Bangalore District Court
Cbi/Acb vs No.1 Sri.V.Vishweshwar Bhat on 21 January, 2023
1
SPl.C.C.No:17/2017
KABC010007402017
IN THE COURT OF THE XXI ADDITIONAL CITY CIVIL & SESSIONS
JUDGE AND PRINCIPAL SPECIAL JUDGE FOR CBI CASES,
BANGALORE CITY, CCH.NO.4
Dated this the 21st day of January, 2023
Present:
Sri. K.L.ASHOK, B.Com, LL.B.,
XXI Additional City Civil and Sessions Judge
& Principal Special Judge for CBI Cases,
Bengaluru.
SPL.C.C.No:17/2017
Complainant CBI/ACB, Bengaluru.
(By Sr.Public Prosecutor.)
Vs
Accused No.1 Sri.V.Vishweshwar Bhat
S/o.Late Venkata Ramana Bhat
Superintendent of Customs & Central
Excise, Department of Revenue,
M/o.Finance, Govt.of India
R/at Qtr.No.2, Block-L, Central Excise
Quarters, Madiwala, Bengluru
Accused No.2 V.Prem Kumar
S/o.Late Venu Gopal
Superintendent of Customs & Central Excise,
Department of Revenue,M/o.Finance,
2 Spl.CC.No:17/2017
Govt.of India
R/at:No.H.No.1180(49/3), 10th Main,
Hampi Nagar, Bengaluru- 560 040
Accused No.3 Sri.K.R.Soma Sundar
S/o.K.Ramaswamy
Superintendent of Customs & Central Excise,
Department of Revenue,M/o.Finance,
Govt.of India
R/at: H.No.980, 1st A Main, 5th Cross,
Kengeri Satelite Town,
Bengaluru- 560 060.
Accused No.4 M.V.Srinivas
S/o.M.S.V.K.Iyengar
Inspector of Customs & Central Excise
Department of Revenue, M/o.Finance,
Govt.of India,R/at: No.14, 1st Main, 2nd Cross,
Behind Bhuvan School,
Venkatala, Yelahanka, Bengaluru.
Accused No.5 K.Niranjana Murthy
S/o.K.S.Mudde Gowda
Inspector of Customs & Central Excise
Department of Revenue, M/o.Finance,
Govt.of India, R/at.No.9, 6th Cross, Matru
Layout, GKVK Post, Yelahanka, Bengaluru
(A1 to A5- (By Sri.Shivaji H. Mane, Advocate)
Date of offence 16.03.2016
Date of report of offence 16.03.2016
Date of arrest of accused 19.03.2016 (A1 to A3)
Date of release of accused on 24.03.2016
bail (A1 to A3)
3 Spl.CC.No:17/2017
Total period of custody 6 days
Name of the complainant CBI/ACB/BLR
Date of commencement of 13.11.2017
recording evidence
Date of closing of evidence 15.12.2020
Offences complained of under Section 120-B of IPC,
under section 7, 13(2) r/w 13(1)
(a) and under section 13(2)
r/w.13(1) (d) of Prevention of
Corruption Act, 1988.
Opinion of the Judge Not guilty
JUDGMENT
Sri.Vivekananda Swamy, The Inspector of Police, CBI/ACB/BLR, has submitted charge sheet against the accused No.1 to 5 for commission of the offences punishable under Section 120-B of IPC, under section 7, 13(2) r/w 13(1)(a) and under section 13(2) r/w.13(1)
(d) of Prevention of Corruption Act, 1988.
2. The brief facts of the prosecution case are that, the instant case was registered based on the source information that Sri.V.Vishweshwar Bhat, Sri.V.Prem Kumar and Sri.K.R.Soma Sundar, all Superintendents of Customs and Sri. M.V.Srinivas and Sri. K.Niranjana Murthythe inspectors of Customs, of the Import Section of the Customs Department, Menzies Aviation Bobba Air Cargo Terminal, Bengaluru International Airport, Bengaluru conspired with Sri.Pothurajan, Sr. Executive of M/s.DHL and in pursuance of the said 4 Spl.CC.No:17/2017 conspiracy, they indulged in collecting bribe money from the Clearing House Agents(CHAs) by abusing their official position as public servants in the matter of clearing files for release of imported goods. Based on the said reliable information, a Joint Surprise Check was conducted jointly by the CBI and the Customs Vigilance. The said JSC revealed that Sri.V.Vishweshwar Bhat; Sri.V.Prem Kumar and Sri.K.R.Soma Sundar, Superintendents of Customs and Sri. M.V.Srinivas and Sri. K.Niranjana Murthy the inspectors of Customs, of the Import Section of the Customs Department, Menzies Aviation Bobba Air Cargo Terminal, Bengaluru International Airport entered into criminal conspiracy with a private person Sri.P.Pothurajan S.K., Sr. Executive of M/s.DHL Logistics and in pursuance of the said conspiracy, they were collecting bribe money from the CHAs by abusing their official position as public servants in the matter of clearing files for release of imported goods.
3. That Since the aforesaid acts of Sri.V.Vishweshwar Bhat; Sri.V.PremKumar and Sri.K.R.Soma Sundar, all the Superintendents of Customs and and Sri. M.V.Srinivas and Sri. K.Niranjana Murthythe inspectors of Customs and Sri.K.Pothu Rajan and unknown others prima facie disclose commission of offences under section 120-B r/w.Sec.7, 8, and Section 13(2) r/w.13(1) of the Prevention of Corruption of Act, 1988, a regular case has been registered by CBI, ACB, Bengaluru in RC 7(A)2016 Orders on 17.03.2016. 5 Spl.CC.No:17/2017
4. That Sri..Vishweshwar Bhat (A-1); Sri.V.Prem Kumar(A-2) and Sri.K.R.Soma Sundar (A-3), Superintendents of Customs and Sri.M.V.Srinivas (A-4) and Sri.K.M.Niranjan Murthy (A-5), both Inspectors of Customs who were on duty on 16.03.2016 in the import shed of Menzies Aviation Bobba Air Cargo Terminal were demanding and accepting illegal gratification from Importers/CHAs for registration/examination of bills of entries; inspection of the imported goods; for value appraisal of the imported goods and for passing the bills of entry out of charge to enable the importers/CHAs take delivery of the imported goods. It is further revealed that all of them were collecting the bribe money through Sri.Pothu Rajan, a private person & Sr.Executive of M/s.DHL Logistics and thereby committed the offences of criminal conspiracy, demanding & accepting illegal gratification other than legal remuneration to do an official act and thereby committed criminal misconduct punishable under Sec.120-B of IPC r/w.Sec.7 and Sec.13(2) r/w 13(1)(a) & (d) of the PC Act, 1988. Hence, the case is registered against the accused.
5. On receipt of the charge sheet, this Court perused the same and took cognizance for the offences punishable under Section 120-B of IPC, under section 7, 13(2) r/w 13(1)(a) and under section 13(2) r/w.13(1) (d) of Prevention of Corruption Act, 1988 and summoned the accused. The accused appeared before the Court through their counsel and were enlarged on bail. Thereafter, copies of prosecution papers were furnished to the accused. The accused were heard regarding charge and as there was a prima-facie case that required 6 Spl.CC.No:17/2017 trial, charges were framed against the accused No.1 to 5 for the offences punishable under Section under Section 120-B of IPC, under section 7, 13(2) r/w 13(1)(a) and under section 13(2) r/w.13(1) (d) of Prevention of Corruption Act, 1988. The accused pleaded not guilty and claimed to be tried for the said charges.
6. In order to prove their case and guilt of the accused, prosecution examined PW1 to PW45 and got marked Ex.P1 to P106 as documents. The defense side got marked Ex.D1 & D2 in the cross examination of witnesses. After prosecution closed their evidence, the accused were examined under Section 313 Cr.P.C. and the answers given by the accused were recorded. In their examination the accused denied the incriminating circumstances against them and has submitted that they had no defence evidence. Hence, the arguments were heard.
7. The learned Sr. Public Prosecutor has vehemently argued that, the prosecution had proved the charge beyond all reasonable doubts. That the evidence of hostile witnesses can not be discarded in toto and is to be considered by the Court. That P.W.1 has implicated the accused that he was collecting the illegal gratification for and on behalf of the accused. That the accused have not disputed the collection of the money. But, it is their defence that it was contribution towards Ugadi festival. But since the collection was over a period of time, it cannot be towards the festival. And under Section 7 of Prevention of Corruption Act, even a third person can collect 7 Spl.CC.No:17/2017 money on behalf of the accused. That all the accused need not participate in every act towards criminal conspiracy. That, the presumption under Section 20 of Prevention of Corruption Act is to be drawn which is to be rebutted by the accused. That joint surprise check is preventive in nature and is a preliminary enquiry as permitted in Lalitha Kumari's case. Since, the FIR was not registered, the I.O. was not seized any item at the time of joint surprise check. Though, the accused have been exonerated in the departmental enquiry it is due to lack of evidence and hence the benefit of the same cannot be given to the accused in this case. Further, the evidence of the Investigating Officer is clear unambiguous and points to the guilt of accused. Accordingly, has sought a conviction. He has further filed written arguments in support of the case of prosecution.
8. Sri.Kiran S.Javali, the learned Senior counsel appearing on behalf of Sri. Shivaji H Mane, the learned counsel for the accused No.1 to 5 has argued that, the burden to prove the charge beyond all reasonable doubt is on the prosecution. Merely because the prosecution has examined number of witnesses by itself would not amount to proof. While the evidence of hostile witnesses need not be discarded, the Court is bound to see whether it is acceptable. More particularly he has drawn the attention of the Court to the cross- examination of PW1 and has argued that, the admissions made therein prove the defence. He has argued that, there was no FIR prior to the joint surprise check and as such the Ex.P.22 mahazer conducted is inadmissible. That the joint surprise check itself is illegal in view of 8 Spl.CC.No:17/2017 Girish Chandra's case. That none of the employers of CHAs have been examined to prove the payment of money. That there is no evidence of demand. That these accused have been prosecuted by their department on the very same material and have been exonerated. As such, the criminal prosecution cannot be sustained. Accordingly, has sought for an acquittal.
9. For disposal of this case, following points arise for consideration:
1. Whether the prosecution prove the valid sanction under Section 19(1)(c) of Prevention of Corruption Act, 1988 to prosecute the accused No.1 to 5 ?
2. Whether prosecution proves that accused No.1 to 3 being Superintendents of Customs and Accused No. 4 and 5 being Inspectors of Customs of Import Section of Customs Department at Menzies Aviation Bobba Air Cargo terminal, Bengaluru International Airport, Bengaluru during the period 14.3.2016 to 20.3.2016 have entered into criminal conspiracy with pardoned accused Sri. Pothurajan (PW1) were collecting illegal gratification amount of Rs.50/- for passing bills through Pothurajan (PW1) on behalf of accused 1 to 5 and thereby accused no.1 to 5 have committed criminal misconduct as public servants working as Superintendents of Customs and Inspectors of Customs 9 Spl.CC.No:17/2017 respectively of Import Section of Customs Department at Menzies Aviation Bobba Air Cargo terminal, Bengaluru International Airport, Bengaluru and thereby have committed an offence punishable under Section 120-B of IPC beyond all reasonable doubts ?
3. Whether prosecution further proves that accused No.1 to 3 being Superintendents of Customs and Accused No. 4 and 5 being Inspectors of Customs of Import Section of Customs Department at Menzies Aviation Bobba Air Cargo terminal, Bengaluru International Airport, Bengaluru during the said period by abusing and misusing their authority and power as public servants working as Superintendents of Customs of Import Section of Customs Department at Menzies Aviation Bobba Air Cargo terminal, Bengaluru International Airport, Bengaluru through P.W.1 Sri Pothurajan were collecting illegal gratification of Rs.50/- for passing the bills from Clearing House Agents and thereby have committed an offence punishable under Section 7 of Prevention of Corruption Act, 1988 beyond all reasonable doubt ?
4. Whether prosecution further proves that accused No.1 to 3 being Superintendents of Customs and Accused No. 4 and 5 being Inspectors of Customs, of Import Section of Customs Department at Menzies Aviation Bobba Air Cargo terminal, Bengaluru International Airport, 10 Spl.CC.No:17/2017 Bengaluru during the said period have indulged in collecting illegal gratification other than legal remuneration from CW10 to 44 by abusing official position as public servants in order to do illegal favour to said CW10 to 44 in the matter of clearing of files relating to imported goods and thereby have committed an offence punishable under Section 13(2) r/w 13(1)(a) of Prevention of Corruption Act, 1988 beyond all reasonable doubts ?
5. Whether prosecution further proves that accused No.1 to 3 being Superintendents of Customs and Accused No. 4 and 5 being Inspectors of Customs, of Import Section of Customs Department at Menzies Aviation Bobba Air Cargo terminal, Bengaluru International Airport, Bengaluru during the said period have indulged in illegal acceptance of illegal gratification other than legal remuneration from CW10 to 44 CHAs by abusing official position as public servants in order to do illegal favor to said CW10 to 44 in the matter of clearing of files relating to imported goods and thereby have committed an offence punishable under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 beyond all reasonable doubts ?
6. What order?11 Spl.CC.No:17/2017
10. Having heard the arguments on both side and on appreciating the oral and documentary evidence or record, My findings on the above points are as under :
Point No.1: In the affirmative;
Point No.2: In the negative;
Point No.3: In the negative;
Point No.4: In the negative;
Point No.5: In the negative;
Point No.6: As per final order for the following:
REASONS
11. Point No.1 :- Section 19 of Prevention Corruption Act mandates that, unless there is a valid sanction, cognizance cannot be taken. Therefore, a valid sanction is a pre condition to prosecute a public servant. In this case, accused Nos.1 to 5 are the employees of the Customs Department. Therefore, in order to prosecute them a valid sanction is necessary. In order to prove the sanction, prosecution have examined Sri Rajiv Bhushan Tiware as P.W.42. He was the Chief Commissioner of Customs at the relevant period of time. He has testified that during June 2016 the CBI Officials had sought sanction to prosecute the accused No. 1 to 5. That they had 12 Spl.CC.No:17/2017 submitted the statement of the witnesses, requires during the investigation, cash recovered during the investigation and panchanama in respect of those recoveries along with investigation report. That he has sent those records to the Vigilance Section for verification. Thereafter, when the file was put up before him, he has examined all the documents along with the investigation report and came to conclusion that there was a prima facie case to prosecute the accused Nos.1 to 5. Accordingly, he has accorded sanction to prosecute the accused No.1 to 5 as per Ex.P.92 to Ex.P.96 respectively. He has also identified Ex.P.97 as the copy of orders dated 13.07.2010 issued by the under Secretary to the Government of India, Ministry of Finance, Central Board of Excise and Customs showing schedule of powers. Said documents reflects that P.W.42 being the Chief Commissioner of Customs had the power to accord sanction to prosecute the accused Nos.1 to 5.
12. P.W.42 was cross-examined in length by the learned Counsel for the accused. Though, the cross-examination is in detail, nothing to discredit his testimony could be elicited. Though, it was suggested that P.W.42 had no authority to accord the sanction, same does not 13 Spl.CC.No:17/2017 inspire confidence in view of Ex.P.97. Though, Ex.P.97 does not specifically mention Section 19(1)(c) of Prevention of Corruption Act, nevertheless it indicates that the P.W.42 had the power and authority to accord sanction to prosecute accused No.1to 5. At the same time, there is no suggestion to show who else if not P.W.42 had the power to accord such sanction. Therefore, it is evident that the denial of the authority of P.W.42 is made just for the sake of denial and as such it is devoid of merits.
13. Evidence of P.W.42 coupled with Ex.P.97 establishes his authority to accord sanction to prosecute accused No.1 to 5. His evidence clearly reflects that the CBI authorities have placed the relevant materials for his consideration and he has gone through the material and has applied his mind to accord the sanction. As such, there are no grounds to invalidate the sanction Ex.P.92 to Ex.P.96 and same has to be upheld. Thus, it is held that there is a valid sanction to prosecute accused Nos.1 to 5. Accordingly, Point No.1 is answered in the affirmative.
14 Spl.CC.No:17/2017
14. Points No.2 to 5 :- As these points are interconnected, are interdependent and arise out of the same incident, they are taken together for discussion in order to avoid repetition and for the sake of convenience. The entire case of the prosecution hangs around the joint surprise check hereinafter referred to as 'JSC' conducted on 16.03.2016. Admittedly, said JSC was conducted based upon source information received by the CBI. As such, there was no FIR registered prior to conducting the JSC. Therefore, the defence side have assailed the validity of JSC.
15. Here it is necessary to refer the case of Lalitha Kumari Vs. Government of U.P. and others reported in (2014) 2 SCC 1. In the said case, the validity and necessity of conducting a preliminary enquiry upon receipt of a complaint was considered by the Hon'ble Supreme Court. The Hon'ble Supreme Court was pleased to hold that if the information received did not disclose the commission of a cognizable offence, the investigating authority was at liberty to conduct a preliminary enquiry to ascertain commission of such offence. On the other hand, if the information disclosed commission 15 Spl.CC.No:17/2017 a cognizable offence then the investigating authority had to registered an FIR without any preliminary enquiry.
16. While a preliminary inquiry is desired in corruption cases, the scope of a preliminary inquiry is highly restricted in nature. It is only to ascertain whether the information reveals any cognizable offence. The Constitutional Bench of the Hon'ble Supreme Court in the decision reported in (2014) 2 SCC 1 in the case of Lalita Kumari v. Government of Uttar Pradesh was pleased to hold that:
"120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4.The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.16 Spl.CC.No:17/2017
120.5.The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
.....
Similarly in the decision reported in (2021) 5 SCC 469 in the case of Charansingh vs. State of Maharashtra, the Hon'ble Supreme Court was pleased to hold that :
"10.1 ...... However, as observed hereinabove, such an enquiry would be conducted to ascertain whether a cognizable offence is disclosed or not. As observed hereinabove, even at the stage of registering the first information report, the police officer is not required to be satisfied or convinced that a cognizable offence has been committed. It is enough if the information discloses the commission of a cognizable offence as the information only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law."
17. Therefore, the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Therefore the scope of the JSC ought to have been restricted to ascertaining the commission of a cognizable offence and nothing further.
18. The objective of preliminary inquiry into a complaint of corruption is only to examine whether the complaint actually 17 Spl.CC.No:17/2017 discloses any cognizable offence against any particular person or persons and not to collect evidence in support of the complaint. The collection of evidence can be undertaken by the investigating machinery only during investigation. If a complaint did not disclose any cognizable offence punishable under law, the prosecuting agency cannot collect materials to supply the deficiency in the complaint and to register a crime. Once the investigating machinery comes to know about the commission of a cognizable offence, it is bound to register an FIR and commence investigation as per the provisions of the Code of Criminal Procedure thereafter.
19. In the light of the decision of the hon'ble Supreme Courtin H.N.Rishbud and Another -vs- State of Delhi reported in AIR 1955 SC, the collection of evidentiary material is necessarily to be treated as investigation and not a preliminary inquiry. In the terms of the the hon'ble Supreme Court in the said case, investigation is "under the Code investigation consists generally 18 Spl.CC.No:17/2017 of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing a charge sheet under Section 173". Hence, by necessary implication in this case, the investigation commenced prior to registration of the case with conducting of Ex.P22 panchanama.
20. Further, the Division bench of the hon'ble High Court of Karnataka in Girishchandra -vs- The State by Lokayuktha Police reported in ILR 2013 KAR 983(DB) which relied upon by the 19 Spl.CC.No:17/2017 defence was pleased to hold that, in all trap cases, it is just and necessary that recording of the complaint/registration of crime and submission of the FIR to the jurisdictional Court before embarking upon the protocol of raid is mandatory. The hon'ble High Court was pleased to hold that:
"8. In trap cases, the question of surprise raid is not conceivable and tenable unlike investigation in the case of an offence relating to assets which are disproportionate to known source of income. The method of surprise raid is totally impertinent and irrelevant in a trap case. Otherwise, the investigating officers would become arbitrary and could create unwarranted commotional atmosphere in the public offices. As we could see in the present case, there is no complaint from the person giving illegal gratification. No evidence is conceivable regarding demand and acceptance of bribe. The mere possession of some money in the hands of document writers would not suggest or substantiate the offence of demand and acceptance of illegal gratification by the Sub-Registrar and the officials of the office of the Sub-Registrar.
9. Therefore, in all trap cases, it is just and necessary that recording of complaint and submission of FIR to the jurisdictional Court before embarking upon the protocol of raid is mandatory. If this type of investigation by surprise raid in trap cases is permitted, it would demoralize the public administration and the SHOs of Lokayuktha police stations would tend to misuse the powers of investigation. It is therefore necessary that the Director General of Police shall properly educate all SHOs of Lokayuktha Police Stations in the State about the legal requirements of investigation to be complied in trap cases. Besides, written guidelines be laid down to be followed in the protocol of investigation in a trap case. Non- adherence to protocol of investigation by the investigating officer should necessarily result in disciplinary action.20 Spl.CC.No:17/2017
10. With regard to the question whether registration of FIR should precede the investigation or that FIR could be registered under the midst of the process of investigation would always depend upon the facts and circumstances of each case. In a situation where an offence is committed right in the presence of a police officer, it would be imprudent to insist that he should rush to the police station to record the FIR. The police officer should immediately act, like apprehending the accused, sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other type of cases, registration of FIR is mandatory since an FIR is to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible. If the FIR is sent to the Court, all further investigation should necessary be consistent with the FIR.
11. In the context of facts of the case on hand, the conduct of investigation by surprise raid in the absence of FIR is untenable. "
21. The said decision is followed in the later case of Sri.Ratnakar Shetty -vs- State through Lokayuktha Police and Another dated 3.12.2015 in Criminal Petition No.2812/2013. In the light of the decision of the hon'ble Supreme Court in H.N.Rishbud and Another -vs- State of Delhi reported in AIR 1955 SC, the collection of evidentiary material is necessarily to be treated as investigation and not a preliminary enquiry. In the light of the above decision, the realm of investigation begins after the preliminary enquiry ends. The preliminary enquiry is intended to 21 Spl.CC.No:17/2017 avoid unnecessary harassment to citizens and also to ensure that public time and money is not unworthily spent.
22. Ex.P22 is the proceedings of the JSC conducted on 16.03.2016. While the investigating authority is not empowered to conduct an investigation without registering the FIR, the JSC team herein have conducted a mahazar or a panchanama in the form of the proceedings of JSC. They have seized cash and incriminating scribblings from the possession of Pw.1 Sri.Pothu Rajan and also from the premises of Menzies Aviation Bobba Air Cargo Terminal. PW.3 Mr.Naveen at para 5 of his testimony on page 4 has stated that the CBI officers have searched the tables of the customs officials and have also searched the personnel by checking their shirt and pant pockets. He has also deposed regarding the seizure carried out by the CBI. This suggests that it was indeed an investigation carried out by the CBI. The process of search and seizure certainly evolves beyond the scope of preliminary inquiry.
22 Spl.CC.No:17/2017
23. Having seized the currency notes and incriminating scribblings, the investigating authority has proceeded to hand them over to PW.3 Mr.Naveen for further verification. This is found at para 5 of the testimony of PW.3 Mr.Naveen. PW.3 has identified the slips collected from Mr.Pothu Rajan as Ex.P1 to Ex.P6 and the currency notes as M.O.1 to M.O.5 before the court. Having received the currency notes and incriminating scribblings, PW.3 has handed them over to the CBI officials on 26.04.2016 that is more than a month after the JSC as per his testimony at para 6 on page 4. This is a procedure unknown to law. Having seized the currency notes and incriminating scribblings,the investigating authority had no power to hand them over to PW.3 either for verification or for safe keeping. If at all these were to be seized, it ought to have been done in accordance with the procedure and law. This itself raises serious doubts regarding Ex.P22 proceedings of JSC.
24. Initially, the case was registered against accused Nos.1 to 6. Out of that accused by name Sri P. Pothurajan sought pardon under 23 Spl.CC.No:17/2017 Section 307 of Cr.P.C., which was granted to him subject to conditions. Accordingly, Sri P. Pothurajan was pardoned and he was cited as a witness for the prosecution as C.W.9. and was examined as PW.1. At the stage of arguments, the prosecution moved an application under section 308 of Cr.P.C., claiming that C.W9/PW.1 had violated the terms of pardon. Said application was registered as a separate miscellaneous case in Crl.Misc.No:7811/2022. Said petition was heard and was dismissed on 7th day of November, 2022 by rejecting the claim of prosecution. Therefore, there is no impediment to consider the testimony of PW.1. But at the same time, under the Indian Evidence Act section 133 it is contemplated that one person accomplice shall be competent witness against accused person and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Though Sec.133 expressly provides that an evidence of accomplice can be considered to base conviction against accused, but as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by illustration (b) of Section 114 of the Evidence Act As laid down by the hon'ble 24 Spl.CC.No:17/2017 Supreme Court in the case of S.C.Bahri Vs State reported in AIR 1994 SC 2420 : 1994 Crl.L.J.3271. At the same time, under illustration-B of Section 114 of Evidence Act provides that "an accomplice is unworthy or credit, unless he is corroborated in material particulars", meaning thereby accomplice evidence cannot be the sole basis of conviction of unless it is corroborated in material particulars because an accomplice is one person he has betrayed his own men while participating in the crime. So, though an uncorroborated testimony of accomplice can be basis for holding accused guilty, but as a rule of prudence it is unsafe to rely on such testimony without corroboration. So, approver evidence must pass two test like reliability and corroboration in material particular as contemplated in Sec.114 and Sec.133 of Evidence Act.
25. PW.1 in his testimony he has stated regarding collection of bribe amount from the CHAs on the instructions of the customs officials. This is found at paras 5 and 6 of his testimony. But it is pertinent to note that nowhere in his testimony has he named 25 Spl.CC.No:17/2017 accused No.1 to 5 as the customs officials who had directed him to collect the bribe amount. Nor has he testified anything regarding having paid the bribe money to any of accused No.1 to 5. Further, it is relevant to note that no amount alleged to have been bribe money has been recovered from the possession of accused No.1 to 5. While PW.1 has testified that it was on the directions of customs officials that he has been collecting Rs.50/- per bill as bribe money he has not named who were the officials who had so directed him to collect the bribe. Therefore, there is a clear missing link between the testimony of PW.1 and accused No.1 to 5.
26. Ex.P1 to Ex.P6 were the chits that allegedly were prepared by PW.1 Mr.Pothurajan to note down the bribe amount collected. He has identified the same at para 9 to 12 of his testimony. Here also it is relevant to note that these chits were seized by the JSC but were not sealed nor were submitted to the court with any property challan. On the other hand, these Ex.P1 to Ex.P6 were handed over to the custody of PW.3 Mr.Naveen, who has at his own leisure has produce them before the investigating authority on 26.04.2016 after lapse of 26 Spl.CC.No:17/2017 more than a month. Therefore, the evidentiary value of Ex.P1 to Ex.P6 comes under serious doubt.
27. The major piece of evidence relied upon by the prosecution are Ex.P1 to Ex.P6 scribbling in which names of customs officials is allegedly mentioned. Such scribbling cannot be considered as books of accounts maintained in the ordinary course of business to attract section 34 of Indian Evidence Act. it is open to any unscrupulous person to make any entry any time against anybody's name unilaterally on any sheet of paper or computer excel sheet. There being no further corroborative material with respect to the payment, no case is made out so as to direct an investigation, and that too against large number of persons named in the documents. The Hon'ble Supreme Court in the case of Common Cause (A Registered Society) and Others vs. Union of India and Others in Writ Petition Civil Appeal No. 505 of 2015 on Interlocutory Application Nos. 3 And 4 Of 2017 dated 11.01.2017, has observed as under:-
19. With respect to evidentiary value of regular account book, this Court has laid down in V.C. Shukla, thus:
"37. In Beni v. Bisan Dayal it was observed that entries in books of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make 27 Spl.CC.No:17/2017 evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. In Hira Lal v. Ram Rakha the High Court, while negativing a contention that it having been proved that the books of account were regularly kept in the ordinary course of business and that, therefore, all entries therein should be considered to be relevant and to have been proved, said that the rule as laid down in Section 34 of the Act that entries in the books of account regularly kept in the course of business are relevant whenever they refer to a matter in which the Court has to enquire was subject to the salient proviso that such entries shall not alone be sufficient evidence to charge any person with liability. It is not, therefore, enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person relying upon those entries to prove that they were in accordance with facts."
20. It is apparent from the aforesaid discussion that loose sheets of papers are wholly irrelevant as evidence being not admissible under Section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. The entire prosecution based upon such entries which led to the investigation was quashed by this Court.
28. As held by the Hon'ble Supreme Court, the loose sheet of papers are wholly irrelevant as evidence being not admissible u/s. 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. Therefore Ex.p1 tp P6 do not come to the aid of prosecution. 28 Spl.CC.No:17/2017
29. Prosecution side have also produced the CCTV footage pertaining to the JSC under Ex.P10 pen drive along with Ex.P10 Certificate under section 65 -B of Indian Evidence Act. They have also examined PW.2 Mr.Gopa Kumar S in order to prove the same. Though the defence side have disputed the capacity of PW.2 to issue 65-B Certificate, it is pertinent to note that said certificate has been signed by both PW.2 and Mr.Harish, who is incharge of the computers. Further, PW.2 at para 1 of his testimony has stated that he is incharge of the server of the CCTV. That makes him competent to issue the required certificate under section 65-B of the Indian Evidence Act. Therefore, there are no reasons to hold the CCTV footage as inadmissible.
30. The CCTV footage between 17.51.53 hours to 17.58.14 hours show the presence of PW.1. Even if the CCTV footage is accepted in its face value, it still does not connect the same with accused No.1 to 5. As discussed earlier, prosecution have not elicited that accused No.1 to 5 had directed PW.1 to collect the bribe amount on their behalf. 29 Spl.CC.No:17/2017 Admittedly, there are many customs officials working in the Airport. Therefore, without there being specific implication, it cannot be presumed that it was these accused No.1 to 5, who had directed PW.1 to collect the bribe amount on their behalf.
31. PW.1 at para 35 of his testimony has stated that, he has not at all met the accused on 14.03.2016 and 15.03.2016. Admittedly, the customs officials are changed on a rotation basis. It is his further testimony that at about 17.51.53 hours he was brought to Air Cargo Complex by the CBI officials. Before that he was supervising the loading of cargo into trucks. This testimony also goes to the root of the prosecution case and raises the serious doubt as to whether it was possible for the accused No.1 to 5 to have directed PW.1 to collect bribe amount on their behalf.
32. Ex.P22 is the proceedings of JSC. Ex.D1 is the copy of the same marked by confrontation to PW.1. Para 29 of the testimony of PW.1 reflects that Ex.D1 contains the signature of PW.1 while the same is missing from Ex.P22. Since Ex.D1 is the copy of Ex.P22, this anomaly 30 Spl.CC.No:17/2017 goes to root of the prosecution case and raises serious material doubts regarding the same.
33. In this case, the defence have not seriously disputed the collection of amount by PW.1. But they have disputed the purpose for which said amount was allegedly collected. While according to prosecution it was the bribe amount, according to defence, it was collection towards celebration of a festival. At paras 34 and 35 of the testimony of PW.1, it was elicited that the workers of Air Cargo Complex were collecting amount for celebrating festivals. It was further elicited that as on 16.03.2016, Ugadi festival was approaching and the workers were collecting the funds for celebrating Ugadi festival. Though it was argued by the prosecution that the collection was not done on a single day, there is no material to show that the collection had been done on any other day than 16.03.2016. Further, the defence side have countered that collection for the festival need not be restricted to a single day or on the day of festival which would be impracticable. This admission of PW.1 raises a material doubt that whether the alleged collection made by PW.1 was towards Ugadi festival. This also goes to the root of the prosecution case. 31 Spl.CC.No:17/2017
34. As stated earlier, PW.1 initially was an accused, who turned as an approver at the behest of prosecution. He has also given his statement under section 164 of Cr.P.C., as per Ex.P7. Para 38 and 40 of his testimony reflects that he was made to give his statement under duress. At para 41 of his testimony, he has admitted that in order to get rid of this case, he has acted as per the instructions of CBI officers. These admissions raise serious material doubts regarding the testimony of PW.1 and the case of prosecution.
35. PW.3 Mr.Priyadarshini Naveen is the inspector of customs and was working in vigilance section at that time. He has also testified regarding the JSC. This is not the only case where JSC had been conducted. While this JSC was being conducted at the premises of Menzies Aviation Bobba Air Cargo Terminal Another JSC was simultaneously conducted at Air India SATS terminal. It is interesting to note that PW.3 is a common witness to both the JSCs. Para 4 and 5 of his testimony reflect this situation. Para 25 and para 26 of his testimony indicates that, these two were independent JSCs having independent witnesses. It is also elicited that these two premises are 32 Spl.CC.No:17/2017 separate. Ex.P22 does not reflect that PW.3 had left the JSC of this case in the middle. Whereas testimony of PW.3 at para 25 and para 26 indicate that he was shuffling in between the two JSCs. This raises the serious doubt as to how much of the JSC was actually witnessed by PW.3. Since Ex.P22 does not make a mention of PW.3 having left in between, it also creates a doubt regarding the veracity of Ex.P22 and the testimony of PW.3.
36. Testimony of PW.3 at para 31 reflects that neither any money nor any chit was recovered from the possession of the accused. He has further deposed that the cash and chits recovered had been handed over to him, which he later on handed over to the CBI officials. While Ex.P22 narrates the same, PW3 has testified to the contrary at para 33. While the document prevails over the oral testimony, it still raises a doubt that PW.3 was not aware of the contents of Ex,P22, which corroborates his earlier testimony that he was shuffling between the two JSCs. Therefore, the participation of PW.3 in the JSCs does not inspire confidence.
37. PW.3 at para 4 has deposed that, the CBI officials had caught hold of a CHA and told him that said CHA was collecting money. This 33 Spl.CC.No:17/2017 means PW.3 was informed by the CBI about the alleged collection of bribe amount. If PW.3 was part of the JSC, there is no necessity for the CBI to inform him. This also establishes the fact that, PW.3 has perceived the entire incident as per the say of CBI. This also raises the material doubts regarding the case of prosecution.
38. Further, his testimony is also not free from contradictions. At para 5, he has stated that the CBI officials have seized the cash and chits in his presence and have handed them over to him. Same is also reflected in Ex.P22. Per contra, at para 11 of his testimony he has stated that the CBI officials after seizing the amount have sealed the same in his presence. Therefore, there are two self contradictory versions which also makes his testimony unreliable to that extent.
39. The learned Sr.Public Prosecutor has argued that PW.1 has also made an extra judicial confession in the presence of PW.3 regarding the collection of bribe amount. At para 19 of the testimony of PW.3, he has stated that Mr.Pothurajan informed them that the money collected by him on day to day basis on behalf of the customs officers on duty. Here again, name of any individual customs official is not forthcoming. Whether it is anyone among accused No.1 to 5 or was it 34 Spl.CC.No:17/2017 any other customs official has also not been mentioned. At the same time, even if this is taken as extra judicial confession, it can bind PW.1 Mr.Pothurajan alone. Since he has already been pardoned, this confession would not bother him much. In the absence of implicating any specific accused, this admission would not help the prosecution to prove the charges against accused No.1 to 5.
40. PW.4 Smt.V.Malarkodi is the Chief Accounts Officer, who has produced the service books of accused No.1 to 5 as per Ex.P28 to Ex.P35. PW.5 Mr.D.Anil is the Additional Commissioner of Customs, who has produced the procedure/rules/regulations towards clearance of bills of entry as per Ex.P36 to Ex.P 42. PW.6 Mr.S.Devarajan is the Deputy Commissioner of Central Tax and has produced the duty roaster of accused No.1 to 5 as per Ex.P43. These documents are formal in nature. Admittedly, Ex.P28 to Ex.P43 are the photostat copies attested by PW.4 and 5 respectively. Since they are attested copies, the learned counsel for the accused objected for marking of the same due to absence of certificate under section 65-B of Indian Evidence Act. This objection is totally devoid of merits. Section 65-B certificate would be required for production of 35 Spl.CC.No:17/2017 electronic evidence as secondary evidence. Here admittedly, the primary evidence of Ex.P28 to Ex.P43 is not in electronic form. The copies made of non electronic evidence by an electronic means and produced before the court is not the same as electronic or digital evidence. Therefore, there is no requirement of section 65-B of Indian Evidence Act for producing the photostat copies the originals of which are in a printed non electronic form. As such, these documents can be admitted as secondary evidence. However, these documents do not incriminate the accused in any particular manner. Since the posting and duty of the accused is not in dispute, the above documents become formal evidence in nature. The only relevant evidence elicited by the defence is the absence of PW.5 at the time of JSC.
41. PW.7 Mr.Waseem Akram is an independent witness to the JSC. While he supposed to be an independent witness, it was elicited that he had also been a witness for CBI in other cases. It is his testimony that the CBI Inspector on searching Mr.Pothurajan found 2-3 envelopes containing some amount along with some chits. Per contra, Ex.P22 proceedings does not speak about searching the person of 36 Spl.CC.No:17/2017 Mr.Pothurajan. On the other hand, Ex.P22 speaks that Mr.Pothurajan on being asked had voluntarily produced the currency notes and papers with scribbling. As this evidence is contradictory in nature, it also goes to the root of the prosecution case.
42. PW.8 and PW.10 to PW.41 are the CHAs who had allegedly paid the bribe money. But none of them have supported the case of prosecution. All of them turned hostile and have denied the case of the prosecution in toto. Nothing remotely incriminating against accused No.1 to 5 could be elicited through these witnesses. In fact they have denied having paid any amount as bribe. As such, their evidence is not of any use to the case of prosecution.
43. PW.9 Mr.Rakshith K.L. has testified that he had paid some money to PW.1 Mr.Pothurajan. Again there is no direct connection to link his testimony with accused No.1 to 5. There is no corroborative testimony from Pw.1 Mr.Pothurajan that he had accepted any amount from PW.9 to be paid to accused No.1 to 5. As such, the testimony of PW.9 is not of much help to the prosecution.
37 Spl.CC.No:17/2017
44. P.W.43 Mr.R.K.Shivanna who was the then Inspector of Police, CBI/ACB, who has investigated the case and was also the leader of JSC. It is his testimony that Mr.Pothurajan had informed him that he was collecting bribe from CHA agents on the instructions of accused No.1 to 5. He is the only witness to say so. Neither PW.1 nor PW.3 nor PW.7 have corroborated this testimony of PW.43. Similarly, there is no mention in Ex.P22 that accused No.1 to 5 have directed Pw.1 to collect the bribe money on their behalf. On the other hand, though page 3 of Ex.P22 speaks about several customs officials, it is not about the directions received from them. But on the other hand, about the scribbling made by PW.1 as against the names of customs officials. When there is no link to connect accused No.1 to 5 with the alleged demand for bribe, PW.1 noting the names of the customs officials against some amount by itself would not prove the case of the prosecution. Further none of the CHAs examined by the prosecution have testified admitting payment of bribe money to accused No.1 to 5 through PW.1.
45. PW.44 Sri.J.B.Shivapuji is the learned 17 th ACMM, Bengaluru, who has been examined to prove the statement given by PW.1 under 38 Spl.CC.No:17/2017 section 164 of Cr.P.C. As the statement has not been denied by PW.1 and his evidence is more or less in consonance with said statement , evidence of PW.44 is formal in nature.
46. PW.45 Sri.Vevekanandaswamy is the Inspector of Police and is the I.O. of the present case. He was also part of the JSC and has submitted the charge sheet after the investigation. He has testified regarding the JSC, conducting the search of the residence of accused No.1 and the investigation in general. As a separate case regarding disproportionate assets has been filed against the accused No.1, these details regarding the search of the residence of accused No.1 and the resulting inventory memo as per Ex.P100. authorisation as per Ex.P101, locker operation proceedings as per Ex.P103 and 104 are not of much importance to present case.
47. It is pertinent to note that in his cross examination at para 39 and para 52, it was elicited that he has not inquired the employers of CHAs regarding the payment of bribe money. Though he has stated that, no one keeps records for payment of bribe, said answer is not good enough to cover this lapse in the investigation. Admittedly, even 39 Spl.CC.No:17/2017 according to prosecution PW.1 had kept records as per Ex.P1 to Ex.P6 towards collection of bribe amount. Thus, I.O. ought not to have assumed that there would not be any vouchers for payment of the bribe amount. Further, the CHAs definitely would not pay the bribe amount out of their pocket. Said amount would be provided by their employers. Which means the employers would account for the same, though not under any specific head that would disclose the nature of transaction. But it would be accounted in one or other form which could have been revealed by a deep and in depth investigation. Failure to inquire the employers of CHAs leaves behind a weak link in the chain of circumstances that goes to the root of prosecution case.
48. The testimony of PW.45 even regarding the procedure adopted for conducting the investigation more particularly the JSC is also not in accordance with law. First of all, he ought not to have conducted any investigation without registering an FIR as investigation would exceed the scope of any preliminary inquiry. Having conducted the JSC, PW.45 again gave a go bye to the procedure. Having seized the scribbled chits and cash from the 40 Spl.CC.No:17/2017 possession of PW.1, the I.O. did not keep them in proper custody. On the other hand, Ex.P22 reflects that he handed them over to PW.3 Mr.Naveen for further verification. Nor such seizure was reported to the court. This itself defeats the purpose of conducting the panchanama.
49. Both side have relied upon the decision of hon'ble Supreme Court in the case of Neeraj Dutta vs. State (Govt. of N.C.T. of Delhi) reported in 2022 SCC Online SC 1724. In this decision, the Constitutional Bench of the hon'ble Supreme Court has enunciated that conviction under the provisions of the prevention of corruption act, 1988 is not bad in the absence of direct evidence and the guilt could be brought home in the presence of circumstantial evidence. The main question which was there before Constitutional Bench of the hon'ble Supreme Court was "in the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence". And the hon'ble Supreme Court has answered the same saying that "In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public 41 Spl.CC.No:17/2017 servant under Section 7 and 70 Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution."
50. The prosecution side have relied upon the above decision in Neeraj Dutta's case that the charges in the present case can be proved by circumstantial evidence. That even if the evidence of PW.1 is not reliable, the charges are proved by way of circumstantial evidence. He has also relied on the presumptions under section 20 of the Prevention of Corruption Act to bring home the charges against accused No.1 to 5.
51. As against this, the defence have relied upon the above decision to hold that in the absence of proof of demand, the case is not sustainable. Though the defence have relied upon other decisions which are on the same point, Neeraj Dutta's case being rendered by the constitutional bench prevails over them.
52. As held by the Hon'ble Supreme Court, the charges under sections 7 and 13 of Prevention of Corruption Act can be proved by way of circumstantial evidence. But the basic rule in relying upon circumstantial evidence is that, the chain of circumstances must be complete without there being any weak links in between. In this case, there is nothing to connect Ex.P1 to Ex.P6 42 Spl.CC.No:17/2017 with accused No.1 to 5. PW.1 himself has not named accused No.1 to 5 as the customs officials who had directed him to collect the bribe on their behalf. Such being the case, it cannot be held that the evidence brought on record by the prosecution is of sterling quality to prove the charges.
53. The prosecution side have further relied upon the presumption under section 20 of Prevention of Corruption Act to argue that, it is the burden of the accused to prove their innocence. Here it is necessary to refer to section 20 of Prevention of Corruption Act, 1988 for easy reference which reads as:
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 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 contrary is proved, that he gave or offered to give or attempted to give that gratification or that 43 Spl.CC.No:17/2017 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.
54. A bare reading of the above section 20 of Prevention of Corruption Act, 1988 reflects that it is a presumption of law and hence is mandatory in nature. But there is a pre-condition for drawing said presumption. Above section 20 mandates that, said presumption shall be raised only when the first limb of section 20 is satisfied. The first limb of above section 20 as it stood prior to amendment prior to drawing the presumption the proof of acceptance is mandatory. Only when it is proved that the accused person has obtained or has agreed to obtain or has agreed to accept or attempted to obtain for himself or any other person any gratification then it shall be presumed that such shall be the motive or reward as mentioned in section 7 of Prevention of Corruption Act, 1988. But in this case, the 44 Spl.CC.No:17/2017 prosecution have failed to prove the above factual aspects. Therefore, there is no scope to raise the presumption under section 20 of Prevention of Corruption Act, 1988. Therefore, arguments of prosecution in this regard do not hold good.
55. The defence side have argued that the prosecution have failed to prove the demand. Prosecution have replied that for an offence punishable under section 13(1)(d) of Prevention of Corruption Act, 1988, demand is required. But since the charge in the present case is under section 13(1)(a) of Prevention of Corruption Act, 1988 proof of demand is not required. While this was argued vehemently, there is no evidence on record to prove that accused No.1 to 5 had accepted any gratification from CW.10 to CW.44. There is also no credible evidence to show that, the accused No.1 to 5 had directed CW.9/PW.1 Sri.Pothurajan to collect illegal gratification on their behalf. Therefore, even this argument of the prosecution side does not hold good. 45 Spl.CC.No:17/2017
56. The learned counsel for the accused has argued that, the departmental enquiry against the accused ended in exonerating the accused. Therefore, by necessary implication these accused are also entitled for acquittal. As against this, the learned Senior Public Prosecutor has argued that the departmental enquiry so ended due to lack of evidence and it was not an honourable acquittal for the accused. Therefore, according to him, the result of the departmental enquiry has no bearing on the present case. The learned counsel for the accused has produced the copies of charge memorandum and the orders passed by the disciplinary authority. On going through the same, it is found that the departmental enquiry came to conclusion that there was no evidence to prove the charge memorandum against the Delinquent Government official therein. In this regard, the defence have relied upon the decision of Hon'ble Supreme Court in the case of Ashoo Surendranath Tewari -Vs- the Dy.Superintendent of Police EOW,CBI & ANR rendered in Crl.Appeal No.575/2020 dated 08.09.2020 and in the case of P.S.Rajya -Vs- State of Bihar reported in (1996) 9 SCC 1, wherein it is held that if the accused are exonerated in the departmental enquiry on merits on the identical facts then trial 46 Spl.CC.No:17/2017 of said accused in the criminal case would be an abuse of the process of court.
57. In this case, these accused were charged by their department to face an enquiry. The copy of charge memorandum and the findings have been made available to this court by the accsued and are not disputed by the prosecution. A perusal of the same reflects that the charges in the departmental enquiry are identical to present case on hand. The witnesses examined in the departmental enquiry are also the witnesses of the present case. Such being the case, the argument of the defence side has to be accepted. Though it was argued by the prosecution that the departmental enquiry was decided due to lack of evidence, the findings therein speak that, it was a finding on merits. The Inquiry officer came to conclusion that inspite of having oral and documentary evidence, it was lacking in nature to prove the charges. It is not that the departmental enquiry was dropped for lack of evidence. But it was a finding on the merit that the charges were not proved due to lack of evidence. As both these circumstances are totally different, it cannot be accepted that the findings against these accused in the departmental inquiry cannot be looked into. 47 Spl.CC.No:17/2017
58. The first charge against the accused No.1 to 5 is that of criminal conspiracy punishable under section 120-B of IPC with CW.9 and CW.38 to collect the bribe money from CW.10 to CW.44. The evidence on record as discussed earlier fails to connect the accused with PW.1 Mr.Pothurajan. There is no evidence to show that, Mr.Pothurajan had met the accused on they being deployed for duty at Menzies Aviation Bobba Air Cargo Terminal, Bengaluru International Airport. There is no evidence to show that these accused had directed Mr.Pothurajan to collect any bribe amount on their behalf. As such it is to be held that the prosecution have failed to prove the charge for the offence punishable under section 120-B of IPC.
59. Charges No.2 to 4 are regarding the acceptance of illegal gratification or the bribe amount from CW.10 to CW.44 through CW.9 Mr.Pothurajan which are punishable under section 7, 13(1)(a), 13(1)
(d) and 13(2) of Prevention of Corruption Act, 1988. U/Sec.13(1)(a) and 7 of Prevention of Corruption Act, 1988, a public servant must receive gratification other than legal remuneration to show some 48 Spl.CC.No:17/2017 official favour or receive reward is not established. As discussed earlier, when the case of prosecution is considered as a whole, it is found that the Joint Surprise Check exceeded the scope of preliminary inquiry. The Panchanama which is investigation prior to the registration of the FIR is unsustainable. Proper procedure was not followed during the panchanama and the seized materials were not properly handled. Coming to the evidentiary value of Ex.P1 to P6 loose sheets, such entries have been held to be prima facie not even admissible by the hon'ble Supreme Court in the case of C.B.I. -Vs- V.C.Shukla reported in 1998 (3) SCC 410. Further PW.8 and PW.10 to PW.41 who are the CHAs who had allegedly paid the bribe money have denied any such payment. No amount has been recovered from the accused No.1 to 5. The chain of circumstances is fraught with weak links. There is nothing to connect accused No.1 to 5 with the alleged bribe amount. The accused No.1 to 5 have already been exonerated in the departmental proceedings on the similar charges. As such it is to be held that the prosecution have failed to prove any of the charges for the offences punishable under section 7, 13(1) (a), 49 Spl.CC.No:17/2017 13(1) (d) and 13 (2) of Prevention of Corruption Act, 1988 beyond reasonable doubts.
60. In this case, total cash of Rs.55,920/- has been seized. They are:
MO.1 Cash of Rs.17,720/-
MO.2 Cash of Rs.2,300/-
MO.3 Cash of Rs.1,700/-
MO.4 Cash of Rs.10,000/-
MO.5 Cash of Rs.22,000/-
MO.6 Cash of Rs.2,200/-
Total: Rs.55,920/-
Neither the accused not PW.1 have claimed this cash amount to be theirs. Therefore said cash has to be confiscated to the State. To reiterate, prosecution have failed to prove the charges and bring home the guilt of the accused. Accordingly, points No. 2 to 5 are answered in the negative.
60. Point No.6:- In the light of above discussion, I proceed to pass the following:
O RDER Acting under section 235(1) of Cr.P.C., the accused No.1 Sri.V.Vishweshwar Bhat, accused No.2 V.Prem Kumar, accused No.3 Sri.K.R.Soma Sundar, accused No.4 M.V.Srinivas accused No.5 50 Spl.CC.No:17/2017 K.Niranjana Murthy are acquitted of the charges for the offences punishable under section 120-B of I.P.C. along with sections 7, 13(1) (a), 13(1) (d) and 13 (2) of Prevention of Corruption Act, 1988 and are set at liberty.
The bail bond and surety bond executed by accused under section 437-A of Cr.P.C. shall continue for a further period of six months pending appeal, if any.
M.O. 1 to 6 being the total cash of Rs.55,920/-stands confiscated to the State after the appeal period.
(Typed my dictation by the Judgment Writer directly on computer, corrected and then pronounced by me in open Court on this the 21 day of January 2023.) st (K.L. ASHOK), XXI Addl City Civil & Sessions Judge & Prl. Spl. Judge for CBI cases, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION;
Witness Name of the Witnesses PW.1 P.Pothurajan PW.2 Gopa Kumar 51 Spl.CC.No:17/2017 PW.3 P.Naveen PW.4 Smt.V.Malarkodi PW.5 D.Anil PW.6 S.Devarajan PW.7 Waseem Aakram G PW.8 Ganesh H.S. PW.9 Rakshith K.L. PW.10 Abhilash.V.Nair PW.11 R.Mallikarjuna PW.12 Mahesha P PW.13 Ashok D.H. PW.14 M.R.Vijaya Kumar PW.15 Umesh V. PW.16 Manjunath K.S. PW.17 Sadananda Birdar PW.18 Viod Kumar B PW.19 Muneendra PW.20 Ravindra PW.21 Lokesh PW.22 Sandeep H.M. PW.23 Prajeeth M.R. PW.24 Mahesh P.B. PW.25 Santhosh M.D. PW.26 Supriya D.H. PW.27 Puttaraju Naik K.M. PW.28 Fakruddin K PW.29 Girish R PW.30 Vinay H.V. PW.31 M.Ravi PW.32 T,Srimath PW.33 S.Raju PW.34 V.Nagarajan PW.35 M.N.Muniraju PW.36 Girish S PW.37 B.P.Sujan PW.38 Vinod C.P. PW.39 B.Ranganath 52 Spl.CC.No:17/2017 PW.40 Chandrashekhar PW.41 A.Somashekar PW.42 Rajiv Bhushan Tiwari PW.43 R.K.Shivanna PW.44 T.B.Shivapuji PW.45 V.Vivekananda Swamy
LIST OF DOCUMENTS MARKED FOR PROSECUTION;
Ex.P.1 Bunch of three papers with scribblings dated 16.3.2016 and two small made up pouchers/covers said to be containing the payments made to several customs officials, amounts received from CHAs etc., (5 sheets) Ex.P1(a) Relevant portion in the first page of Ex.P1 Ex.P.2 Bunch of loose sheets with scribblings said to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (13 sheets) Ex.P.3 Bunch of loose sheets with scribblings said to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (9 sheets) Ex.P.4 Bunch of loose sheets with scribblings said to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (8 sheets) Ex.P.5 Bunch of loose sheets with scribblings said to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (13 sheets) Ex.P.6 Bunch of loose sheets with scribblings said 53 Spl.CC.No:17/2017 to be containing the details of bribe money collected by PW.1 on day to day basis on behalf of the Customs Officers on duty. (13 sheets) Ex.P.7 Original order sheets in Crl. Mis. No. 8414/16 (3 sheets) Ex.P7(b) Signature of PW.44 Ex.P.8 Original statement of PW.1 recorded under 164 (1) Cr.P.C., (2 sheets) Ex.P.8(a) Signature of PW.44 Ex.P.9 Letter dt.22.04.2016 of PW.2 addressed to CBI Ex.P9(a) Signature of PW.2 Ex.P.10 San Disc Pen drive Ex.P.11 Certificate under Section 65-B of Indian Evidence Act Ex.P11(a) Signature of PW.2 Ex.P.12 List contains details of denomination of Rs.17,720/-
Ex.P.12 Signature of PW.3
Ex.P.13 List contains details and denomination of
Rs.2,300/-
Ex.P.13(a) Signature of PW.3
Ex.P.14 List contains details and denomination of
Rs.1,700/-
Ex.P.14(a) Signature of PW.3
Ex.P.15 List contains details and denomination of
Rs.10,000/-Acting under section 235(1)
Ex.P15(a) of Cr.P.C., the accused No.1
Sri.V.Vishweshwar Bhat, accused No.2
V.Prem Kumar K.Niranjana Murthy,
accused No.3 Sri.K.R.Soma Sundar, accused No.4 M.V.Srinivas accused No.5 K.Niranjana Murthy are acquitted of the charges for the offences punishable under section 120-B of I.P.C. along with sections 7, 13(1) (a), 13(1) (d) and 13 (2) 54 Spl.CC.No:17/2017 of Prevention of Corruption Act, 1988 and are set at liberty.
The bail bond and surety bond executed by accused under section 437-A of Cr.P.C. shall continue for a further period of six months pending appeal, if any.
M.O. 1 to 6 being the total cash of Rs.55,920/-stands confiscated to the State after the appeal period.
Signature of PW.3 Ex.P.16 List contains details and denomination of Rs.22,000/-
Ex.P16(a) Signature of PW.3
Ex.P.17 Opened sealed cover contains currency
notes and shown as D12 in the charge
sheet (available in treasury box)
Ex.P17(a) Signature of PW.3
Ex.P.18 One made up cover with admitted writings
of PW.1 and Signature of PW.3 persons
found along with MO.2
ExP18(a)& Handwritings of PW.1
Ex.P18(b)
Ex.P18(c) Signature of PW.3
Ex.P.19 One made up cover found along with MO.3
Signature of PW.3
Ex.P19(a)
Ex.P.20 One 4
Ex.P.20(a) Signature of PW.3
Ex.P.21 One made up cover found along with MO.5
and contains handwritings of PW.1
Ex.P.21(a) Relevant portion contains handwriting 55 Spl.CC.No:17/2017 Ex.P.21(b) Signature of PW.3 Ex.P.22 Surprise check proceedings dt:16,03,2016 (6 sheets) Ex.P.22(a) Signature of PW.3 Ex.P.22(b) Relevant portion in last page of Ex.P22 Ex.P.22(c) Signature of PW.7 Ex.P.22(d) Signature of CW.7 Ex.P.22(e) Signature of PW.43 Ex.P23 Production Memo dtd.26.04.2016 Ex.P23(a) Signature of PW.3 Ex.P24 One bunch of (11) loose sheets containing names, amounts, numbers etc., Ex.P24(a) Signature of PW.3 on 1st sheet Ex.P.25 One bunch of (09) loose sheets contains details of 82 persons working for CHAs Ex.P25(a) Signature of PW.3 on 1st sheet Ex.P.26 Specimen seal impression of the brass seal in 2 sheets Ex.P26(a) Signature of PW.3 Ex.P.27 One paper captioned as "Unclaimed Mney found on the floor of Customs officials cabin" and also contains denominations for Rs.2,200/- and signature Ex.P27(a) Signature of PW.3 Ex.P.28 Attested copy of S.R. of A1 V.Vishweshwar Bhat (73 pages) Ex.P.29 Attested copy of S.R. of A2 V.Prem Kumar (73 pages) Ex.P.30 Attested copy of S.R. of A3 K.R.Somasunder (54 pages) Ex.P.31 Attested copy of S.R. of M.V.Srinivas(33 sheets) Ex.P.32 Attested copy of S.R. of M.Niranjana Murthy(24 sheets) Ex.P.33 Attested copy of office order No.1/15, dt,13.5.2015 regarding wok allocation (3 sheet) Ex.P.34 Attested copy of order placing A1 in 56 Spl.CC.No:17/2017 Addl.charge Ex.P.35 Attested copy of Establishment order No.6/15 dt.12.05.2015 regarding Annual transfers General (3 sheets) Ex.P.36 Letter dt.17.06.2017 of Addl.
Commissioner, Customs Dept. to CBI.
Ex.P.37 Letter dated 23.06.2016 of Addl.
Commissioner, Customs Dept. to CBI.
Ex.P.38 Letter dated 21.06.2016 enclosed with details of Bills of Entry, CHA's names, Inspector's names etc., with certificate U/sec.65-B of Indian Evidence Act (3 sheets) Ex.P.39 Extract of Banking Manual Chapter-3 procedure for clearance of Imported nd export goods (21 sheets) Ex.P.40 Attested copy of Note sheet order passed by PW5 placing A4 & A5 in Addl.Charge of shed Ex.P.41 Attested copy of office Order No.2/15 dated 13.05.2015 regarding work allocation (3 sheets) Ex.P.42 Attested copy of Establishment Order No.5/15 dated 01.05.2015 regarding Annual General Transfer (2 sheets) Ex.P.43 Attested copies of weekly duty rosters in the Import/Export sheds at Menzer Aviation Bobha building and Air India SATS, Bldg (29 sheets) Pae No.29 of Ex.P43 for the period Ex.P.43(a) 14.03.2016 to 20.03.2016 Ex.P.44 Relevant portions of 161 Cr.P.C. statement of Pw.8/CW10 Ex.P.45 Relevant portions of 161 Cr.P.C. statement of PW.8/CW10 Ex.P.46 Relevant portions of 161 Cr.P.C.
Ex.P.47 statements of PW.8/CW10 57 Spl.CC.No:17/2017 Ex.P.48 Relevant portions of 161 Cr.P.C. statement of PW.10/CW.15 Ex.P.49 Relevant portions of 161 Cr.P.C. statement of PW.11/CW.16 Ex.P.50 Relevant portion of 161 Cr.P.C. statement of PW.11/CW16 Ex.P.51 Relevant portion of 161 Cr.P.C. statement of CW.12/PW.13 Ex.P.52 Relevant portion of 161 Cr.P.C. statement of CW.13/PW.14 Ex.P.53 Relevant portion of 161 Cr.P.C. statement CW.14/PW.15 Ex.P.54 Relevant portions of 161 Cr.P.C. statement CW.17/PW.16 Ex.P.55 Relevant portions of 161 Cr.P.C. statement CW.17/PW.16 Ex.P.56 Relevant portions of 161 Cr.P.C. statement CW.18/PW.17 Ex.P.57 Relevant portions of 161 Cr.P.C. statement CW.18/PW.17 Ex.P.58 Relevant portions of 161 Cr.P.C. statement CW.18/PW.19 Ex.P.59 Relevant portions of 161 Cr.P.C. statement CW.20/PW.19 Ex.P.60 Relevant portions of 161 Cr.P.C. statement CW.21/PW.20 Ex.P.61 Relevant portions of 161 Cr.P.C. statement CW.22/PW.21 Ex.P.62 Relevant portions of 161 Cr.P.C. statement CW.22/PW.21 Ex.P.63 Relevant portions of 161 Cr.P.C. statement CW.23/PW.22 Ex.P.64 Relevant portions of 161 Cr.P.C. statement CW.23/PW.22 Ex.P.65 Relevant portions of 161 Cr.P.C. statement CW.24/PW.23 58 Spl.CC.No:17/2017 Ex.P.67 Relevant portions of 161 Cr.P.C. statement CW.24/PW.23 Ex.P.68 Relevant portions of 161 Cr.P.C. statement CW.26/PW.25 Ex.P.69 Relevant portions of 161 Cr.P.C. statement CW.26/PW.25 Ex.P.70 Relevant portions of 161 Cr.P.C. statement CW.27/PW.26 Ex.P.71 Relevant portions of 161 Cr.P.C. statement CW.28/PW.27 Ex.P.72 Relevant portions of 161 Cr.P.C. statement PW.27/CW.28 Ex.P.73 Relevant portions of 161 Cr.P.C. statement PW.28/CW.29 Ex.P.74 Relevant portions of 161 Cr.P.C. statement PW.29/CW.30 Ex.P.75 Relevant portions of 161 Cr.P.C. statement PW.29/CW.30 Ex.P.76 Relevant portions of 161 Cr.P.C. statement PW.30/CW.31 Ex.P.77 Relevant portions of 161 Cr.P.C. statement PW.30/CW.31 Ex.P.78 Relevant portions of 161 Cr.P.C. statement PW.31/CW.32 Ex.P.78 Relevant portions of 161 Cr.P.C. statement PW.31/CW.32 Ex.P.79 Relevant portions of 161 Cr.P.C. statement PW.32/CW.34 Ex.P.80 Relevant portions of 161 Cr.P.C. statement PW.33/CW.35 Ex.P.81 Relevant portions of 161 Cr.P.C. statement PW.34/CW.36 Ex.P.82 Relevant portions of 161 Cr.P.C. statement PW.30/CW.37 Ex.P.83 Relevant portions of 161 Cr.P.C. statement PW.36/CW.38 59 Spl.CC.No:17/2017 Ex.P.84 Relevant portions of 161 Cr.P.C. statement PW.36/CW.38 Ex.P.85 Relevant portions of 161 Cr.P.C. statement PW.37/CW.39 Ex.P.86 Relevant portions of 161 Cr.P.C. statement PW.37/CW.39 Ex.P.87 Relevant portions of 161 Cr.P.C. statement PW.38/CW.41 Ex.P.88 Relevant portions of 161 Cr.P.C. statement PW.38/CW.41 Ex.P.89 Relevant portions of 161 Cr.P.C. statement PW.40/CW.43 Ex.P.90 Relevant portions of 161 Cr.P.C. statement PW.40/CW.43 Ex.P.91 Relevant portions of 161 Cr.P.C. statement PW.41/CW.44 Ex.P.92 Original sanction order dated 08.07.2016 in respect of A1(4 sheets) Ex.P92(a) Signature of PW.42 Ex.P.93 Original sanction order dated 08.07.2016 in respect of A2(4 sheets) Ex.P.93(a) Signature of PW.42 Ex.P.94 Original sanction order dated 08.07.2016 in respect of A3(4 sheets) Ex.P94(a) Signature of PW.42 Ex.P.95 Original sanction order dated 08.07.2016 in respect of A4 (4 sheets) Ex.P95(a) Signature of PW.42 Ex.P.96 Original sanction order dated 08.07.2016 in respect of A5 (4 sheets) Ex.P96(a) Signature of PW.42 Ex.P.97 Copy of order dated 13.07.2010 issued by govt.of India, Ministry of Finance, Central Board of Excise & customs showing schedule of powers Ex.P.98 Covering letter dated 12.07.2016 to CBI Ex.P.99 Original Search List dated 18.03.2016 60 Spl.CC.No:17/2017 (A/s residence) 4 sheets Ex.P99(a) Signature of PW.45 Ex.P.100 Original Inventory dated 18.03.2016 (3 sheets) Ex.P100(a) Signature of PW.45 Ex.P.101 Authorisation under Section 165(3) Cr.P.C.
dated 18.03.2016 Search List dated
18.03.2016 and Inventory (5 sheets)
Ex.P101(a) Signature of PW.45
Ex.P.102 Authorisation under section 165(3) Cr.P.C.
dated 18.03.2016 Search List dated
18.03.2016 and Inventory (5 sheets)
Ex.P.102(a) Signature of PW.45
Ex.P.103 Locker operation proceedings dated
19.03.2016(2 sheets)
Ex.P.104 Locker operation proceedings dated
19.03.2016 (3 sheets)
Ex.P.105 Receipt Memo dated 22.06.2016 along
with passbook
Ex.P.105(a) Signature of PW.45
Ex.P.106 Original FIR
LIST OF WITNESSES EXAMINED FOR THE ACCUSED;
-Nil-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1 Surprise Check Proceedings conducted on 16.03.2016 furnished to the accused.
Ex.D1(a) Signature of PW.1 Ex.D.2 Photographs taken at the time of
celebration of the various festivals in the said Air Cargo Complex.61 Spl.CC.No:17/2017
LIST OF MATERIAL OBJECTS:
MO.1 Cash of Rs.17,720/-
MO.2 Cash of Rs.2,300/-
MO.3 Cash of Rs.1,700/-
MO.4 Cash of Rs.10,000/-
MO.5 Cash of Rs.22,000/-
MO.6 Cash of Rs.2,200/-
Total: Rs.55,920/-
(K.L. ASHOK),
XXI Addl City Civil & Sessions Judge
& Prl. Spl. Judge for CBI cases,
Bengaluru.
62 Spl.CC.No:17/2017
Judgment pronounced in the open court vide separate Judgment.
ORDER Acting under section 235(1) of Cr.P.C., the accused No.1 Sri.V.Vishweshwar Bhat, accused No.2 V.Prem Kumar accused No.3 Sri.K.R.Soma Sundar, accused No.4 M.V.Srinivas accused No.5 K.Niranjana Murthy are acquitted of the charges for the offences punishable under section 120-B of I.P.C. along with sections 7, 13(1) (a), 13(1) (d) and 13 (2) of Prevention of Corruption Act, 1988 and are set at liberty.
63 Spl.CC.No:17/2017
The bail bond and surety bond executed by accused under section 437-A of Cr.P.C. shall continue for a further period of six months pending appeal, if any.
M.O. 1 to 6 being the total cash of Rs.55,920/-stands confiscated to the State after the appeal period.
(K.L.ASHOK), XXI Addl.City Civil & Sessions Judge & Prl. Spl.Judge for CBI cases, Bengaluru.