Bangalore District Court
Investigation/Acb vs N. Anand Kumar on 1 September, 2016
IN THE COURT OF THE XXI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND PRINCIPAL
SPECIAL JUDGE FOR CBI CASES, BENGALURU
(CCC-4)
Dated this the 1st day of September, 2016
Present: Sri. R.B. DHARMAGOUDAR,
B.Sc., LL.B., (Spl.)
XXI Additional City Civil and Sessions Judge,
And Prl. Special Judge for CBI Cases, Bengaluru
Special Criminal Case No. 28/2015
State by Central Bureau of
Complainant Investigation/ACB, Bengaluru.
(By Special Public Prosecutor)
Vs.
Accused N. Anand Kumar
S/o Narasimhaiahlu. N.S.
Aged about 60 years
Deputy Director,
ESIC, SRO, Peenya,
Bengaluru (North),
Bengaluru (under Suspension)
R/o No.49, KSFC Layout,
Lingarajapura,
Bengaluru-560 084.
(By Sri. Kiran S. Javali, Advocate)
2 Spl. C.C.28/2015
JUDGMENT
The Inspector of Police, Central Bureau of Investigation, ACB, Bengaluru has filed charge sheet against accused for the offences punishable under Section 7 and Sec.13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.
2. The brief averments of the prosecution case are as under: -
(i) That the accused was working as a Deputy Director in the office of the Director of Employees State Insurance Corporation (ESIC), Sub-Regional Office (SRO), Peenya, Bangalore North during the relevant period from 1.4.2009 to 24.4.2014. The accused while functioning as a Deputy Director of ESIC, SRO, Peenya, Bangalore North was responsible for organizing verification/inspection of new factories/new establishments and monitor those inspection reports. It is further contended
3 Spl. C.C.28/2015 that as per the "New Inspection Policy of 2008" of ESIC accused gave oral instruction to Lakshman, Insurance Inspector/SSO to carry out the inspection of M/s. Khwaja Exports Pvt. Ltd., No.244, Madhavara, Tumkur Road, Bangalore, since he had not ordered to conduct the inspection or short verification since its inception.
(ii) Accordingly Sri. Lakshman, Insurance Inspector/SSO carried out inspection of the unit on 18.10.2011 and subsequently on three different occasions and finally recommended legal action against the company on 9.4.2012 on the reason that the employer did not produce the records for verification. Thereafter accused issued a show cause notice to the employer of M/s. Khwaja Exports Pvt. Ltd., on 11.5.2012. Further contended that accused directed Sri. B. Sathyanarayana, SSO to attend regular inspection and ledger verification of M/s. Khwaja Exports Pvt.
4 Spl. C.C.28/2015 Ltd. The said B.C. Sathyanarayana submitted report on 17.7.2013 with observations to the tune of about Rs.97.01 lakhs on various head and accordingly accused had issued 6 claim notices to M/s. Khwaja Exports Pvt. Ltd., Bengaluru.
(iii) The accused directed Sri. B.C. Sathyanarayan, SSO to verify the records produced by the representative of employer on 16.1.2014. After verification of those records he submitted verification report on 16.1.2014 and 5.2.2014. Thereafter accused passed orders assessing the claim due u/s 45A of ESI Act and made demand to pay the amount. That the accused in the month of April 2014 enquired personally about the claim issues. At that time accused informed him to entertain him to consider his request. On 21.4.2014 when the complainant met the Director in connection with the early hearing of the appeal filed by him and the hearing date was fixed on 5 Spl. C.C.28/2015 25.4.2014 in presence of accused Deputy Director, thereafter accused took the complainant to his cabin and informed him that, if he wanted to close all the pending issues and to avoid issuing of new orders and notices, he should take care and shown a figure of Rs.25,000/- on the calculator with him and asked him to contact later in this regard and when the complainant contacted the accused on 23.4.2014 the accused asked him to come alone on 24.4.2014 before 12 noon to deliver the bribe money.
(iv) The complainant unwilling to give the bribe demanded by accused had lodged complaint before the CBI, ACB, Bengaluru on 24.4.2014 against the accused. After verification of the genuineness of the allegations made in the complaint, case was registered in RC No.9(A)/2014, submitted FIR in a sealed cover to the jurisdictional Special Judge for CBI cases and 6 Spl. C.C.28/2015 successful trap was laid in the cabin of accused in the ESIC office premises and recovered bribe money from the possession of the accused and has drawn the recovery mahazar in the presence of panchas. Accused was arrested and produced before the Prl. Special Judge, CBI Court on 25.4.2014. Thus, it is alleged that the act of accused demanding and accepting the bribe amount being a public servant as an illegal gratification to do an official favour amounts to criminal misconduct. Thus, accused stated to have been committed offence punishable u/s 7 and 13(2) r/w 13(1)(d) of PC Act, 1988.
(v) The Investigating Officer on the basis of complaint registered case in RC No.9(A)/2014 of CBI, ACB, Bengaluru on 24.4.2014 investigated the matter. After successful trap of the accused, the accused was arrested and after recovery of bribe amount from the possession of accused 7 Spl. C.C.28/2015 under recovery mahazar by the Investigating Officer, produced the accused before this court on 25.4.2014. Accused was remanded to judicial custody and thereafter released on bail. After obtaining sanction as mandated u/s 19(2) of PC Act, 1988 from the competent authority of Employees State Insurance Corporation, charge sheet was filed against the accused for the above said offences.
3. After taking cognizance of the offences against accused, the case was registered in the above Spl.C.C. No. 28/2015. Copy of the charge sheet was supplied to accused in compliance of the provisions of Sec. 207 of Cr.P.C., thereafter case was posted for hearing before the charge. After providing an opportunity for the learned Public Prosecutor and the learned advocate for accused for hearing before charge, the oral request of the 8 Spl. C.C.28/2015 accused to discharge him was rejected as per order dated 28.3.2015 and thereafter on 30.3.2015 charge against accused for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 was framed by explaining the contents of the charge to accused in the language known to him. The accused did not plead guilty and claimed to be tried. Thereafter the case was posted for adducing evidence on behalf of the prosecution.
4. The prosecution examined in all 10 witnesses as P.Ws.1 to 10 and got marked 60 documents as per Ex.P.1 to P60. The prosecution also got marked 10 material objects as per M.Os.1 to 10. The advocate for accused got the documents marked at Ex. D1 to D16 while cross-examining some of the prosecution witnesses. Thereafter the 9 Spl. C.C.28/2015 case was posted for recording the statement of accused u/s 313 of Cr.P.C.
5. The accused was examined Under Section 313 of Cr.P.C., for the purpose of enabling him to personally explain the circumstances appearing in the evidence against him. The accused denied all the incriminating circumstances against him and submitted written submission u/s 313 Cr.P.C., denying the demand, acceptance and recovery and also stating that sanction to prosecute granted is also by a person who has no authority at law. Thus, defence of accused is one of total denial of the case of the prosecution and he did not choose to lead any defence on his behalf.
6. Heard the arguments of the learned Public Prosecutor for CBI and also the learned counsel for accused. The learned Public Prosecutor and learned counsel for accused have also submitted 10 Spl. C.C.28/2015 written submissions of arguments. Perused the same.
7. The points that would arise for consideration are: -
(1) Whether the prosecution proves that the accused is a public servant? (2) Whether the prosecution proves that sanction accorded u/s 19(1) of Prevention of Corruption Act, 1988 is by competent authority and it is valid?
(3) Whether the prosecution proves beyond all reasonable doubt that accused demanded a sum of Rs.25,000/- as gratification other than legal remuneration on 21.4.2014 as a motive or reward in order to close all the pending issues and to avoid issuing of new orders and notices?
(4) Whether the prosecution proves that accused accepted the bribe amount of Rs.25,000/- from CW-2 as illegal gratification on 24.4.2014 and the same was recovered from his possession?
(5) What order?
11 Spl. C.C.28/2015
8. My finding on the above points are:
POINT No.1 - In the Affirmative, POINT No.2 - In the Affirmative, POINT No.3 - In the Affirmative, POINT No.4 - In the Affirmative, POINT No.5 - As per final order, for the following:
REASONS
9. POINT NO.1: - It is not in dispute that accused was a public servant working as a Deputy Director of ESIC, SRO, Peenya as on 24.4.2014. It is also evident from the document marked Ex.P29 containing 24 pages in respect of appointment order, promotion order, transfer and postings of the accused. Ex.P29 also reveals that accused was promoted and posted as Deputy Director, SRO, Peenya. Thus, there is no dispute that accused was a public servant in Central Govt., establishment and was working as a Deputy 12 Spl. C.C.28/2015 Director of ESIC, SRO, Peenya as on 24.4.2014. Hence, I answer Point No.1 in the affirmative.
10. POINT NO.2: - Whether PW.8 was a competent authority to accord sanction for prosecution of accused as contemplated u/s 19(1) of PC Act and whether sanction accorded by PW.8 is a valid sanction accorded by him by application of his mind is a point which requires to be considered.
11. The learned Public Prosecutor in her written arguments submitted that at the time of commission of offences, the accused was a public servant working as a Deputy Director, ESIC, SRO, Peenya as such the sanction as contemplated u/s 19(1) PC Act, 1988 is mandatory for prosecuting the accused for the offences alleged against him. In this case, sanction was obtained from PW.8 who was Director General, ESIC Corporation, New 13 Spl. C.C.28/2015 Delhi. PW.8 was appointing and disciplinary authority to Group-A and B officers of ESIC as per 5th Schedule of ESIC (Staff & Conditions of Service) Regulations, 1959 which is marked at Ex.P55. Accused is a Group-A Officer as per ESIC (Staff & Conditions of Service) Regulations 1959.
12. Disciplinary authority, as per the 5th schedule of ESIC (Staff & Conditions of Service) Regulations 1959, is entitled to impose major penalty. As per Sec. 10 of Disciplinary Rules, the disciplinary authority is entitled to impose major penalty such as removal from service or dismissal from service. Thus, PW.8 is a competent authority to remove the accused from the service, who was a officer in the cadre of Group-A and Group-B. Therefore, submitted that the sanction accorded by PW.8 is a sanction by the competent authority.
14 Spl. C.C.28/2015
13. On the other hand, the learned advocate for accused in their written arguments contended that the prosecution has invoked provisions of Prevention of Corruption Act, 1988 against accused as much as accused is a public servant. In accordance with the requirement of Sec.19 of PC Act in order to prosecute the accused, the prosecution has to obtain a sanction and prosecution has to establish the validity of the sanction order by proving competency of PW.8 to remove the accused. It is further submitted in the written arguments that Board of Corporation is highest authority and competent to remove the accused. In the absence of proof that PW.8 has been authorized by the board to accord sanction, the sanction accorded by PW.8 is invalid and therefore the proceedings against accused has been vitiated.
15 Spl. C.C.28/2015
14. On perusal of 5th Schedule of ESIC (Staff & Service Conditions) Regulations, 1959, Director General is shown to be the appointing authority and disciplinary authority and he is empowered to impose minor and major penalty as a disciplinary authority in respect of Group-A & B officers of ESIC. Admittedly, the accused being a Deputy Director of ESIC Corporation fall within the category of Group-A & B Officers.
15. As per Central Govt., Conduct Rules CCS (CCA) Rules major penalty includes imposition of removal from service/ dismissal from service. Thus, the PW.8 being a Director General of ESIC was authorized, as a disciplinary authority, to remove or dismiss the Group-A & B officers from service. Therefore, I hold PW.8 is competent authority to remove the accused from service.
16 Spl. C.C.28/2015
16. As per Sec.19(1)(c) of PC Act, the authority competent to remove the Central Govt., employee from his office is a competent authority to accord sanction for prosecution. Therefore, it can be held that the sanction accorded by PW.8 is by a competent authority.
17. The learned advocate for accused relied on rulings reported in 2004(2) KCCR 1233 D. Rajendran vs. State Police Inspector and another ruling reported in 1984 SCC (Crl.) 172 R.S. Naik vs. A.R. Antulay. In the above said rulings, it was held that sanction was not by a competent authority, as such sanction was held to be invalid. Whereas in this case I have already held that Director General, ESIC is a competent authority to accord sanction as required u/s 19(1) of PC Act. Therefore, the principles laid in the 17 Spl. C.C.28/2015 above said rulings would not be of any help for the accused in this case.
18. Director General of ESIC is examined as PW.8 and he has deposed in his evidence that CBI officer forwarded the copy of complaint, statement of witnesses and all the documents to the Vigilance Department and Vigilance Department after examining the file placed the matter for his consideration. After fully satisfying himself, about the case, he passed the sanction order for prosecution of the accused.
19. In this connection I would like to rely on the ruling reported in 1979 SCC 926 in the case of Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, the Hon'ble Apex Court has held "that the sanction granted by the sanctioning authority could be proved either by producing the original sanction which itself contains acts constituting 18 Spl. C.C.28/2015 grounds or by adducing evidence to show that the facts were placed before sanctioning authority and the satisfaction arrived at by it".
20. In another ruling reported in 1995 Crl.LJ. 955 between Raja Singh Vs. State (Madras), it is held that "the sanctioning authority must apply its mind to the facts alleged and only on being satisfied that the sanction was necessary, the sanction order should be signed".
21. In this case, prosecution has not only produced the sanction order at Ex.P.55 but also examined the sanctioning authority i.e., Director General, ESIC as PW.8. On perusal of Ex.P.55 and the evidence of PW.8, it becomes clear that, PW.8 has applied his mind to all the records placed before him and independently satisfied himself that there is sufficient material to accord sanction and thus accorded sanction to prosecute the accused.
19 Spl. C.C.28/2015 Thus, it is proved that PW.8 is competent authority to accord for prosecution and PW.8 applied his mind to the materials placed before him before according sanction for prosecution of accused. Therefore, I hold, the sanction accorded by PW.8 is legal and valid. Hence, I answer Point No.2 in the affirmative.
22. POINT No.3 & 4: -
Regarding pendency of work with the accused:
The learned Public Prosecutor vehemently argued that on the basis of inspection report submitted by Sri. B.C. Sathyanarayana dated 17.7.2013 accused had issued 6 claim notices to M/s. Khwaja Exports Pvt. Ltd., Bangalore in Form No.C-18(Actual) & (Adhoc) at a time on 26.9.2013 and further argued that accused passed the orders assessing the claim due u/s 45A of ESIC Act on 3 20 Spl. C.C.28/2015 notices and the assessment order u/s 45A passed for the claim of Rs.40,400/- towards security charges was kept pending for dispatching to the employer till 24.4.2014 and dispatched after he was trapped by CBI and further argued that the accused while assessing the claim due towards security charges he had given unwarranted concessions and has taken into account Rs.10,35,914/- instead of Rs.15,23,862/- and further as a special case he has considered 60% of Rs.10,35,914/- and determined the claim for Rs.40,400/- by showing favour to the complainant in anticipation of receipt of illegal gratification from the complainant. Thus, the learned Public Prosecutor argued notice marked at Ex.P7(a) was pending with the accused for orders. The order Ex.P7(k) pertaining to notice marked at Ex.P7(a) was passed on 23.4.2014 and dispatched on 24.4.2014. Therefore, the learned Public 21 Spl. C.C.28/2015 Prosecutor vehemently argued that there was working pending with the accused as on the date of trap and the accused was in a position to show or forbear to show, in the exercise of his official functions, favour to the complainant. Thus, learned Public Prosecutor submitted that initial burden placed on the prosecution to prove that the accused had a capacity to do official favour for demand of bribe has been proved.
23. On the other hand, the learned advocate for accused vehemently argued that as per Sec.7 of the Prevention of Corruption Act, 1988, accused must be capable of doing or forbearing to do any official act for showing favour to the complainant. Thus, he argued that there must be some work pending with the accused for him to show favour to the complainant. Unless it is proved that the work of the complainant was pending before accused 22 Spl. C.C.28/2015 there was no occasion for accused to demand bribe from the complainant to do an official favour. Mere acceptance is not sufficient but the prosecution has to prove that the demand preceded the acceptance in respect of performing the work pending. The learned advocate for accused further vehemently argued that extract of the gist of the prosecution case narrated in para-16 of the FIR goes to show that to avoid opposing closing of case bearing CC No. 145/2013 and to facilitate the disposal of appeal pending before the Director, the accused demanded the bribe amount. He further argued that accused had already passed orders on notices marked at Ex.P.7(a) to 7(d), no work was pending with the accused on the date of demand of bribe amount. He further argued that the accused was not in a position either to close the case bearing C.C. No.145/2013 pending in court under Amnesty Scheme or he was in a position to 23 Spl. C.C.28/2015 facilitate to close the appeal pending before the Director of ESIC. The learned advocate for accused relying on the evidence of PW.6 wherein he has admitted that once the Deputy Director passed an order, his duty comes to end and he will be respondent in the appeal, further admitted that after passing order, Deputy Director has no role to play in respect of the matter for which the order was passed. He further relied on the evidence of PW.6, wherein he has admitted that it is only the Director who can accord permission for launching the prosecution and withdrawal of the criminal cases against the employee under the Act. Further relied on the admission of PW.6 that under the new Amnesty Scheme, 2014 he has exercised power for withdrawal of criminal cases filed against M/s. Khwaja Exports Pvt. Ltd. Thus, he argued that since no work was pending with the accused as on 24 Spl. C.C.28/2015 24.4.2014, there was no occasion for the accused to demand the bribe amount.
24. Keeping in mind the rival contentions of the learned Public Prosecutor and accused, I would like to consider whether there was any pending work with the accused and he was in a position to do official favour for demand of bribe from the complainant.
25. In this connection, I would like to rely on the notices issued marked at Ex.P7(a) to 7(g) and the order passed by the accused on the notices marked at Ex.P7(b), 7(c) and 7(d) on 19th February 2014, 29th January 2014 and 19.4.2014 respectively marked at Ex.P7(i), 7(j) and 7(k). In so far as notices marked at Ex.P7(e), 7(f) and 7(g), the complainant made payments directly in respect of notice at Ex.P7(e) and payments in respect of notices marked at Ex.P7(f) and 7(g) was made while 25 Spl. C.C.28/2015 appeal was pending. Thus, notice marked at Ex.P7(a) was pending for orders with the accused as on the date of demand made by accused on 21.4.2014 and also when the complainant called him over phone on 23.4.2014. The order on Ex.P7(a) notice was came to be passed as per Ex.P7(k) on 23.4.2014 and it bears the rubber seal date as 24.4.2014.
26. In this connection, I would like to consider the evidence of PW.4 Smt. N. Chandrakala, Assistant, ESIC, SRO, Peenya wherein she has deposed that she was dealing with Ex.P.6 and Ex.P.7 files pertaining to M/s Khwaja Exports Pvt Ltd. M/s Khwaja Exports Pvt Ltd was covered under ESI from 01.05.2007. The said unit falls under major employer's cell. She further deposed that Sri. B.C.Satyanarayana (PW.7), Inspector was directed to conduct regular 26 Spl. C.C.28/2015 inspection of the unit and further deposed that after inspection, B.C.Sathyanarayana (PW.7) Inspector submitted his report dt:17.7.2013 which is marked at Ex.P.7(f). She further deposed in her evidence that on scrutiny of inspection report based on recommendation report of SSO B.C. Sathyanarayana (PW.7), she has put file recommending for claim and accordingly, notices marked at Ex.P.7(a) to Ex.P.7(f) were issued. She further deposed in her evidence that Sri. B.D.Nagaraju authorized representative of employer expressed his inability to produce records pertaining to notice marked at Ex.P.7(a) and requested for fair determination u/s 45-A ESI Act and she further deposed that the final order was passed u/s 45-A of ESI Act on 23.04.2014 as per Ex.P.7(a) and dispatched on 24.04.2014. Thus, on appreciating of the evidence of PW.4, though the order marked at Ex.P.7(k) was passed on 27 Spl. C.C.28/2015 23.04.2014 on notice marked at Ex.P.7(a), but the same was dispatched on 24.04.2014. Thus it can be held that the work was pending with the accused till dispatching the order dt: 24.04.2014 marked at Ex.P.7(k) to the complainant.
REGARDING PROOF OF DEMAND, ACCEPTANCE AND RECOVERY:
27. The learned Public Prosecutor argued that, on perusal of evidence of PW.1 it becomes clear that the accused demanded money and learned Public Prosecutor drew my attention to page No.4, para No.7 of the evidence of PW.1 wherein he has deposed that the accused shown the figure of Rs.25,000/- in his calculator, from that he understood that the accused was expecting money from him to clear off the balance notices and appeal and accused further told him that he should call him to his mobile number. The learned Public Prosecutor further drew my attention to the 28 Spl. C.C.28/2015 evidence of PW.1 that when the complainant called the accused to his mobile phone, the accused quickly replied stating that the complainant should come to his office by tomorrow in the afternoon. She further drew my attention to the evidence of PW.1 at page No.12 and 13 wherein he has deposed that when he entered the cabin of the accused, the accused asked him to sit on the chair opposite to his chair then he briefly told him about his file and told him to clear the balance notices at that time accused just smiled and made a gesture with thumb finger. The gesture of the accused impressed him that the accused was expecting amount which was told by him on the earlier occasion. Looking to the gesture of the accused, he removed the currency notes from his shirt pocket, at that time, the accused took one blue colour file and opened it and shown by gesture to put the amount into that file and accordingly he 29 Spl. C.C.28/2015 put the cash on the file and closed it. Thus, learned Public Prosecutor argued that on appreciating the evidence of PW.1 it becomes clear that the accused demanded Rs.25,0000/- as a illegal gratification and the order marked at Ex.P.7(k) was passed favourable to the complainant in expectation of bribe amount from the complainant. Learned Public Prosecutor further argued that the evidence of PW.1 is corroborated by the evidence of PW.2, 5, M.O.9 CD and the entrustment mahazar and recovery mahazar marked at Ex.P.2 and 5 respectively.
28. On the other hand, the learned advocate for accused argued that the prosecution is required to prove, demand for illegal gratification and consequently thereto handing over the same and acceptance by the accused then and then only the ingredients of Sec. 7 of PC Act could be said to 30 Spl. C.C.28/2015 have been proved. The learned advocate for accused drew my attention to the evidence of PW.1 at page No.9 wherein he has deposed that "Then he entered the cabin of the Accused. The Accused asked him to sit on the chair opposite to his chair. Then he briefly told the Accused about his files and told him to clear the balance notices. At that time, the Accused just smiled and made a gesture with thumb finger. The gesture of the Accused impressed him that he was expecting amount which was told by him on the earlier occasion."
29. On the basis of above evidence of PW.1 in his chief-examination he argued that it clearly goes to show that there was no specific demand by the accused. He further argued that the entire attempt of the witness PW.1 is that the accused made a gesture and that gesture made him to assume that the accused was making a demand. Thus, he 31 Spl. C.C.28/2015 argued that except the deposition of PW.1, there is no other material to corroborate this fact.
30. He further argued that the evidence of PW.1 being interested requires to be corroborated by independent evidence of a shadow witness. Thus, in the absence of corroboration, the evidence of PW.1 in respect of demand cannot be relied upon. The learned advocate for accused in his written arguments further submitted that the DVD marked at M.O.9 produced in this case is not admissible in evidence since the very existence and usage of recording device has not been proved by the prosecution. He further argued that the proceedings of recording allegedly made by use of pen camera during Ex.P.5 (recovery mahazar) is purported to have been downloaded and converted into a CD/DVD. He further argued relying on the contents at page No.7 in Ex.P.5 and deposition of 32 Spl. C.C.28/2015 PW.5 at page No.13 and admission of PW.1 at page No.21, when the primary evidence i.e., pen camera/recording device has not been produced and marked as material object, in the absence of live link between the alleged recording made with its use and later downloading into DVD, M.O.9 cannot be relied upon and he also argued that in the absence of certification as required u/s 65B of Indian Evidence Act with respect to M.O.9, the same is not admissible in evidence.
31. The advocate for accused relied on the following rulings in support of his arguments that there was no proof of demand since no work was pending with the accused.
(1) (2014) 13 SCC 55 - in the matter of B. Jayaraj vs. State of A.P. (2) Judgment in Crl.A. No. 1588/2002 - State by Lokayukta Police vs. K.M. Gangadar.
33 Spl. C.C.28/2015 (3) Judgment in Crl.A. No. 31/2009 - P. Sathyanarayana Murthy vs. District Inspector of Police and another.
(4) AIR 2007 SC 489 - V. Venkata Subba Rao vs. State.
(5) Judgment in Crl.A. No.1839/2012 in the matter of Rakesh Gupta.
(6) Ruling reported in 2012(1) KCCR 414 in the matter of R. Malani vs. State of Karnataka. (7) 2005 SCC 21 - Smt. Meena vs. State of Maharashtra.
(8) (2011)6 SCC 450 - State of Kerala vs. C.P. Rao.
(9) (2006) 1 SCC (Cri) 401 -T. Subramaniyan vs. State of Tamilnadu.
(10) 2008(2) KCCR 980 - State by Lokayuktha vs. K.M. Gangadhar.
(11) 2012(1) KCCR 388 - K.M. Prabhakar vs. State of Karnataka.
(12) (2015)2 SCC (Cri) 249 - MP.Purushotham vs. State of Karnataka.
(13) 2015 AIR SCW 2828 in the matter of RPS Yadav vs. CBI.
(14) 2016 SAR (Cri) 208 - N.Sukanna vs. State of AP.
34 Spl. C.C.28/2015 (15) 2015 SAR (Cri) 1156 - Selvaraj vs. State of Karnataka.
(16) 2012(1) KCCR 388 - K.N. Prabhakar vs. State of Karnataka.
(17) 2016 Crl.L.J. Page 3066 - R. Srinivasan and another vs. State by Lokayukta, Bengaluru. (18) 2009(6) SCC 587 - Subair vs. State of Kerala. The learned advocate for accused in support of his contention that M.O.9 is not admissible in evidence relied on ruling reported in 2016 Crl.L.J. 2574 Rakesh Jain vs. State of Haryana and (2015)1 SCC (Cri) 24 in the matter of Anwar P.V. vs. P.K. Basheer and another.
32. Now, I would like to consider the rulings relied upon by the learned advocate for accused to appreciate whether the principles laid down in the above said rulings can be made applicable to the present case.
35 Spl. C.C.28/2015
33. In the ruling reported in AIR 2014 SC (Supp) 1837 - complainant seems to have disowned to have made complaint, no other evidence adduced by prosecution to prove demand. Thus, in that context, the Apex Court held that in the absence of proof of demand mere recovery of tainted money from accused not sufficient for his conviction.
34. In another ruling reported in 2008 (2) KCCR 985 the Hon'ble High Court has held that recovery of currency notes from the pocket of the accused and his hands being tested positive are not sufficient to hold that the accused demanded illegal gratification since the complainant and the shadow witnesses did not speak about the demand made by the accused.
35. In another ruling reported in (2015)2 SCC (Cri) 249 in the matter of K. Purushotham 36 Spl. C.C.28/2015 vs. State of Karnataka held that demand of bribe has not been proved since complainant disowned making the complaint and stated that accused had not demanded anything from him and he did not know what was written in complaint.
36. In another ruling reported in 2015 AIR SCW 2828 in the matter of R.P.S. Yadav vs. CBI, the Hon'ble High Court of Delhi held that demand, acceptance and recovery was not proved and therefore conviction of accused was set aside.
37. So also in the ruling reported in (2009) 6 SCC 587 in the matter of A. Subair vs. State of Kerala, it was held that in absence of evidence of complainant, there was no substantive evidence to prove factum of demand. Thus, held that there was no proof of demand.
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38. In another ruling reported in 2016 SAR (Cri) 208 in the matter of N. Sunkanna vs. State of A.P., the Apex Court held that since the prosecution declared the complainant as hostile and has not examined any other witness present at the time when the money was demanded by the accused, it was held that there is no proof of demand by the Apex Court.
39. In another ruling reported in 2015 SAR (Cri) 1156 in the matter of Selvaraj vs. State of Karnataka, demand and acceptance was held not proved since versions given by the three witnesses are different from each other and surrounding circumstances did not lend credibility to the prosecution version.
40. Thus, on perusal of the principles laid down in the above said rulings it becomes clear that in those cases the demand was not proved by 38 Spl. C.C.28/2015 the prosecution. Therefore, the Apex Court and various High Courts have held in the absence of proof of demand, recovery of tainted money itself is not sufficient to held that the accused is guilty for the offences u/s 7 and Sec.13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
41. I would like to consider whether the accused in this case demanded bribe money as alleged by the prosecution. I would like to rely on the complaint marked at Ex.P.1 wherein it is alleged that on 21.4.2014 he met the Director, ESIC, SRO, Peenya, personally requesting to look into the matter on priority as he had to go to Bombay and would not be able to return any time soon. The Director called the Deputy Director and told them to meet on 25.4.2014 to hear the appeal. Thereafter, the Deputy Director took him to his cabin and informed him that he should take care 39 Spl. C.C.28/2015 in order to close all the pending issues. He said if complainant wanted his co-operation to close the court case CC No. 145/2013 under Amnesty Scheme on the next date of hearing and also to clear the appeal with the Director on 25.4.2014 and to avoid new orders and notices being issued, then he should take care of him and showed a figure of 25,000 on the calculator.
42. PW.1 in his evidence deposed in para-7 of his deposition that the accused took him to his chamber and shown the figure of Rs.25,000/- in his calculator. Thus, he understood that the accused was expecting money from him to clear of the balance notices and appeals. PW.1 further deposed that accused told that he should call him from his mobile to him. On 23.4.2014 when he called the accused from his mobile number to the mobile of the accused, accused quickly replied that 40 Spl. C.C.28/2015 tomorrow he should come to his office some time in the afternoon. He further deposed in his evidence that he went to CBI office, Bengaluru with his complaint on 24.4.2014 morning and submitted his complaint and the CBI officials arranged for conducting trap and trap was laid.
43. He further deposed in his evidence that they left CBI office on 24.4.2014 at 11.40 AM and reached ESIC Office at Yeshwanthapur at about 12.50 PM. He parked his car by the side of ESIC Office by the side of gate and got down from the car. Mr. Anand Krishna, PI, CBI, took the pen video recorder and switched it on and placed it on his front side pocket and instructed to go to accused and meet him in his private cabin. He further deposed that he entered the cabin of the accused, accused asked him to sit on the chair opposite to his chair, then he briefly told the 41 Spl. C.C.28/2015 accused about his files and told him to clear the balance notices, at that time accused just smiled and made a gesture with thumb finger, the gesture of the accused impressed him that he was expecting amount which was told by him on the earlier occasion.
44. Looking to the gesture of the accused he removed currency notes from his shirt pocket, at that time accused took one blue colour file and shown by gesture to put the amount into that file, accordingly he put the cash in the file and closed it. He requested the accused to do his work and left and went towards Mr. Ananda Krishna and Mr. Sanjay Kumar who were sitting at a short distance informed that accused demanded the bribe and taken the cash and thereafter Mr. Ananda Krishna and Mr. Sanjay Kumar together went to the cabin of the accused. Mr. Anand Krishnan called Mr. 42 Spl. C.C.28/2015 Vivekananda Swamy over the mobile and told him to bring all other people into the cabin. Accordingly, they came inside the cabin of the accused and thereafter the Trap Laying Officer recovered the currency notes from the possession of the accused. PW.1 also identified the blue colour file in which accused asked him to keep the bribe money which is marked at Ex.P.9.
45. The learned advocate for accused vehemently argued that the evidence of PW.1 complainant is not corroborated by shadow witness. He further argued that complainant being interested witness is interested in successful of trap, therefore his evidence cannot be relied upon unless it is corroborated by a shadow witness. He further argued that admittedly, complainant alone went inside the cabin of accused, thus absolutely there is no independent witness to prove the 43 Spl. C.C.28/2015 alleged demand by the accused. He also argued that M.O.9 DVD is not admissible in the evidence since the pen video recorder device which was used to record the happenings inside the cabin has not been produced. So also the provisions of Sec.65B are not complied so as to receive M.O.9 in evidence.
46. In so far as contention of the advocate for accused that the evidence of PW.1 cannot be relied upon in the absence of corroboration by a shadow witness is unsustainable. The Apex Court in a ruling reported in (2012) 11 SCC 642 in the matter of Mukut Bihari & another vs. State of Rajasthan has clearly held that though it is always desirable to have a shadow witness in trap party but mere absence of such a witness would not vitiate whole trap proceeding when there is no contradiction in depositions of witnesses and their 44 Spl. C.C.28/2015 version is without any embellishment and improvement. Thus, the contention of the advocate for accused that in the absence of a shadow witness, the evidence of PW.1 cannot be relied is not acceptable. On the other hand, the principle laid down in the above referred ruling goes to show that the evidence of the complainant can be relied upon without corroboration by shadow witness, provided the evidence of complainant is reliable and trustworthy and corroborated by other circumstantial evidence. I have already held that the evidence of PW.1 appears to be reliable and trustworthy and his evidence has been corroborated by Vivekananda Swamy PW.2 the Trap Laying Officer and Sanjay Kumar PW.5, the witness for entrustment and recovery mahazar.
45 Spl. C.C.28/2015
47. The learned advocate for accused vehemently argued that there is a material discrepancy in the evidence of PW.1, 2 and 5. In this connection, he drew my attention to the evidence of PW.1 that he went to the CBI office at 9.30 AM and met T.P. Ananda Krishnan (CW.5) submitted his complaint to him and explained the matter in detail and thereafter Ananda Krishnan took him to SP. After going through the contents of complaint SP told him to wait outside for some time. After half an hour Vivekananda Swamy, PI called him to the cabin of Ananda Krishnan and in the said cabin the two persons were sitting and they were introduced to him as Sanjay Kumar and Om Prakash. Thus, as per the version of the complainant he has seen the witnesses in the chamber of CW.5 at about 10 AM. Whereas PW.5 in his evidence deposed that he came to office at 10.30 AM the Zonal Manager informed him stating 46 Spl. C.C.28/2015 that a requisition has come from CBI Office to depute a staff to act as a witness, accordingly deputed him to CBI office and he went to CBI office at 10.45 AM. Whereas PW.2 deposed in his evidence that at 10.15 AM, Om Prakash and Sanjay Kumar were secured as independent witnesses and all assembled in his office room of Ananda Krishnan. He further deposed in his evidence that on 24.4.2014 at about 9 AM, SP called him into his chamber and gave him a written complaint lodged by complainant and directed him to verify the complaint and submit the verification report.
48. He further argued that PW.1 deposed in his evidence that they left the CBI office at 11.40 AM and reached ESIC Office at Yeshwanthpur at 12.50 PM, whereas PW.2 deposed in his evidence that they proceeded to ESIC Office at about 11.30 47 Spl. C.C.28/2015 AM. Thus, the learned advocate for accused vehemently argued that there is a material discrepancies in the evidence of PWs.1, 2 and 5 as to the time at which complainant came to the CBI Office and at what time the preliminary enquiry was conducted in respect of the complaint and at what time all of them assembled in the chamber of CW.5 and at what time the entrustment mahazar was conducted and at what time they have left the office of CBI and reached ESIC Office. Thus, he argued that the evidence of PW.1, 2 and 5 is untrustworthy and cannot be relied upon.
49. It is true that there are discrepancies in the evidence of PW.1, 2 and 5 as to the time when complaint was handed over to him for verification, at what time the independent witnesses have been secured for conducting entrustment mahazar and at what time they have completed conducting of 48 Spl. C.C.28/2015 entrustment mahazar and at what time they left the CBI Office. Admittedly, the incident took place on 24.4.2014, whereas the witnesses are examined before this court more than one year after the said date of incident. Therefore, it cannot be expected of the witnesses to have a photographic memory of sequence of event and the time of event. The said discrepancies in the evidence of PWs.1, 2 and 5 are not material discrepancies affecting the substratum of the prosecution case. Therefore, the contention of the learned advocate for the accused that as there are material discrepancies in the evidence of PWs.1, 2 and 5 as such their evidence is not reliable is not acceptable. On the other hand, on appreciation of evidence of PWs.1, 2 and 5, their evidence is cogent, reliable and trustworthy and I do not find any plausible reason to disbelieve their evidence.
49 Spl. C.C.28/2015
50. Thus, on careful appreciation of the evidence of PWs.1, 2 and 5 it becomes clear that the phenolphthalein test conducted in the left hand fingers and right hand fingers and left side pant pocket of the accused proved to be positive. Accused has not at all furnish any explanation as to how the tainted amount was came in his possession. On the other hand, the defence of accused is one of total denial. The accused in his written submissions given in reply to the questions posed to him u/s 313 Cr.P.C., has stated that he neither demanded nor accepted the bribe amount. Whereas I have already held on appreciating the evidence on record that amount was recovered from his possession after the trap was conducted. When it is proved that accused has accepted any gratification other than the legal remuneration, a presumption u/s 20 that he has accepted that gratification as a motive or reward as is mentioned 50 Spl. C.C.28/2015 in Sec.7. Therefore, the burden shifts on the accused to prove the contrary. In the absence of any explanation by the accused in this case, it has to be held that the presumption available against the accused u/s 20 of PC Act has not been stood rebutted. Therefore, it has to be held that the accused accepted the said gratification other than legal remuneration as a motive or reward for doing an official favour to the complainant in the exercise of his official functions.
51. The learned advocate for accused would contend that the defence of accused has to be appreciated on the touchstone of preponderance of probabilities. In this connection, he relied on the following rulings: -
(1) AIR 1966 SC 1762 - V.D. Jhingan vs. State of U.P. 51 Spl. C.C.28/2015 (2) (1974) 3 SCC 591 in the matter of Mahesh Prasad Gupta vs. State of Rajasthan.
(3) (1975) 4 SCC 761= AIR 1977 SC 666 Trilokchand Jain vs. State of Delhi. (4) (2006) 2 SCC 250 = AIR 2006 SC 894 - Om Prakash vs. State of Haryana.
(5) (2005) 6 SCC 211 = AIR 2005 SC 3123. It is true that there is no dispute as to the preposition of law enunciated in the above said rulings. Once it is proved that an accused person has accepted or obtained any gratification other than legal remuneration from any person it shall be presumed unless the contrary is proved that he accepted or obtained that gratification as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person. Thus, the burden shifts 52 Spl. C.C.28/2015 on the accused to prove contrary and the rigour of the burden on him is not the same as on the prosecution of proving the case beyond reasonable doubt.
52. The defence of the accused in this case is one of total denial. He has contended that neither he has demanded nor accepted the gratification from the complainant. Further contended that the tainted money is not recovered from his possession. Whereas the evidence of PW.1 is supported by the evidence of Trap Laying Officer PW.2 Sri. Vivekananda Swamy and also corroborated by the evidence of independent mahazar witness Sri. Sanjay Kumar examined as PW.5. The evidence of PW.1 is also corroborated by the entrustment mahazar marked at Ex.P.2 and recovery mahazar marked at Ex.P.5, further the phenolphthalein test conducted on the right hand 53 Spl. C.C.28/2015 and left hand finger wash of accused and left pant pocket wash and cotton swab proved to be positive and the Ex.P57 report has been proved by examining PW9 the Chemical Examiner. Therefore, the demand, acceptance and recovery has been proved beyond reasonable doubt by the prosecution as such the question of considering the defence of accused on the touchstone of preponderance of probabilities in this case would not arise at all.
53. The learned advocate for the accused vehemently argued that the bottles in which the hand wash, pant pocket wash and cotton swab wash was taken marked at M.O.3, 4, 5 and 6 were sealed with a seal. He argued that except mentioning the fact of sealing, the said seal has not been handed over to any of the independent witnesses, no evidence is adduced to show and 54 Spl. C.C.28/2015 who has produced the seal that was used for sealing, in whose custody the seal retained has not been proved. PW.5 admitted that the seal used to sealing the bottle was not given to his custody. Thus, the prosecution has failed to prove as to where the seal used to seal M.Os.3 to 6 was retained. In the absence of evidence to that effect the live linkage to connect the accused and the contents of M.Os.3 to 6 is snapped. He further argued that it was incumbent upon the TLO to obtain the signature of the accused on the labels affixed to M.Os.3 to 6, if the prosecution wanted to prove the contents of said M.Os.3 to 6 was the hand wash of accused. In this connection, he relied on rulings reported 2014 Crl.L.J. 243 - Balaram Kumar vs. State of H.P., 2003 Crl.L.J. 4386 - Kailashchandra Pandey vs. State of West Bengal, (2014) 3 SCC 412 - Vijay Kumar vs. State of Rajasthan.
55 Spl. C.C.28/2015
54. It is true that the prosecution has not adduced any evidence to show to whom the seal was handed over, which was used for sealing M.Os. 3 to 6. It is true, prosecution has also not adduced evidence to show with whom the said seal was retained. PW.5 admitted in his cross- examination that the seal used for sealing the bottle was not given to his custody.
55. However, PW.1, 2 and 5 have consistently deposed in their evidence that M.O.3 is containing the right hand finger wash of the accused, M.O.4 is containing left hand finger wash of the accused, M.O.5 containing the pant pocket wash of the accused and MO.6 containing cotton swab wash from the blue file marked as Ex.P9, they have also deposed in their evidence that M.O.3 to 6 have been sealed in their presence. Nothing is elicited in the cross-examination of PWs.1, 2 and 5 either 56 Spl. C.C.28/2015 to establish that they were not present at the time of conducting phenolphthalein test on the fingers of both hand wash, left pant pocket wash and cotton swab wash or they have not seen sealing of the said bottles in their presence. On the other hand, all of them have consistently deposed that contents of M.O.3 to 6 are the both hand finger wash of accused, left pant pocket wash and cotton swab wash done in their presence, the solution was poured into the bottles marked at M.Os.3 to 6 respectively and they were sealed in their presence.
56. The learned advocate relied on the ruling reported in 2014 Crl.L.J. 243 wherein it was held that: -
Seal used by Investigating Officer for sealing the articles not produced and proved in court. Witnesses to recovery memo not examined. Collection of currency notes and taking them into possession not done in manner mentioned in Memo, thus creating suspicion.
57 Spl. C.C.28/2015
57. The learned advocate for accused also relied on another judgment dated 23.6.1990 passed in Crl.A.No.368/1985 which does not say that the evidence of recovery mahazar witnesses in front of whom Material Objects have been sealed is not admissible in the absence of proof that who has retained the seal and in the absence of proof that the seal is handed over to one of the mahazar witnesses to produce before the court.
58. Thus, the learned advocate for accused made an unsuccessful effort to convince this court that there is no live linkage to connect the accused and the contents of M.Os.3 to 6.
59. The advocate for accused further argued that the statement of accused was not recorded after trap, there was delay in recording statement of witnesses, there is no independent evidence to corroborate the evidence of PWs.1, 2 and 5. Mere 58 Spl. C.C.28/2015 recovery is not enough and the evidence of PW.1, 2 and 5 is not reliable and further argued that the verification of the complaint was not properly done. In support of his argument relied on various citations.
60. It is not in dispute that the statement of accused after trap was not recorded by the Investigating Officer. I would like to consider whether it is mandatory for the Investigating Officer to record the statement of the accused after trap. The learned advocate for accused relied on the judgment dated 28.11.2014 of our Hon'ble High Court passed in Crl.A. No.1339/2003 in the matter of N.A. Suryanarayana @ Suri vs. State by Inspector of Police, CBI, wherein his Lordship relied on the ruling of Apex Court reported in Banarasidas vs. State of Haryana (2010) 2 SCC (Cri) 684 wherein the Apex Court held that "it is 59 Spl. C.C.28/2015 made clear that even invoking Sec.20, the court is required to consider explanation offered by the accused, if any, that too, on the touchstone of preponderance of probabilities, not insisting beyond reasonable doubt which is the initial burden cast on the prosecution". Thus, it is nowhere stated in the above said ruling that the statement of accused has to be recorded after the trap. On the other hand, it was held that explanation provided by accused has to be appreciated on the touchstone of preponderance of probabilities, not insisting proof beyond reasonable doubt. In this case, accused has not offered any explanation as to how he came in possession of the tainted money. On the other hand, his defence is one of total denial of demand and acceptance. Whereas, the evidence on record adduced by prosecution proved beyond reasonable doubt that the work of the complainant was pending with the 60 Spl. C.C.28/2015 accused, accused did demand bribe amount to show official favour in exercise of his official functions and in furtherance of his demand, he accepted the bribe amount from the complainant when the trap was laid against him. Therefore, the arguments of the learned advocate for accused that the statement of accused was not recorded after trap, therefore the accused is entitled for benefit of doubt is unsound and not acceptable.
61. Though it was true that it was held in the judgment passed in Crl.A.No.1339/2003 by our Hon'ble High Court that delay in recording statement of witnesses creates a suspicion, but in this case, PW.10 deposed that he has recorded the statement of complainant on 25.8.2014 and recorded the statement of PW.3 on 9.5.2014 and 10.5.2014 and recorded the statement of PW.2 on 16.10.2014 and statement of PW.5 on 7.10.2014 61 Spl. C.C.28/2015 and PW.6 on 17.10.2014. Thus, there is no inordinate delay in recording the statements of material witnesses so as to held that the delay in recording the statement of witnesses created a suspicion about the prosecution story in this case.
62. The learned advocate for accused argued that the police have failed to make preliminary enquiry and the veracity of the complaint regarding whether allegations made therein would constitute cognizable offence, whether the averments of the complaint would meet basic requirement of alleged demand of illegal gratification for doing or forbearing to do official functions favouring or disfavouring the complainant. In the absence of making preliminary enquiry on these aspects of the matter it has affected the life and liberty of the accused. In this connection he drew my attention to the discrepancy in the evidence of PW1 and 2 as 62 Spl. C.C.28/2015 to the time at which the complaint was entrusted to PW2 for verification.
63. It is true that PW.1 has deposed in his evidence that he went to the CBI office at 9.30 AM and met Ananda Krishnan, PI, CBI, ACB and lodged complaint. Whereas PW.2 in his evidence deposed that at about 9 AM, SP called him into his chamber and gave him a written complaint lodged by complainant PW.1 and directed him to verify the complaint. While discussing the about the said discrepancies in the evidence of PW.1 and 2 in the earlier part of the discussion, I have already held that the witnesses are deposing before this court after a lapse of more than one year from the date of said incident and that it is not expected of the witnesses to have photographic memory of the time and events in sequence. Therefore, the minor discrepancy in the evidence of PW.2 at what time 63 Spl. C.C.28/2015 the complaint was handed over to him for verification would not make his evidence otherwise believable as untrustworthy. PW.2 in his evidence has deposed that he has gone through the complaint and also enquired through his sources about the general reputation of accused Sri. N. Anand Kumar, Deputy Director, ESIC, Yeshwanthpur and his verification revealed that accused did not have good reputation and he is in the habit of taking illegal gratifications from the clients, accordingly he submitted verification report to the S.P., as per Ex.P.14. In the cross- examination PW.2 deposed that he had discussion with complaint to know the veracity of the complaint, though he has admitted that he has not made an enquiry to ascertain the credibility of the complainant to know whether his complaint was genuine or filed to falsely implicate the accused. Not making enquiry about the credibility of the 64 Spl. C.C.28/2015 complainant would not render the successful trap conducted by the Trap Laying Officer unbelievable. On the other hand, the evidence of PW.2 goes to show that he has made verification regarding general reputation of the accused and also discussed with the complainant to know the veracity of the complaint which is sufficient compliance of the requirement of preliminary verification of the complaint.
64. The learned advocate for accused vehemently argued that the evidence of PW.9 the Chemical Examiner is not reliable and the Chemical Examiner's Report marked at Ex.P57 is not proved legally so as to accept it in evidence. In this connection, the learned advocate for accused relied on the cross-examination of PW.9 in para No.7, wherein he has admitted that there is a register in our office wherein we enter the nature of 65 Spl. C.C.28/2015 test and result of the test. In the register, we will mention the name of the person who has conducted the test. Finally record our opinion in the register. Thus, he argued that in the absence of production of the register to show the nature of test done to the satisfaction of this court Ex.P.57 Test Report is not reliable. In support of his argument he relied on the ruling reported in 2003 Crl.L.J. 4286 in the matter of Kailaschandra Pandey vs. State of West Bengal and another ruling reported in (2014) 3 SCC 412 in the matter of Vijaya Kumar vs. State of Rajasthan.
65. PW.9 in his evidence deposed that on 3rd May 2014 their office received requisition from CBI Office for examination of 4 articles. The articles were sealed and he after examining the articles and by conducting simple chemical test he came to the conclusion that the presence of phenolphthalein in 66 Spl. C.C.28/2015 both right hand and left hand finger washes and also detected in Article-D and F. He further deposed that M.Os.3 to 6 are examined by him and he has put his initials on the bottle and his initials on M.Os.3 to 6 are marked at Ex.P.30(b), 31(b), 33(b) and 34(b) respectively and he further deposed that Ex.P.57 is the report and its contents are true and correct and it bears signature with specimen seal of office. He further deposed that after conducting simple chemical test M.Os.3 to 6, he again sealed in the bottle and they are in sealed condition before the court. Nothing is elicited in the cross-examination of PW.9 to disbelieve his evidence. Only because the register maintained in their office is not produced, the evidence of PW.9 cannot be thrown away as not reliable. Thus, the evidence of PW.9 goes to prove that both right and left hand finger washes of the accused and the left pant pocket wash and cotton swab wash of the 67 Spl. C.C.28/2015 blue file marked at Ex.P.9 were proved positive for phenolphthalein test. Absolutely there is no explanation offered by the accused as to how his hands, left pant pocket and the office file marked Ex.P9 came in contact with phenolphthalein powder. Thus, it leaves no doubt in my mind to draw an irresistible conclusion that accused did accept the bribe amount given by PW.1 kept it in his left side pant pocket which was recovered under recovery panchanama Ex.P.5 by the Trap Laying Officer PW.2 in the presence of complainant, mahazar witnesses and members of other Trap Laying Team.
66. In this connection, I would like to rely on a ruling reported in 2012 SCC Online Bombay 623 passed in Crl.A.380/2003 in the matter of Rajesh S/o Avinash Mopkar vs. CBI., wherein it is held that entrustment mahazar and recovery 68 Spl. C.C.28/2015 mahazar if consistent with the substantive evidence would give corroboration u/s 157 of the Evidence Act to the substantive evidence. In this case, entrustment mahazar and recovery mahazar marked at Ex.P.2 and P5 are consistent with the substantive evidence of PW.1, 2 and 5. Thus, Ex.P.2 and P5 have given corroboration u/s 157 of the Evidence Act to the substantive evidence of PW1, 2 and 5.
67. The principle laid down in the rulings reported in 2003 Crl.L.J. 4286 in the matter of Kailaschandra Pandey vs. State of West Bengal and another ruling reported in (2014) 3 SCC 412 in the matter of Vijaya Kumar vs. State of Rajasthan would not in any way help to advance the defence of the accused. There are no principles laid in the above said rulings which would indicate that evidence of Chemical Examiner is not 69 Spl. C.C.28/2015 admissible in evidence in the absence of production of the register maintained in the office. Thus, the above said rulings would be of no help for the accused.
68. The learned advocate for accused vehemently argued that M.O.9 is not admissible in evidence since the very existence and usage of recording device has not been proved by the prosecution and consequently placing reliance on M.O.9 and Ex.P.12 coupled with the fact that and the recording was played in the open court, nothing was visible and was totally incapable of reliance on it and also for want of certification u/s 65B of Indian Evidence Act with regard to M.O.9.
69. On playing the DVD to observe what is recorded therein, I found there is nothing visible and audible in the DVD which would prove the fact of demand and acceptance of the bribe amount by 70 Spl. C.C.28/2015 accused. On this count alone, no reliance can be placed on DVD marked at M.O.9 and the same was not used relied by me for arriving at a conclusion that prosecution was able to prove demand, acceptance and recovery of the tainted money from the accused. Despite eschewing M.O.9 DVD from the arena of the prosecutions' evidence, there is ample material on record to show demand, acceptance and recovery of the tainted money from the accused.
70. The advocate for accused vehemently argued the complaint filed by the complainant against accused is intended to demoralize the officials of ESIC, so that, the officials of ESIC would not dare to take any action against him for violation of the provisions of ESI Act. In this connection, the learned advocate relied on the documents marked at 'D' series marked at Ex.D1 71 Spl. C.C.28/2015 to D15. He further argued that complainant is a chronic defaulter in compliance of the provisions of ESI Act, criminal cases have been initiated against him for non-compliance of ESI Act in CC No.28/2013, CC No.72/2012 and 145/2013 which could be seen from Ex.D3, D5 and D7. Thus, he argued that the present complaint filed by him is tainted with malafide to prevent the officials of ESI from taking action against him.
71. Though, it is true that criminal action has been initiated against the complainant for non- compliance of provisions of ESI Act and it is also true that notice u/s 45-G of the ESI Act, 1948 marked at Ex.D6 has been issued against the complainant for recovery of interest, damages and cost that will not dilute the evidence adduced by prosecution in this case which has been appreciated by me and found that there was a 72 Spl. C.C.28/2015 demand, acceptance and recovery of tainted money from the possession of accused. Only because, the complainant lodged a complaint against one of the erring official of the ESIC, his complaint cannot be termed as a tainted with a malafide. Whatever may be intention of the complainant but the fact remains that accused demanded the bribe, accepted and the tainted money has been recovered from his possession, as such I am unable to accept the line of argument of advocate for accused that the complaint filed by complainant is only to prevent the officials of ESI from taking any action against him. The officials of ESIC should not have any fear to take action against the complainant if he violates any of the provisions of ESIC Act provided their action is bonafide.
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72. Thus, on appreciation of evidence adduced by the prosecution in totality, I am of the opinion that the prosecution has successfully proved beyond reasonable doubt that the work of the complainant was pending with the accused, the accused has demanded the bribe amount of Rs.25,000/- from the complainant to show official favour in exercise of his official functions, accepted the bribe amount and also proved the recovery of tainted money from the possession of the accused by not only adducing the oral evidence of PW.1, 2, 5 but also examined the Chemical Examiner as PW.9 who has deposed that the contents of M.Os. 3 to 6 proved positive for the phenolphthalein test. Therefore, I answer point No.3 and 4 in the affirmative.
73. POINT No.5: - In view of my above discussion and for the reasons assigned therein, I proceed to pass the following 74 Spl. C.C.28/2015 ORDER Acting u/s 248(2) of Cr.P.C., the accused is convicted for the offences punishable under Sections 7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.
The bail bond and surety bond of the accused stands discharged.
M.O.1 cash shall be returned to the complainant.
M.Os.3 to 10 shall be destroyed as they are worthless.
Order regarding disposal of property shall come into force after the appeal period is expired. (Dictated to the Judgment-Writer, transcribed and computerized by him, inserted some portions directly on the computer, corrected and then pronounced by me in open Court this the 1st day of September 2016) (R.B. Dharmagoudar) XXI Addl. City Civil and Sessions Judge, and Prl. Special Judge for CBI Cases, Bengaluru City.
75 Spl. C.C.28/2015 TO HEAR REGARDING THE QUANTUM OF SENTENCE TO BE IMPOSED:
Heard the accused, the learned advocate for accused and the learned Public Prosecutor on the quantum of sentence to be imposed.
Accused submitted that he has not demanded any money, he has not accepted. The complaint was filed against him by the complainant with a malafide intention to deter the employees of ESIC from taking any action against him. He further submitted that the complainant is a chronic defaulter, criminal cases have been filed against him for recovery of the claims due from him to the ESI Corporation.
The learned advocate for accused submitted that accused is suffering from high BP, diabetes, he has to take care of his age old mother who is 84 years old, therefore prayed to impose a minimum possible punishment.
76 Spl. C.C.28/2015 The learned Public Prosecutor submitted that the offence of corruption committed by the accused is against the society at large. The offence of corruption being a social evil requires to be viewed seriously therefore prays to impose appropriate punishment so as to send a message to the society and to the Govt., employees indulging in such corrupt practices in discharge of their official functions.
The provisions of Sec.7 of PC Act, has been amended by Act No.1/2014 and provided that minimum punishment to be imposed u/s 7 of PC Act shall not be less than 3 years. The effective date of said amendment is 16.1.2014.
So also the provisions of Sec.13(2) of PC Act has been amended by the Act No.1/2014 which prescribes minimum punishment to be imposed shall not be less than 4 years. The effective date of amended provision is 16.1.2014.
77 Spl. C.C.28/2015 In the present case, the incident of trap of accused took place on 24.4.2014. Thus, the act committed by accused is subsequent to the date of amended provision of Sec.7 and 13 of PC Act prescribing minimum punishment to be imposed while imposing a quantum of sentence.
In this case, the accused is a Class-I Officer. He being a Class-I Officer he should have been a role model to his subordinate officials in his office by exhibiting the honesty and integrity in discharge of his official duties. Being a Class-I Officer the accused has indulged in corrupt practice. The ESI Act is a social legislation intended to provide certain benefits to the employees in case of sickness, maternity and employment injury. Therefore, the accused being a Class-I Officer should have discharged his duty in protecting the interest of the employees for the benefit of which the ESI Act has been enacted. By 78 Spl. C.C.28/2015 indulging in such corrupt practices, the accused has undermined the object and intendment of the Act.
However, taking into consideration that accused is already retired and he is more than 61 years old suffering from high BP and diabetes and he has to look after age old mother who is 84 years old, I hold that it is just and proper to impose a minimum punishment provided for the offences u/s 7 and 13 of PC Act. Hence, I proceed to pass the following ORDER The accused is sentenced to undergo SI for 3 years and to pay a fine of Rs.15,000/- (Rs. Fifteen Thousand only) for the offence u/s 7 of PC Act. In default of payment of fine, he shall further undergo a simple imprisonment for a period of 3 months.
The accused is sentenced to undergo SI for 4 years and to pay a fine of Rs.20,000/- (Rs. Twenty 79 Spl. C.C.28/2015 Thousand only) for the offence u/s 13(2) r/w 13(1)(d) of PC Act, 1988. In default of payment of fine he shall undergo a simple imprisonment for a period of 4 months.
Both substantive sentences shall run concurrently.
The accused has suffered judicial custody for 11 days during the crime stage and the same shall be given set off u/s 428 of Cr.P.C., towards substantive sentences imposed upon him.
The copy of the judgment shall be supplied to the accused free of cost.
(Dictated to the Judgment-Writer, transcribed and computerized by him, corrected and then pronounced by me in open Court this the 1st day of September 2016) (R.B. Dharmagoudar) XXI Addl. City Civil and Sessions Judge, and Prl. Special Judge for CBI Cases, Bengaluru City.
80 Spl. C.C.28/2015 ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 Mohd. Shoeb Khan P.W.2 Vivekananda Swamy P.W.3 K.H. Prasad P.W.4 Smt. Chandrakala P.W.5 Sanjay Kumar P.W.6 Sunil Kumar Shah P.W.7 B.C. Sathyanarayana P.W.8 A.K. Agarwal P.W.9 Dr. Ravishankar Katkar PW.10 A. Inbazhagan
LIST OF WITNESS EXAMINED FOR DEFENCE:
NIL LIST OF DOCUMENTS EXHIBITED FOR THE PROSECUTION:
Ex.P.1 Original Complaint dt. 24.4.2014 Ex.P.1(a) Signature of P.W.1 Ex.P.2 Original Entrustment Mahazar dt. 24.4.2014 Ex.P2(a) Signature of PW.1 Ex.P2(b) Signature of PW.2 Ex.P2(c) Signature of PW.5 Ex.P2(d) Signature of Om Prakash Singh Ex.P.3 Visitors Pass dt. 24.4.2014 Ex.P.3(a) Signature of accused Ex.P.3(b) Signature of P.W.2 Ex.P3(c) Signature of PW.5 Ex.P3(d) Signature of Om Prakash Singh
81 Spl. C.C.28/2015 Ex.P.4 Visitors Register of ESIC for the period 03.03.2014 to 06.05.2014 Ex.P4(a) Relevant entry at page 86-87 Ex.P4(a) Relevant entry at page 96-97 Ex.P4(a) Relevant entry at page 90-91 Ex.P.5 Original Recovery Mahazar dt. 24.4.2014 Ex.P5(a) Signature of PW.1 Ex.P5(b) Signature of PW.5 Ex.P5(c) Signature of Om Prakash Singh Ex.P.6 Revenue file pertaining to M/s. Khwaja Exports (Vol.I) Ex.P6(a) Letter dt. 15.5.2007 of ESIC at page No.114.
Ex.P6(b) Letter dt. 28.4.2010 of ESIC at page No.130.
Ex.P6(c) Letter dt. 25.5.2011 of ESIC at page No.176.
Ex.P6(d) Letter dt. 25.5.2011 of ESIC at page No.178.
Ex.P6(e) Plain Paper Report dt. 18.10.2011 at page No.193.
Ex.P6(f) Special Verification Report dt. 2.1.2012 at page No.215 Ex.P6(g) Plain Paper Report dt.2.1.2012 at page No.216.
Ex.P6(h) Relevant portion of Note sheet dt.
03.05.2012 at page No.17.
Ex.P6(i) Signature of PW.5 at page-1 Ex.P6(j) Signature of Om Prakash Singh at 1st page Ex.P6(k) Signature of PW.5 at last sheet Ex.P6(l) Signature of Om Prakash Singh at last 82 Spl. C.C.28/2015 page Ex.P.7 Revenue file pertaining to M/s. Khwaja Exports (Vol.II) Ex.P.7(a) to (g) Notices issued by Anand Kumar (accused) Ex.P.7(h) to (j) Orders passed by the accused Anand Kumar (at page Nos.238 to 240) Ex.P7(k) Final Order dt. 23.4.2014 passed by the accused (at page No.256) Ex.P7(l) D.O. Letter dt. 10.4.2013 to B.C. Sathya Narayana (at page No.8) Ex.P7(m) Covering letter to the Inspection Report (at page No.41) Ex.P7(n) Inspection Report dt. 17.7.2013 of B.C. Sathyanarayana (at page No.42) Ex.P7(o) Addl. Information to Sub-Region Office (at page 46) Ex.P7(q) to (r) Continuation sheet to observation slip (at page Nos.49 to 51) Ex.P7(s) Scrutiny sheets (at page Nos. 4 and 5 of Note sheets) Ex.P7(t) Office Note dt. 23.9.2013 (at page No.6 of Note Sheet) Ex.P7(u) Notice dt. 13.12.2013 to M/s. Khwaja Export (at page No.124) Ex.P7(v) Note sheet dt. 16.1.2014 Ex.P7(w) Relevant portion of Note sheet at page No.9.
Ex.P7(x) Original Verification Report submitted by Sri. B.C. Sathyanarayana (at page 139 to 140) Ex.P7(y) Letter dt. 20.12.2013 of M/s Khwaja Exports along with security company details (at page Nos.190 and 191) Ex.P7(z), Ex.P7(aa) to (cc) 4 letters of ESIC issued to Security Agencies (at page Nos.193 to 83 Spl. C.C.28/2015
196) Ex.P7(dd) Note Sheet dt. 17.3.2014 Ex.P7(ee) Note Sheet dt. 01.04.2014 Ex.P7(ff) Signature of PW.5 at 1st page Ex.P7(gg) Signature of Om Prakash Singh at 1st page Ex.P7(hh) Signature of PW.5 at last page Ex.P7(ii) Signature of Om Prakash Singh at last page Ex.P7(jj) Report dt. 20.6.2013 of office at page 19 Ex.P7(kk) Report dt. 20.5.2013 of PW.7 at page 20 Ex.P7(ll) Report of PW.7 at page 21. Ex.P7(mm) Letter dt. 5.6.2013 of M/s. Khwaja Exports at page-24 Ex.P7(nn) Notice dt. 6.6.2013 at page 23 Ex.P7(oo) Signature of PW.7 at page 42 Ex.P7(pp) Signature of PW.7 at page 41 Ex.P7(qq) Inspection observation at page 48 Ex.P.8 Opened sealed cover on which currency Note Nos. are mentioned Ex.P8(a) Signatures of PW.5 on opened sealed cover Ex.P8(b) Signature of Om Prakash Singh on opened sealed cover Ex.P8(c) Signature of PW.5 on the label affixed to the opened sealed cover.
Ex.P8(d) Signature of Om Prakash Sigh on the Label affixed to the opened sealed cover Ex.P9 One Blue Colour File captioned as "Legal Receipt Pad"
Ex.P9(a) Signature of PW.2 Ex.P9(b) Signature of PW.5 Ex.P9(c) Signature of Om Prakash Singh Ex.P9(d) Signature of PW.5 on last sheet Ex.P9(e) Signature of O.P. Singh
84 Spl. C.C.28/2015 Ex.P10 Opened sealed cover in which Ex.P9 was kept Ex.P10(a) Signature of PW.5 Ex.P10(b) Signature of Om Prakash Singh Ex.P11 Opened sealed cover in which M.Os 7 and 8 were kept Ex.P11(a) Signature of PW.5 Ex.P11(b) Signature of Om Prakash Singh Ex.P12 Opened sealed cover in which M.O.9 was kept Ex.P12(a) Signature of PW.2 Ex.P12(b) Signature of PW.5 Ex.P12(c) Signature of Om Prakash Singh Ex.P13 Visitor's Register Ex.P13(a) Signature of one Mr. Nagaraj at page No.147 Ex.P13(b) Signature of one Mr. Nagaraj at page No.201 Ex.P14 Complaint Verification Report dt. 24.4.2014.
Ex.P14(a) Signature of PW.2 Ex.P15 F.I.R. dt. 24.4.2014 Ex.P15(a) Signature of S.P., CBI/ACB/BLR Ex.P16 Arrest Memo dt. 24.4.2014 Ex.P16(a) Signature of the accused Ex.P16(b) Signature of PW.2 Ex.P17 Personal search Memo dt. 24.4.2014 Ex.P17(a) Signature of the accused Ex.P17(b) Signature of the PW.2 85 Spl. C.C.28/2015 Ex.P17(c) Signature of the Director, ESIC Ex.P18 Opened sealed cover in which M.O.10 (pant) was kept Ex.P18(a) Signature of PW.2 Ex.P18(b) Signature of PW.5 Ex.P18(c) Signature of Om Prakash Singh Ex.P19 Letter dt. 21.4.2014 of ESIC to the complainant company Ex.P19(a) Signature of PW.5 Ex.P19(b) Signature of Om Prakash Singh Ex.P20 Rough Sketch of the office of the ESIC Ex.P20(a) Note of PW.2 Ex.P20(b) Signature of PW.5 Ex.P20(c) Signature of Om Prakash Singh Ex.P21 Rough Sketch of the chamber of the accused Ex.P21(a) Signature of PW.2 Ex.P21(b) Signature of PW.5 Ex.P21(c) Signature of Om Prakash Singh Ex.P22 Copy of the record mode u/s 165 Cr.P.C., authorization Ex.P22(a) Signature of Dy.S.P., CBI Ex.P23 Search List Ex.P24 Search List Ex.P25 Certificate u/s 65-B of I.E. Act Ex.P25(a) Signature of PW.2 Ex.P26 Letter dt. 13.5.2014 of Dy.Director (Admn), ESIC to CBI 86 Spl. C.C.28/2015 Ex.P26(a) Signature of the Dy. Director. Ex.P27 Letter dt. 8.5.2014 of Dy. Director (Adm), ESIC to CBI Ex.P27(a) Signature of Dy. Director Ex.P28 Revenue Manual of ESIC.
Ex.P29 Attested true copies of Office orders in respect of transfers/promotions etc., of the accused Ex.P30 Signature of PW.5 on M.O.3 Ex.P30(a) Signature of Om Prakash Singh on M.O.3 Ex.P30(b) Signature of PW.9 on M.O.3 Ex.P31 Signature of PW.5 on M.O.4 Ex.P31(a) Signature of Om Prakash Singh on M.O.4 Ex.P31(b) Signature of PW.9 on M.O.4 Ex.P32 Signature of PW.5 on M.O.5 Ex.P32(a) Signature of Om Prakash Singh on M.O.5 Ex.P32(b) Signature of PW.9 on M.O.5 Ex.P33 Signature of PW.5 on label affixed to M.O.10 Ex.P33(a) Signature of Om Prakash Singh on the label affixed to M.O.10 Ex.P34 Signature of PW.5 on M.O.6 Ex.P34(a) Signature of Om Prakash Singh on M.O.6 Ex.P34(b) Signature of PW.9 on M.O.6 87 Spl. C.C.28/2015 Ex.P35 Signature of PW.5 on M.O.7 Ex.P35(a) Signature of Om Prakash Singh on M.O.7 Ex.P36 Signature of PW.5 on M.O.8 Ex.P36(a) Signature of Om Prakash Singh on M.O.8 Ex.P37 Signature of PW.5 on M.O.9 Ex.P37(a) Signature of Om Prakash Singh on M.O.9 Ex.P38 Letter dt. 17.10.14 of PW.6 to CBI Ex.P38(a) Signature of PW.6 Ex.P39 Attested copy of the notice dt. 21.4.2014 to M/s. Khwaja Exports Ex.P40 Attested copy of the notice dt. 25.4.2014 for personal hearing to M/s. Khwaja Exports Ex.P41 Attested copy of the letter dt. 20.5.2014 of M/s. Khwaja Exports addressed to PW.6.
Ex.P42 Attested copy of notice dt. 22.5.2014 to M/s. Khwaja Exports for personal appearance.
Ex.P43 Attested copy of Postal Acknowledgement for due service of notice on M/s. Khwaja Exports.
Ex.P44 Attested copy of the letter dt. 10.6.2013 of M/s.Khwaja Exports for one more opportunity.
88 Spl. C.C.28/2015 Ex.P45 Attested copy of the order passed by PW.6 as Appellate Authority dt.
12.6.2014 u/s 45AA of ESI Act in Appeal No. 012/13-14.
Ex.P46 Original letter dt. 16.4.2014 of M/s. Khwaja Exports to PW.6.
Ex.P47 Receipt Memo dt. 23.9.2014 Ex.P47(a) Signature of PW.7 Ex.P48 ESI Act, 1948 with ESI (Central) Rules, 1950 & ESI (General) Regulations, 1950 Ex.P49 Attested copy of C-20A letter dt.
25.4.2013 of PW.7 to M/s. Khwaja Exports addressed.
Ex.P50 Receipt Memo dt. 20.10.2014 Ex.P50(a) Signature of PW.7 Ex.P51 Attested copy of "New Inspection Policy 2008" circulated vide letter dt.28.2.2014/03.03.2014.
Ex.P52 Attested copy of "New Amnesty Scheme". Ex.P53 Attested copy of letter dt. 9.8.2002 regarding percentage to be considered for charging contribution from labour supplier/contractor Ex.P54 Attested copy of letter dt. 6.5.2014 along with suspension order dt. 29.4.2014 Ex.P55 Original Sanction order dated 89 Spl. C.C.28/2015 27.11.2014 Ex.P55(a) Signature of PW.8 Ex.P55(b) Schedule of powers Ex.P56 Letter dt. 28.11.2014 of Director (Vig), ESIC, New Delhi to SP, CBI, Bangalore Ex.P56(a) Signature of Director (Vig) Ex.P57 Chemical Examiner's Report dt.
5.5.2014 Ex.P57(a) Signature of PW.9 Ex.P57(b) Brass seal impressions of CBI Ex.P58 Receipt Memo dt. 9.5.2014 Ex.P58(a) Signature of PW.10 Ex.P59 Xerox copy of the Letter dt. 2.5.2014 of S.P., CBI/ACB/BLR with Annexure-A & B to the Chemical Examiner, Govt. of Karnataka, Bangalore - 4 sheets Ex.P60 Annexure-A - Description of the M.Os containing original acknowledgment.
LIST OF EXHIBITED DOCUMENTS FOR
DEFENCE:
Ex.D1 Statement showing outstanding dues of
M/s. Khwaja Exports
Ex.D2 Signature with seal of M/s. Khwaja
Exports (available in sheet No.48 of Ex.P7) Ex.D3 Certified copy of complaint and enclosure in C.C.No.28/13 (27 sheets) 90 Spl. C.C.28/2015 Ex.D4 Certified copy of the order sheet in C.C. No. 28/13 - 3 sheets.
Ex.D5 Certified copy of the complaint etc., in C.C.No. 72/2012 (26 sheets) Ex.D6 Certified copy of the order sheet in CC No. 72/12 (12 sheets).
Ex.D7 Certified copy of the complaint and enclosures in C.C. No.145/13 - 20 sheets.
Ex.D8 Certified copy of the order sheets in C.C. No. 145/13 Ex.D9 Relevant portion in Ex.P5. Ex.D10 Relevant portion in Ex.P2. Ex.D11 Relevant portion in Ex.P5. Ex.D12 Note dated 1.4.2014 in Ex.P7 (Note sheets) Ex.D13 Observation in page-5 of Ex.P7(m) Ex.D14 Decision dt. 25.3.2015 of the C.P.I.O. of E.P.F.O. Ex.D15 Copy of the challan available with Ex.P46 Ex.D16 Attested copy of the Notice u/s 45-G of ESI Act dt. 12.12.14 for attachment of Bank account of u/s Khwaja Exports 91 Spl. C.C.28/2015 LIST OF MATERIAL OBJECTS EXHIBITED FOR PROSECUTION M.O.1 Currency Notes of Rs.500/- x 50 Nos., (Total Rs.25,000/-) M.O.2 (Note: - M.O.2 not marked/skipped) M.O.3 Sealed bottle containing right hand finger wash of the accused M.O.4 One Sealed Bottle marked as 'B' containing left hand finger wash of the accused M.O.5 One Sealed bottle containing pant pocket wash of the accused M.O.6 One Sealed bottle marked as 'F' containing cotton swab wash M.O.7 & 8 Two cotton swabs M.O.9 One DVD in which conversation between PW.1 and accused recorded.
M.O.10 Pant worn by the accused.
(R.B. Dharmagoudar) XXI Addl. City Civil and Sessions Judge, and Prl. Special Judge for CBI Cases, Bengaluru City.
92 Spl. C.C.28/2015 Accused is present.
Learned PP present.
Learned counsel for accused is present.
Judgment pronounced in open court, vide separate detailed order.
Acting u/s 248(2) of Cr.P.C., the accused is convicted for the offences punishable under Sections 7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988.
The bail bond and surety bond of the accused stands discharged.
M.O.1 cash shall be returned to the complainant.
M.Os.3 to 10 shall be destroyed as they are worthless.
Order regarding disposal of property shall came into force after the appeal period is expired.
(R.B. Dharmagoudar) XXI Addl. City Civil and Sessions Judge, and Prl. Special Judge for CBI Cases, Bengaluru City.
93 Spl. C.C.28/2015 Order pronounced in open court, vide separate detailed order.
The accused is sentenced to undergo SI for 3 years and to pay a fine of Rs.15,000/- (Rs. Fifteen Thousand only) for the offence u/s 7 of PC Act. In default of payment of fine, he shall further undergo a simple imprisonment for a period of 3 months.
The accused is sentenced to undergo SI for 4 years and to pay a fine of Rs.20,000/- (Rs. Twenty Thousand only) for the offence u/s 13(2) r/w 13(1)(d) of PC Act, 1988.
In default of payment of fine he shall undergo a simple imprisonment for a period of 4 months.
Both substantive sentences shall run concurrently.
The accused has suffered judicial custody for 11 days during the crime stage and the same shall be given set off u/s 428 of Cr.P.C., towards substantive sentences imposed upon him.
Issue conviction warrant.
The copy of the judgment shall be supplied to the accused free of cost.
94 Spl. C.C.28/2015 (R.B. Dharmagoudar) XXI Addl. City Civil and Sessions Judge, and Prl. Special Judge for CBI Cases, Bengaluru City.