Karnataka High Court
R Manthra Murthy vs The State Of Karnataka By Inspector Of ... on 11 December, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2015
BEFORE
THE HON'BLE MR.JUSTICE A.V.CHANDRASHEKARA
CRL.A. No.987/1999
BETWEEN:
R MANTHRA MURTHY
S/O K RAMACHANDRAN, 48 YRS
THIMMAIAH CHAMBERS, 3, 1 CROSS
GANDHINAGAR, BANGALORE
BRANCH OFFICER,
SHASTRI BHAVAN
26, HADDOW'S ROAD, NUNGAMBAKKAM,
CHENNAI-6
AND R/O 11/88, CENTRAL GOVT QRTS.
... APPELLANT
(By Sri: SANDESH J. CHOUTA, ADV FOR
SRI: SYED AKBAR PASHA, ADV.)
AND
THE STATE OF KARNATAKA
BY INSPECTOR OF POLICE
CBI/SPE, BANGALORE
... RESPONDENT
(By Sri: AIYAPPA, ADV FOR
JADHAV ASSOCIATES, ADVS. )
CRL.A FILED U/S. 374(2) CR.P.C. BY THE ADVOCATE FOR
THE APPELLANT AGAINST THE JUDGMENT DATED 29.9.99
PASSED BY THE XXI ADDL. CC AND SJ., AND SPL.JUDGE,
BANGALORE, IN CC NO. 78/96 CONVICTING THE APPELLANT-
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ACCUSED FOR THE OFFENCE U/S. 7 AND 13(2) R/W 13(1)(D) OF
PC ACT, 1988 AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 19.11.2015 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE
THE FOLLOWING:
JUDGMENT
The present appeal is filed under Section 374 (2) of the Code of Criminal Procedure, challenging the judgment of conviction dated 29.09.1999 and sentence dated 30.09.1999, passed against the appellant by the XXI Additional City Civil and Sessions Judge cum Special Judge for C.B.I. cases, Bengaluru City, in CCH.4 in Spl. C.C.No.78/1996. The appellant has faced a trial for the offences punishable under Sections 7, 13(2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988, (hereinafter referred to as the Act, for brevity). By the impugned judgment of conviction, the accused-appellant has been convicted for the offences punishable under Section-7 and 13 (2) read with 13 (1) (d) of the Act and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.1000/- for the offence punishable under 3 Section-7 of the Act and to undergo S.I. for one year and to pay fine of Rs.1000/- for the offence punishable under Section- 13 (2) read with 13 (1) (d) of the Act. It is ordered that the sentences have been ordered to run concurrently.
2. The case of the prosecution leading to filing of the case against the accused-appellant is as follows:
a) The appellant was working as the Assistant Registrar of Companies at Bengaluru, during the year 1994. Mr. Raju-
complainant (PW.1) was the director of M/S. Cosmos Audio and Video Private Limited which had been promoted by his brother Sri. Mahesh and the said company was incorporated during the year 1990 vide No.08/10986 of 1990-91.
b) The said company of the complaint was completely burnt during the cauvery riots of December 1991 and as such, he had incurred heavy financial loss. Its records also got destroyed in the said riot and hence, he had filed a criminal case about the same. On 31.08.1994, the Registrar of Companies had addressed a letter to him stating that accused, 4 being the Assistant Registrar of Companies, would inspect the books of accounts and accordingly, the complainant is stated to have met the accused on 07.09.1994 in his office at Gandhinagar and explained about the destruction of the books of accounts of the company in the riots and sought time for reconstruction of the documents. The accused is stated to have told him that he would not be in a position to extend the time and if the complainant agree to pay Rs.5000/- bribe, time would be extended. The complainant was not agreeable for the same and on the next date, the complainant again visited the office of the Registrar of Companies and submitted a letter, requesting some time to produce the books of accounts and thereafter, the complainant did not hear anything from the Registrar of Companies ('ROC' for short).
c) Again on 16.11.1994, he received a letter from the accused, directing him to comply with the direction given in the earlier notice dated 31.08.1994, failing which the penal proceedings would be initiated against him. The complainant is stated to have met the accused in his chamber of Registrar of 5 Companies at 11.00 a.m on 23.11.1994 and requested him for some more time to submit the records and once again the accused demanded an amount of Rs.5000/- as bribe for giving sufficient time to the complainant for submitting the records.
d) When the complainant expressed his inability, the accused asked him to pay sum of Rs.2000/- as advance and pay the balance within a week. Since the complainant had already suffered financial loss, he was not agreeable for the same and chose to lodge a complaint against the accused to the CBI, on the basis of which a case came to be registered.
e) An entrustment mahazar was recorded in the CBI office and in the presence of shadow witnesses and trap was conducted in the office of the accused. The hands of the accused were dipped in sodium bicarbonate solution, as a result of which, it turned pink-red. After concluding the investigation, charge sheet came to be filed against the accused-appellant for the offences mentioned above. After conclusion of the trial, the accused-appellant has been convicted and sentenced to 6 undergo imprisonment, as stated supra. The judgment of conviction and sentence is called in question in this appeal on various grounds as set out in the appeal memo.
3. To bring home the guilt of the accused, prosecution has examined in all 7 witnesses and got marked 23 exhibits and 04 material objects. The case of the accused is one of total denial of the allegations made against him and that he had no capacity to do any official favour to the complainant and therefore, the question of demanding bribe or receiving the bribe does not arise. No evidence is adduced on their behalf. However, he has been examined under Section 313, Cr.P.C. He has emphatically denied the existence of any possibility to do any official favour to the complainant and the alleged demand and receipt of the tainted amount.
4. On earlier occasion, this Court had confirmed the conviction and sentence imposed on the accused-appellant by pronouncing the judgment dated 14.03.2006 and the matter had been carried to the Hon'ble Apex Court in Crl. A. No. 7 1620/2007 and by the Judgment dated 08.09.2015, the matter is remanded by the Hon'ble Apex Court.
5. Heard Shri. Sandesh J. Chouta, learned counsel appearing for the appellant and Shri. C.H. Jadhav, learned senior counsel appearing for the respondent-CBI and perused the records.
6. Learned counsel for the appellant has submitted his arguments elaborately by relying on innumerable decisions. He has argued that the accused had no scope to do any official favour, in order to demand bribe and that the prosecution has failed to prove the alleged receipt of bribe, so as to attract the provisions of Section-7 of the Act. He has argued that the learned judge of the trial Court has erred in convicting the accused without there being any corroboration in so far as the version of the complainant (PW.1) is concerned. He has argued that the shadow witness has not spoken anything as to what transpired between the accused and the complainant and that serious inconsistencies and contradictions found in the 8 evidence of material witnesses have not at all been considered by the trial Court. He has further argued that if really the accused met the complainant and demanded bribe amount, nothing prevented the complainant to meet his superior i.e., the Registrar of Companies, whose chamber was located adjacent to the chamber of the accused. He has argued that there was inordinate delay in submitting FIR., which has not been taken into consideration while evaluating the evidence by the learned trial Judge. It is argued that the accused should have been given an opportunity to put his say, in regard to the alleged trap, soon after he was trapped and the same is absent in the present case.
7. On the other hand, the learned senior counsel for the respondent-CBI drew the attention of the Court to various documents and argued that the learned Judge of the trial Court has properly analyzed the oral and documentary evidence and arrived at proper conclusion and justified in convicting the accused-appellant and that there is no illegality or perversity in the approach adopted by the trial Court and hence, the 9 impugned judgment does not call for interference from this Court and prays for dismissal of the appeal.
8. After hearing the learned counsel on both side and on going through the records, the following points arise for consideration of this court in the present case:
1) Whether the prosecution has established that there was any scope for the accused to do any official favour to the complainant.
2) Whether the alleged receipt of the tainted money by the accused is proved on demand, in terms of Section-7 of the Prevention of Corruption Act 1988.
3) Whether the trial Court is justified in
convicting and imposing sentence on the
accused for the offences for which he are
charged?
4) Whether any interference is called for by this court?, if so, to what extent
5) What order?10
REASONS
9. Point No (1): The scope for demanding bribe by a public servant would arise if there is possibility of doing any official favour. The prosecution is expected incidentally to make out a case that the accused had opportunity to do official favour and therefore demanded PW1-Raju to pay bribe.
10. In the case on hand, the fact that the accused was the director of a private limited company run under the name and style of M/S. Cosmos Audio and Video Cassets Pvt. Limited at B-110, peenya industrial area is not in dispute. According to him, the entire factory along with the books of accounts were destroyed because of the cauvery riots. In this regard, he had lodged a complaint to the jurisdictional police on 14.12.1991. A the detailed mahazar was drawn by the police during the course of investigation and he had in fact claimed compensation from the insurance company for the loss sustained by him.
11. The fact that he had received a letter from the Registrar of Companies calling upon him to submit the books of 11 accounts is also not in dispute. The said letter is dated.31.08.1994 is marked as Ex.P.2. Through the said statutory notice issued under Section-209A of the Companies Act, the Registrar of Companies had directed him to submit the books of accounts and other documents before the Assistant Registrar of Companies on 08.09.1994, i.e. the accused. According to the complainant, he met the accused personally on 07.09.1994 and explained to him that all the records were destroyed in the cauvery riots and he had requested him to give him 3-4 months time to produce the re-built books of accounts. At the same time, he addressed a letter to the Registrar of Companies as per Ex.P.9 on 07.09.1994, in his factory letter head and requested him to grant some time. It is his case that on 07.09.1994 accused met him and demanded bribe amount.
12. However, in his cross-examination he has deposed that during 1994, his company was running but since 1995, the company was closed and after renovation, whatever the account books maintained in the company till 1994 were with the company. The letter received from the Assistant Registrar of 12 Company was during the month of September 1994 and he had been called upon to produce the books of accounts of the year 1990 onwards and not of the current year. He has specifically admitted that after discussion with the accused only, he gave a letter in this regard to the higher authority and that he does not remember as to whether he had shown that letter to the investigation officer or not. It is just and necessary to refer to the order of the Registrar of Companies, extending the time up to 20.10.1994 for production of books of accounts. The note dated 13.09.1994 put on Es.P.20 was indeed put up by none other than the accused and on the basis of the said note, the Registrar of Company passed order on 19.09.1994. Ex.P.20 reads as under:
"Please see letter dated 07.09.1994 from the company, they request for time up to 20.10.1994 for production of books of account in this office. For advise please.
Sd/- 13.09.1994 (ARC). Allowed. Sd/-
19.09.1994 (ROC)".
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13. The document marked at Ex.P.20 specifically
indicates that a letter was addressed by the complainant on 07.09.1994 to the Registrar of Companies, requesting him to grant some time to produce the books of accounts which were not handed over to the Registrar of Companies who has been examined as PW.5. PW.5 does not speak about the accused met him or submitted Ex.P.3 to him on 7.9.1994. However, as could be seen from the letter of the complainant marked as Ex.P.3 reveals that the said letter had been marked to 'ARC' the accused and on the basis of Ex.P.3, the accused himself had put up note before the 'ROC'. If really the accused had authority to extend time on his own and demanded bribe from the complainant to do such favour to the complainant, he could not have put up note and sought orders from 'ROC', as found in Ex.P.20. On the contrary, the same would clearly reveal that the accused had no authority to extend the time sought by the complainant, except inspecting the books of accounts of the complainant's company, as directed by the 'ROC' and it was 14 only the 'ROC' who is the competent authority to grant extension of time.
14. PW.5. V. Srinivasa Rao was the Registrar of Companies at the relevant point of time. He has deposed that every company is required to file annual return and balance sheet and he is the competent authority to inspect them and the Assistant Registrar of Companies was also assisting him. He had assigned the work of inspecting the books of accounts of the complainant's company to the accused and accordingly, notice had been issued by him to the company to produce the books of accounts before the accused, i.e. Assistant Registrar of Companies. In fact, he has specifically deposed that the accused, had put up note for extension of time, on the basis of the request made by PW.1 and he has specifically deposed as follows:
"Now I see the said slip and the same is now marked as Ex.P.19. The contents of Ex.P.19 are in my handwriting. Thereafter, the accused prepared a letter as per Ex.P.2 and placed it before me. Ex.P.2 is the office copy. As per Ex.P.2, the concerned company was 15 informed that inspection is commencing and they were directed to produce the necessary documents. Ex.P.2 bears my initials. My initials are now marked as Ex.P2(a). After letter as per Ex.P.2, the inspecting officer makes correspondence with the party. After Ex.P.2 was sent to the said company sent a communication to us as per Ex.P.3. Ex.P.3 was brought to my notice, by the accused. After receiving Ex.P.3, the accused prepared notes and the said notes were placed before me. Now I see the said notes and the same are now marked as Ex.P.20. The contents of Ex.P.20 are in the handwriting of the accused. Ex.P.20 bears the initials of this accused. The initials of the accused identified by the witness is now marked as Ex.P20(a). Thereafter I made an endorsement "Allowed", put my initials and date. The said endorsement, my signature and the date are now together marked as Ex.P20 (b)."
By the said note, the extension of time sought by the said company for production of the books of accounts and documents was recommended by the accused, which was approved by the ROC (PW5).
15. After the lapse of more than one month, the accused sent another letter to the complainant's company on 14.11.1994 which is marked as Ex.P.8, which bears the signature of the 16 accused as per Ex.P8(a). In the said letter, the complainant's company was called upon to comply with the letter dated 31.08.1994, failing which, penal proceedings, as contemplated under Section-209A (8) of the Companies Act 1956 will be initiated.
16. PW.1, the complainant has categorically admitted that he had submitted a letter as at Ex.P.3 dated07.09.1994, requesting the 'ROC' to extend the time up to 20.10.1994 to submit the books of accounts wherein, he had not at all made any allegation/complainant against the accused in the said letter. It is his case that he did not make any complaint against the accused to the higher authorities about the accused demanding bribe from him. At this juncture, it is just and relevant to extract the letter dated 07.09.1994 written by the complaint, marked as Ex.P.3 which reads as follows:
"The Registrar of Companies Karnataka, No.3, Thimmaiah Chambers 1st floor, Gandhinagar, Bangalore-9 Ref: YOUR LETTER NO AROC-
10986/209A/94.17
Respected Sir, While thanking you for the patient audience given to me yesterday regarding to production of certain books etc. under Section 209A of the CA 1156.
I once again request you to provide extension of time up to 20.10.1994 for complying with your direction. I have explained to you in person regarding the unfortunate happenings during Cauvery Riots in 1991 December and the consequent problems the company and undersigned have to face till date. Still the problems created out of the Riot and yet to be solved. I need time to do the needful as entire books were set in riots fire, please oblige and permit me to produce books etc. Thanking You for Cosmos Audio & Video (P) Ltd.
(Sd/-) Director"
17. On a plain reading of the contents of Ex.P.3 it is clear that the complainant had indeed thanked the accused for giving patient hearing to his request for production of the books of accounts, in response to the first letter dated 31.08.1994 18 addressed by the 'ROC'. It is also to be seen that the chamber of the 'ROC' and the 'ARC' (the accused) were abutting to each other in the same building and as deposed by the 'ROC' (PW.5), the complainant never made any complaint against the accused about demanding bribe or causing any problem in regard to the extension of time to produce the books of accounts. It is also just and necessary to see that in spite of extension of time given up to 20.10.1994, the complainant did not produce any books of accounts and only thereafter, the accused issued one more letter on 14.11.1994 to the company directing them to produce the books of accounts. Even the subsequent letter dated 14.11.1994 (Ex.P.8) addressed by the accused to the complainant by the accused bears the signature of the accused, to whom the responsibility has been entrusted by the 'ROC'.
18. Furthermore, in Ex.P.5, the complaint (FIR) stated to have been submitted by the complainant to the Superintendent of Police, CBI on 23.11.1994, he has narrated the events relating to the production of books of accounts and the alleged demand made by the accused. He has specifically mentioned 19 in the FIR., that on 07.09.1994, he met the accused in the office of the 'ROC' and explained to him about the difficulty faced by him for production of books of accounts, since they have to be reconstructed, in the light of destruction of the documents in the Cauvery riot.
19. By a combined reading of the contents of the FIR (Ex.P.5) with the letter of the complainant dated 07.09.1994 (Ex.P.3)and the deposition of PW.1 before the Court, the same would clearly reveal that in the said letter, he categorically mentioned stating that 'thanking you for the patient audience given to me "yesterday" regarding production of certain books etc. The word 'yesterday' would clearly indicate that the complainant had met the accused on 06.09.1994. If the word 'yesterday' found in Ex.P.3 is taken into consideration in the light of the contents in the FIR Ex.P.5, it is very clear that though the letter mentioned in Ex.P.3 is 07.09.1994, the actual date was on 08.09.1994, and the note put by the accused before the 'ROC' who in turn extended the time up to 20.04.1994 as per Ex.P.20 is 13.09.1994. As such, the case of the 20 complainant that the accused demanded money before he put up note in regard to the extension of time contradicts the contents of FIR (Ex.P.5) with the letter of the complainant as at Ex.P.3 and the extension order as at Ex.P.20. On a combined reading of the contents of the complaint Ex.P.5, the letter of request dated 07.09.1994 submitted by the complainant at Ex.P.3 and the extension order dated 13.09.1994 (Ex.P.20) with that of the oral evidence of the complainant (PW.1), it is clear that the accused had no authority whatsoever to extend the time for production of books of accounts, though he had been entrusted with the duty of inspecting the books of accounts of the complainant's company, as directed by the 'ROC'.
20. All these documents clearly reveal that the 'ROC' was the competent officer having power to extend the time and the accused has indeed recommended for such extension of time by putting note on 13.09.1994, as per Ex.P.20. If really the accused did have power to extend the time directly, he could not have put up his note to the Registrar of Companies, as found in Ex.P.20 and the power of extension of time is 21 essentially with the 'ROC'. On the other hand, as per Section 209A of the Companies Act 1956, and as per the direction of the 'ROC', the accused had been authorized to only inspect the books of accounts of the complainant's company and he had no role in granting extension of time to furnish the books of accounts. In strict compliance of the instructions of the 'ROC', the accused had issued notice to the complainant's company on 14.11.1994, after the expiry of the extended time. It is inconceivable as to the reason for the complainant going and meeting the accused on 08.09.1994 seeking further extension of time and would clearly indicate that the accused had no scope and opportunity to do any official favour to the complainant. The subsequent notice dated 14.11.1994, calling upon the complainant-company to produce the books of accounts cannot be considered as the basis to make further demand, in the light of the inability of the complainant to prove the scope of the accused to extend time and scope to demand for bribe amount. 22
21. Apart from this, the letter of request given by the complainant-company as at Ex.P.3 does not even remotely indicate that the accused had power to extend the time and accused having made a demand for bribe. On the contrary, the contents of said letter Ex.P.3 reveal that the complainant had indeed appreciated the efforts of the accused by mentioning "thanking you for the patient audience given to me yesterday regarding to production of certain books etc". If at all anybody who could have found fault with the issuance of notice as at Ex.P.8, it was only the 'ROC' and admittedly, he has not found fault with the said procedure adopted by the accused. The procedure adopted by the accused, once again calling upon the complainant to produce books of accounts was in continuation of the extension of time granted to produce the documents till 20.10.1994. Since the complainant has failed to produce the books of accounts even 14 days after the expiry of the extended dated, the accused had complied with his statutory obligation in issuing one more letter on 14.11.1994 as per Ex.P.8. In fact, PW.5 the 'ROC' has specifically deposed 23 that after the expiry of the time under Ex.P.20, the accused had sent one more notice as per Ex.P.8, which bears the signature of the accused.
22. In the case of N.A. Suryanarayana @ Suri -Vs- State by Inspector of Police, CBI/SPE/Bangalore (2015 (1) KCCR 898), this Court has reiterated that in a trap case relating to the role of a public servant receiving bribe money, prosecution is expected to primarily discharge its initial burden of proving that the public servant in question had the capacity to do some official favour in order to demand bribe and that the said bribe amount was received only after demand as contemplated under Section 7 of the Act. Further, reiterating the principles enunciated in the case of State of Andhra Pradesh Vs. K. Narasimhachary (2006 Crl.L.J. 518 (SC), this Court, in the case of N.A. Suryanarayana Vs- CBI 2015 (1) KCCR 898, it is has reiterated that the Court is expected to look into closely as to whether the accused had the official role to play in order to do an official favour. As per the facts of Narasimhachari's case, the accused was merely a 24 recommending authority and not the authority to issue valuation certificate. The accused therein was not authorized to issue property valuation certificate. In fact, the certificate had already been forwarded and sent to the official authority, before the alleged demand for bribe was made by the accused and the said circumstances created doubt in the mind of the trial Court. Hence, the accused had been acquitted and the appeal filed there from to the High Court as well as the Apex Court were dismissed, confirming the judgment of acquittal passed by the trial Court.
23. Even as per the facts forthcoming in the case of SURYANARAYANA (supra), referred supra, the accused was not competent to issue telecast certificate and it was the Director of Doordarshan who had the authority to issue telecast certificate. The accused therein was working as program executive and being a subordinate to the Director of Doordarshan, did not issue telecast certificate, since the agency had not paid the requisite telecast fee and guarantee fee amount to the Doordarshan Kendra. There was no evidence placed on record 25 in regard to the fact that the accused therein had authority, either to issue telecast certificate or to put up the meeting notes to the Director. Even if he was expected to issue such telecast certificate, the requisite payment of telecast fee and minimum guarantee fee was an absolute requirement and the Director of Doordarshan was the competent authority to issue said certificate.
24. In the background of the dictum of the Hon'ble Apex Court mentioned supra and decision of this Court and on re- appreciation of the entire oral and documentary evidence, this Court is of the considered view that the prosecution has failed to establish beyond reasonable doubt that the accused- appellant, being a public servant, had capacity to do some official favour in order to demand bribe as contemplated under Section-7 of the Act by adducing cogent and corroborative evidence to establish the same. Accordingly, the point No (i) is answered in the negative.
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25. Point no.(2): Mere possession of money would be inadequate to raise a presumption under Section 20 of the Act. Section 20 of the P.C. Act is reproduced below:
20. Presumption where public servant accepts gratification other than legal remuneration.--
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause
(a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-
sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
27Thus it is clear that the trap laying officer should give an opportunity to the accused about the receipt of bait money and if such an opportunity is not given, it weakens the case of the prosecution to a little extent. The normal procedure that would be adopted by the trap laying officer is to give an opportunity to the accused to give his statement about the receipt of money soon after washing his fingers in sodium bicarbonate solution, i.e. at the time of drawing recovery mahazar. The accused should be asked either to give a statement in writing, or if he is not in a position to write, to give his oral say, which would be reduced into writing in the presence of the complainant and witnesses and signed by all concerned. In the present case, the IO has not complied with this important procedure.
26. Acceptance of bribe amount or possession of tainted money by the public servant must be preceded by demand in terms of Section 7 of the Act and evidence in that regard has to be appreciated properly. The normal procedure to be adopted is to take into account from the shadow witness about what transpired between the complainant and the accused and then 28 from the complainant, and thereafter to ask the accused to produce the amount, if he had received. In the present case,it is forthcoming that no opportunity was given to the accused to give an explanation about the amount allegedly received by him.
27. The initial burden in a trap case lies on the prosecution and the prosecution is expected to prove that bribe money was received only after demand. A rough sketch of the spot has to be drawn by the trap laying officer immediately ater laying trap, without undue delay. The statements of all material witnesses also has to be recorded without undue delay.
28. When the first information is received, a case should be registered and the first information report and first information will have to be sent to the jurisdictional judge by the police without undue delay and the same will have to be sent in a sealed cover, requesting the judge to open the same after the report is submitted by the IO. The purpose of sending the report as well as the first information to the judge is to see that information received relating to the intended trap is kept 29 secret till the trap is successful. For various reasons, it may not be possible to trap the accused immediately after receipt of the first information. This may be due to the absence of the accused in the office, or somebody giving information to him about the intended trap. In this case, there was a delay of almost 5 hours in lodging the FIR before the judge after the registration of the case. The constable who submitted the FIR is not examined.
29. The case of the prosecution is that the accused demanded bribe from PW-1, Raju on the second occasion, i.e. 23.11.1994 and a sum of Rs.2,000/- was paid to him only after demand was made. He has deposed that he met the accused on 23.11.1994 and expressed before him the difficulty to produce the documents called for. The accused is stated to have reminded him that he should pay Rs.5,000/- as bribe to him for extension of time to produce the documents, lest, action would be taken against the company. Then after listening to his difficulties, he is stated to have asked him to pay at least Rs.2,000/- then and there and the remaining amount to be paid 30 within a week. He was not interested in paying bribe and therefore, he came to CBI office to lodge first information.
30. Ex.P5 is the first information lodged by the complainant before the police. He has mentioned in Ex.P5 that on the morning of 23.11.1994 at 11.00 a.m. he visited the office of the Registrar of Companies and met the accused in his chamber and requested for some time. Once again he is stated to have demanded Rs.5,000/-. Prosecution has relied on this document to show that there was another demand made on23.11.1994 and this is reiterated by the complainant in his oral evidence.
31. The complainant will be normally interested in getting the accused trapped and in that sense, he will be an interested witness. Therefore, the version of the complainant needs a little corroboration in regard to the demand and receipt of the amount.
32. In fact, PW-2, Mr.G.V.Dixith,. a shadow witness and a bank manager has deposed that inspector-Gopalakrishna had 31 instructed him to follow the complainant and watch the proceedings by standing in a suitable position in the office of Mantra Murthy-accused. After reaching the office of the complainant, PW-1, Raju went to the chamber of the accused and himself and Chandramouli sat on a sofa outside the chamber of the accused. He was there for a few minutes and then returned. At that time both of them found that PW-1 was wiping his face with a handkerchief as directed by the IO. It is his specific case that he could not overhear the conversation that took place inside the chamber of the accused. He has stated that they were discussing something inside the office and on seeing the pre-arranged signal given by the complainant, himself, Chandramouli and other officials rushed to the chamber of the accused and by that time, accused was counting the notes of the trap. According to them, except the accused and themselves, there was no other person in the chamber. After seeing them, accused became nervous and was perplexed. Suddenly he kept the amount on the table.
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33. The sketch of the chamber of the accused in the office of the Registrar of Companies was prepared by the engineer several days after the trap. The chamber of the accused is just abutting the chamber of the Registrar and it is an open chamber with a few almirahs kept in front as demarcation. The opening to his chamber was 5 ft. in width and on the left side of the entrance, there was a sofa. If somebody were to sit on the said left side sofa, he/she could see as to what would happen in the chamber of the accused. Instead of sitting there, both PW- 2 and Chandramouli sat outside the chamber abutting the almirahs kept as partition. PW-2 has not deposed anything as to why he did not sit on the sofa kept on the left side entrance of the chamber of the accused.
34. On going through the sketch and deposition of PW-2, it is evident that there was no complete partition to the chamber of the accused and above the almirah, there was vacant space. It is ununderstandable as to how he could not overhear the conversation having sat outside the chamber of the accused. It is in this regard the defence taken by the accused in his 33 examination under Section 313, Cr.P.C. is relevant. To question no.84 as to whether he has anything more to say, he has produced his written submissions and therefore, the same will have to be taken into consideration. Following is the stand taken by him in paragraph 6 of the written submission filed during the course of examination of the accused under Section 313, Cr.P.C.
'In the evening around 5.00 p.m. the complainant came to me. I asked him to show the letter seeking time. When he said he had not brought the letter I told him the letter was necessary to seek orders from the Registrar and started doing my work. Just then he suddenly thrust something into my hands and rushed out. I was stunned by his behaviour. Before I could realize what it was, a man rushed inside and caught hold of my both hands and held them high up along with the notes. (by then I had realized it was money). Then the CBI Inspector came and showed his identity cards and others also c came behind him. All this time my hands were held up with the notes closed oin my left hand.
Then a person from the crowd removed the notes from my left hand while it was being tightly held by the man who came first. Then my hands were dipped forcefully in glasses of water and then only my hands were released. Then the inspector put some questions, which all I replied in the negative. They kept me in the office till 10.000 p.m. and from their conversation, I could realize that some persons had been sent for searching my house my house.' 34
35. As held in the case of T.SUBRAMANIAN .v. STATE OF TAMILNADU (2006 SCC (Crl.) 401), mere proof of receipt of money in the absence of proof of demand and acceptance as illegal gratification would not be sufficient to establish the guilt of the accused. IN the latest decision in the case of STATE OF PUNJAB .v. MURLI MANOHAR VERMA (AIR 2013 SC 3368), referring to the earlier decisions, the Hon'ble apex court has referred to and once again reiterated that the demand for illegal gratification is ia sine qua non to constitute an offence under the Prevention of Corruption Act and that in exceptional circumstances, the appellate court, for compelling reasons, should not hesitate to reverse the judgment of conviction if the finding so recorded is found to be perverse, i.e. if the conclusion by the court below are contrary to the evidence on record, or if the court's entire approach with respect to dealing of evidence is found to be illegal leading to miscarriage of justice, or if the judgment is unlawful and based on an erroneous understanding of the facts and law.
35
36. In the case of STATE OF MAHARASHTRA .v.
DHYANESHWAR ([2010] 2 SCC (Crl.) 385 and in the case of BANARASIDAS .v. STATE OF HARYANA ([2010]) 2 SCC (Crl.)
864) , the provisions of Sections 101 and 102 of the Evidence Act have been considered at length in the light of the provisions of Section 20 of the P.C. Act. It is held that before the accused is called upon to explain how the tainted money was in his possession, the foundational facts must necessarily be established by the prosecution. Further, it is made clear that while invoking Section 20 of the P.C. Act, the court is required to consider the explanation offered by the accused, if any, that too, on the touchstone of preponderance of probabilities without insisting on proof of reasonable doubt. In fact, PW4 Gopalakrishna who laid the trap, has deposed as follows:
'I instructed both the independent witnesses to follow the complainant and to watch the proceedings between the accused and the complainant without giving rise to any suspicion and also to instructed CBI officials to have appropriate positions and therefore, the purpose of sending G.V.Dikshit and Chandramouli was to watch the proceedings 36 that would take place in the chamber of the accused and to overhear the conversation. ' G.V.Dixit has not spoken anything as to what transpired in the chamber of the accused except stating that he had sat on the other side of the chamber which was divided by keeping a few steel almirahs. He has further deposed that the two independent witnesses occupied the sofa from where they were not able to see the proceedings going on between the accused and the complainant because of the partition. He has further deposed that if the two independent witnesses had occupied the sofa near the computer room, they could have watched the proceedings. He has given explanation that they could not sit on the said sofa because a number of files had been kept. This is not substantiated in any manner. The reasonable inference is that nothing transpired between the accused and the complainant.
37. The purpose of sending shadow witness to accompany the complainant is to somehow overhear the conversation or watch the proceedings that takes place between the accused an 37 the complainant. PW-4 has deposed that the accused kept the currency notes on the table and told the witness-Chandramouli to take the same and compare with the details in the entrustment mahazar and he did so. It is his case that after all this, accused gave the explanation that he received MO.3 as a gift and therefore, personal search was done. But there is nothing on record to show that an opportunity was given to the accused to put his explanation.
38. Ex.P23 is the report of the chemical analyst. It discloses that the right hand and left hand fingers of the accused showed positive for the presence of phenolphthalein. Therefore it is argued that the accused had handled the bait money and therefore, he had accepted the same. As already discussed, even if one were to come to the conclusion that the accused had accepted the bait money, prosecution is expected to lay a firm foundation in regard to the same being preceded by a demand. Except the self-serving statement of PW-1, complainant in regard to the demand made on 23.11.1994 in the chamber of the accused, there is no corroborative evidence. 38 As already discussed, the evidence of the shadow witness is very silent on this aspect.
39. What is deposed by PW-2, G.V.Dixit is that by the time CBI officials came to the chamber of the accused, he (accused) was counting the notes of the trap amount, whereas the IO has not stated anything about counting of notes by the accused. According to PW-2, the trap amount was seized by CBI officials which was found on the table of the accused, whereas PW-2 has deposed that after they entered the cabin, the CBI officials asked to immobilize him and at that time, the accused was holding the notes in his hand. As already discussed, the IO has asserted that he had instructed PW-2, G.V.Dikshit and Chandramouli to accompany the complainant and observe the proceedings, whereas PW-2 has deposed that Gopalakrishna had instructed them to observe subsequent to PW-1 giving signal by wiping his face 3 times. This serious contradiction has been ignored by the trial court and it has weakened the substratum of the prosecution case.
39
40 . It is to be seen that on 8.12.1994, on the orders of the Superintendent of Police, CBI, he handed over further investigation to Haridutta. The said Haridutta is examined as PW-6. He recorded the statement of PW-4 on 14.12.2014 and visited the office of the Registrar of Comanies along with CW-18, CW-20 and PW-2 and got a site plan of the occurrence. As already discussed, the rough sketch must be prepared by the IO soon after drawing of recovery mahazar and this would add credence to the prosecution case. No such recovery mahazar is produced in the present case.
41. The earlier IO-Gopoalakrishna had sufficient time to record the statements of material witnesses since the trap was conducted on 23.11.1994. Till 8.12.1994, he did not record the statements of material witnesses. Thus substantial delay in recording the statements of material witnesses also weakens the substratum of the prosecution case. In fact, Chandramouli could have been examined to substantiate the alleged demand stated to have been made by the accused in his chamber on 23.11.1994 when PW-1 visited him in the light of PW-2 not 40 deposing anything about the demand. Non-examination of such a material witness who could have otherwise corroborated the case of the prosecution is adverse to the case of the prosecution. Thus nothing comes in the way of this court to draw an adverse inference as provided under Section 114(g) of the Evidence Act.
42. There is a lot of discrepancy in the evidence of PW1 in regard to the events that took place in the chamber of the accused. In his examination-in-chief, PW-1 has deposed that the raiding party entered the chamber of the accused after he accepted the amount and at that point of time, he was counting the notes. After seeing the raiding party, accused is stated to have kept in his left hand on the table after which his hands were dipped in sodium bicarbonate solution; whereas in his cross-examination, PW-1 has deposed that there was no door to the cabin of the accused and has denied a suggestion put to him that Panch witnesses picked up the money from the table. This part of the evidence in his cross-examination is contrary not only to his examination-in-chief, but also to the contents of the recovery mahazar and the sketch.
41
43. Prosecution has not been able to assign any valid reason as to why the shadow witness could not have entered the chamber of the accused along with the complainant although the chamber of the accused did disclose availability of 8 chairs other than the chair of the accused in his chamber. Though the chamber was an open one, no reason is assigned by the shadow witness or other members of the raiding party who had sat in the same place but failed to overhear or see the events that took place. The above sequence analyzed in the light of the evidence placed on record appears to be strange. This defeats the very purpose of sending the shadow witness to accompany the complainant.
44. The defence of the accused, as per the statement under Section 313, Cr.P.C. is that the complainant thrust the tainted notes into his hand and even before he could react, the raiding party came to his chamber and held his hand. This probablises the unusual conduct of the complainant and this defence cannot be considered as ill-founded. The very deposition of PW-1 appears to be contradictory in view of his 42 deposition. He has deposed that when he came out of the chamber of the accused, he closed the door. He has denied a suggestion put to him that there was no door at all to the cabin of the accused. On the other hand, the sketch of the chamber of the accused marked as Ex.P1 discloses that the chamber of the accused had an open entry which had a width of 5 ft. and there was no specific partition except keeping a few almirahs as partition. The above answer contradicts the contents of Ex.P21 (Ex.P1). In fact, a suggestion is put to him that he had developed a grudge against the accused since he was not inclined to give extension of time for production of the books of account. Of course that suggestion has been denied. But the stand taken up during the course of cross-examination of PW-1 and the explanation given by the accused under Section 313, cr.P.C. cannot be considered as ill-founded.
45. The defence set up on behalf of the accused assumes more importance in the light of the fact that the trap laying officer did not give any opportunity to the accused to put his say in regard to the alleged receipt of bait money. If he had been 43 given an opportunity, he would have orally explained as to how he came in possession of the notes, and the same could have been reduced into writing. Or, the accused could have been asked to submit his say in writing. Neither of the two has been done. This is a serious lacuna in the case of the prosecution. As already discussed, PW-2 has deposed that he along with the other raiding party members, rushed to the chamber of the accused after a pre-arranged signal given by the complainant; whereas in cross-examination, he has stated that the constables of CBI held the accused and at that time, he was holding the notes. The above indicates glaring inconsistency in regard to the statement.
46. Taking into consideration the overall facts and sequence of events, it is seen that there was no scope for the accused to do any official favour to PW-1. The prosecution has failed to prove the foundational facts in order to draw the presumption available under Section 20 of the Act. The learned judge has laid much emphasis on the positive report of the chemical analyst and the presence of phenolphthalein in the 44 hand-wash of the accused and the inability of the accused to prove his defence. The learned judge has forgotten to notice that unless the foundational facts are effectively proved, onus does not shift on the other side.
47. In the judgment impugned, the learned judge has relied on the statement given by the accused under Section 313, Cr.P.C. to hold that he had handled the bait money in his hands and that he has failed to probablise the same. If one were to accept that thee accused was not able to probablise, prosecution is expected to prove that the alleged receipt of bait money was preceded by a demand. The learned judge has failed to look into the serious inconsistencies found in the prosecution case and the inadequacies in the matter of not giving an opportunity to the accused to put his say soon after he was allegedly trapped. The version of PW1 is not corroborated in any manner and it really required corroboration. Accordingly point no.(2) is answered in the negative.
48. In the light of my findings on point nos.(1) and (2), the judgment of conviction and sentence is not sustainable in 45 law and on facts and hence, it is liable to be set aside in entirety. Accordingly the appeal will have to be allowed.
49. In the result, the following order is passed:
ORDER The appeal is allowed in its entirety. The impugned judgment of conviction and sentence dated 29.9.1999 and 30.9.1999 respectively passed by the XXI Additional City Civil and Sessions Judge cum Special Judge for C.B.I. Cases, Bengaluru City, in Spl. C.C.No.78/96 is set aside. The appellant-accused is acquitted of all the charges leveled against him. Bail bonds executed by the accused and the surety shall stand cancelled.
Sd/-
JUDGE vgh*