Bangalore District Court
The State Of Karnataka vs Nagendra on 12 April, 2022
KABC010262302018
IN THE COURT OF THE XXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE ( P.C. Act) BENGALURU
(C.C.H.No.24)
Dated: This the 12th day of April, 2022
:PRESENT:
LAKSHMINARAYANA BHAT K.
XXIII Additional City Civil and Sessions Judge
and Special Judge ( P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.673/2018
Complainant: The State of Karnataka
represented by the Police
Inspector, Anti Corruption Bureau,
Bengaluru Urban Police station,
Bengaluru.
(By the Public Prosecutor)
V/s
Accused : Nagendra,
S/o.Late Nagaraju, aged about 45
years, Revenue Tax Collector,
No.192, Begur Ward,
Office of the Assistant Revenue
Officer, Begur Sub-division,
BBMP, Begur, Bengaluru.
R/at. No.281/03, 11th Main Road,
Venkataswamy Garden,
2 Spl.C.C.673/2018
I.P.D. Salappa Layout,
J.J.R. Nagar,
Bengaluru.
(By Sri K.M.Ravikumar, Advocate)
JUDGMENT
The Police Inspector, Anti Corruption Bureau, Bengaluru Urban (in short the "ACB") has laid the charge sheet against the accused for the offences punishable under Sections 7and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988 (in short the "PC Act").
A. The factual matrix of the case :-
2(a). The accused is working as the Tax Collector in the office of the Assistant Revenue Officer, Bruhath Bengaluru Mahanagara Palike (in short 'BBMP'), Beguru sub-division, Bengaluru. The informant CW1 - Vasantha Kumar has alleged that his wife had sold a portion of the site property in favour of CW5 - M.Murugan. CW-1 was intended to obtain the B Form property register extract relating to the remaining property retained by his wife and also the portion of the property sold in favour of CW5 from the office of the Assistant Revenue Officer, BBMP, Beguru sub-division, Bengaluru. It is stated that CW5 and CW6 Periyaswami have issued the letter of authorization in favour of CW1. Accordingly, CW1 has filed necessary 3 Spl.C.C.673/2018 applications in the name of his wife Smt. Nirmala, CW-5 and 6 before the Assistant Revenue Officer ( in short ARO office), Beguru. The grievance of the informant was that in this regard when he went to the office, the accused who was working as the Tax Collector has demanded illegal gratification of Rs.25,000/- for entering the names of Smt. Nirmala, CW5 and CW6 - the purchasers in the B Form property register extract. But CW1 disinclined to meet the demand of the accused and has lodged the report before the ACB Police, Bengaluru on 16.8.2017.
The ACB police have registered the case and after completing the pre-trap formalities, laid the trap, arrested the accused and the tainted currency notes were recovered from his possession. After fulfilling the post-trap formalities, the said police obtained the scientific examination report, and on completion of the investigation secured the required sanction, and thereafter they filed the charge sheet against the accused.
3. After taking cognizance of the offence, presence of the accused was secured, complied the mandatory requirement of Section 207 of the Cr.P.C. by supplying the copies of the charge sheet and other prosecution documents. After hearing both the sides, charges were framed and the accused pleaded not guilty and claimed to be tried.
4 Spl.C.C.673/2018
4. To bring home the guilt of the accused, the prosecution has examined in all twelve witnesses as Pws 1 to 12, produced 64 documents as Ex.P-1 to 64 and got identified material objects as M.Os. No. 1 to 8. After completion of evidence of the prosecution side, the incriminating circumstances appearing in the evidence were put to the accused and he was examined under Section 313 (1)(b) of the Cr.P.C. After closure of the prosecution side evidence, the accused after making his request in writing, entered his defence and was examined as DW1. However he has not produced any documentary evidence.
5. Heard the arguments of both sides. The learned Special Public Prosecutor has filed synopsis of written argument and also relied upon the following reported judgments in support of his argument.
1) (1980) 2 Supreme Court Cases 390 Hazari Lal Vs. State (Delhi Administration)
2) (1995) 3 Supreme Court Cases 567 M.W.Mohiuddin Vs. State of Maharashtra
3) (2000) 8 Supreme Court Cases 571 Madhukar Bhaskarrao Joshi Vs. State of Maharashtra
4) (2006) 12 Supreme Court Cases 277 B.Noha Vs. State of Kerala and another
5) (2000) 9 Supreme Court Cases 752 State of A.P. Vs. Kommaraju Gopala Krishna Murthy 5 Spl.C.C.673/2018
6) (2012) 7 Supreme Court Cases 80 Narendra Champaklal Trivedi Vs. State of Gujarat
7) (2008) 11 Supreme Court Cases 681 Raj Rajendra Singh Seth Alias R.R.S. Seth Vs. State of Jharkhand and another
8) (2009) 11 Supreme Court Cases 708 Krishna Ram Vs. State of Rajasthan
9) (2014) 15 Supreme Court Cases 103 Somabhai Gopalbhai Patel Vs. State of Gujarat
10) (2021) 5 Supreme Court Cases 626 Shivaji Chintappa Patil Vs. State of Maharashtra
11) (1974) 3 Supreme Court Cases 536 Bhagwan Tana Patil Vs. The State of Maharashtra
12) (2004) 10 Supreme Court Cases 443 Ram Udgar Singh Vs. State of Bihar B. The points for determination:-
6. After adverting careful thought to the rival arguments, analytical scrutiny of the documentary and the oral evidence placed on record, all the facts and circumstances of the case at this stage the points that would arise for the determination are :
1. Does the prosecution prove the fact that it has obtained the valid sanction to prosecute the accused
6 Spl.C.C.673/2018 as required under Section 19(1)(c) of the P.C. Act?
2. Does the prosecution beyond reasonable doubt prove the fact that the accused being the public servant while working as the Tax Collector in the office of ARO, Beguru sub-division, BBMP, Bengaluru, had demanded Rs.25,000/- undue advantage from PW1 - Vasanth Kumar on 10-08- 2017 and accepted Rs.20,000/- on 21.8.2017 and thereby committed an offence under Section 7 of the PC Act?
3. Does the prosecution beyond reasonable doubt prove the fact that the accused being the public servant by abusing his position as such public servant obtained Rs.20,000/- pecuniary advantage by corrupt means from PW1 - Vasanth Kumar on 21.8.2017 and thereby committed an offence of criminal misconduct under Section 13(1)(d) of the P.C. Act?
7 Spl.C.C.673/2018
4. What order?
7. My findings on the aforesaid points are:
Point No.1 : in the affirmative
Point No.2 : in the affirmative
Point No.3 : in the affirmative
Point No.4 : as per the final order
for the following
REASONS
C. Discussion and finding regarding the sanction :
Point No.1 :
8(a). The accused was working as the Tax Collector in Beguru Sub-division, BBMP, Bengaluru as on the date of offence i.e. 10-8-2017 and 21.8.2017 is not disputed. In the result he is the public servant within the ambit of Section 2(c) (iii) of the PC Act and he was discharging his duty defined under Section 2(b) of the PC Act. Therefore, it is incumbent upon the prosecution to prove that the valid sanction has been obtained from the competent authority to prosecute the accused as required under law.
8(b). The object underlying the sanction is to protect the public servant from harassment on frivolous prosecution. It is incumbent on the prosecution to prove
8 Spl.C.C.673/2018 that the sanctioning authority after having satisfied that a case for according the sanction has been made out constituting the offence against the accused has accorded the sanction. The prosecution can prove the valid sanction either by producing the original sanction order or by adducing evidence to show that all relevant materials were placed before the sanctioning authority and thereafter it has arrived to the conclusion by according the sanction.
8(c). In the case on hand, the prosecution has examined PW2 - Sri. Manjunath Prasad and produced Ex.P-8 the sanction order. In the evidence, PW2 deposed that while he was working as the Commissioner of BBMP on 24.6.2018 he received the requisition from the Director General of Police, ACB, Bengaluru along with copy of the FIR, first information statement, panchanama, scientific examination report, statement of the witnesses, explanation of the accused, file pertaining to the demand of bribe etc. seeking sanction to prosecute the accused. PW2 further deposed that after careful scrutiny of the above referred documents, he was satisfied that prima- facie case has been made out against the accused and hence he has proceeded to pass Ex.P8 order by according the sanction to prosecute the accused. It is the evidence of PW2 that as the Commissioner of BBMP, he was the competent authority empowered to dismiss the officers working as the tax collectors. Thus he deposed that the 9 Spl.C.C.673/2018 accused as on the date of the alleged offence was working as the tax collector in BBMP, Begur ward and hence he is empowered to pass Ex.P-8 sanction order by according the sanction to prosecute the accused.
8(d). During the cross-examination, PW2 has admitted that the Investigation Officer (in short the 'IO') did not send the copy of the application filed by PW1 Vasanthkumar before the BBMP office along with the final report. He further admitted that he has not made any effort to secure the said document from the concerned office or from the prosecution agency. It is further elicited that before issuing Ex.P8 order, he did not ascertain from the concerned office that the applications filed by PWs. 5 and 6 were already disposed. It is suggested to the witness that he is not having the authority to accord the sanction and hence Ex.P8 order was passed under the mistake of fact. But the witness has categorically denied the said suggestion tendered to him.
8(e). During the examination of the accused under Section 313 of the Cr.P.C. he has answered to question No.24 and 26, as 'not aware' and to question No.25 as 'false'. In Ex.P-8 order, PW-2 has referred all the documents, statements of the witnesses and the case file produced by the investigating agency. It is important to mention here that the accused has not disputed the fact that the investigating agency has placed all the 10 Spl.C.C.673/2018 documents before the sanctioning authority at the time of seeking the sanction. As per the prosecution case, PW-1 has filed necessary applications before the concerned authority in the name of and on behalf of his wife Smt. Nirmala and PW-5 and 6. Ex.P-23 file was placed before the sanctioning authority. PW-1 in his individual capacity has not filed any application before the office of the ARO, and hence the question of PW-2 securing the said document/application before passing Ex.P-8 order does not arise. Even during the course of argument, the learned Counsel appearing for the accused has not placed any material to show that who is the competent authority to accord sanction. Therefore the suggestions tendered to Pw-2 during cross-examination that he is not empowered to pass Ex.P8 order or the authority competent to accord the sanction are not sufficient to appreciate the defence of the accused. The burden of proof is on the accused to show that the Commissioner, BBMP is not the competent authority to accord the sanction or dismiss the officer working in the cadre of tax collector from his post and he has failed to substantiate his defence.
8(f). In order to ascertain the validity of Ex.P-8 sanction order and oral evidence of PW2, it is proper to refer the judgment reported in 2007 (1) SCC 1 in Prakash Singh Badal Vs. State of Punjab. In the said case, the Hon'ble Supreme Court held that it is well settled law 11 Spl.C.C.673/2018 that sanction is an administrative act to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. Sanctioning authority was only to see whether the facts would prima- facie constitute the offence. There is heavy burden on the accused who challenged the order to show that the competent authority is somebody else and not the officer who has passed the sanction order. In the case on hand, the accused has failed to prove that PW-2 as the Commissioner of the BBMP is not the competent authority to accord the sanction.
8(g). In the judgment of the Apex Court in Mahesh G.Jain case, reported in (2013) 8 SCC 119 it is held that the adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. Therefore, if the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction. As per the said judgment, the sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity. After considering the above ratio, in the case on hand, the contentions taken by the accused during the cross- examination of PW-2 are not legally sustainable.
12 Spl.C.C.673/2018 8(h). In the judgment reported in (2012) 3 SCC 64 in Subramanian Swamy Vs. Dr. Manmohan Singh case in para-44 the Hon'ble Supreme Court held that grant or refusal of sanction is not a quasi -judicial function. What is required to be seen by the competent authority is whether the facts placed before it by the investigating agency prima-facie disclose commission of an offence by a public servant. If the competent authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant the sanction. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true. The aforesaid law laid down by the Apex court is aptly applicable to the facts of the case.
8(i). The Supreme court in the matter of State of Karnataka vs Ameerjan reported in (2007) 11 SCC 273 has held that the sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority.
8(j). In the light of the ratio laid down in the above referred judgments and on appreciation of oral evidence of PW2 along with Ex.P8 documentary evidence, this Court is satisfied that the investigating agency has placed all the documents collected during the investigation before the sanctioning authority. After 13 Spl.C.C.673/2018 verifying all the documents, PW-2 the sanctioning authority prima-facie satisfied as to the commission of the offence and issued Ex.P8 order. Secondly, the oral evidence shows that PW-2 has applied his mind to the documents produced by the investigating agency and has arrived to the prima-facie conclusion that the investigation agency has made out that the accused is involved in demand and acceptance of undue advantage. In Ex.P-8 order, PW2 has made reference to the facts of the case, allegations made against the accused, the nature of trap, recovery of the amount and gist of the trap proceedings. The contents of Ex.P8 and evidence of PW2 show that he has not mechanically passed Ex.P8 order. PW2 working as the Commissioner of BBMP is empowered to remove the accused who was working as the tax collector from the office as prescribed under Section 19 (1) (c) of the PC Act. The law presumes that until the contrary is proved the sanctioning authority has fairly and objectively recorded its satisfaction and thereafter proceeded to pass Ex.P8 order. The accused has failed to make out any case much less sufficient to challenge Ex.P8 order. Therefore, there is no impediment to the court in arriving to the definite conclusion that the prosecution has obtained Ex.P-8 the valid sanction order to prosecute the accused. Hence point No.1 is answered in the 'affirmative'.
14 Spl.C.C.673/2018 Point No.2 and 3 :
9. The gist of the prosecution side evidence :
PW1 - Mr. M.V. Vasanthkumar is the informant and he has lodged Ex.P1 first information statement, produced Ex.P-22 a CD containing the recorded audio conversation before the ACB Police. PW3 Mr. Sunil Kumar and Mr. PW 4 Harish Kumar M. are the pancha witness and signatories to Ex.P4 and 6 pre-trap and post-trap panchanama and they deposed evidence regarding the entire trap proceedings.
PW 5 Mr. M.Murugan and PW 6 Mr. Pariyaswamy are the owners of the site property and they have authorised PW1 as per Ex.P2 and P3 authorisation letter to obtain B Form property register extract from the office of the BBMP and to enter their respective names in the concerned register. PW 7 Mr. P.Vanaraja is the Assistant Executive Engineer prepared spot sketch as per Ex.P18. PW 8 Mr. B. Shivashankara Reddy is the Dy.S.P., ACB, Bengaluru has registered Ex.P-19 FIR, after receiving Ex.P1 first information statement from the informant PW1.
15 Spl.C.C.673/2018 PW 9 Mr. Nanjegowda is the Police Inspector and the investigation officer and he has conducted the entire pre-trap and post-trap proceedings. PW 10 Ms. Smt.C.Srividya is the Assistant Director of FSL, Bengaluru issued Ex.P58 voice analysis report.
PW 11 Mr. Koushik Murugesh is the Nodal Officer in Reliance Jio-Infocom Limited who has issued Ex.P60 to 62 CDR and other documents.
PW 12 Mr. Dileep Kotagi is the retired DGM, BSNL has issued of Ex.P63 CDR.
10(a)The gist of arguments of the prosecution side:-
Accused has demanded Rs.25,000/- undue advantage from PW-1 for issuing B Form property register extract of the property;
He has demanded and accepted the tainted cash of Rs.20,000/- from the informant PW-1 on the date of trap;
PW1 informant and PW3 shadow witness have supported the prosecution case regarding the demand and acceptance of the undue advantage; PW5 and PW6 have deposed issuance of Ex.P2 and P3 authorization letter in favour of PW1 and lodging
16 Spl.C.C.673/2018 of Ex.P-1 first information statement and trap of the accused was within their knowledge;
The conversation recorded during pre-trap and conversation between PW1 and the accused during the trap is the corroborative piece of evidence in support of demand and acceptance of the bribe; The defence of the accused and explanation that the tainted money was thrust into his pocket is an after thought contention and it is an improvement in his defence which cannot be believed; The accused has submitted false explanation results in adding strength to the prosecution case; The defence of the accused that he is not the officer competent to pass any order regarding entering khata or issuance of B Form property register extract is immaterial and not relevant; The accused himself has called PW1, the informant through phone and assured to get the work done and hence there is no need for the prosecution to prove the work should be pending with the accused.
For the aforesaid reasons, the prosecution has prayed for conviction of the accused.
17 Spl.C.C.673/2018 10(b). The gist of argument of the defence side:
The case of the informant that his wife has sold the portion of a site property in favour of PW5 M.Murugan. PW-6 is the purchaser and there is discrepancy regarding the extent of the land; Ex.P2 and Ex. P3 authorization letters dtd.23.6.2017 are subsequently created by the prosecution to implicate the accused and the documents are not containing the official rubber s stamp.
PW1 has neither stated the date of filing of the application nor produced any acknowledgment obtained from the concerned BBMP office at the time of lodging Ex.P-1 first information statement. Ex.P2 and P3 documents were not enclosed with the FIR and Ex.P1 first information statement; The IO has not secured the alleged copy of the application filed by the informant - PW1 for change of khata and obtaining B form property register extract.
The prosecution has also not produced copy of the application filed before BBMP on behalf of PW5 and PW6 M.Murugan and Pariyaswamy.
PW5 and PW6 during evidence denied that they have met the accused or made any request with him to reduce the bribe amount. They were treated as hostile by the prosecution.
18 Spl.C.C.673/2018 From 17-8-2017 to 20.8.2017 the accused was on duty and he was available in the office which can be made out from the attendance register extract produced by the prosecution.
The cash was thrust into the pocket of the accused and he was made as victim in the case.
For the aforesaid reasons, the learned Advocate for the defence has prayed for the judgment of acquittal.
D. The ingredients of the offence :-
11(a). The accused is charged for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the PC Act. The prosecution, in order to bring home the guilt of the accused under section 7 of the P.C. Act is required to satisfy the following factors.
(I) The accused was a public servant or expected to be a public servant at the time when the offence was committed;
(ii) He has accepted, or obtained, or agreed to accept or attempted to obtain illegal gratification from some person,
(iii) For himself or for some other person and
(iv) Such gratification was not a remuneration to which he was legally entitled.
19 Spl.C.C.673/2018
(iv) The accused accepted such gratification as a motive or reward for
(a) doing or forbearing to do an official act,
(b) doing or forbearing to show favour or disfavour to someone in the exercise of his official functions; or
(c) rendering or attempting to render any service, disservice to someone, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or with any public servant, whether named or otherwise.
11(b). Similarly to establish the guilt of the accused under Section 13(1)(d) of the PC Act the prosecution has to prove the following factors.
i) The public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage,
a) by corrupt or illegal means or
b) by abusing his position as public servant or
c) without any public interest.
12. Among the prosecution witnesses examined, PW1 - Vasanth Kumar is the informant and he deposed regarding lodging of Ex.P1 first information statement 20 Spl.C.C.673/2018 and production Ex.P-22, a CD containing the recorded audio conversation between himself and the accused. As per his evidence, his wife Smt. Nirmala has alienated the portion of site property in favour of PW-5 M.Murugan. He further deposed that on 23.6.2017, he has filed an application to obtain 'B' form property extract in the office of ARO, Beguru sub-division BBMP, Bengaluru. After few days, the accused has conducted spot inspection of the site property and directed him to meet him in the office. When he went to the office and requested the accused for entering khata of all the 3 properties belonging to his wife, Pws.5 and 6, the accused has demanded an undue advantage of Rs.25,000/-.
13. It is the further evidence of PW1 that on 10.8.2017, the accused again demanded Rs.25,000/- undue advantage. PW1 has deposed that he has assured the accused to pay Rs.20,000/- as advance and the balance amount of Rs.5,000/- after completion of the work. On the same day he has recorded the audio conversation made with the accused in the voice recorder and transferred it into a CD and on 16.8.2017 he went to the ACB police station and has lodged Ex.P1 first information statement. At the same time, he has produced Ex.P2 and 3 authorisation letter issued by Pws.5 and 6 in his favour.
21 Spl.C.C.673/2018
14. PW8 - B.Shivankara Reddy is working as the Dy.S.P., ACB, Bengaluru, and in his evidence he has deposed that on 16.8.2017 at about 4.00 p.m., PW1 appeared before the police station and has lodged Ex.P1 first information statement. In pursuance of the said information, he has registered Ex.P19 FIR against the accused and submitted the report to the Court.
15. PW3 - Sunil Kumar and PW4 - Harish Kumar M. are the pancha witnesses to the pre-trap and post trap proceedings. Both the witnesses in their examination-in- chief deposed that on 16.8.2017 they have appeared before PW9 Nanjegowda and the IO has introduced them to PW1. They further deposed that they have heard the recorded conversation contained in Ex.P-22 CD produced by PW1 regarding the demand for the bribe. Both the witnesses have deposed that the police have prepared a transcript of conversation contained in CD as per Ex.P9.
16(a). PWs.1, 3, 4 and 9 in their examination-in- chief have deposed that as directed by PW9, PW1 has produced Rs.20,000/- currency notes of Rs. 2,000/- each and as directed by PW9 his investigating assistants have prepared Ex.P10 list containing the description and serial number of the notes, and smeared phenolphthalein powder to those currency notes. As instructed by the IO, PW4 has kept those currency notes in the trouser pocket 22 Spl.C.C.673/2018 of PW1. Thereafter the IO has directed PW2 to dip his both hands fingers in the sodium carbonate solution, and at that time, the solution turned to pink colour. The IO has collected the sample for scientific examination. PW9, the IO deposed that by practical demonstration he has shown the chemical reaction of the phenolphthalein powder with sodium carbonate and purpose of smearing the powder to the currency notes.
16(b). PWs.1, 3, 4 and 9 have further deposed that PW9 has instructed PW1 to approach the accused in connection with his work and to pay the bribe money only if he makes the demand and thereafter to transmit the signal to the trap team. All the witnesses have deposed regarding drawing Ex.P4 pre-trap panchanama. As per the evidence of PW1 and PW9, the accused has informed PW1 that he is available in the office on 21.8.2017.
16(c). PWs.1, 3, 4 and 9 have further deposed that on 21.8.2017 at about 11.30 a.m. they went to the office of Beguru ARO. As instructed by PW9 - IO, PW1 entered the office and PW3 was accompanying with PW1. PW1 has deposed that he approached the accused and asked about his pending work, and at that time, the accused has demanded Rs.20,000/- bribe amount. He has handed over the tainted cash to the accused and after collecting 23 Spl.C.C.673/2018 the amount, the accused counted the cash and kept it in his trouser pocket. The accused has informed him to make payment of the balance amount after completion of the work.
16(d). PW-3 in his evidence has deposed that when he was accompanying with PW1, the accused has demanded and accepted the tainted cash from PW-1. It is the further evidence of PWs.1, 3, 4 and 9 that after receiving the signal from PW1, the members of the ACB squad went inside the office. PW-9 has deposed that he has subjected the accused to undergo chemical hand wash test and when the accused dipped his fingers in two separate bowls containing the sodium carbonate solution, the liquid turned to pink colour. PWs.1 and 3 have deposed that the accused after collecting the bribe amount had kept the tainted currency notes in his trouser pocket. PW-.4 deposed that as directed by PW9 he has collected those currency notes from the trouser pocket of the accused and the said amount was found tallying with the details shown in the pre-trap mahazar and Ex.P-10 list.
16(e). PW1,deposed that PW-9 has collected the voice recorder provided to him containing the recorded conversation during the trap proceeding between himself, PW3 and the accused. PWs.1, 3, 4 and 9 have further deposed that PW-9/IO has seized the tainted 24 Spl.C.C.673/2018 cash recovered from the trouser pocket of the accused as per M.O.8. The accused has submitted the explanation statement as per Ex.P11. The witnesses have further deposed regarding the collection of voice sample of the accused, PWs.1 and 3.
16(f). PW9 in his evidence further deposed that he has seized Ex.P23 file regrading pending work with the accused and the document contained the application filed by Smt. Nirmala - wife of Pw.1 and PWs.5 and 6. As per his evidence, he has prepared Ex.P25 transcript of conversation recorded in the digital voice recorder during the trap proceeding. PW-9 deposed that he got drafted Ex.P6 trap panchanama in the presence of witnesses and the informant. He secured Ex.P50 to 52 certificates under Section 65B of Indian Evidence Act. During further investigation he has collected Ex.P54 scientific examination report and Ex.P56 duties and responsibilities of the accused.
17. PW5 - M.Murugan has deposed that he had purchased two house sites from Smt.Nirmala wife of PW1. He further deposed that he has handed over the necessary documents to PW1 and also issuance of Ex.P2 authorization letter for the purpose of obtaining 'B' form property register extract. He has further deposed that PW-1 has brought to his notice that the concerned official 25 Spl.C.C.673/2018 has been demanding the bribe for the official work and hence PW1 has decided to lodge the report against the concerned official before the ACB Police.
18. PW6 - Periyaswamy in his evidence deposed that in the year 2012 he had purchased the site property and intended to change mutation of the said property in his name. Therefore he had issued Ex.P3 authorization letter in favour of PW.1 to obtain the 'B' form property extract. But PW1 had informed him that for change of khata, the concerned officer has been demanding bribe of Rs.25,000/-.
19. PW7 - P. Vanaraja, is the Assistant Executive Engineer, BBMP, Koramanagala sub-division has deposed that on 6.10.2017 he visited the place of incident and prepared Ex.P18 sketch in the presence of witnesses.
20. PW10 - Smt. C. Srividya is the Assistant Director, FSL, Bengaluru and in her evidence she deposed that on 30.8.2017 she has received five CDs. containing the conversation and also sample voice recording of the accused from the ADGP, ACB, Bengaluru. As per her evidence, after examination, she has arrived to the conclusion that the respective speeches found in Ex.P22 , Ex.P26 and sample speeches found in Ex.P27 are similar and belongs to the same male speaker and accordingly she has issued Ex.P58 voice analysis report.
26 Spl.C.C.673/2018 21 PW11 - Koushik Murugesh is the Nodal Officer working in Reliance Jio Info-com Ltd. and deposed regarding receipt of requisition from the IO and in pursuance he has issued Ex.P60 call detail register extract and Ex.P61 and 62 customer application form and certificate under Section 65-B of the Indian Evidence Act. PW12 - Dileep Kotagi is retired Deputy General manager of BSNL, Bengaluru and he deposed regarding issuance of Ex.P63 call detail register extract and Ex.P64 certificate under Section 65B of Indian Evidence Act.
22. The accused entered his defence and he was examined as DW1. In his evidence he deposed that the Revenue Inspector is the authority empowered to pass orders regarding the change of mutation and entering the names in B form of the property register. According to him, he being the Tax collector has no authority to pass any such order. He further deposed that PW1 did not file any application for change of khata and denied having made any conversation with him. He deposed that he had attended the office from 17-8-2017 to 21.8.2017. He deposed that PW1 and 3 have forcibly thrust the tainted money into his trouser pocket and thereafter, the police came to the place, they directed him to take out the money from his pocket and after counting, he has been subjected to dip his fingers in the chemical solution. PWs.1 and 3 were also subjected to chemical hand wash 27 Spl.C.C.673/2018 in his presence during the trap. He has specifically denied demand or acceptance of any bribe from PW1. As directed by the police, he had submitted Ex.P11 explanation and hence it is not voluntary statement. In Ex.P11 explanation, the accused has specifically stated that PW1 and another person came to his office, paid Rs.20,000/- for obtaining 'B' form of the property register and also towards payment of arrears of tax for the past 10 years. The grievance of the accused is that PW1 was repeatedly making phone calls and also giving trouble and in that process he has been implicated in the case.
E. The analysis:-
23. During the cross-examination of PW1, the accused has tried to challenge the extent, identity and description of the property which is the subject matter of sale. But PW5 who is the purchaser of the property from Smt. Nirmala wife of PW1 - Vasanth Kumar has not disputed these aspects. Hence, the contention of the accused touching the aforesaid aspects are of no relevance to the case. It is suggested to PW1 that he works as an agent of general public to do official work in the office of BBMP. But PW1 has specifically denied this aspect.
24. During the cross-examination of Pws. 3 and 4 the main contention of the accused is that both the witnesses 28 Spl.C.C.673/2018 did not obtain permission from their higher officer on 17.8.2017 and 21.8.2017 when they have accompanied with the ACB police. But the accused did not dispute the presence of PW3 and Pw4 during drawing of Ex.P4 pre-
trap panchanama and Ex.P-6 post trap panchanama proceedings. Both of them in their evidence have stated that as per Ex.P-21 order passed by their higher officer, they have been deputed as witness in the present case. The accused has miserably failed to elicit any material admission during the cross-examination of Pws.3 and 4 to disbelieve their testimony.
25. The specific defence of the accused during the trial was that there was no demand for bribe and hence the charge made against him is not sustainable. PW-1 in his examination-in-chief has deposed inconsonance with Ex.P1 first information statement by making specific allegations against the accused regarding the demand and acceptance of undue advantage. PW-3 shadow witness has also given his evidence in consonance with the testimony of PW-.1 regarding the demand and acceptance of illegal gratification as on 21-8-2017.
26. It is the specific evidence of PW1is that as on the date of trap, on 21.8.2017 along with PW3 he went to the office, and when he asked the accused regarding the pending work, the accused has demanded Rs.25,000/- bribe. It is his further evidence that after 29 Spl.C.C.673/2018 collecting the tainted cash, the accused counted the currency notes and kept it in his trouser pocket. PW3 in his evidence has specifically stated that after the accused demanded the bribe, PW1 has paid the amount. The accused during cross-examination of Pws.1, 3, 4 and 9 has not specifically disputed the presence of PW3 shadow witness at the time of trap along with PW1.
27. Ex.P6 is the trap mahazar and in page No.10 contains the transcript of the recorded audio conversation during the trap between the accused, PW-1 and PW3. The relevant portion of conversation between the accused and PW1 reads as under
ಫರರರದ ಇದದ.......ರರವರಗಗ ನಮಗಇದಗಕಕಕಡಡಡರರ......ಅದಕಡ.....
ಅಮಮಮಟಗರಕಡ ಮರಡಕಕಡಮಡಗಬಮದಕ........
ಅರಕಕಡಪ ಕಕಕಡ..........
ಫರರರದ ಮರಡಕಕಡಮಡಗ ಬಮದದದಡನ.....ಅದಕಡಇಪಪತಗ ನರವವರಕಡ ಮರಡಕಕಡಮಡಗ
ಬಮದದನ
ಅರಕಕಡಪ ಇಪಪತಕತದಗಅಲರಲ ಹಕಡಳದದದ
ಫರರರದ ಹಕಮ..........
ಅರಕಕಡಪ ಇಪಪತಕತದಗ
ಫರರರದ ಇಪಪತಕತದಗಹಕಡಳದವ......
ಅರಕಕಡಪ ಇನಕತದಗಕಕಲಲ ಆದಗಮಡಲಕನರ..........ಆಯದಡ..........
ಫರರರದ ಕಕಕಡನ ಸರರಗ...........
ಅರಕಕಡಪ ಹಕಮ..........ಎಷಷದಕ...........
ಫರರರದ ಎಣಕಕಲಣಳ .........ಸರರಗ....
ಅರಕಕಡಪ ಏನದದ
30 Spl.C.C.673/2018
ಫರರರದ ಹಕಮ..........
ಅರಕಕಡಪ ಇಪಪತಡದಕ
ಪಮಚ-1 ಲಕಕಡ ಹರಕಕಕಡಡಬಡ
ಅರಕಕಡಪ ನರನಗಆದಗಮಡಲಕ ಫಡನಗಮರಡಡನ........
In order to appreciate the previous demand for bribe as referred by PW-1 in Ex.P1 first information statement, it is necessary to refer the conversation contained in Ex.P4 pre-trap panchanama.
ಅರಕಕಡಪ ನರನಗಹಕಡಳದದಲಲ ನಡವಗಎರಡಗಮರಡಕಕಲಣಳಳ ಮಕರದ ಮರಡಕಕಲಣಳಳ 25 ಕಕಕಡಕಲಡಬಕಡಕಲರಲ ಹಕಡಳದದಡನ ಅರಕಕಡಪ ಈಗ ಕಕಕಟಕಕಷಡದಕವ ನರನದ ಅಪಕಲಪ ಮರಡ ನಮಮ ಪವಡಸಸಗಮರಡಡಡನ ಕಕಲಲ Therefore there is specific demand for illegal gratification on the part of the accused can be inferred from the above referred audio conversation. It further shows after demand from the accused, PW-1 has paid the tainted cash.
28. Before accepting the aforesaid recorded audio conversation in evidence, the next question arises for determination is regarding the admissibility of the said electronic evidence and the conversation recorded in the pre-trap and post trap panchanamas. PW1 in his evidence has stated that he has recorded the conversation in the voice recorder. The learned defence counsel questioned during the cross-examination of PW-1 regarding the date of purchase, the purpose, place of 31 Spl.C.C.673/2018 purchase of the said voice recorder but these details are apparently not relevant. It is the contention of the accused that the police have provided the said voice recorder to PW1. In the above circumstances for the sake of arguments even if it is presumed that the voice recorder was supplied to PW1 by the police, makes no difference in the evidence. The question to be answered is whether the informant had recorded the conversation in the voice recorder and secondly whether the conversation contained in the CD belongs to the accused. PW1 has issued Ex.P50 certificate and Ex.P51 is the similar certificate issued by his son by name Harshavardhana M.V. under Section 65B of Indian Evidence Act. As per the evidence of PW1, he got copied the conversation contained in the voice recorder to the CD through his son. Therefore, in view of issuance of Ex.P51 mandatory certificate as required under law, the conversation contained in Ex.P-22 CD and transcript of conversation in ExP-4 pre-trap mahazar are admissible in the evidence.
29. The prosecution has examined PW10 the voice analyst and she has issued Ex.P-58 voice analysis report. As per the said report and in her evidence, PW10 has specifically opined that ' the respective speeches said to be of accused Nagendra found recorded in CD marked as Article Nos.1 and 9 and sample speeches found recorded in CD marked as Article No.10 are similar and belongs to 32 Spl.C.C.673/2018 the same male speaker'. In the evidence of PW10 and Ex.P58 report, the expert has specifically stated that the words selected for analysis from the CD Ex.P22, 26 to 29 are found to be not edited. Moreover during cross- examination of PW-1,3,4, 9 and 10, the accused has not raised any contention that the CD sent for analysis has been edited. In the above circumstances, mere denial by tendering suggestions to the witnesses, PW-1,9 and 10 that the voice contained in the CD does not belongs to the accused itself is not sufficient to discard their evidence. The learned defence counsel during the cross- examination of PW10 has not specifically challenged the admissibility of Ex.P-58 report as well as the correctness of the opinion and conclusion arrived by the expert regarding the identification of the voice of the accused.
30. During cross-examination, PW10 has admitted that she is not aware that the sample voice recorded in Ex.P27 does not belong to the accused. DW1 in his evidence has not denied the recording of his sample voice in Ex.P27 CD. The aforesaid admission of PW10 and the contention of the defence will not come to his aid because PW-10 was not personally present at the time of collecting the sample voice of the accused as well as PW1 and 3. The evidence of PW-10 can be accepted only to the extent that the conversation contained in Ex.P-22 and Ex.P-27 belongs to the same person.
33 Spl.C.C.673/2018
31. It is the argument addressed on behalf of the accused that PW9 has admitted that he was not familiar with the voice of accused before PW1 produced Ex.P23 CD. The aforesaid version of PW9 is not unnatural. The prosecution has placed on record the oral evidence of PW-10 an expert and Ex.P-58 voice analysis report.
32. During the cross-examination of PW9 it is suggested to the witness that voice recorded in Ex.P27 CD is not the sample voice of the accused. But the evidence of PW10, Exs.P22, 26 and 27 CD containing the recorded conversation are the corroborative piece of evidence produced by the prosecution in addition to the oral evidence of Pws.1, 3 and 9 to prove the demand and acceptance of undue advantage. During the cross- examination of PW10, the learned defence counsel has failed to elicit any material admission in support of his defence. PW-1, 3 and 4 have deposed regrading the collection of sample voice of the accused. In the case on hand from the oral evidence of PW-1, 3, 4, and 9 it is proved that the sample voice collected in Ex.P-27 belongs to the accused. It is further proved from the evidence of PW-1 that the voice contained in Ex.P-22 belongs to the accused. Therefore the oral evidence of PW-10 expert and Ex.P-22, 26 to 29 audio conversation contained in the CD is admissible in evidence and accepted as corroborative evidence.
34 Spl.C.C.673/2018
33. It is argued by the learned defence counsel that PW4 has admitted that he is not aware who has kept the M.O-8 tainted cash in the trouser pocket of the accused. Admittedly, as per the prosecution case, PW-4 was not an eye witness to the trap proceeding instead he was standing outside the office with the investigating officer. PW3 is the shadow witness accompanied with PW1 to the office when the accused has demanded and accepted the bribe. Therefore the aforesaid admission of PW-4 has to be ignored as not material admission in support of the defence of the accused and it will not go to the root of the prosecution case.
34. PW5 and PW6 are the witnesses examined have partly turned hostile to the prosecution case. Therefore, the learned Public Prosecutor with the leave of the Court has cross-examined them. PW-5 has deposed that reason for discrepancy in his evidence regarding the bribe amount as Rs.25,000/- or Rs.40,000/- was due to the lapse of time. PW5 appeared before the court to depose evidence in the month of August-2021 whereas the incident occurred in the month of August-2017. Moreover, Pws.5 and 6 are not the witnesses either to the pre-trap or trap proceedings. Hence, their evidence regarding the facts connected to the trap are not relevant and need not be considered. But both the witnesses have not denied issuance of Ex.P2 and P3 letter of authorization in favour of PW1 in order to enter their 35 Spl.C.C.673/2018 name in the B form property register and to obtain property extract. Therefore only to the extent of issuance of Ex.P-2 and 3 letter of authorization in favour of Pw-1, their evidence is relevant and accepted.
35. The accused contended that he has attended the office regularly and affixed his signature in Ex.P24 attendance register from 16.8.2017 to 21.8.2017. Whether the accused after affixing the signature worked in the office or went to the field work is not forthcoming from the entire evidence. Ex.P-56 document contains the duties and responsibilities of the Tax Collector. There is every possibility that for collection of property tax the accused went out of the office to visit house to house and update collection details. Therefore, on 17.8.2017 and other days he might have went to field work cannot be totally denied. Ex.P4 pre-trap panchanama was drawn on 16.8.2017 and according to the prosecution on 17.8.2017 the accused was not present in the office. Therefore they went to trap the accused on 21.8.2017 and explanation forwarded in this regard is acceptable. There is no procedural irregularity followed by PW-9 in the investigation of the case or during the trap laid on 21- 8-2017.
36. It is one of the defences of the accused that the registration of name in B form property register is not his official duty and hence there was no occasion 36 Spl.C.C.673/2018 for him to demand and accept illegal gratification from PW1. As per the evidence of PW1, the accused as Tax collector has visited the site property for spot inspection. The accused has submitted that the Revenue inspector is the competent authority to pass order regarding the change of khata. The accused contended that the official work of Smt. Nirmala, PW-5 and 6 was not pending with him and secondly he is not the authority to pass order regarding connecting B form property register.
37. In reference to the above contention this Court finds it proper to refer the judgment of the Hon'ble Supreme Court reported in (2012) 8 SCC 527 in the case of Syed Ahmed Vs. State of Karnataka. As per the facts of the said judgment, the accused was working as a police officer, demanded illegal gratification. It is contended that the accused had no role to play and there was no occasion for him to demand any gratification since he was not investigating the case of the complainant. But the Hon'ble Court observed that in view of Section 7(d) of the PC Act, a public servant who is not in a position to do any favour to a person could also be deemed to commit an offence if he demands and accepts illegal gratification. The person demanding and accepting gratification is a public servant, there was demand for gratification and the gratification has been given to the accused are sufficient. In view of Explanation
(d) to Section 7 of the P.C. Act whether the public servant 37 Spl.C.C.673/2018 could or could not deliver results becomes irrelevant. Therefore on application of the above ratio to the facts of the case on hand, the argument of the accused that he is not the competent authority to pass any order in connection with the pending applications of PW-5,6, and Smt. Nirmala or there was no occasion for him to demand illegal gratification from PW-1 is not legally sustainable. Hence the above defence of the accused deserves to be rejected.
38. During cross-examination, PW1 has admitted that he is not exactly remembering the date of filing of the application before BBMP Sub-division office, Begur. But by producing Ex.P23 documentary evidence, the prosecution has placed proof that on 23-6-2017 Smt. Nirmala, Pws.5 and 6 have filed an application to obtain form B property register extract before the office of ARO Begur. It is the evidence of PW1 that since PW5 and PW6 are not conversant with Kannada language, all of them are working together, he has filed those applications before the concerned office to obtain 'B' property register extract.
39. The prosecution has produced Ex.P54 scientific examination report issued by the Chemical Examiner, Public Institute, Bengaluru. As per the report presence of phenolphthalein and sodium carbonate was detected in article No.5 and 6 and presence of phenolphthalein was 38 Spl.C.C.673/2018 detected in article No.7 and 8 currency notes and trouser of the accused. The presence of phenolphthalein is detected in both right hand and left hand finger washes of the AGO - Nagendra and also detected in the articles bearing Nos.3, 7 and 8. The relevant details of the report reads Sl. Article Physical Appearance Test for Test for No. No. Phenolph Sodium thalein Carbonate 4 5 Light pink colour Positive Positive solution (AGO-RHFW) 5 6 Light pink colour Positive Positive solution (AGO-LHFW) 6 7 Cover with currency Positive Negative 7 8 Cover with pant (AGO Positive Negative
- Pant) From the aforesaid documentary evidence the accused has handled M.O.8 currency notes is proved from Ex.P54 report.
40. Ex.P60 is he call details extract for the period 10.8.2017 to 21.8.2017 of the mobile phone belonged to the accused. Ex.P61 is the customer application form and as per the document Mobile No.8660083212 is appearing in the name of accused. From the said document it is clear that on 10.8.2017 at 10.56 a.m. PW1 has called the accused and on the same day at about 11.45 a.m. the accused has called back PW1. Therefore 39 Spl.C.C.673/2018 the defence of the accused that there was no conversation in between him and Pw-1 is apparently false.
41. As per the evidence of DW1, he is not having acquaintance with PW3 and he has seen him for the first time as on the date of evidence before the Court. But DW1 in his further examination-in-chief itself has specifically stated that as on the date of trap PW1 and PW3 came to his office and they have forcibly thrust MO.8 cash to his trouser pocket. In this regard the testimony of DW1 regarding his acquaintance with PW3 is inconsistent and contradicting.
42. The accused in his Ex.P-11 explanation and during the trial has submitted that he has been falsely implicated by PW-1 in this case. Admittedly there was no enmity between PW-1 and the accused to implicate him in a false prosecution. In this regard, the accused has failed to elicit any material admission during the cross examination of PW-1,8,9 or any other prosecution witnesses. In order to counter the defence of the accused it is apposite to refer the judgment of Hon'ble Supreme Court in the case of State of U.P. Vs Dr. G.K. Ghosh reported in (1984) 1 SCC 254. The Apex Court held that the police officer leading the raid party may be said to be an interested witness to a very limited extent. He is interested in the success of trap to ensure protection to 40 Spl.C.C.673/2018 the harassed citizen and vindication of the role of his department. A police officer, himself being a Government servant, would rarely resort to perjury and concoct evidence in order to rope an innocent Government servant. Therefore the argument of the accused that he has been falsely implicated is also required to be ignored.
43. The accused during cross-examination of PW1, 3, 4 and 9 has tried to establish that Pws.1 and 3 thrust M.O.8 cash to his trouser pocket. But all the witnesses have specifically denied the aforesaid suggestion tendered to them. Therefore, the defence of the accused in Ex.P11 explanation and contention taken during the cross-examination of prosecution witnesses PWs.1, 3, 4 and 9 is inconsistent and conflicting. DW-2 in his evidence during cross-examination of any of the witness has not whispered the amount paid by PW-1 was towards arrears of tax for 10 years. In Ex.P-11 explanation it is contended that PW1 has paid the tainted cash towards payment of arrears of property tax. But during the trial the accused has neither raised the said defence nor made any attempt to prove by placing any evidence. It is true to mention here that in a criminal trial the accused is entitled to take contradicting defence. But he has failed to show that the tainted cash was received towards legal remuneration and it is not illegal gratification.
41 Spl.C.C.673/2018
44. (a) In the judgment referred by the learned Special Public Prosecutor in Hazarilal case the Hon'ble Supreme Court held that in the absence of any explanation from the accused regarding the currency notes obtained by him irresistible inference must follow that the accused has received the amount. It is not necessary that the passing of money should be proved by direct evidence and it may also be proved by circumstantial evidence and under Section 114 of the Evidence Act, the Court may also draw an inference.
44(b). In the judgment referred by the prosecution supra in Mouhiuddin case the Apex Court held that once the informant parted with the tainted money and the same came under the hold and control and possession of the accused, the requirement is satisfied, then the only inference is that he accepted the same and thus obtained the pecuniary advantage. The ratio laid down in both the decisions are applicable to the facts of the case.
45. As per Section 20 of the PC Act, there is a presumption where it is proved that a public servant accused of an offence has accepted, obtained or attempted to obtain for himself or for any other person 42 Spl.C.C.673/2018 any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward for performing or to cause performance of a public duty, improperly or dishonestly either by himself or by any public servant.
46. In the case on hand, the prosecution from the foundational facts and evidence of PW-1, 3, 4, and 9 proved that the accused has demanded Rs.25,000/- and accepted Rs.20,000/-, the bribe from PW-1. The accused in Ex.P-11 explanation admitted the acceptance of the amount. In defence evidence and during cross- examination he has contended that PW-1 thrust the cash into his trouser pocket and thereafter M.O.8 cash was recovered from his possession. Hence, it is not necessary for the prosecution to prove the factum of recovery of the tainted cash from the accused and the procedural details such as chemical hand wash test conducted during the post trap formalities. The accused in his defence has not disputed the recovery of the tainted amount from his possession.
47(a). In the judgment reported in (2001) 1 SCC 691 in the case of M. Narsinga Rao vs State of A.P. the Hon'ble Supreme Court observed that once the demand and acceptance are proved, they give rise to a legal presumption under section 20 of the P.C. Act that the 43 Spl.C.C.673/2018 accused has accepted the same as illegal gratification, particularly when the defence theory put forth was not accepted. The only condition for drawing such legal presumption is that it should be proved that the accused had accepted or agreed to accept gratification. It is a rebuttable presumption, but if the accused fails to rebut the presumption, then it can be held that the prosecution had proved that the accused received the amount. Therefore on application of the above ratio to the facts of the case on hand, from the proved facts, this Court can legitimately draw a presumption that the accused has accepted and obtained the currency notes on his own volition. But he could not rebut the presumption either through cross-examination of the prosecution witnesses or in his oral evidence. When the accused has failed to rebut the presumption, the same would stick and then it can be held that the prosecution has proved that the accused has received the said amount. The degree of the burden of proof to rebut the presumption on the accused is mere preponderance of probability. It is sufficient if the accused offers probable explanation and he is not required to prove his defence by the strict standard of proof of beyond reasonable doubt. In the case on hand the accused has miserably failed to rebut the presumption appearing against him under section 20 of the PC Act.
44 Spl.C.C.673/2018 47(b). In Madhukar Bhaskarrao Joshi case relied by the learned special Public Prosecutor the Hon'ble Supreme Court held that once the prosecution has established that the gratification has been paid or accepted by a public servant, the court is under legal compulsion to presume that the said gratification was paid or accepted as a motive or reward to do any official act.
47(c). In B Noha case and Rajrajendra Singh Seth case relied by the prosecution, the Hon'ble Supreme Court followed the ratio laid down in Madhukar Bhaskarrao joshi case.
47(d). In Narendra Champakal Trivedi case, the Hon'ble Supreme court held that the presumption under Section 20 of the Act becomes obligatory and it is a presumption of law and cast an obligation on the court to apply it in every case brought under Section 7 of the Act. In the present case, the accused has admitted that PW1 has paid MO.8 cash but he sought to explain through Ex.P11 explanation that it was the property tax amount pertaining to the period of 10 years. During the trial, it is the defence of the accused that PW1 and 3 forcibly thrust M.O.8 cash into his pocket. The plea put-forth by the accused that the money was thrust in his pocket is not fit to be believed in the face of categorical and consistent evidence of the prosecution witnesses Pw.1, 3, 45 Spl.C.C.673/2018 4 and 9. Therefore the ratio laid down in the above referred judgments are applicable to the facts of the case on hand.
F. The conclusion:-
48. From the evidence of PWs.1, 3, 4 and 9 this Court arrived to the definite conclusion to draw the legal presumption against the accused that he has received M.O. 8 tainted currency notes from PW-1 as gratification for doing public duty. Ex.P-23 file was pending with the accused and it was recovered from his custody.
Therefore, once it is proved that the money was recovered from the possession of the accused, the burden of rebutting the presumption as contemplated under Section 20 of the PC Act shifts on the accused. In the present case, the efforts made by the accused in his defence evidence to rebut the presumption resulted in vain. Hence, this Court can arrive to the definite conclusion that the accused has miserably failed to rebut the presumption under Section 20 of the PC Act. Accordingly, the presumption as prescribed under law is drawn against the accused.
49. The evidence placed on record by the prosecution is consistent with the guilt of the accused and inconsistent with his innocence. The minor discrepancies or contradictions in the evidence which do 46 Spl.C.C.673/2018 not affect the merits of the case should be ignored. A criminal trial is meant for doing justice to all, the accused, the society, and a fair chance to prove to the prosecution. Then alone can law and order be maintained. As held by the Hon'ble Supreme court, the courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge.
50. On perusal of the entire prosecution evidence, it is cogent, corroborative, believable and trustworthy. The evidence clearly show that the accused has demanded Rs.25,000/- and accepted undue advantage of Rs. 20,000/- from PW-1. To attract the offence under section 13(1)(d) of PC Act, the public servant should obtain for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as such public servant. In the instant case there is evidence to the effect that the accused has obtained pecuniary advantage by corrupt and illegal means by abusing his position as the public servant. The ingredients to bring home the act of accused within the ambit of Section 7 and 13(1)(d) of the PC Act are satisfied. From the evidence let in by the prosecution it is evident that the accused has demanded and obtained illegal gratification from PW-1. The every acceptance of illegal gratification whether 47 Spl.C.C.673/2018 preceded by a demand or not, would be covered by Section 7 of the PC Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)
(d) of the PC Act. The act alleged against the accused of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)
(d) of the Act. After considering the aforesaid evidence and defence of the accused, the prosecution has proved the charges framed against the accused under Section 7, 13(1)(d) of the PC Act. In the result, point Nos.2 and 3 are answered in the affirmative.
51. Point No.4 :- In view of the above findings on point No.2 and 3, the accused is liable to be convicted for the offence under sections 7 and 13(1)(d) of the PC Act. Accordingly this court proceed to pass the following:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused is convicted of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
48 Spl.C.C.673/2018 The bail bond and surety bond executed by the offender and his surety are hereby stand discharged.
M.O. No.8 cash of Rs.20,000/- (Rupees twenty thousand) is confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to the ACB Police.
Office is directed to destroy M.O. No. 2 to 6sodium carbonate solution bottle, and MO -7 trouser after completion of the appeal period as the same are worthless.
(Dictated to the judgment writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open Court on this the 12 th day of April, 2022.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
49 Spl.C.C.673/2018 ORDERS The judgment is pronounced finding the offender guilty of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
2. On the quantum of sentence to be imposed, heard the learned Sri. CM Advocate, on behalf of Sri K.M.R. Advocate appearing for the defence. The learned counsel submitted that the offender is having family and hence the minimum punishment as prescribed under the provision may be imposed. The learned proxy counsel representing on behalf of Special Public Prosecutor has submitted that the quantum of sentence to be imposed is purely under the discretion of the Court and prayed for an order accordingly.
3. It is well settled law as held in the judgment reported in AIR 2004 SC 2317 in the case between N Bhargavan Pillai vs State of Kerala and in State vs Parthiban [(2006) AIR SCW 5267) that the provisions of The Probation of Offenders Act do not apply to the offence under the PC Act.
4. In this case, the incident had occurred on 21-08- 2017. Thus, the Amended Act No.1 of 2014, which came into effect from 16-01-2014, the offence under section 7 of the PC Act as on the date of offence was punishable 50 Spl.C.C.673/2018 with imprisonment which may extend to seven years and with fine and the minimum punishment shall be not less than three years. The offence under Section 13 (2) of the PC Act as on the date of offence was punishable with imprisonment which may extend to ten years and with fine and the minimum punishment shall be not less than four years. The amendments to the PC Act by Act No. 16 of 2018 came into force from 26-7-2018 are not applicable to the facts of this case.
5. In the light of the facts and circumstances of the case with particular reference to the nature and conduct of the offender in committing the offence, the quantum of sentence to be imposed has to be determined. The offender by committing the offence under the provisions of the PC Act has invited the risk to himself, and now he cannot plead for leniency in the sentence to be imposed against him. The facts and circumstances of the case show that, the offender has demanded Rs. 25,000/- illegal gratification and he has accepted part amount of Rs. 20,000/- from PW-1 for registering the names of Smt. Nirmala, PW-5 and 6 in B Form property register and for issuing the property extract. After negotiation, the offender has agreed to receive Rs.20,000/- as advance and the balance amount of Rs.5,000/- after completion of the official work. Hence the offender should be punished by apposite sentence, after taking into consideration the submission of the learned defence 51 Spl.C.C.673/2018 counsel for minimum punishment as prescribed under law.
6(a). In the judgment reported in 2020 SCC on line 412 in the case State of Gujarath Vs. Mansukhbhai kanjibhaibai Shah the Apex court held Corruption is the malignant manifestation of a malady menacing the morality of men. There is common perception that corruption in India has spread to all corners of public life and is currently choking the constitutional aspirations enshrined in the preamble.
6(b). In the judgment reported in (2006)8 SCC 693 State of M.P. Vs. Shambhu Dayal Nagar Hon'ble Supreme Court while responding to the plea for a lenient view for a charge of corruption expressed its concern against rampant venality by public servant and observed the public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post.
6(c). In AIR 2013 SC 1682 Niranjan Hemchandra Sashittal case the Apex court held the gravity of the offence under PC Act is not be judged on the measure of quantum of bribe, as corruption is not to be justified in degree.
52 Spl.C.C.673/2018 6(d). In the judgment reported in (2000)8 SCC 571 in the case between Madhukar Bahskarrao Joshi vs State of Maharastra para 18 the Apex court observed:
" When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given, the sentence shall not be less than the minimum prescribed under the Act. Such a legislative insistence is reflection of parliament's resolve to meet corruption cases with a very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences".
6(e). In the decision reported in AIR 2015 SC 2678 in the case of Shanthilal Meena vs State of NCT Delhi, 53 Spl.C.C.673/2018 the Hon'ble Supreme Court exhaustively dealt with penological philosophy behind sentencing under the PC Act. It is held that the punishment for the offences under the PC Act there is any scope for reforming the convicted public servant. Unless the courts awards appropriately deterrent punishment taking note of the nature of the offence and the status of the offender, people lose faith in justice delivery system and very object of the legislation will be defeated. The court has thus a duty to protect and promote public interest and build up public confidence. Misplaced sympathy or unwarranted leniency will send a wrong signal to the public giving room to suspect the institutional integrity affecting the credibility of its verdict.
7. Therefore after considering the ratio laid down in the above referred judgments, while awarding sentence, this court should bear in mind the expectation of the society to prevent the corruption in the public office by providing prompt conviction and stern sentence. The above referred ratio law laid down by the Apex court are aptly applicable to the facts of the case on hand.
8. After considering the accused was aged 45years as on the date of offence and the submission of the learned defence counsel, it is necessary at this stage to determine the quantum of sentence of imprisonment. This Court is not persuaded by the submission of the 54 Spl.C.C.673/2018 learned defence counsel to pass minimum sentence of imprisonment. However it is necessary to strike a balance between the maximum and minimum punishment. In Parthiben case referred herein above, the Apex Court held that the offence under section 7 and 13(1)(d) of the Act being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty. In the case on hand when the offence proved against the offender are under two different sections 7 and 13(1)(d) of the Act providing different punishments, the offender should not be punished with a more severe punishment than the court could award to the person for any one of the two offences.
9. After considering the above ratio laid down by the Apex court, the mitigating facts and circumstances of the case and reasons stated herein above, this court finds it is just and proper to sentence the accused to undergo rigorous imprisonment for a period of four years for the offence under section 7 of the PC Act and rigorous imprisonment for a period of five years for the offence under section 13(2) of the PC Act. The quantum of sentence of imprisonment is proportionate to the gravity of the offence and it would meet the ends of justice.
10. As per section 31 of the Cr.P.C. when a person is convicted at one trial of two or more offences, the punishment of imprisonment to commence one after the 55 Spl.C.C.673/2018 expiration of the other is the rule unless the Court directs that such punishments shall run concurrently is an exception.
11. As per section 16 of PC Act where a sentence of fine is to be imposed under section 13(2) of PC Act, the court shall take into consideration the amount or value of the property the accused person has obtained by committing the offence. In the case on hand, the offender from PW1 has demanded illegal gratification of Rs.25,000/- and has received an amount of Rs.20,000/-. Having regard to the amount of demand of bribe, this court finds imposing fine of Rs. 40,000/- to the offender is just and proper. In the result, this court proceed to pass the following:
ORDER The offender Nagendra is sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.20,000/- (twenty thousand) for the offence punishable under Section 7 of the PC Act and in default of payment of fine, he shall undergo simple imprisonment for further period two months and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 20,000/- (twenty thousand) for the offence punishable under Section 13(1)(d) read with Section 13(2) of PC Act and in default of payment of fine, 56 Spl.C.C.673/2018 he shall undergo simple imprisonment for further period two months.
Both the substantive sentence of imprisonment shall run concurrently.
Acting under section 428 of the Code, the period of detention undergone by the accused during the investigation from 21-08-2017 to 29-08-2017 shall be set off against the sentence of imprisonment. Free copy of the judgment be furnished to the accused forthwith.
(Dictated to the judgment-writer directly on computer, typed by him, corrected, signed and then pronounced by me in the open Court on this the 12 th day of April, 2022.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : M.V.Vasntha Kumar
PW 2 : Manjunath Prasad
PW 3 : Sunil Kumar
PW 4 : Harish Kumar M.
PW 5 : M.Murugan
PW 6 : Pariyaswamy
57 Spl.C.C.673/2018
PW 7 : P.Vanaraja
PW 8 : B. Shivashankara Reddy
PW 9 : Nanjegowda
PW 10 : Smt.C.Srividya
PW 11 : Koushik Murugesh
PW 12 : Dileep Kotagi
List of documents marked on behalf of prosecution:
Ex P1 : Complaint Ex P1(a) : Signature of PW 1 Ex P 2 : Authorization letter Ex P 3 : Authorization letter Ex P4 : Pre-trap mahazar Ex P4(a) : Signature of PW 1 Ex P4(b) : Signature of PW 3 Ex P4(c) : Signature of PW 4 Ex P4(d) : Signature of PW 9 Ex P5 : Mahazar Ex P5(a) : Signature of PW 1 Ex P5(b) : Signature of PW 3 Ex P5(c) : Signature of PW 4 Ex P5(d) : Signature of PW 9 Ex P6 : Trap Mahazar Ex P6(a) : Signature of PW 1 Ex P6(b) : Signature of PW 3 Ex P6(c) : Signature of PW 4 Ex P6(d) : Signature of PW 9 Ex P7 : 164 Cr.P.C. Statement of P.w.1 Ex P7(a) : Signature of PW 1 Ex P8 : Sanction order 58 Spl.C.C.673/2018 Ex P8(a) : Signature of PW 2 Ex P9 : Mobile conservation transcription Ex P9(a) : Signature of PW 3 Ex P10 : Currency details Ex P10(a) : Signature of PW 3 Ex P10(b) : Signature of PW 4 Ex P11 : Explanation Ex P11(a) : Signature of PW 3 Ex P12 : Sample voice of complainant Ex P13 : Sample voice of accused Ex P14 : Sample voice of PW3 Ex P15 : Sketch Ex P16 : Seal acknowledgment Ex P17 : Letter dt.25.10.2017 of ACB Ex P18 : Sketch prepared by PW7 Ex P19 : FIR Ex P20 : Letter dtd.16.8.2017 of PW9 to depute two witnesses Ex P21 : Letter dtd.16.8.2017 of PW9 deputing 2 officials as witnesses Ex P22 : C.D.containing conversation between complainant and the accused Ex P22(a) : Cover Ex P23 : Copies of documents seized during the trap Ex P24 : Copy of extract of attendance registered 59 Spl.C.C.673/2018 Ex P25 : Conversation transaction Ex P26 : C.D.containing conversation between pancha-
1, accused and complainant Ex P26(a) : Cover Ex P27 : C.D.containing sample voice of accused Ex P27(a) : Cover Ex P28 : C.D.containing sample voice of complainant Ex P28(a) : Cover Ex P29 : C.D.containing sample voice of pancha-1 Ex P29(a) : Cover Ex P30 : Sheet containing sample seal Ex P31 : Rough sketch Ex P32 to: Photographs Ex.P49 Ex P50 : Certificate u/S.65-B of Indian Evidence Act given by M.V.Vasantha Kumar Ex P51 : Certificate u/S.65-B of Indian Evidence Act given by Harshavardhan M.V. Ex P52 : Certificate u/S.65-B of Indian Evidence Act given by CW-17 Ex P53 : Certificate u/S.65-B of Indian Evidence Act given by PW-9 Ex P54 : Chemical examination report dt.5.9.2017 Ex P55 : Acknowledgment dt.31.8.2017 of FSL Ex P56 : BBMP Letter dt.5.9.2017 60 Spl.C.C.673/2018 Ex P57 : Certificate u/S.65-B of Indian Evidence Act given by CW-20 Ex P58 : FSL report Ex P58(a) : Signature of PW 10 Ex P59 : Certificate u/S.65-B of Indian Evidence Act given by PW8 Ex P60 : Call detail records of Mob.No.8660083212 Ex P61 : Customer application form Ex P62 : Certificate u/S.65-B of Indian Evidence Act given by PW-11 Ex P63 : Call detail records of Mob.No.9448312757 Ex P64 : Certificate u/S.65-B of Indian Evidence Act given by PW12 List of material objects marked on behalf of the prosecution:
MO 1 : Metal seal 'I' MO 2: Bottle containing clear sodium carbonate solution (Article-2) MO 3: Bottle containing pink coloured sodium carbonate solution (Article-3) MO 4: Bottle containing clear sodium carbonate solution prepared during trap proceedings (Article-4) MO 5: Bottle containing right hand wash of sodium carbonate solution (Article-5) MO 6: Bottle containing left hand wash of sodium carbonate solution (Article-6)
61 Spl.C.C.673/2018 MO 7 : Pant MO 7 (a) Cover containing pant MO 8 : Cash of Rs.20,000/-
MO 8 (a) Cover List of witnesses examined on behalf of defence side:
DW 1 : Nagendra List of document marked on behalf of defence side NIL XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
62 Spl.C.C.673/2018
Judgment pronounced in the open
Court vide separate Judgment. The
operative portion of the Judgment reads as under:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused is convicted of the offence punishable under Sections 7 and 13(1)
(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bond and surety bond executed by the offender and his surety are hereby stand discharged.
M.O. No.8 cash of Rs.20,000/-
(Rupees twenty thousand) is confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to the ACB Police.
Office is directed to destroy M.O. No. 2 to 6 sodium carbonate solution bottle, and MO -7 trouser after completion of 63 Spl.C.C.673/2018 the appeal period as the same are worthless.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ORDER
The offender Nagendra is
sentenced to undergo rigorous
imprisonment for a period of four years and to pay fine of Rs.20,000/- (twenty thousand) for the offence punishable under Section 7 of the PC Act and in default of payment of fine, he shall undergo simple imprisonment for further period two months and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 20,000/- (twenty thousand) for the offence punishable under Section 13(1)(d) read with Section 13(2) of PC Act and in default of payment of fine, he shall undergo simple imprisonment for further period two months.
64 Spl.C.C.673/2018 Both the substantive sentence of imprisonment shall run concurrently.
Acting under section 428 of the Code, the period of detention undergone by the accused during the investigation from 21-08-2017 to 29-08-
2017 shall be set off against the sentence of imprisonment.
Free copy of the judgment be furnished to the accused forthwith.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.