the documents are stated before the court. It was also submitted that the voice recorder was not carried by the complainant to record the conversation. But it is not fatal to the case.
78. The statement regarding suspecting the party's presence who entered room might be as that of a naxal, appears to be ironical, as the accused being a Senior Police Officer. But, he has not explained as to why he had suspected those persons as naxals and what are the steps taken by the accused.
79. Thus in the case on hand, on examination of the entire documents on record and on re-appreciating the entire oral and documentary evidence, I find that the prosecution has established the demand of bribe 61 of Rs.1,00,000/- by the accused from the complainant in so far as his job is concerned. It is necessary to note that the demand for bribe was for non- interference to start the mines business. Regarding the demand and the purpose of demand, the prosecution has proved beyond reasonable doubt that, the accused demanded bribe of Rs.1,00,000/- and was caught red-handed during trap mahazar.
80. From all angles, the guilt of the accused in demanding and receiving of bribe of Rs.1,00,000/- is established and the learned trial Judge was right in finding the accused guilty of having committed the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the P.C. Act, 1988.
The said provisions are as under:
Section 7 reads as under:
"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, 62 being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less 63 than six months but which may extend to five years and shall also be liable to fine".
Section 13 (1)(d) reads as under:
13.Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,-
13 (1) (d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or The prosecution has successfully established beyond reasonable doubt that the accused has committed the 64 offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of P.C. Act.
81. Another objection raised on the point is that the Bengaluru Lokayuktha Police had no jurisdiction to register a case and the complaint ought to have been filed at Chitradurga. In this connection, it is necessary to mention that the Lokayuktha Office is housed at Bengaluru, hence, there is no legal impediment for the complainant to approach the Lokayuktha Police at Bengaluru. Even otherwise, later the case came to be transferred from Bengaluru to Chitradurga, as spoken by PW.10. Therefore, there is no legal force in the submission of the learned counsel regarding jurisdictional point.
82. The case was investigated by the jurisdictional Officer and it has been done and the case was tried by the jurisdictional Special Court. The question raised regarding jurisdiction of registration of the case at the 65 first instance is not accepted. Therefore, I concur with the finding of the learned Special Judge in convicting the accused for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of P.C. Act, 1988.
83. Now, I come to the point of sentence awarded by the Special Judge.
The date of offence is 12.03.2008. The sentence of imprisonment pronounced by the learned Special Judge is, simple imprisonment for a period of three years and fine of Rs.50,000/- in respect of offence under Section 7 of P.C. Act, in default, the accused shall undergo SI for six months. In respect of the offence under Section 13(1)(d) r/w 13(2) of P.C. Act, the appellant/accused was ordered to undergo simple imprisonment for a period of five years and also to pay fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for a further period of one year. 66 The trial Court has ordered the sentences to run concurrently.
84. Learned counsel for the appellant/accused would submit that, some leniency may be shown by reducing the sentence imposed on the accused, on the ground that, the appellant is not having good and proper health and also his wife is not yet recovered from the shock.
85. In the circumstances, I find it just and proper to reduce the period of imprisonment from three years to one year and the fine amount from Rs.50,000/- to Rs.15,000/- for the offence under Section 7 of PC Act; and also to reduce the period of imprisonment from five years to two years and also to reduce the fine amount from Rs.1,00,000/- to Rs.75,000/- for the offence under Section 13(1)(d) read with 13(2) of PC Act.
In the circumstances, I pass the following order: 67
ORDER The appeal is allowed in part. The judgment of conviction dated 24.12.2010 passed by the Special Judge in Special Case (PCA) No.1/2008 against the appellant/accused for the aforesaid offences is confirmed and the order of sentence is modified by reducing the period of imprisonment from three years to one year and the fine amount from Rs.50,000/- to Rs.15,000/- in respect of the offence under Section 7 of PC Act and also reducing the period of imprisonment from five years to two years and the fine amount from Rs.1,00,000/- to Rs.75,000/- in respect of the offence under Section 13(1)(d) read with 13(2) of PC Act.
Sd/-
JUDGE SBN/BKM/tsn*/VK/KGR