Bangalore District Court
State Of Karnataka vs V.Premkumar on 19 December, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL & SESSIONS JUDGE &
SPECIAL JUDGE (P.C.A.), BENGALURU (C.C.H.No.79)
Present: Sri.Ravindra Hegde, M.A., LL.M.,
LXXVIII Addl.City Civil & Sessions Judge
& Special Judge (P.C.A.), Bengaluru.
Dated: This the 19th day of December 2018
Special C.C. No.128/2013
Complainant: State of Karnataka, represented by
Police Inspector, Karnataka Lokayukta,
City Division, Bengaluru.
(By Public Prosecutor)
vs.
Accused: V.Premkumar,
Junior Health Inspector,
BBMP, Yelahanka Sub-Division,
Bengaluru.
R/at No.96, "Bhagavathi Nilaya" Near
Singapura Bus Stop, Vidyaranyapura
Post, Bengaluru-560 097.
(By Sri.P.N.Hegde., Advocate)
Date of commission of offence 31.01.2013, 06.03.2013
Date of report of occurrence 06.03.2013
Date of arrest of accused 07.03.2013
Date of release of accused on 11.03.2013
bail
Date of commencement of 26.10.2016
evidence
Date of closing of evidence 30.10.2018
Name of the complainant C.K.Raghavendra
Offences complained of Under Sections 7, 13(1)(d)
r/w/s 13(2) of Prevention of
Corruption Act
Opinion of the Judge Convicted
Date of Judgment 19.12.2018
2 Spl.C.C.128/2013
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against Accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. (In short PC Act)
2. The brief facts of the prosecution case is as under:
Accused- Premkumar. V. was working as Administrative Officer in Karnataka Co-operative Oilseeds Grower's Federation Ltd., and was working as Junior Health Inspector in BBMP, Yelahanka Zone, Bengaluru on deputation and is a public servant. Complainant-C.K.Raghavendra is working as electrical contractor. Friend of the complainant-Raghunath had entrusted work of obtaining general license and electricity service to his godown to complainant. For obtaining general license, on 31.01.2013 along with necessary documents, complainant went to BBMP Office in Yelahanka and met accused-Health Inspector, who was concerned with the said work and requested him for general license. Accused asked complainant to pay Rs.14,000/- for getting general license and took Rs.6,000/- from complainant. Thereafter, on 06.03.2013, complainant and his friend-Bachegowda went to BBMP office and met accused and enquired about the general license and accused told that Rs.6,000/- is for fee and asked complainant
3 Spl.C.C.128/2013 to pay another Rs.6,000/-. Though complainant requested to reduce the amount accused was not ready and insisted for bribe of Rs.6,000/-. Since complainant was not interested to get the work by paying bribe, on 06.03.2013 complainant came to Lokayuktha Office and gave complaint. While talking to accused on 31.01.2013 and 06.03.2013, complainant had recorded the conversation in his mobile and he produced the said mobile along with complaint. On receiving complaint Lokayuktha police Inspector registered the case in Crime No.20/2013 and submitted F.I.R. to the Court. Investigating Officer secured two panchas and after making preparations for trap by following pre-trap procedure, on 07.3.2013 trap team went to office of accused and between 8.30 A.M. to 9.00 A.M., complainant along with his friend-Bachegowda met accused and accused again demanded amount and received tainted notes from complainant and then after getting signal, trap team surrounded accused and accused was caught and tainted notes were recovered from him and trap procedures were followed. Thereafter, Accused was arrested and produced before the Court. Investigating Officer continued investigation and after completion of investigation and after obtaining Prosecution Sanction Order, he has filed the charge sheet.
3. Cognizance of offences is taken by this Court. Accused appeared and is enlarged on bail. Copies of prosecution papers are furnished to Accused. After hearing both sides 4 Spl.C.C.128/2013 regarding framing of charge and having found prima-facie materials, charge is framed against Accused and read over to him. Accused has pleaded not guilty and claimed to be tried.
4. In support of the prosecution case, P.Ws.1 to 6 are examined. Exs.P1 to P.18. are marked. M.O.1 to M.O.12. are also marked.
5. After completion of prosecution evidence, statement of Accused as required under Section 313 of Cr.P.C. is recorded. Accused has denied incriminating evidence appearing against him. Accused has not chosen to lead any defence evidence on his behalf.
6. Heard the arguments and perused the records.
7. Now, Points that arise for my consideration are:-
1)Whether the Prosecution proves beyond all reasonable doubt that, Accused being public servant, working as Junior Health Inspector in BBMP in Yelahanka on OOD from Karnataka Co-operative Oilseeds Grower's Federation Ltd., has on 31.01.2013 when complainant approached him for obtaining general license to the godown of his friend-Raghunath, demanded Rs.14,000/- as illegal gratification and received Rs.6,000/- and in continuation of his demand, on 06.03.2013 he again reiterated his demand for bribe of Rs.6,000/-
and on 07.03.2013 between 8.30.AM. to 9.00 A.M. in BBMP Office, Yelahanka Zone, Bengaluru, he again demanded and accepted Rs.6,000/- as illegal gratification from complainant as a motive or reward to do 5 Spl.C.C.128/2013 official act or official favour to complainant and thereby committed an offence punishable under Section 7 of Prevention of Corruption Act?
2) Whether the prosecution further proves beyond all reasonable doubt that Accused being public servant working as Junior Health Inspector in BBMP in Yelahanka on OOD from Karnataka Co-operative Oilseeds Grower's Federation Ltd., has on 07.03.2013 between 8.30 A.M. to 9.00 A.M. in his office in BBMP Yelahanka Zone, Bengaluru, by corrupt or illegal means or by abusing his position as public servant, obtained pecuniary advantage of Rs.6,000/- without any public interest from complainant and thereby committed offence of criminal misconduct under Section 13(1)(d) of Prevention of Corruption Act, punishable under Section 13(2) of Prevention of Corruption Act?
3) What Order?
8. My findings on the above Points are:-
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.. : As per Final Order, for following:
REASONS
9. Point No. 1 & 2: Since these Points are inter-linked with each other, they are taken together for discussion to avoid repetition.
10. To prove the charge against accused for the offences 6 Spl.C.C.128/2013 under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, prosecution has examined six witnesses as P.Ws.1 to 6. P.W.1-C.K.Raghavendra is the complainant. P.W.2-Bachegowda is friend of complainant and has accompanied complainant while giving complaint and also at the time of trap. P.W.5-Raghunath is friend of complainant who had entrusted the work of obtaining general license to complainant. P.W.3-B.K.Sathyanarayana is panch witness. P.W.4-G.Satheesh is Higher Officer of accused, who is said to have identified voice of accused and gave report. P.W.6-Puttaswamy.H.P is the Lokayuktha police Inspector and Investigating Officer in this case.
11. On behalf of prosecution, documents at Exs.P1 to P.18 are marked. Ex.P1 is complaint. Ex.P.7 is F.I.R. Sheet containing number of currency notes is marked as Ex.P.4. Pre-trap Mahazar and Trap Mahazar are marked as Ex.P.2 and
3. Transcription of recordings in the mobile produced by complainant dated 31.01.2013 and 06.03.2013 are marked as Ex.P.8 & 9. Transcription of recordings in voice recorder on 07.03.2013 is marked as Ex.P.11. File pertaining to work of complainant is marked as Ex.P.12. Service details of accused is marked as Ex.P.16. Report given by P.W.4 on identification of voice of accused in the recordings played before him is marked as Ex.P.6. The Prosecution Sanction Order is marked with consent as per Ex.P.5. Rough Sketch of the spot of incident and sketch prepared by Engineer are marked as 7 Spl.C.C.128/2013 Ex.P.10 and 17. Copy of Attendance Register is marked as Ex.P.13. Acknowledgement given by taking seal by one of the panch witness is marked as Ex.P.14. Written explanation given by accused is marked as Ex.P.15. Chemical Examination Report is marked as Ex.P.18. M.O.1 to 12 are also marked for the prosecution. M.O.2 is tainted notes of Rs.6,000/- seized in this case. M.O.3 to 7 are the bottles containing sodium carbonate solution taken at different stages of proceedings. Pant of accused is marked as M.O.1. C.D.'s are marked as M.O.8 to 12.
12. As per the prosecution case, P.W.1-complainant gave complaint as per Ex.P.1 to Lokayuktha police stating that he is doing electrical contract work and his friend P.W.5. had entrusted the work of getting general license and electricity supply to his godown and P.W.1 gave application to BBMP for general license and met accused on 31.01.2013, wherein he demanded bribe and he also received advance of Rs.6,000/- from complainant and thereafter on 06.03.2013 accused again demanded bribe of Rs.6,000/- and complainant recorded this conversation with accused in his mobile and thereafter along with P.W.2 he came to Lokayuktha Office and gave complaint. On receiving complaint, P.W.7 has registered the case and secured P.W.3 and C.W.4 as panch witnesses and as trap was to be conducted on the next day, he asked them to come on 07.03.2013. On 07.03.2013 P.W.3 and C.W.4 appeared before 8 Spl.C.C.128/2013 him and thereafter P.W.1 and 2 also appeared and they were introduced to panch witnesses and panch witnesses ascertained veracity of complaint from P.W.1 and P.W.1 produced Rs.6,000/- in denomination of Rs.500X12 and number of currency notes were noted as per Ex.P.4 and Signatures were taken. Phenolphthalein powder was smeared on currency notes and C.W.4 verified the notes again and as per the instructions of P.W.6, he kept the notes in right side pant pocket of P.W.1 and thereafter his hands were washed in sodium carbonate solution after taking sample and solution turned to pink colour and it was seized in bottle. Recordings in the mobile produced by complainant were played and recordings were transcribed on paper as per Ex.P.8 and 9 and recordings were transmitted to C.D as per M.O.8. On 07.03.2013 at the time of pre-trap proceedings, P.W.1 produced a C.D. containing video recording of accused receiving Rs.6,000/- from complainant. This C.D. was also played and after taking copies of C.D. it was seized as per M.O.9. P.W.1 was instructed to go to office of accused along with P.W.2 and meet accused and enquire about his work and to give tainted notes only in case of demand and then to give signal by wiping his face by kerchief. P.W.1 was given voice recorder and button camera with instructions to switch on the same while meeting accused. As P.W.1 had met accused along with P.W.2 even earlier, P.W.2 was instructed to go with P.W.1 as shadow witness and observe the happenings and to 9 Spl.C.C.128/2013 report later. Entire pre-trap proceedings were video graphed and then transmitted to C.D. Pre-trap Mahazar was prepared as per Ex.P.2 and signatures were taken and thereafter trap team proceeded towards office of accused.
13. It is further case of the prosecution that after reaching near office of accused at about 8.30 a.m. by reminding instructions P.W.1 and 2 were sent to meet accused and others scattered themselves nearby waiting for signal. P.W.1 and 2 went to office of accused and enquired about accused and were informed that accused has not yet come. Then they waited for him. After sometime accused came in his motor bike and P.W.1 wished him and accused went to the temple which was near the office and came back to office and took P.W.1 and 2 to his chamber and he sat on his chair. Then P.W.1 enquired about his work and accused told him that he will give duplicate copy in the after noon and original on the next day and also told P.W.1 that Rs.11,000/- is already paid and Rs.6,000/- is the balance. Then P.W.1 took out the tainted notes from his pant pocket and gave it to accused and accused kept it in his pant pocket. Thereafter complainant came out of his office and gave signal and trap team came near P.W.1 and he took trap team inside the office and shown accused who was coming towards front door of the office as the person who has received tainted notes from him. P.W.6 disclosed his identity and informed purpose of visit and ascertained details of accused. Sodium carbonate solution 10 Spl.C.C.128/2013 was prepared and after taking sample, both hands of accused were immersed in the solution and solution turned to pink colour and it was seized in bottles. On questioning, accused informed that he has kept the amount received from P.W.1 in his pant pocket and as per the instructions of P.W.6, P.W.3 took out the tainted notes from the pant pocket of accused and number of currency notes were tallied with Ex.P.4. and then it was kept in cover and was seized. When P.W.6 enquired accused about the file pertaining to work of complainant, accused went towards his motor bike No.KA.50-R-7271 which was parked in front of office and from the dikky of the motor bike, he took out documents of 12 pages and produced and page numbers were given to documents and signatures of the witnesses were taken on documents and taken to the custody of P.W.6. Later the documents were got attested as per Ex.P.12. Attendance Register is also produced by accused and later attested copy of the attendance register was taken as per Ex.P.13. As it was public place and there was no facility for playing button camera, trap team along with accused came to Lokayuktha Office for further proceedings. By making alternative arrangements, pant of accused was got removed and it was kept in a cover and seized. The Digital voice recorder and button camera which was given to P.W.1 were played and it was found that button camera was switched off automatically after few seconds. Voice recorder was played through computer before P.W.4 and he has identified the voice 11 Spl.C.C.128/2013 of accused. Even recordings in MO.8 & 9 were also played before him and he has identified the voice of accused and has also identified the accused in video recordings in M.O.9-C.D. Entire trap proceeding was video graphed and then transmitted to C.D. Seized articles were sealed with metal seal and seal was given to C.W.4 by taking acknowledgment as per Ex.P.14. On questioning, accused gave written explanation as per Ex.P.15 which was found to be not acceptable. Then accused was arrested by following procedure. Trap Mahazar was prepared as per Ex.P.3 and Signatures were taken and copy of the mahazar was furnished to accused. P.W.6 continued investigation and secured relevant materials. He has received service details of accused as per Ex.P.16 and recorded statement of witnesses and received Chemical Examination Report as per Ex.P.18 and after completion of investigation he has prepared final report and obtained Prosecution Sanction Order as per Ex.P.5 and then filed charge sheet. Prosecution Sanction Order is marked with consent as per Ex.P.5 in this case. Therefore validity of Prosecution Sanction Order need not be considered again.
14. In order to bring home the guilt of accused for the offence under section 7 of Prevention of Corruption Act, prosecution has to prove that accused being a public servant demanded and accepted illegal gratification. Prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official 12 Spl.C.C.128/2013 favour to complainant. Under Section 20 of Prevention of Corruption Act, there is a presumption available in respect of offence under section 7. On proving acceptance of pecuniary advantage by accused without any public interest by abusing his position as a public servant, criminal mis-conduct of accused under Section 13(1)(d) of Prevention of Corruption Act will also to be established.
15. Learned counsel for Accused has drawn my attention to a decision of Hon'ble Supreme Court reported in 2014 AIR SCW 2080 Crl.L.J. 2433 (B.Jayaraj vs. State of A.P.). In para 7 of this decision it is held as under:
" 7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. ... ... ... "
It is also held in this decision in para 8 as under:
" 8. ... ... Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."
13 Spl.C.C.128/2013
16. As held in this decision, demand of illegal gratification is to be proved first by the prosecution and even if recovery of currency notes is proved, without proof of demand, guilt of accused will not be established under section 7 of PC Act and even under section 13(1)(d), in the absence of any proof of demand, use of corrupt or illegal means to obtain pecuniary advantage cannot be held to be established. In the light of this decision, the case of the prosecution and defence of accused and evidence lead for the prosecution are to be considered.
17. As per the prosecution case, before giving complaint as per Ex.P.1 and even at the time of trap, accused demanded bribe for attending work of P.W.1. As per Ex.P.1, on 31.01.2013 complainant went to BBMP office in Yelahanka and produced documents for obtaining general license for the godown of P.W.5-Raghunath and as this work was concerned to accused, he met accused and requested him and accused told him that totally Rs.14,000/- will be expenses and took Rs.6,000/- from P.W.1. It is stated that P.W.1 and 2 met accused in his office on 06.03.2013 and Accused told that Rs.6,000/- will be legal fees and as P.W.1 has already given Rs.6,000/-, Accused demanded another Rs.6,000/-. On 06.03.2013 itself, P.W.1 gave complaint and trap was conducted on 07.03.2013. Even on 7.03.2013 at the time of 14 Spl.C.C.128/2013 trap, before receiving tainted notes, accused is said to have asked whether amount is brought.
18. To prove alleged demand of bribe prior to giving complaint and at the time of trap, prosecution is relying on evidence of P.W.1 and his friend P.W.2 and also on the recordings in the C.D. which was transmitted from the mobile produced by P.W.1 and also on recordings found in voice recorder given to P.W.1 at the time of trap which was transmitted to C.D. When, P.W.1 met accused on 31.01.2013 and 06.3.2013 he is said to have recorded his conversation with accused in his Mobile and produced it while giving complaint. Even on 07.3.2013 at the time of pre-trap, P.W.1 is said to have produced video C.D. stating that on 31.01.2013 when accused received Rs.6,000/- from him he has video recorded the happenings and then transmitted to CD. At the time of Pre-trap Mahazar, recordings in Mobile is said to have been transmitted to C.D and also transcribed on paper. This C.D. was seized as Article No.3 and produced as M.O.8. The C.D. of video recordings produced by complainant was seized as Article No.4 and produced as M.O.9. Transcriptions of the recordings in the mobile on 31.03.2013 and 06.03.2013 are produced as Ex.P.8 & 9 respectively. At the time of trap P.W.1 was given voice recorder and button camera. But button camera is stated to have not worked for some technical reasons and recordings in voice recorder was transmitted to C.D and after identification of voice of accused by P.W.4, C.D. 15 Spl.C.C.128/2013 was seized as article No.11 and produced in this case as M.O.11. The transcription of recordings in voice recorder is produced as Ex.P.11. Prosecution is relying on these transcriptions of recordings in mobile as per Ex.8 & 9 and C.D. as per M.O.8 & 9 to establish demand of bribe prior to giving complaint. To prove the demand and acceptance of bribe at the time of Trap, prosecution is relying on transcription of recording in voice recorder- Ex.P.11 and C.D. M.O.11. These recordings are said to have been played before P.W.4-Satish, who is said to have identified voice of accused. P.W.4 in his evidence has stated that he recognized voice of accused in audio recordings but in the video, face was not seen and he could not clearly identify. He has given report as per Ex.P.6. Though P.W.1 is said to have produced Mobile, while giving complaint, mobile was not seized in this case. Even voice recorder given to complainant at the time of trap is not produced. P.W.1 has stated that video recording found in M.O.9-C.D was recorded in Spy camera which was in his key chain and later it was transmitted to C.D. The said spy camera is also not produced in this case. Therefore original devices in which these recordings were made are not produced before this Court. C.D. and transcriptions produced at M.O. 8, 9 &11 and Ex.P. 8, 9 & 11 are copies of electronic records. In respect of these copies, no certificate under section 65B of Indian Evidence Act is obtained and produced.
16 Spl.C.C.128/2013
19. Learned counsel for accused has drawn my attention to a decision reported in (2014) 10 SCC 473 (Anvar.P.V V/s P.K.Basheer and Others). In this decision, Hon'ble supreme Court has held in para No.22 as under:
" 22. ... ... . An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible".
20. Therefore without a valid certificate under section 65B of Indian Evidence Act, these C.D.s and transcriptions are not admissible in evidence. Even alleged voice of accused in the C.D.s are not sent for expert's opinion by obtaining sample voice in the course of investigation. P.W.4 is not an expert in voice identification. Therefore evidence of P.W.4 alone would not prove that one voice in these C.D.s are that of accused. For all these reasons transcriptions at Ex.P. 8, 9 and 11 and C.D.s at M.O. 8, 9 and 11, do not help the prosecution to prove alleged demand and acceptance of bribe.
21. Therefore, prosecution has to establish its case of demand of bribe by accused in the absence of these recordings. Complainant-P.W.1 and his friend P.W.2 have both stated about demand of bribe by accused in detail in chief 17 Spl.C.C.128/2013 evidence. P.W.1 has stated that on 31.01.2013 along with P.W.2 he went to BBMP office and they met accused and he demanded Rs.12,000/- and then brought it down to Rs.11,000/- and out of that Rs.6,000/- was taken as advance. P.W.1 has also stated that on 14.02.2013, he met accused and accused told that two years tax has to be paid and asked to pay Rs.17,000/- and on that day accused took Rs.5,000/- from him and thereafter accused again demanded Rs.6,000/- and then, he gave complaint as per Ex.P.1. In complaint, it is mentioned that accused had told total expenses as Rs.12,000/- and received Rs.6.000/- on 31.01.2013. But, in his evidence, P.W.1 has stated that initially accused had demanded Rs.11,000/- and received Rs.6,000/- on 31.01.2013 and on 14.02.2013 accused informed total amount as Rs.17,000/- and received Rs.5,000/- and for Rs.6,000/- he continued his demand. Therefore in the complaint Ex.P.1 and in the evidence of P.W.1 there is little contradiction about total amount demanded by accused as bribe or expenses. However P.W.1 is definite about his case of giving Rs.6,000/- to accused on 31.01.2013 and accused insisting for further bribe of Rs.6,000/- as on 06.03.2013. Therefore these minor contradictions and say of P.W.1 about happenings on 14.02.2013, do not affect prosecution case. In the cross- examination of P.W.1 nothing worth is elicited to dis-believe the case of prosecution. P.W.1 has stated in his cross- examination that before giving application of P.W.5, himself or 18 Spl.C.C.128/2013 P.W.2 had never met accused.
22. As per prosecution case, on 31.1.2013, P.W.1 met accused and on the same day, he recorded conversation in mobile as found in Ex.P.8. Learned counsel for Accused has argued that if P.W.1 met accused for the first time on 31.01.2013 as stated by him, there was no possibility of P.W.1 recording conversation in mobile as he might not have anticipated such demand for bribe and therefore, it is argued that case of P.W.1 is not acceptable and facts are tailored to suit the case. Only because P.W.1 stated that he met accused for the first time on 31.1.2013 and he recorded conversation on that day, his evidence cannot be brushed aside. P.W.1 has stated that he has not given application on behalf of P.W.5 but he has only produced documents and has stated that accused told him that, he will obtain signature on the application from land owner. P.W.1 has stated that he has not taken any DD for payment of legal fees for obtaining general license. P.W.1 has denied that he met accused and accused asked him to bring DD for Rs.6,000/- and then he gave tainted notes of Rs.6,000/- by asking accused to take DD. On looking to the entire evidence of P.W.1, accused demanding amount on 31.01.2013 and receiving Rs.6,000/- on that day and accused insisting for further amount of Rs.6,000/- from P.W.1 are clearly stated by the witness. In his cross-examination, nothing worth is elicited to dispute the alleged demand of amount by accused on 31.01.2013 and 06.03.2013.
19 Spl.C.C.128/2013
23. P.W.2 who is friend of complainant, has also stated that on 31.01.2013 and 06.03.2013 accused demanded bribe for giving general license and stated that accused received Rs.6,000/- each on 31.01.2013 and 07.03.2013. P.W.2 has also stated that when they approached accused, he told that fees will be Rs.6,000/- and Complainant have to pay another Rs.5,000/- for making payments to higher officers and he received Rs.6,000/- and asked them to come with Rs.5,000/-. Therefore accused demanding bribe from complainant with regard to general license application of P.W.5 is stated by P.W.2 also. P.W.2 has also stated that at the time of trap, when they went inside the office of accused, accused asked P.W1, whether amount is brought. Therefore P.W.2 has also stated about demand of bribe by accused even at the time of trap. In the cross-examination, he has stated that complainant had informed him about his meeting with accused and conversations made by him and also stated that even before lodging complaint on 06.03.2013 they had met the accused one week before and also stated that accused had informed to pay legal fees of Rs.6,000/- for general license by way of DD. P.W.2 has admitted that when they entered the chamber of accused he told Rs.6,000/- is to be given through DD and then complainant gave tainted notes to accused. He has denied that when Lokayuktha police enquired accused, he told that he informed complainant to get DD for Rs.6,000/- and complainant gave Rs.6,000/- for taking DD. On looking to the 20 Spl.C.C.128/2013 entire evidence of P.W.2, his evidence is also clear about demand of bribe by accused on 31.01.2013 and 06.03.2013 and even at the time of Trap. Though it is admitted by P.W.2 that when they met accused he told that DD of Rs.6,000/- is to be given and then P.W.1 gave Rs.6,000/- tainted notes, this admission alone may not establish the case of accused that he had received tainted notes from complainant for taking DD and not as a bribe. Evidence of P.W.2 corroborates with evidence of P.W.1.
24. On looking to the evidence of P.W.1 and 2, accused demanding amount from complainant for getting general license of P.W.5 on 31.01.2013 and also on 06.03.2013 and 07.03.2013 is clearly established. Evidence of P.W.1 and 2 show that on 31.01.2013 accused had received Rs.6,000/- from complainant and he was insisting for balance of Rs.6,000/-. Though it is suggested in the cross-examination of witnesses that legal fees of Rs.6,000/- was to be paid by complainant by way of DD and suggestions are admitted, there are no materials placed by accused to show that Rs.6,000/- DD was to be taken for getting general license. Evidence of P.W.1 and 2 clearly states about demand of illegal gratification by accused from complainant for getting general license to P.W.5. There are no reasons to dis-believe the clear evidence of P.W.1 and 2 about demand of bribe by accused. No circumstance is placed before the Court to show that P.W.1 and 2 had some enimity with accused or there was some 21 Spl.C.C.128/2013 other motive to falsely implicate this accused. Only because P.W.1 and 2 are friends, their evidence which is consistent with the prosecution case cannot be brushed aside. Therefore, accused demanding bribe on 31.01.2013, 06.03.2013 and 07.03.2013 is clearly established by the evidence of P.W.1 and
2. Presence of P.W.1 and 2 in the office of accused at the time of trap is even not disputed by accused as he admitted the receipt of amount.
25. P.W.3, panch witness has also stated about trap of accused but he was not present with complainant, when he met accused at the time of trap. Therefore, his evidence would be relevant for corroboration with evidence of other witnesses regarding procedure followed in Pre-trap and trap proceedings and also about hand wash of accused.
26. As per Section 21 of Prevention of Corruption Act accused is competent witness for the defence and he may give evidence on oath in disproof of the charges made against him. If false complaint was given by P.W.1, though accused had only asked him to bring DD of Rs.6,000/-, accused should have produced records to show that DD for Rs.6,000/- was to be given to BBMP for getting general license and he had intimated the complainant to produce such DD. Accused has not made any such efforts and not placed any such materials.
27. As per section 7 of Prevention of Corruption Act, demand of illegal gratification must be as a motive or reward 22 Spl.C.C.128/2013 for doing any official favour or for doing official act. Admittedly, complainant had approached BBMP for obtaining general license for P.W.5. P.W.5 in his evidence has stated that he had entrusted the work of getting general license to P.W.1. Even at the time of trap, documents pertaining to work of P.W.5 is said to have been produced by accused by taking out from dicky of his two wheeler and then attested copies were taken as per Ex.P.12. Though in the cross-examination of P.W.1 it is elicited that he had not furnished any DD to BBMP at the time of giving application for general license, first page of Ex.P.12 show that Rs.3,000/- towards industrial license, Rs.1,200/- towards electricity sanction and Rs.500/- towards penalty is received by BBMP by way of DD. Ex.P.12 makes it is clear that application for general license was pending before accused at the time of trap. Recovery of said file from accused is not much disputed. The receipt of DD by BBMP is mentioned in the document itself at first page of Ex.P.12. Ex.P.12 does not show that as on 07.03.2013 Rs.6,000/- was still to be paid to the BBMP by way of DD by the applicant. Recovery of Ex.P.12 from Accused establishes that accused was concerned with issuing license. In the cross-examination of P.W.1 witness has admitted that application for general license is to be forwarded to Medical Officer from Health Inspector and Medical Officer have to endorse on the application that general license can be issued. This suggestion itself show that accused has a role to play in issuing general license and 23 Spl.C.C.128/2013 he has to forward the application to Medical Officer and general license will be issued after endorsement to that effect from the Medical Officer. Therefore pendency of work of P.W.5 before accused is clearly established. Therefore pendency of the work or official favour to be done by accused to the complainant is present in this case as required under section 7 of PC Act. Very contention of the accused that he asked complainant to bring DD for Rs.6,000/- for getting general license would show that work was pending before him. Hence, demand of bribe by accused was for doing official act or for doing official favour to complainant.
28. Coming to the acceptance of bribe amount, according to prosecution, P.W.1 & 2 entered the chamber of accused after he coming back from the temple and there, accused questioned about amount and then P.W.1 gave tainted notes and accused kept it in his pant pocket. Hand wash of accused in Sodium carbonate solution turned to pink colour as stated by P.W.1, 2, 3 and 6. Even accused has admitted the receipt of Rs.6,000/- from P.W.1 at the time of trap. Accused contended that he had received this amount for taking DD and not as bribe. Even in his statement under section 313 of Cr.P.C, he has stated that he had asked P.W.1 to bring DD for Rs.6,000/- and on the day of trap, P.W.1 gave Rs.6,000/- and asked him to take DD and then he received that amount and it was not received as bribe. Therefore acceptance of Rs.6,000/- by accused and recovery of the said 24 Spl.C.C.128/2013 amount from possession of accused are not disputed in this case. Even otherwise, evidence of P.W.1, 2, 3 and 6 clearly prove the acceptance of tainted notes by accused and recovery of the same from him.
29. Accused, who has admitted receipt of tainted notes of Rs.6,000/- and taken defence that the said amount was received for taking DD, has not placed any materials to show that legal fee of Rs.6,000/- was to be paid to BBMP by way of DD for obtaining general license for 10HP power. Ex.P.12 show that it is totally Rs.4,700/- which was to be paid as fee and penalty and that amount has been paid by DD. Amount mentioned in Ex.P.12, do not come to Rs.6,000/-. Even this amount was already given as shown in Ex.P.12, which was seized at the time of trap on 07.03.2013. Therefore, contention of the accused that he received Rs.6,000/- towards legal fees to be paid for general license, is not acceptable. Accused has not placed any material to establish his contention. Moreover P.W.1 and 2 have clearly stated that Rs.6,000/- was paid to accused on 31.01.2013. Fees and penalty paid by DD as mentioned in Ex.P.12 may be out of that amount. Ex.P.12 does not show that Rs.6,000/- was required to be paid by way of DD to BBMP for obtaining general license. According to complainant on 31.01.2013 itself he had given Rs.6,000/- to accused and accused further insisted for balance. It is not the case of accused that even without receiving any amount from complainant he had taken 25 Spl.C.C.128/2013 DD for Rs.3,000/- Rs.1,200/- and Rs.500/- as mentioned in Ex.P.12. It is also not forthcoming in any documents that Rs.6,000/- was the amount to be paid to BBMP by DD. There are no materials before Court to show that accused had asked complainant to bring DD for Rs.6,000/-. When there is no material to show that DD for Rs.6,000/- is to be given to BBMP, contention of the accused that he had received tainted notes of Rs.6,000/- towards taking DD cannot be accepted. As stated above accused has not placed any material to substantiate his contention. Looking from any angle, contention of accused that when he asked complainant to bring DD for Rs.6,000/-, Complainant gave him Rs.6,000/- for taking DD is not established.
30. Learned counsel for accused has drawn my attention to para 11 of the decision of Hon'ble Supreme Court in Mukut Bihari & Anr. Vs. State of Rajasthan (2012) 11 SCC 642 =AIR 2012 SC 2270 as quoted in subsequent decision reported in AIR 2014 SC 3798 (Satvir Singh Vs. State of Delhi through CBI). In para 11 of Mukut Bihari case Hon'ble Supreme Court has held as under:
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there 26 Spl.C.C.128/2013 is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
This decision is even relied in another decision of Hon'ble Supreme Court reported in (2016)3 SCC (Cri)316 (T K Rameshkumar Vs State through Police Inspector bangalore.)
31. As held in this decision, explanation offered by 27 Spl.C.C.128/2013 accused is to be considered on the touch stone of preponderance of probability and not on the touch stone of proof beyond reasonable doubt. However in the present case explanation given by accused, after admitting the receipt of amount of Rs.6,000/-, do not even appear to be probable and there are no prima-facie materials to show that DD of Rs.6,000/- was to be given to BBMP for obtaining general license. Though P.W.2 has admitted that accused had informed that DD of Rs.6,000/- is to be taken, there are no materials to show that accused had calculated the legally payable amount and given intimation to complainant to furnish DD of Rs.6,000/-. Even the amount mentioned as received by way of DD in Ex.P.12 comes to Rs.4,700/- and not Rs.6,000/-. Therefore, explanation given by accused during the course of Trap, defence taken while cross examining prosecution witnesses and explanation given in statement under section 313 of Cr.P.C. are not acceptable.
32. The learned Counsel for accused has also drawn my attention to another decision reported in (2015) 10 SCC 152 19 (P.Sathyanarayana Murthy Vs. District Inspector of Police, State of A.P. and another). In this decision, Hon'ble Supreme Court has observed in para No.20 and 21 as under:
"20. This Court in A.Subair Vs. State of Kerala (2009)6 SCC 587, while dwelling on the purport of the statutory prescription of Section 7 and 13 (1) 28 Spl.C.C.128/2013
(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
21. In State of Kerala and another Vs.C.P.Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained."
33. This decision will not help the accused in the present case as prosecution has proved the charge beyond reasonable doubt. Demand for illegal gratification by accused and acceptance of amount and recovery of the same from him are clearly established and contrary contention of the accused are not shown to be probable. Evidence of the prosecution witnesses, documentary evidence placed before the Court and unacceptable defence of the accused leads to irresistible conclusion that accused has demanded and accepted illegal gratification from P.W.1.
29 Spl.C.C.128/2013
34. When demand and acceptance of illegal gratification are proved, even presumption under section 20 of Prevention of Corruption Act will be available to the prosecution, to the effect that such demand and acceptance is as a motive or reward to do any official act or to do any official favour. Though accused can rebut the presumption by preponderance of probability, as held in the decision of Mukut Bihari case referred above, accused in this case has failed to show that his defence is highly probable. On the other hand, facts and circumstances of the case show that defence of this accused is not acceptable and not probable. On considering all these aspects, prosecution has proved the guilt of accused for the offence under Sec.7 of PC Act beyond reasonable doubt. It is also established that Accused, by abusing his position as public servant, by corrupt means has obtained pecuniary advantage from complainant without having any public interest and thereby committed criminal mis-conduct as per section 13(1)(d) of the Prevention of Corruption Act. Therefore, commission of offence by accused under Section 7 and section 13(1)(d) of PC Act, punishable under Section 13(2) of Prevention of Corruption Act are proved beyond reasonable doubt. Accordingly, point Nos.1 and 2 are answered in the Affirmative.
30 Spl.C.C.128/2013
35. Point No. 3:- For the discussion and findings on Point Nos. 1 and 2, accused is to be convicted. Hence, following order is passed:
ORDER Accused is found guilty for the offences under Sec.7 and 13(1)(d) of the Prevention of Corruption Act, 1988.
Acting u/s 235(2) of Cr.P.C. accused is convicted for the offences punishable under Sections 7, 13(1)(d) r/w Sec. 13(2) of the Prevention of Corruption Act, 1988.
M.O.2-Cash of Rs.6,000/- is ordered to be confiscated to the State, after expiry of appeal period.
M.O.1 and 3 to 12 are ordered to be destroyed, after expiry of appeal period, as they are worthless.
Put up for hearing on sentence.
(Dictated to the Stenographer, transcribed by her, corrected, signed by me and then pronounced in the Open Court on this the 19 th day of December, 2018).
(Ravindra Hegde), LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru .
*** 31 Spl.C.C.128/2013 ORDER ON SENTENCE Heard the accused, Learned counsel for accused and Learned Public Prosecutor on sentence to be imposed on accused.
Accused and learned counsel for accused have submitted that accused is aged 56 years and is suffering from High Blood Pressure and Diabetes and is having dependant family consisting of wife and two children and he have to look after his family and is having huge responsibilities and therefore, lenient view may be taken in sentencing him.
On the other hand, Learned Public Prosecutor has submitted that accused being a public servant has committed heinous offence of taking bribe and he is involved in corrupt practice and therefore maximum punishment is to be imposed.
Commission of offence by accused under Sec.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act is proved in this case and accused is found guilty for said offences. Offence under Sec.7 of Prevention of Corruption Act is punishable with minimum imprisonment of 6 months and maximum of 5 years and also with fine. Offence under Sec.13 (1)(d) which is punishable under Sec.13 (2) of Prevention of Corruption Act, is punishable with minimum imprisonment of 1 year and maximum of 7 years and also with fine. As per Sec.16 of Prevention of Corruption Act, where sentence of fine is imposed under Sec.13 (2) of Prevention of Corruption Act, the court in fixing amount of fine shall take into consideration amount which accused has obtained by committing 32 Spl.C.C.128/2013 the offence. Even though by way of recent amendment, minimum and maximum imprisonment provided for the offence punishable under section 7 and 13(2) of Prevention of Corruption Act are enhanced, those amended provisions are not applicable to this case, as offences alleged against accused were committed prior to coming into force of amendment.
Accused was an Administrate Officer in Karnataka Co- operative Oilseeds Grower's Federation Ltd., and was working as Junior Health Inspector in BBMP, Yelahanka Zone, Bengaluru on deputation at the time of commission of alleged offence and is aged person having dependant family. The demand of illegal gratification was for Rs.14,000/- and at the time trap, he received Rs.6,000/-. On looking to the nature of duties and position of accused as Junior Health Inspector in BBMP, Yelahanka Zone, Bengaluru, effect of corrupt act of accused on the society is grave and serious. At the same time age of the accused and his health condition and his family status is also to be considered while imposing sentence.
On considering all these aspects and looking to the facts and circumstances of the case and gravity of the offence and its consequences on the society and the leniency prayed by the accused, it is proper to sentence the accused to undergo simple imprisonment for 2 years and to pay fine of Rs.25,000/- for the offence under Sec.7 of Prevention of Corruption Act and to undergo simple imprisonment for 2 years and to pay fine of Rs.50,000/- for the offence under Sec.13 (1)(d), punishable under Sec.13 (2) of Prevention of Corruption Act. Accordingly, following order is 33 Spl.C.C.128/2013 passed.
ORDER Accused is sentenced to undergo simple imprisonment for 2 (Two) years and to pay fine of Rs.25,000/- ( Rupees Twenty five thousand only) for the offence punishable under Sec.7 of Prevention of Corruption Act, and in default of payment of fine, to undergo further Simple imprisonment for 3 months.
Accused is sentenced to undergo simple imprisonment for 2 (Two) years and to pay fine of Rs.50,000/- (Rupees Fifty thousand only) for the offence under Sec.13(1)(d), punishable under Sec.13 (2) of Prevention of Corruption Act, and in default of payment of fine, to undergo further Simple imprisonment for 6 months.
Both Substantial sentences of imprisonment shall run concurrently.
Accused is entitle for the benefit of set-off under Sec.428 of Cr.P.C. for the period for which he was in Judicial custody in this case.
Copy of judgment be furnished to accused forthwith.
(Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
*** 34 Spl.C.C.128/2013 ANNEXURE List of witnesses examined for the prosecution:
P.W.1 - C.K.Raghavendra P.W.2 - Bachegowda P.W.3 - B.K.Sathyanarayana P.W.4 - G.Sathish P.W.5 - Raghunath.M P.W.6 - Puttaswamy.H.P
List of documents exhibited for the prosecution:
Ex.P1 - Complaint
Ex.P.1(a) - Sign. of P.W.1
Ex.P.1(b) - Sign. of P.W.6
Ex.P2 - Pre-trap Mahazar
Ex.P.2(a) - Sign. of P.W.1
Ex.P.2(b) - Sign. of P.W.3
Ex.P.2(c) - Sign. of P.W.6
Ex.P3 - Trap Mahazar
Ex.P.3(a) - Sign. of P.W.1
Ex.P.3(b) - Sign. of P.W.3
Ex.P.3(c) - Sign. of P.W.2
Ex.P.3(d) - Sign. of P.W.6
Ex.P4 - List containing number of
currency notes
Ex.P.4(a) - Sign. of P.W.3
Ex.P.4(b) - Sign. of P.W.6
Ex.P5 - Prosecution sanction Order.
Ex.P6 - Report of PW.4 on voice identification
Ex.P.6(a) - Sign. of P.W.4
Ex.P.6(b) - Sign. of P.W.6
Ex.P7 - F.I.R
Ex.P.7(a) - Sign. of P.W.6
Ex.P8 and 9 - Transcription of audio recordings
Ex.P.8(a) & 9(a)- Sign. of P.W.6
35 Spl.C.C.128/2013
Ex.P10 - Rough Sketch
Ex.P.10(a) - Sign. of P.W.6
Ex.P11 - Transcriptions of recordings in voice
recorder.
Ex.P.11(a) - Sign of P.W.6
Ex.P12 - Copy of file pertaining to work of
complainant.
Ex.P13 - Copy of Attendance Register
Ex.P14 - Acknowledgement given by P.W.6
Ex.P15 - written explanation of accused
Ex.P.15(a) - Sign. of P.W.6
Ex.P16 - Service Details of accused
Ex.P.16(a) - Sign. of P.W.6
Ex.P17 - Spot Sketch
Ex.P18 - Chemical Examination Report
Ex.P.18(a) - Sign. of P.W.6
Evidence adduced on behalf of the defence:
NIL Documents marked on behalf of the defence:
Nil Material Objects marked by Prosecution:
M.O.1 - Pant of accused
M.O.1(a)- Cover
M.O.2 - Cash of Rs.6,000/-
M.O.2(a)- Cover
M.O.3 to 7 - Five Sealed Bottles containing solution
M.O.8 to 12- Five C.Ds.
M.O.8(a)
to M.O.12(a)- C.D. Covers
(Ravindra Hegde),
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Bengaluru.
***