Karnataka High Court
Sri Abdul Kareem Telgi S/O Late Ladsab ... vs The State Of Karnataka By Madiwala ... on 11 July, 2017
Equivalent citations: 2018 (2) AKR 82
Bench: Ravi Malimath, John Michael Cunha
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 11TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.1187 OF 2007
C/W
CRIMINAL APPEAL NO.1123 OF 2007
C/W
CRIMINAL APPEAL NO.1241 OF 2007
CRL.A.NO.1187 OF 2007:
BETWEEN:
SRI ABDUL KAREEM TELGI
AGED ABOUT 46 YEARS,
S/O LATE LADSAB TELGI,
PUNE, RESIDENT OF SHERIN MANZIL,
NO.7, CUFFE PARADE,
MUMBAI. ... APPELLANT
(BY SRI M.T.NANAIAH, SENIOR ADVOCATE ALONG WITH
SRI BALASUBRAMANYA B.N., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY MADIWALA POLICE STATION,
BENGALURU,
NOW BY C.B.I.,
NEW DELHI. ... RESPONDENT
2
(BY SRI P.PRASANNA KUMAR, SPL.PP)
*****
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C.,
PRAYING TO AGAINST THE JUDGMENT DATED 19.06.2007
PASSED BY THE XXXV ADDL.CITY CIVIL AND SPECIAL SESSIONS
JUDGE AND SPECIAL SESSIONS JUDGE (SPECIAL COURT) TO
TRY FAKE STAMP PAPER CASES), BENGALURU IN
SPL.C.C.NO.213 OF 2004 -CONVICTING THE
APPELLANT/ACCUSED-1 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 7 OF P.C.ACT, 1988 ACT R/W SECTION 120-B OF IPC,
SECTION 12 OF P.C.ACT, 1988 ACT R/W 120-B OF IPC, 13(1)(d)
P.C.ACT, 1988 ACT R/W SECTION 13(2) OF P.C. ACT R/W
SECTION 120-B OF IPC. SECTION 120-B OF IPC AND
SENTENCING HIM TO UNDERGO R.I. FOR 5 YEARS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 7 OF P.C.ACT, 1988
R/W SECTION 120-B OF IPC AND TO PAY FINE OF RS.5 LAKHS
I.D., OF PAYMENT OF FINE HE SHALL UNDERGO R.I. FOR 2
YEARS. FURTHER SENTENCING HIM TO UNDERGO R.I. FOR 5
YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 12 OF
P.C. ACT, 1988 ACT R/W 120-B OF IPC AND TO PAY A FINE OF
RS.10 LAKHS I.D., OF PAYMENT OF FINE, HE SHALL UNDERGO
R.I. FOR 2 YEARS. FURTHER SENTENCING HIM TO UNDERGO
R.I. FOR 7 YEARS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 13(1)(d) OF P.C. ACT, 1988 ACT R/W SECTION 13(2)
OF P.C. ACT R/W SECTION 120-B OF IPC AND TO PAY A FINE OF
RS.5 LAKHS I.D., TO PAYMENT OF FINE HE SHALL UNDERGO
R.I. FOR 2 YEARS. FURTHER SENTENCING HIM TO UNDERGO
R.I. FOR 7 YEARS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 120-B OF IPC AND TO PAY A FINE OF RS.5 LAKHS I.D.,
TO PAYMENT OF FINE HE SHALL UNDERGO R.I. FOR 2 YEARS.
THE APPELLANT/ACCUSED 1 PRAYS THAT THE ABOVE ORDER
MAY BE SET ASIDE.
CRL.A.NO.1123 OF 2007:
BETWEEN:
DR.K.H.JNANENDRAPPA
3
S/O HUCHHAPPA,
AGED ABOUT 54 YEARS,
OCC:PROFESSOR OF MEDICINE &
INCHARGE OF DIABETIC CLINIC,
VICTORIA MEMORIAL HOSPITAL,
BENGALURU
R/AT NO.43/A, 9TH CROSS,
III MAIN, III BLOCK,
BSK III STAGE,
BENGALURU - 560 085. ... APPELLANT
(BY SRI C.H.JADHAV, SENIOR ADVOCATE FOR
SRI SATHISH M.DODDAMANI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY
THE CENTRAL BUREAU OF
INVESTIGATION,
E.O.U-VI,
NEW DELHI,
REPRESENTED BY ITS
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU. ... RESPONDENT
(BY SRI P.PRASANNA KUMAR, SPL.PP)
*****
THIS CRL.A IS FILED UNDER SECTION 374 OF CR.P.C.,
PRAYING TO AGAINST THE JUDGMENT DATED 19.06.2007 IN
SPL.C.C.NO.213 OF 2004 ON THE FILE OF THE XXXV ADDL.CITY
CIVIL AND SESSIONS JUDGE, SPECIAL JUDGE (SPECIAL COURT)
BENGALURU- APPELLANT/ACCUSED-38 ARE SENTENCED TO
UNDERGO R.I. FOR FIVE YEARS FOR OFFENCE UNDER SECTION
7 OF P.C. ACT, 1988 R/W SECTION 120-B OF THE IPC AND PAY
A FINE OF RS.3 LAKHS I.D. OF PAYMENT OF FINE, UNDERGO R.I
FOR TWO YEARS, FOR THE OFFENCE PUNISHABLE UNDER
4
SECTION 7 OF P.C. ACT, 1988 R/W SECTION 120-B OF THE IPC
AND FURTHER SENTENCED TO UNDERGO R.I FOR FIVE YEARS
FOR OFFENCE UNDER SECTION 12 OF P.C. ACT, 1988 ACT R/W
SECTION 120-B OF THE IPC AND TO PAY FINE OF RS.5 LAKHS
I.D. OF PAYMENT OF FINE UNDERGO R.I. FOR TWO YEARS, FOR
THE OFFENCE PUNISHABLE UNDER SECTION 12 OF THE P.C.
ACT, 1988 R/W SECTION 120-B OF THE IPC AND FURTHER
UNDERGO R.I. FOR SEVEN YEARS FOR OFFENCE UNDER
SECTION 13(1)(d) OF P.C. ACT, 1988 R/W SECTION 13(2) OF
P.C. ACT R/W SECTION 120-B OF THE IPC AND PAY FINE OF
RS.3 LAKHS I.D. OF PAYMENT OF FINE, SHALL UNDERGO R.I.
FOR TWO YEARS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 13(1)(d) R/W SECTION 13(2) OF P.C. ACT, 1988 R/W
SECTION 120-B OF IPC AND FURTHER SENTENCED TO
UNDERGO R.I FOR SEVEN YEARS FOR OFFENCE UNDER
SECTION 120-B OF THE IPC AND TO PAY FINE OF RS.3 LAKHS
I.D. OF PAYMENT OF FINE SHALL UNDERGO R.I FOR TWO YEARS
FOR OFFENCE PUNISHABLE UNDER SECTION 120-B OF IPC.
APPELLANT/ACCUSED PRAYS THAT ABOVE ORDER MAY BE SET
ASIDE.
CRL.A.NO.1241 OF 2007:
BETWEEN:
DR.K.M.CHANNAKESHAVA
S/O LATE V.MUNISWAMY,
AGED ABOUT 58 YEARS,
SPECIALIST AND ADMIN-
AT V.C.H.
R/AT NO.473, 18TH CROSS,
JAYANAGAR, V BLOCK,
BENGALURU. ... APPELLANT
(BY SRI S.SHANKARAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
5
MADIWALA POLICE STATION,
BENGALURU
NOW BY C.B.I. NEW DELHI
REPRESENTED BY S.P.P. AT
HIGH COURT BUILDING,
BENGALURU. ... RESPONDENT
(BY SRI P.PRASANNA KUMAR, SPL.PP)
*****
THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C.,
PRAYING TO AGAINST THE JUDGMENT DATED 19.6.2007
PASSED BY THE XXXV ADDL.CITY CIVIL AND SPECIAL SESSIONS
JUDGE AND SPECIAL SESSIONS JUDGE (SPECIAL COURT) TO
TRY FAKE STAMP PAPER CASES), BENGALURU IN
SPL.C.C.NO.213 OF 2004 - CONVICTING THE
APPELLANT/ACCUSED 37(ACCUSED NO.2) FOR THE OFFENCE
PUNISHABLE UNDER SECTION 7 OF P.C.ACT, 1988 ACT R/W
SECTION 120-B OF IPC, SECTION 12 OF P.C. ACT, 1988 ACT
R/W 120-B OF IPC, 13(1)(d) P.C. ACT, 1988 ACT R/W SECTION
13(2) OF P.C.ACT R/W SECTION 120-B OF IPC. SECTION 120-B
OF IPC AND SENTENCING HIM TO UNDERGO R.I. FOR 5 YEARS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 7 OF P.C. ACT,
1988 R/W SECTION 120-B OF IPC AND TO PAY FINE OF RS.3
LAKHS I.D. OF PAYMENT OF FINE HE SHALL UNDERGO R.I. FOR
2 YEARS. FURTHER SENTENCING HIM TO UNDERGO R.I. FOR 5
YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 12 OF
P.C. ACT 1988, ACT R/ W 120-B OF IPC AND TO PAY A FINE OF
RS.5 LAKHS I.D., OF PAYMENT OF FINE, HE SHALL UNDERGO
R.I. FOR 2 YEARS. FURTHER SENTENCING HIM TO UNDERGO
R.I. FOR 7 YEARS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 13(1) (d) OF P.C.ACT,1988 ACT R/W SECTION 13(2)
OF P.C. ACT R/W SECTION 120-B OF IPC AND TO PAY A FINE OF
RS.3 LAKHS I.D., TO PAYMENT OF FINE HE SHALL UNDERGO
R.I. FOR 2 YEARS. FURTHER SENTENCING HIM TO UNDERGO
R.I. FOR 7 YEARS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 120-B OF IPC AND TO PAY A FINE OF RS.3 LAKHS I.D.
TO PAYMENT OF FINE HE SHALL UNDERGO R.I. FOR 2 YEARS.
6
THE APPELLANT / ACCUSED (37) NO.2 PRAYS THAT THE ABOVE
ORDER MAY BE SET ASIDE.
THESE CRL.As COMING ON FOR HEARING THIS DAY, JOHN
MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT
These three appeals are directed against the judgment of conviction dated 19.6.2007 and the order of sentence dated 21.6.2007 passed by the XXXV Addl. City Civil and Special Sessions Judge and Special Sessions Judge (Special Court-To try fake stamp paper cases) Bengaluru in Spl.C.C.No.213 of 2004. The accused are convicted for the offence punishable under section 7, 12, 13(1)(d) r/w. section 13(2) of Prevention of Corruption Act (for short "P.C. Act") and section 120-B of Indian Penal Code (for short "IPC") and are sentended as under:
The appellants/accused Nos.1, 37 and 38 are sentenced to undergo rigorous imprisonment for five years for offence under section 7 of P.C. Act, 1988 r/w. Section 120-B of the IPC. Accused No.1 is directed to pay a fine of Rs.5 lakhs. Accused No.37 and accused No.38 are directed pay a fine of Rs.3 lakhs each.7
Accused Nos.1, 37 and 38 are sentenced to undergo rigorous imprisonment for five years for the offence under section 12 of P.C. Act, 1988 r/w. section 120-B of the IPC. Accused No.1 is directed to pay a fine of Rs.10 lakhs. Accused Nos.37 and 38 are directed to pay a fine of Rs.5 lakhs each.
Accused Nos.1, 37 and 38 are sentenced to undergo rigorous imprisonment for seven years for the offence under section 13(1)(d) of P.C. Act, 1988 r/w. section 13(2) of P.C. Act r/w. section 120-B of the IPC. Accused No.1 is directed to pay a fine of Rs.5 lakhs. Accused Nos.37 and 38 are directed to pay a fine of Rs.3 lakhs each.
Accused Nos.1, 37 and 38 are sentenced to undergo rigorous imprisonment for seven years for offence under section 120-B of the IPC. Accused No.1 is directed to pay a fine Rs.5 lakhs. Accused Nos.37 and 38 are directed to pay a fine of Rs.3 lakhs each.
2. Hereinafter the appellants will be referred to as accused Nos.1, 37 and 38 respectively. 8
3. The facts leading to these appeals are as follows:
A case was registered against Accused no.1, Sri.Abdul Kareem Telgi, in Parappana Agrahara Police Station, Bengaluru in Crime No.545 of 2000, on the accusations that he was involved in large scale manufacture and circulation of fake stamps and stamp papers. The investigation was entrusted to STAMP IT.
4. During the investigation, PW-18 a Police Inspector attached to STAMP IT got credible information that Accused no.1, was continuing his illegal activities from Central Prison through his associates. The calls made by Accused no.1 were monitored. The investigating team bumped upon a conversation between one Dr.Agnihotri and Accused no.38 on 20.09.2002.
Since this conversation disclosed the commission of cognizable offence, PW-18 prepared an information report on 05.10.2002. Based on the said report, a complaint was registered by Madiwala Police in Crime No.1100 of 2002, against Accused no.1 and others for the offences punishable under Sections 255, 258, 259, 260, 468, 420 of IPC, read with Section-120-B of IPC and 9 under Section-63 of Karnataka Stamp Act, 1957, read with Section-120 B of IPC.
5. After completing the investigation, on 04.01.2003, PW-19 another officer of STAMP IT laid the charge-sheet against Accused no.1 and others in the above Crime No.1100 of 2002, and the Court took cognizance of the same and accordingly registered C.C.No.37 of 2003. After filing the charge-sheet, PW- 19 applied to the Court under Section-173(8) of Cr.P.C., to permit him to continue to investigate the case against other Accused. The permission was granted.
6. In the meanwhile, pursuant to the order passed by the Apex Court in Writ Petition (Civil) No.522 of 2003, dated 15.03.2004, the Central Bureau of Investigation (hereinafter referred to as 'CBI' for short), took over further investigation of the case in Crime No.1100 of 2002.
7. After the CBI took over the investigation, on 05.07.2004, PW-20; Sri.V.Nava Raju, the then Police Inspector, CBI at Bengaluru operated the computer / monitor at MO-2 and 10 the CPU at MO-3, wherein the conversations between Dr.Agnihotri and other accused were recorded. Further on 14.07.2004, PW-20 and his team conducted a search at the office and residence of Accused Nos.37 and Accused No.38. On 23.07.2004, the statement of PW-1 an attender working in Victoria Hospital, Bengaluru was recorded under Section-164 of Cr.P.C. On 28.07.2004, PW-20 arrested Accused No.38.
8. After completing the investigation, PW-21, Sri.Ajit Kumar Singh, the then Deputy Superintendent of Police, CBI, laid the charge-sheet against Accused Nos.1, 37 and 38 under Sections - 7, 12 and 13(1)(d), read with Section-13(2) of the P.C. Act, 1988, read with Section - 120B of IPC on 13.09.2004.
9. The Accused having denied the accusations, charges were framed against Accused nos.1, 37 and 38 for the above offences. In order to prove the said charges, the prosecution examined 22 witnesses as PW-1 to PW-22 and got marked 94 documents as Exhibits - P1 to P94 and M.O.s 1 to 10 were also identified and marked on behalf of the prosecution. The 11 incriminating circumstances, brought out in the evidence of the prosecution witnesses were denied by all the Accused, who took up the defence of total denial. The Accused were called upon to enter upon their defence. Accused no.1, 37 and 38 did not choose to lead any defence evidence. However, in the course of the cross-examination of the prosecution witnesses got admitted into the evidence Exhibits D1 to D4. Exhibits C1 to C3 are also marked as court documents.
10. Upon consideration of the oral and documentary evidence available on record the trial court found all the three Accused persons guilty of the above offences. The trial court came to the conclusion that Accused nos.37 and 38 entered into a criminal controversy with Accused no.1 and in pursuance thereof, demanded and accepted illegal gratification from an associate of Accused no.1 for issuance of two medical certificates dated 06.06.2002 (Exhibit-P17) and 20.09.2002 (Exhibit-P13) and accordingly convicted and sentenced them as above. 12
11. Aggrieved by the impugned judgment of the conviction and the order of sentence, the Accused nos.1, 37 and 38 have preferred the above appeals.
12. We have heard Sri.M.T.Nanaiah, learned Senior Counsel for Sri.Balasubramanya B.N., Advocate appearing for accused No.1, Sri.C.H.Jadhav, learned Senior Counsel for Sri.Sathish M.Doddamani, Advocate appearing for Accused No.38 and Sri.S.Shankarappa, learned counsel appearing for accused No.37 and Sri.P.Prasanna Kumar, learned Special Public Prosecutor appearing for the State who have taken us through the oral and documentary evidence available on record.
13. At the outset, we make it clear that though the above case appears to be an offshoot of the main case registered against accused No.1 and his associates in Cr.No.545 of 2000 for manufacture and circulation of fake stamp papers, the present appeals are arising out of Cr.No.1100 of 2002 registered against the present appellants on the accusation that accused No.37 and accused No.38 issued false medical certificates to accused No.1 to enable accused No.1 to obtain bail 13 in Cr.No.545 of 2000. Hence, the offences charged against the present appellants being distinct and separate, the scope of these appeals is confined only with regard to the conviction recorded against the appellants for the offences under sections 7, 12, 13(1)(d) of P.C. Act r/w. 120-B of IPC. Hence, the only point that arises for consideration in these appeals is:
Whether the conviction of the appellants for the offences punishable under sections 7, 12 and 13(1)(d) R/w Section 13(2) of P.C. Act r/w. section 120-B of IPC suffers from any perversity and illegality calling for interference by this Court?
14. Before adverting to the contentions urged by the parties, it may be relevant to refer to the charges framed against the accused so as to get a glimpse of the nature of the accusations made against the accused. The charges framed against the appellants/accused Nos.1, 37 and 38 read as under:
"Firstly, That you A37 & A38 on or about 06.06.2002 and 20.09.2002 at Bangalore agreed with A1 to do an illegal act / an act which is not legal by illegal means, namely, to issue favourable medical certificates enabling him (A1) to come out 14 on bail from judicial custody and besides above said agreement, that you did some acts in pursuance of the said agreement i.e., issued the medical certificates dated 06.06.2002 and 20.09.2002 and also you A1 abetted and you A37 and A38 received bribe and that you A1, A37, A38 have committed the offence of Criminal Conspiracy punishable under Section-120-B of the IPC and within my cognizance. Secondly, that you A1 on or about the dates and place referred to above in the first charge, abetted A37 and A38 who were public servants in the commission of offences punishable under Section - 7 and 13 of P.C. Act 1988, bribing them to issue favourable medical certificates in your favour and thereby, you A1 has committed an offence punishable under Section-12 of the P.C. Act, 1988, read with Section - 120-B of the IPC and within my cognizance.
Thirdly, that you A37 and A38 on or about the dates and place mentioned above in the first charge, being public servants in the health department, Government of Karnataka serving you A37 as Administrative Officer and you A38 as Assistant Professor of medicine and in-charge Diabetic OPD, 15 Victoria Hospital, Bangalore demanded and accepted from an associate of A1/a boy, on behalf of A1 a gratification other than legal remuneration as a motive for doing or forbearing to do an official act i.e., issuance of favourable medical certificates and thereby, you A37 and A38 have committed an offence punishable under Section - 7 of the P.C. Act, 1988, read with Section-120-B of the IPC and within my cognizance.
And lastly, that you A37 and A38 on or about the dates and place mentioned in the first charge, being public servants in the health department, Government of Karnataka serving you A37 as Administrative Officer and you A38 as Assistant Professor of medicine and in-charge Diabetic OPD, Victoria Hospital, Bangalore accepted from an associate of A1/a boy, on behalf of A1 a gratification other than legal remuneration by abusing official position as a public servant the amount for issuance of favour medical certificates to A1, amounting to criminal misconduct and thereby, that you A37 and A38 have committed an offence punishable under Section - 13(1)(d) read with Section - 13 (2) of the P.C. Act 1988, read with Section - 120 B of the IPC and within my cognizance.
16
And I do hereby direct that you be tried on the said charges by this court."
15. A reading of the above charges indicate that the gravamen of the accusations against the Accused are that, Accused nos.37 and 38 entered into a criminal conspiracy with Accused no.1 and in pursuance of the said conspiracy, Accused nos.37 and 38 demanded and received illegal gratification from the associate of Accused no.1 namely a boy, for issuance of two medical certificates so as to enable Accused no.1 to secure bail. In sum and substance, this is the case of the prosecution.
16. From the above, it is clear that the charge under Section-120B of IPC is framed against all the three Accused. The charge of abetment under Section 12 of P.C. Act is framed only against Accused no.1 whereas the charge under Section-7 and Section-13(1)(d) R/w Section-13(2) of the P.C. Act, are framed only against Accused nos.37 and 38. As Accused nos.37 and 38 are simultaneously charged under Section-7 and Section- 13(1)(d) of the P.C. Act, in order to prove the ingredients of Section-7 of the P.C. Act, the prosecution is required to prove 17 acceptance of illegal gratification with or without demand, whereas to prove the charge under Section-13(1)(d) of the P.C. Act, the prosecution has to prove "demand" as well as "acceptance" of illegal gratification for doing an official favour. Since all the Accused are charged under Section-120B of IPC, in addition to the above ingredients, the prosecution is also required to prove an agreement to do the illegal act interse between Accused nos.1 and 37 and 38, to achieve their illegal object or purpose.
17. According to the prosecution, the alleged agreement between Accused nos.1, 37 and 38 was entered into on or about 06.06.2002 and 20.09.2002 and the medical certificates Exhibit- P17 and Exhibit-P13 were issued on the same date upon receiving the payment from the associate of Accused no.1 on behalf of Accused no.1. The charge does not specify the name and details of the said boy or the associate of Accused no.1 who made the payment and collected the medical certificates.
18. With this background, a perusal of the records reveal that the prosecution has examined 22 witnesses in proof of the 18 above charges. Amongst them PW-1 Shri.Krishna, was the attender working in Victoria Hospital at the relevant point of time. He is examined as an eye-witness for the "receipt" of the illegal gratification by Accused nos.37 and 38.
PW-2 was the Doctor in Parapana Agrahara Prison who referred Accused no.1 for treatment in Victoria Hospital. Through him the letter addressed by him to the Superintendent of Victoria hospital on 06.06.2002 is marked as Exhibit-P1.
PW-3, Dr.K.S.Siddaraj, was the Superintendent of Victoria Hospital, Bangalore, at the relevant point of time. This witness has stated that though on 06.06.2002, he was working in the hospital, the requisition namely Exhibit-P1 was not brought to his notice. In his evidence, he has identified the endorsement made by Accused no.37, in Exhibit-P1 and has asserted that without his knowledge Accused no.1 was examined by Accused no.37 and Accused No.38.
PW-4 was the Office Superintendent of Victoria Hospital. This witness has spoken about the statement of assets and 19 liabilities submitted by Accused no.37, as per Rule-23 of the CCA Rules.
PW-5 was the Bank Manager of Chartered Sahakari Bank Niyamitha Branch, Koramangala, Bengaluru, who is examined to speak about the fact that on 30.06.2002, a sum of Rs.50,000/- (Rupees Fifty Thousand Only) was credited to the joint account of Accused no.37 and his wife, as per Exhibit-P8.
PW-6 was the Administrative Officer of Medical Education Department, who has deposed about the service particulars of Accused no.37, as per Exhibit - P10.
PW-7 was the Medical Officer working in the Central Prison at the relevant point of time. According to this witness, on 20.09.2002, he referred Accused no.1 for medical examination, investigation and opinion to Victoria Hospital, as per the requisition letter at Exhibit-P12.
PW-8 is another Medical Officer working in the Central Prison, who has identified the medical records maintained in the 20 Central Prison relating to Accused No.1 as per Exhibit - P4, P12 and P14.
PW-9 was the Collection Manager of the Standard Chartered Bank, Bengaluru, who has spoken about the loan application submitted by Accused No.37 to avail a loan of Rupees One Lakh in the month of May'2002. This document is marked as Exhibit-P15 through this witness.
PW-10 was the Under Secretary to the Government of Health And Family Welfare (Medical Education) Department, who has been examined to prove the sanction accorded for the prosecution of Accused no.38, as per Exhibit-P21.
PW-11 was the Police Head Constable working in City Armed Reserve at Bengaluru. He was one of the members of the escort party, who took Accused no.1 to Victoria Hospital for examination and treatment on 06.06.2002.
PW-12 was the Senior Manager of Canara Bank, Hebbal Branch, Bengaluru, a panch-witness to the mahazar, Exhibit- P24, whereunder the computer containing the telephonic 21 conversation recorded in the office of the CBI was played and the same was transcribed in Kannada and was translated from Kannada to English. This witness has identified the transcribed version in Kannada, marked as Exhibits-P22 to P30.
PW-13 was the Stenographer working in the Home Department Secretariat, Government of Karnataka who put up the papers before the Principal Secretary, Sri.Adhip Chowdary, seeking permission to tap the telephonic conversation of Accused no.1 and his associates, as per Exhibit-P39.
PW-14 was the Under Secretary in the Forest Department, who has been examined to speak about the letter granting permission to prosecute Accused no.37, as per Exhibit-41. Through this witness, the letter relating to the permission accorded by PW-14 is marked as Exhibit-P41.
PW-15, Sri.Deepak Kumar Tanwar, the then Senior Scientific Officer, Central Forensic Science Laboratory, New Delhi analysed the voice samples recorded in audio cassettes with specimen voice samples of Accused No.38 and issued a report as 22 per Exhibit-P49. This witness has identified the relevant M.O.s - 1 to 9 and has maintained in his evidence that on examination of M.O.s 1 to 9 he gave his opinion to the effect that the voice recorded in M.O.s 1 to 9 is that of Accused No.38.
PW-16 was the Inspector working in Special Unit, CBI, New Delhi, who made image of the existing hard disk onto the new hard disk in the presence of the Investigating Officer as per Exhibit P-51 and copied the same to the audio cassettes. This witness identified the hard disk at MO-10, and the audio cassette, at M.O.8.
PW-17, the Additional S.P., of Upparpet Police Station, registered the Crime No.525 of 2000. This witness has stated that he filed objections to the bail petition moved by Accused no.1 on 05.06.2002. The Court called for medical records of Accused No.1 and after receipt of the records from the prison, he filed an additional evidence before the Court on 07.08.2002. He has further stated that Accused No.1 sought for bail on the ground of ill-health, and he produced before the court medical 23 certificate dated 06.06.2002. A copy of the same was supplied to the prosecution which is at Exhibit-P17.
PW-18, was the Inspector of Police, Hebbal Police Station at the relevant point of the time, who assisted the Investigating Officer in investigating of the case.
PW-19, was the ACP, Central Crime Branch who continued the investigation in Crime No.1100 of 2002.
PW-20 is the Investigating Officer.
PW-21 is the subsequent Investigating Officer, who laid the charge-sheet against the Accused.
PW-22 is an another officer working in CBI who assisted PW-20 with the investigation of the case.
19. As could be seen from the witnesses examined before the court, the pivotal witness relied on by the prosecution to prove "demand" and "acceptance" of illegal gratification is PW.1. Since the entire case of the prosecution on this aspect is 24 rested on the evidence of this solitary witness, we have taken up his evidence for consideration first.
20. According to PW.1, he was working as Attender in Victoria Hospital, Bengaluru since eighteen years, and he knows accused No.37 and accused No.38. He states in his evidence that in month of June 2002, accused No.1 had come to Victoria Hospital. Along with him, a Lawyer and two other persons came to the office of A.O. They enquired whether accused No.37 was there. He opened half door of A.O.'s chamber. They went inside and were talking with accused No.37. After about ten minutes thereafter, accused No.38 came to the office of accused No.37. Accused No.38 went inside the office and was talking. During this time, he was sitting outside. Thereafter, accused No.1 Abdul Kareem Telagi and two police men came there. Accused No.1 and both the police men went inside the room of accused No.37. After five minutes, accused No.37 rang the bell and asked PW.1 to bring B.P. apparatus. There was an ante- chamber attached to the office of accused No.37. PW.1, accused No.1 and accused No.38 went inside the ante-chamber. PW.1 25 tied B.P. apparatus to the arm of accused No.1. Accused No.38 checked B.P. of accused No.1. Thereafter, accused No.38 and accused No.1 sat in the office of accused No.37. A Lawyer whom he referred above and two others were also present. The Lawyer asked accused No.38 to issue a certificate for having checked accused No.1. Thereafter, PW.1 took the B.P. apparatus and went out of the room and was sitting outside the room. After about ten minutes, police and accused No.1 went out along with the Lawyer and two other persons. The further evidence of PW.1 reads as under:
"After 5 minutes, A37 rang bell. I went inside. A37 told to me that a person will bring money and he instructed me to bring it inside. After 10 minutes a person came. He was one amongst 2 persons had accompanied lawyer. He had brought money in a cover. It was a plastic cover. He told to me that amount is to be given to A37. He asked me to see the money. I saw currency notes of Rs.500 bundle. The bundle was rapped in thin plastic paper (transparent). I went inside the room of A37 with the said cover. The person who had brought the cover went away. I told to A37 that as stated the person had brought money and I kept on the table.
Then A37 told to A38 that for the certificate Kareem Lal Thelagi has sent the money and you take it. A37 offered the 26 money to A38. A38 opened the suitcase and was keeping the money. At that time, A37 told to A38 to give something to me. I came outside. A38 kept the money in the suitcase."
21. The Trial Court has believed the evidence of PW.1 in its entirety and in paragraphs 549, 551 and 553 of the impugned judgment has held as under:-
549. Keeping in view the guidelines laid down by the Apex Court in the above cases and reading as a whole the evidence of PW-1, as discussed in the foregoing paragraphs, I am of the opinion that there is nothing to disbelieve the evidence of PW-1. I am also of the further view that there is ring of truth in the evidence of P.W.1. P.W.1, just like accused nos 37 and 38, is a public servant, working as an attender in Victoria Hospital, Bangalore.
He has no axe to grind against accused nos. 37 and 38 or accused No.1. No motive is elicited by either accused nos.
37 or 38 in the course of cross-
examination of P.W.1. Added to the above, what is stated by P.W.1 with regard to examination of accused no.1 by accused no 38 in the chamber of accused no.37 on 6.6.2002 and a person in lawyer's uniform and two others, being present in the room of accused no.37 is corroborated by the evidence of P.W.11, as discussed in the foregoing paragraphs.
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551. In view of nature of answers given by Pw.1 in the course of cross-
examination by the counsel appearing for accused no.38, it is evident that accused no.38 admit the presence of P.W.1 in the chamber of accused no.37 and accused no. 38 having a suitcase at the time in the chamber of accused no.37. I am of the further opinion that evidence of P.W.1 to the effect that both accused nos.37 and 38 were discussing amongst themselves in the chamber of accused no.37 and accused no.38 having a suitcase in the chamber of accused no.37 at that time, cannot be disbelieved.
553. What is stated by Pw-1 before the Court is in tune with the statement made by Pw-1 before the 5th ACMM, Bangalore in Crl.Pet.No.402/04 u/s 164(5) of Cr.P.C. dated 23.7.04 [Ex.P.86]
22. The learned counsel for the appellants have strongly assailed the veracity of the testimony of PW.1. It is contended that PW.1 is a propped up witness and his evidence suffers from material omissions leading to doubt his very presence in the office of Accused No.37 on the alleged date. Learned counsel submits that the answers elicited in the cross-examination of this witness indicate that he was regularly working in the Skin Department. There is absolutely no explanation by the 28 prosecution as to what made him to come to the office of accused No.37 on 06.06.2002. Referring to the evidence of PW.11, learned counsel submit that according to PW.11, at the time of examination of accused No.1, he was escorted by five police constables who were keeping watch at the entrance of the office. Under the said circumstances, the story narrated by PW.1 that a person who was accompanying accused No.1 handed over to him a packet containing currency notes of Rs.500 bundle looks highly improbable and difficult to believe. When the movements of accused No.1 were being constantly monitored by the police, it cannot be believed that the said person would hand over the bundle of currency notes to PW.1 in public view. Even assuming that such a bundle of currency notes was handed over to PW.1, there is nothing in the entire evidence of PW.1 to suggest that the said amount was handed over to him pursuant to the demand made by either accused No.37 or accused No.38. Therefore, by no stretch of imagination can it be held that the said bundle of currency notes was handed over to PW.1 as illegal gratification as contended by the prosecution. The learned counsel for the appellants are emphatic in their 29 submissions that none of the witnesses have come forward to corroborate the testimony of PW.1 with regard to the various circumstances spoken to by him in his evidence. The prosecution has not made any attempt either to seize the said currency notes or the cover in which the said currency notes were said to have been tendered or the suitcase in which accused No.38 carried the cash. Under the said circumstances, on the basis of the uncorroborated testimony of PW.1, the court below could not have come to the conclusion that the bundle of currency notes was handed over to PW.1 and he passed it on to accused No.37 as illegal gratification as contended by the prosecution.
23. Learned counsel for the appellants further pointed out that even though the court below has placed reliance on the testimony of this witness, the circumstances brought out in the evidence of PW.1 as well as in the evidence of PW.20 indicate that the evidence given by PW.1 before the Court is replete with omissions and improvements. The said omissions and improvements are duly proved by examining PW.20. The Trial 30 Court has not at all bestowed its attention to these omissions. These omissions destroy the credibility of the entire testimony of PW.1. Dilating on this point, the learned counsel submit that according to the prosecution, the conversations of accused No.1 was being monitored by the Investigating Agency right from the date of his arrest and under the said circumstances, the incriminating conversation was well within the knowledge of the Investigating Authority as back as in 2002, but the action has been taken only after the investigation was taken over by the CBI in 2004 making it evident that false charges are foisted against the accused by fabricating evidence and therefore, no credence whatsoever could have been given to the evidence of PW.1 or the evidence of other witnesses examined by the prosecution.
24. Further, with regard to the conspiracy theory propounded by the prosecution, the learned counsel for the appellants submit that in this regard the case of the prosecution is based on the so-called conversation recorded during the monitoring of phone calls of accused No.1. The Trial Court has 31 fully relied on this evidence without considering the fact that the said conversation was between one Dr.Agnihotri and accused No.38. The prosecution has not examined the said Dr.Agnihotri and no attempt has been made by the Investigating Agency even to trace the said Dr.Agnihotri which is another factor to show that even the said evidence has been trumped up to support the false charges. Even if it is accepted that there was such a conversation between Dr.Agnihotri and accused No.38, it does not establish conspiracy between accused No.1 and accused Nos.37 and 38. There is no material on record to show that accused No.1 at any time was in contact with either accused No.37 or accused No.38 at the relevant time. Therefore, reliance on this piece of evidence is perverse. Learned counsel also pointed out that the evidence relating to the above conversation is not supported by any corroborative evidence. As a result, there is absolutely no material to establish the charge of conspiracy or to link accused No.37 and accused No.38 with accused No.1.
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25. Learned Special Public Prosecutor however refutes the above argument. He contends that the prosecution has produced clear and cogent evidence to show that pursuant to the criminal conspiracy hatched by the accused, on 6.6.2002, the accused No.1 was taken directly to accused No.37 and accused No.38 for issuance of medical certificates even though they were required to produce him before the Superintendent of Victoria Hospital which itself indicates the prior conspiracy between the accused. Further, the evidence on record clearly suggests that without even examining accused No.1, accused No. 37 and accused No.38 issued the certificates at Ex.P13 and Ex.P17 solely to facilitate accused No.1 to secure bail. The contents of these certificates are proved to be false and it is established in evidence that PW.37 and PW.38 did not conduct any prior investigation or examination of accused No.1. It is also proved in evidence that accused No.1 produced the said certificates before the court so as to secure bail. All these circumstances cumulatively establish the ingredients of conspiracy. Further, by adducing the direct evidence of PW.1 the prosecution has convincingly established that a bundle of currency notes was 33 received by PW.37 and PW.38 as illegal gratification. Thus the prosecution has made out all the ingredients of the offences charged against the accused and hence the impugned judgment does not call for any interference. The learned Special Public Prosecutor has also pressed into service section 20 of P.C. Act to contend that since the prosecution has proved the factum of receipt of illegal gratification, the presumption engrafted in section 20 of P.C. Act renders the accused liable for conviction for the offences under the P.C. Act. Therefore, there is no reason to interfere with the well considered judgment of the court below.
26. We have bestowed our careful thought to the rival contentions and have carefully scrutinized the entire material on record especially the evidence of PW.1. On a thorough evaluation of the evidence of PW.1, we are of the opinion that the evidence of PW.1 is vague, wavering and replete with improvements and omissions seriously affecting the case of the prosecution. On going through the evidence of PW.1 in the backdrop of the surrounding facts and circumstances proved in 34 evidence, we find numerous circumstances which create doubt in the veracity and truthfulness of the testimony of PW.1.
(i) First and foremost, the prosecution has not produced any material to show that PW.1 was working as Attender in the office of accused No.37 at the relevant point of time. It is elicited in the cross-examination of PW.1 that he was regularly working as Attender in the Skin Department. There is absolutely no material to show as to why PW.1 was posted to work as Attender in the office of accused No.37 only on 6.6.2002 and who had passed such an order. The prosecution has not even produced the attendance register to show that PW.1 was on duty on the date of the issuance of certificates at Ex.P13 and Ex.P17.
Therefore a serious doubt arises about the very presence of PW.1 at the spot of occurrence.
(ii) Going by the evidence of PW.1, on the date of examination of accused No.1, he was posted in the office of accused No.37 which implies that PW.1 was new to the office of accused No.37. Under the said circumstances, a question arises 35 as to how he came to know accused No.1. It is the case of the prosecution that on all previous occasions, accused No.1 was produced before the Superintendent of Victoria Hospital for examination and for issuance of medical certificates. If so, there was absolutely no occasion for PW.1 to know accused No.1. But, surprisingly in his evidence he has categorically stated that he knew accused No.1. The very fact that he was posted in the office of accused No.37 only on the date of examination of accused No.1, the assertion made by PW.1 that he was knowing accused No.1, creates another ring of doubt in the testimony of PW.1
(iii) The evidence of PW.1 regarding receipt of illegal gratification is sketchy and appears highly improbable. On scrutiny of his evidence, we find that he has improved his version from stage to stage. In his chief examination he has stated that he was handed over a plastic cover by a person who accompanied accused No.1 on that day and the said person asked him to check the money and he saw the currency notes of Rs.500/- bundle. He is not specific as to whether the packet 36 contained only one bundle or more than one bundle of notes. He does not say that he counted the money. In this context, if his cross-examination is perused, it is elicited in para 11 as under:
"11. The boy opened the cover and showed the money. I did not remove the notes. But I saw from inside. I did not touch currency notes but I took the cover containing the bundle."
This evidence goes to show that PW.1 did not even look into the contents of the cover. As against this, if the evidence of PW.20 is perused, it is elicited in para 91 as under:
"91. It is true to say that PW.1 did not state before me in his statement under section 161 of Cr.P.C. recorded by me to the effect that "boy"
opened the cover and showed Rs.500/-
currency notes to PW.1. It is true to say that PW.1 did not state before me in his statement to the following effect 'half door of the chamber was opened by him'. It is true to say that PW.1 did not state before me in his statement to the following effect 'accused No.1, 38 and PW.1 went inside the ante-chamber'."37
Further in para 92, PW.20 has answered as under:
"92. It is true to say that PW.1 did not state before me in his statement to the following effect 'tying of BP apparatus' as is found at line No.3 of page No.8 of deposition of PW.1.
94. It is true to suggest that PW-1 did not state before me in his statement that accused no.37 rang the bell and he went inside (Sr.Spl.PP for the CBI submits that Dr.Channakeshava called him and he went inside.)
95. It is true to say that PW-1 did not state before me in his statement to the following effect "a person who had accompanied the lawyer he has brought money in a plastic cover and gave it to me". PW-1 has stated in his statement u/s 161 Cr.P.C. to the effect that a person who had been with Telgi during his medical check up earlier came and handed over to PW-1 a plastic cover containing substantial cash etc. It is true to say that PW- 1 did not state before me in his statement that 38 the cover contained Rs.500/- denomination notes. It is true to say that PW-1 did not state before me to the following effect "the boy asked him to see the money, and that he saw bundle of currency notes." (Spl PP for the CBI submits that the statement of the witness of 161 of Cr.P.C. make a mention of plastic cover containing substantial cash.) (underlining supplied) The above evidence completely demolishes the prosecution story that a person who accompanied accused No.1 handed over a cover containing bundle of currency notes of Rs.500/- denomination to PW.1. It is interesting to note that PW.1 who has asserted in his chief examination that the cover contained the bundle of notes of Rs.500/- denomination has admitted to have stated before the police that he received a plastic cover containing substantial cash. Undisputedly, the Investigating Agency has not seized any currency notes of Rs.500/- denomination from the possession of accused No.37 or accused No.38 nor has the prosecution specified the quantum of amount said to have been paid into the hands of PW.1. Notwithstanding 39 the said lapses, the omissions and improvements brought out in the cross-examination of PW.1 itself, in our opinion, are sufficient to destroy the credibility of testimony of PW.1 with regard to the receipt of illegal gratification through the associates of accused No.1 as contended by the prosecution. Here itself it is important to note that even though it is the consistent case of the prosecution that an Advocate and the person who handed over the money were present and had a discussion with accused No.37, no effort has been made by the Investigating Agency either to trace them or to cite them as witnesses. This flaw, in our opinion, creates a serious dent in the case of the prosecution.
(iv) The conduct of PW.1 in opening the plastic cover and counting the money as stated by him shows his interestedness in supporting the case of the prosecution. The surrounding circumstances discussed above do not inspire any confidence to hold that PW.1 was present at the spot or that he received the bundle of currency notes on behalf of accused No.37 as contended by the prosecution. In this context, it is also relevant 40 to note, that according to PW.1, an Advocate had come along with accused No.1 to the chamber of accused No.37. PW.1 goes to the extent of stating that they were in the chamber for about five minutes and he states that even during the examination of accused No.1, the said Advocate and another person were in the chamber of accused No.37. If so, nothing prevented the said Advocate or the said person accompanying accused No.1 to hand over the currency notes directly to accused No.37 or to accused No.38. It is not forthcoming in the evidence of PW.1 that the said Advocate was prevented from going inside the chamber after the examination of accused No.1. Therefore, viewed from any angle, the narration given by PW.1 with regard to handing over of currency notes to him by a stranger looks so artificial and far from truth in our view, his evidence is liable to be discarded lock, stock and barrel. It defies logic that a person who had direct access to the chamber of accused No.37 would hand over the bundle of currency notes outside the office in public view in the presence of police guards who were standing outside the office keeping watch over the movements of accused No.1. All these circumstances, therefore, throw serious doubt 41 about the truthfulness of the testimony of PW.1 and about the payment of currency notes by a stranger to PW.1 as contended.
(v) Lastly, PW.1 does not speak about any "demand"
either by accused No.37 or by accused No.38. Therefore, the evidence of PW.1 even if believed, it does not establish the factum of demand of money by any of the accused. His evidence, as already discussed above, is not sufficient to prove the factum of the receipt of illegal gratification by the accused. Therefore, in our considered opinion, the evidence of PW.1 does not help the prosecution in establishing any of the ingredients of the offence under sections 7, 12 and 13(1)(d) of P.C. Act.
27. Learned Special Public Prosecutor, however, would contend that apart from the oral testimony of PW.1, the prosecution has adduced cogent evidence in proof of various other circumstances which cumulatively considered, would go to show that in furtherance of the common object of securing a medical certificate, the accused No.1 had entered into a secret arrangement between accused No.37 and accused No.38. In support of this contention, the learned Special Public Prosecutor 42 has referred to the evidence regarding the loan transaction of accused No.37. In this context, it may be relevant to refer to the observations of Trial Court in paras 583, 585, 587, 596 and 597 of the impugned judgment. After discussing the elaborate evidence adduced by the prosecution in proof of these circumstances, the Trial Court has observed in paragraph 583, 585, 587, 596 and 597 as under:-
583. It is the case of prosecution that accused no. 37 availed loan from Standard Chartered Bank in the month of May 2002 for the purpose of purchase of old Maruthi Car for Rs.1,00,000/- and the said loan amount was required to be repaid in 24 equated monthly instalments of Rs.4,915/-. It is further case of the prosecution that the said loan amount was closed by accused no.37 on 21.6.02.
In fact, accused no.37 admits the above story of the prosecution.
585. It is the case of prosecution that accused no.37 and his wife deposited Rs.50,000/- in S.B. A/c no. 1234 in Chartered Sahakari Bank Niyamitha, on 30.6.2002. The same is not disputed by accused no.37.
587. PW-5 has spoken to the above aspect of crediting of Rs.50,000/- by accused no.37 in the above account on 30.6.2002, as per challen at Ex.P.8(p).
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596. Accused no.37 has produced Xerox copy of sale deed dt. 8.12.2000 executed by Smt. Shanthakumari in favour of Sri.Chandrashekar for sale of property in question for Rs.1,25,000/-. The above said document is not proved by accused no.37, as per law. Added to the above, the alleged receipt of Rs.1,25,000/- by the wife of accused no.37 on 8.12.2000, as per the above document is perhaps not intimated by him to his superiors. Be that as it may.
597. Accused no.37 has produced salary certificate for the month of March 2002 which make a mention of accused no.37 receiving gross salary of Rs. 16,362/-
and his take home salary being Rs.14,947/- as on 31.3.2002.
The Trial Court has accepted the evidence adduced by the prosecution and has come to the conclusion that the amount received from accused No.1 has been remitted to the Bank in repayment of the loan, thereby indirectly admitting the receipt of illegal gratification. This is a too far fetched conclusion which cannot be endorsed by us.
28. The above evidence, even if accepted, may be good enough to sustain a charge under section 13(1)(e) of the P.C. Act, but by no stretch of imagination, the said evidence can be 44 taken as circumstance to prove the demand or acceptance of the illegal gratification as contended by the prosecution. Even if it is assumed that accused No.37 being a public servant was found in possession of property and assets disproportionate to his known source of income, it does not lead to the inference that the said amount was received by accused No.37 as illegal gratification from accused No.1 or from his subordinates as sought to be made out by the prosecution. Therefore, in our opinion, even this evidence is of no avail to the prosecution to prove the charges leveled against the accused.
29. It is also relevant to note that in order to establish the charge of conspiracy, the prosecution has relied on the alleged conversation of accused No.38. A perusal of the impugned judgment reveals that the Trial Court has elaborately considered the evidence of various witnesses in this regard in paras 618, 619, 623 and 627 of the impugned judgment, but, as already stated above, this conversation was admittedly between accused No.38 and one Dr.Agnihotri. The prosecution has not examined the said Dr.Agnihotri and no material has been 45 produced with regard to the identity of the said person. The said evidence, even if accepted at its face value, does not prove any conversation or agreement between accused No.1 and the co- accused. Therefore, even this evidence, in our view, cannot be taken as a circumstance connecting accused No.37 and accused No.38 with accused No.1.
30. From the perusal of the transcription of the conversation found in Exhibits P23, P24, P25 and P26, it could be gathered that the said conversation was between accused No.38 and one Dr.Agnihotri and Habib. None of these persons are identified by the prosecution nor have they been examined to prove the transaction in respect of which the conversation had taken place between accused No.38 and the said persons. The transcripted conversation does not refer to accused No.1. The prosecution has not produced any evidence to show that the aforesaid Dr.Agnihotri or Habib were either the associates of accused No.1 or they had entered into conversation with accused No.38 on behalf of accused No.1 at the relevant time. 46 Therefore, in our opinion, this evidence cannot be connected to accused No.1 and the other accused in proof of conspiracy.
31. In addition to the above glaring defects, the case of prosecution suffers from enormous delay in initiating criminal proceedings against the accused. This delay is also one of the factors that militates against the prosecution. The evidence on record indicate that the calls made by accused No.1 from the prison were regularly monitored and the conversation between Dr.Agnihotri and accused No.38 is stated to have been recorded in the month of June 2002. If infact the said conversation had any link with accused No.1 or if it was made on behalf of accused No.1, the Investigating Agency could have acted on the said conversation in the year 2002 when a criminal case was already registered against accused No.1 and was under
investigation. But, the materials on record indicate that only after the investigation was taken over by C.B.I., the evidence which is said to have been collected in 2002 is sought to be made use of in 2004 to build up a story of criminal conspiracy. 47 Therefore, even on this score, the prosecution case is rendered doubtful.
32. Another circumstance which casts serious doubt on the case of the prosecution is that the original of exhibits P13 and P17 namely the medical certificates dated 29.9.2002 and 6.6.2002, in respect of which the accused Nos.37 and 38 are alleged to have received illegal gratification, are produced in evidence by the prosecution. The case of the prosecution is that accused No.1 entered into conspiracy with accused No.37 and accused No.38 with a view to get these medical certificates to enable accused No.1 to secure bail. Ex.P78 the certified copy of the order passed by the IX Addl. Sessions Judge, Bengaluru dated 17.8.2002 reveals that Ex.P13 and Ex.P17 were produced before the court by accused No.1. But as the originals of exhibits P13 and P17 have been marked as exhibits during trial, the learned Special Public Prosecutor was asked to explain as to how the original documents could be retained by the Investigating Agency and produced along with the charge-sheet if infact the said certificates were produced before the court by 48 accused No.1 as noted in Ex.P78? After referring the records, the learned Special Public Prosecutor submitted that the original certificates were forwarded by accused Nos.37 and 38 to Superintendent of Central Prisons. If so, the theory of conspiracy as well as the circumstances pleaded by the prosecution that the said certificates were obtained by the associates of accused No.1 by paying illegal gratification to accused Nos.37 and 38 gets falsified.
33. If infact accused No.1 had secured exhibits P13 and P17 certificates by paying illegal gratification, the originals thereof would have been collected either by accused No.1 or his associates without the knowledge of the prison authorities. But the sequence of events brought out in the evidence clearly indicate that accused No.1 was forwarded to the Victoria Hospital by the Superintendent of Prisons. This fact is confirmed by PW.2 in his evidence unequivocally stating that for about ten days prior to his examination, accused No.1 was vomiting blood which necessitated the prison authorities for sending him for medical examination. This evidence indicates that accused No.1 was 49 sent to Victoria Hospital by the prison authorities themselves. PW.11 who escorted accused No.1 to Victoria Hospital has categorically stated that accused No.1 was produced before the Superintendent of Victoria Hospital as per the instructions of the Superintendent of Central Prison. This evidence makes it very clear that accused No.1 was produced in Victoria Hospital officially by the prison authorities and not pursuant to the conspiracy hatched by the accused interse. There are no allegations that the prison authorities were also parties to the above conspiracy. Under the said circumstance, merely because accused Nos.37 and 38 happened to examine accused No.1 and issued exhibits P13 and P17, it cannot be held that they did so pursuant to conspiracy and upon receipt of illegal gratification. Therefore viewed from any angle, we do not find any reasonable ground to accept the case of the prosecution.
34. Thus, on overall consideration of entire material on record, we are of the considered opinion that the prosecution has failed to prove any of the ingredients of section 120-B of IPC or the ingredients of section 7, section 12 or section 13(1)(d) of 50 the P.C. Act. We are fully convinced that PW.1 is not a reliable and trustworthy witness. Therefore, his evidence could not have been made the basis for conviction of the accused. The other circumstances relied on by the prosecution do not connect accused No.1 with other accused and are not sufficient to prove either the conspiracy or "demand" and "acceptance" of illegal gratification. Hence, we are unable to concur with the findings of the court below that accused Nos.37 and 38 had entered into a conspiracy with accused No.1 and in furtherance of the said conspiracy, accused Nos.37 and 38 received illegal gratification from the associate of accused No.1 and issued false medical certificates at exhibits P13 and P17 to enable accused No.1 to secure bail. As a result, the impugned judgment of conviction and order of sentence is liable to be set-aside. Consequently, we proceed to pass the following:
ORDER Crl.A.No.1187 of 2007, Crl.A.No.1123 of 2007 and Crl.A.No.1241 of 2007 are allowed. The impugned judgment of conviction and order of sentence passed by the learned XXXV 51 Addl. City Civil and Special Sessions Judge and Special Sessions Judge (Special Court-To try fake stamp paper cases) Bengaluru in Spl.C.C.No.213 of 2004 is hereby set-aside. Accused No.1, Accused No.37 and Accused No.38 are acquitted of the offences punishable under sections 7, 12, 13(1)(d) r/w. section 13(2) of P.C. Act r/w. section 120-B of IPC. Bail bonds of Accused No.1, Accused No.37 and Accused No.38 with reference to the above case stands cancelled. Their sureties are discharged. Fine amount, if any, deposited by the respective accused shall be refunded.
SD/- SD/-
JUDGE JUDGE
JJ/Bss.