Bangalore District Court
The State Of Karnataka vs D.K. Annegowda on 20 November, 2019
IN THE COURT OF LXXVIII ADDL.CITY CIVIL & SESSIONS JUDGE
& SPECIAL JUDGE (Prevention of Corruption Act), BENGALURU
(C.C.H.No.79)
Present: Sri.Gopalkrishna Rai.T, B.A.(Law), LL.B.,
LXXVIII Addl.City Civil & Sessions Judge
& Special Judge (P.C.Act.), Bengaluru.
Dated: 20th day of November 2019
Special C.C. No.30/2012
Complainant: The State of Karnataka, represented by
Police Inspector, Karnataka Lokayukta,
City Division, Bengaluru.
(By Public Prosecutor)
vs.
Accused: D.K. Annegowda,
S/o Late D.B.Kempegowda,
55 years, FDA,
Bengaluru Development Authority,
South Division, Banashankari
BDA complex, Bengaluru-70.
R/at No. 2/7,M.F.S.A.P.H.S.
Nandini Layout, Bengaluru-56.
(By Sri.M.S.Shankaragulli-Advocate.)
Date of commission of offence 06.09.2011
Date of report of occurrence 06.09.2011
Date of arrest of accused 07.09.2011
Date of release of accused on bail 09.09.2011
Date of commencement of evidence 22.12.2017
Date of closing of evidence 26.09.2019
Name of the complainant Sri.Mohammed Rashad
Ahmed
2
Spl.CC.No.30/2012
Offences complained of Under Sections 7, 13(1)(d)
r/w/s 13(2) of Prevention of
Corruption Act
Opinion of the Judge Accused is found guilty
J U D G M E N T
The above said accused D.K.Annegowda has been prosecuted by the Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.
2. The brief facts of the prosecution case are as under:
The accused was working as F.D.A in the office of Revenue Officer, South Zone, Bengaluru Development Authority, Banashankari, Bengaluru. The father of the complainant (C.W-14) owns a site bearing No.939 in 9 th Block of Anjanapura. On 09.08.2011, the complainant along with his father CW-14 have approached BDA Office to pay tax in respect of site No.939 and met the accused. The accused has demanded Rs.2000.00 as gratification other than legal remuneration to attend their work. On that day, they did not pay any amount to him. In spite of repeated visits, the accused has not attended the work of the complainant.
Ultimately, on 23.08.2011, the complainant has met the accused and requested him to attend his work. On that day also accused has demanded Rs.2000.00 as illegal gratification and received 3 Spl.CC.No.30/2012 Rs.300.00 and instructed to pay balance of Rs.1700.00. On 27.08.2011, again the complainant has contacted the accused over phone and during the conversation also, the accused has demanded remaining amount of Rs.1700.00. On 07.09.2011, the complainant has remitted tax of Rs.1924.00 in respect of site stood in the name of his father. Thereafter, the accused has insisted illegal gratification of Rs.1700.00 and accepted the same in the first floor of BDA complex, Banashankari, Bengaluru. As instructed, on receiving the signal, the Investigating Officer i.e., PW.6 Anjankumar who laid trap, has subjected the accused to the process of trap and recovered tainted notes of Rs.1700.00 and on completion of the investigation has filed the charge sheet.
3. About Registration of Case:
On 06.09.2011, Mohammed Rashad Ahamed has filed Ex.P.12- complaint and based upon which P.W.6-K.Anjan Kumar has registered the case and transmitted F.I.R to the Special Court. Accordingly, trap was laid, being successful, on recovery of tainted notes of Rs.1700.00, the Accused Annegowda was subjected to the process of arrest on 07.09.2011 and he was produced before the Special Court and remanded to Judicial Custody. Subsequently, he was got released on bail on 09.09.2011.4
Spl.CC.No.30/2012
4. About Prosecution Sanction:
On completion of investigation, through ADGP, Karnataka Lokayukta, the Investigating Officer has made a request to the Commissioner of BDA to accord Prosecution Sanction. P.W1. Mr. Bharathlal Meena, the then Commissioner of BDA, has accorded sanction as per Ex.P.1.
5. After filing of the charge sheet, the process of summons were issued to the accused, he put his appearance. The copies of prosecution papers as provided under 207 of Cr.P.C. is furnished. In the meanwhile the accused has maintained an application under section 227 of Cr.P.C seeking his discharge. This Court as per its order dated 30.11.2017 has rejected the application and framed the charge against the accused for the offence punishable under section 7, 13(1)(d) r/w section 13(2) of PC Act.
6. About the evidence produced by the Prosecution:
To bring home the guilt of accused, the Prosecution has examined the Sanctioning Authority Mr.Bharathlal Meena as P.W.1. The complainant-Mohammed Rashad Ahammed who has set criminal law in motion by lodging Ex.P.12 is examined as P.W.2. In addition to it, one S.Harsha, shadow witness is examined as P.W.3. One Smt.D.N.Shantha, who has heard the audio and video visuals containing the conversation between the complainant and accused is examined as P.W.4. One V.Siddappa working along with 5 Spl.CC.No.30/2012 accused-Annegowda who has identified the presence of accused in CD's is examined as P.W.5. The Police Officer-Sri.K.Anjankumar who has undertaken task of registration of the case and investigation, is examined as P.W.6. In addition to the oral evidence, the prosecution has got marked documentary evidence in 'P' Series as Ex.P.1 to 32 and placed reliance on M.O.1 to 18.
7. After closure of evidence of prosecution, the incriminating circumstances found in the testimony of prosecution witnesses are formulated into the form of questions as required under section 313 of Cr.P.C and explained to the accused. He has denied the version of prosecution witnesses, however, he has not chosen to examine any witnesses on his behalf.
8. Heard the arguments of learned PP for the State and Sri.M.S.S. Advocate for the accused. I have given my anxious consideration to the arguments so advanced and subjected the evidence placed on record to the process of judicial scrutiny.
9. Under the circumstances narrated herein above, the following points do arise for consideration:
1) Does the prosecution proves the fact that it has obtained valid Sanction under section 19 of P.C.Act to prosecute the accused?6
Spl.CC.No.30/2012
2) Does the prosecution beyond reasonable doubt proves the fact that when accused D.K.Annegowda was working as F.D.A in the office of Revenue Officer, South Zone, BDA, Banashankari, on 09.08.2011 has demanded Rs.2000.00 as gratification other than legal remuneration to permit the complainant to remit tax of Rs.1924.00 in respect of site No.939, 9 th Block, Anjanapura belonging to CW.14 and received Rs.300.00 as advance on 23.08.2011 and received balance of Rs.1700.00 on 07.09.2011 in the passage, in front of BDA Office in the First Floor of BDA Complex, Banashankari in the presence of C.W.2 and accepted the same as gratification other than legal remuneration as a motive/reward to do official act and thereby the accused has committed an offence punishable under section 7 of Prevention of Corruption Act 1988?
3) Does the prosecution beyond reasonable doubt proves the fact that, on 07.09.2011 in 7 Spl.CC.No.30/2012 between 11.45 a.m to 11.55. a.m. in the passage of First Floor of BDA Complex, Banashankari, the accused being First Division Assistant of BDA, by abusing his position as public servant by corrupt or illegal means obtained pecuniary advantage of Rs.1700.00 without public interest from the complainant and thereby committed an offence of criminal misconduct as defined under section 13(1)(d) of Prevention of Corruption Act which is punishable under section 13(2) of Prevention of Corruption Act.
4) What Order?
10. My findings to the above points are as under:
Point No.1: in the Affirmative.
Point No.2: in the Affirmative
Point No.3: in the Affirmative
Point No.4: as per the final order
below for the following
REASONS
11. Point No.1: The fact that, at the given point of time, more precisely on 07.09.2011, the accused was working as F.D.A in the office of BDA is not in dispute. Therefore, at the initial stage itself, it can be said that accused-Annegowda was working as a 8 Spl.CC.No.30/2012 public servant within the meaning of Section 2(c)(1) of Prevention of Corruption Act and he was discharging his public duty within the meaning of Section 2(b) of Prevention of Corruption Act 1988. Therefore, it is incumbent on the prosecution to prove that, a valid Sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. That burden can be discharged by the prosecution by producing original Sanction Order which contains the facts constituting the offence and the grounds of satisfaction and by adducing evidence to show the facts placed before the sanctioning authority and the satisfaction arrived at by it.
12. The prosecution in its attempt to prove the fact that it has secured a valid Sanction has not only produced the oral evidence of P.W.1-Mr.Bharathlal Meena, the then Commissioner of BDA but also it has produced the original Sanction Order as per Ex.P.1. It is the definite evidence of P.W.1 that, at the given point of time accused-Annegowda was working as a F.D.A. in BDA. That fact reiterated by P.W.1 even at the time of his cross-examination also. Infact that evidence of P.W.1 is remained unchallenged. It is pertinent to note that, at the time of recording of his statement as required under section 313 Cr.P.C., the accused has admitted that, P.W.1 was working as Commissioner of BDA and he (accused) was working as a F.D.A in the same Department. It is a evidence of 9 Spl.CC.No.30/2012 P.W.1 that, he being the Commissioner of BDA was the Disciplinary Authority to the accused. When that evidence was read over to the accused, he has admitted the same. Therefore, it is proved that, Commissioner of BDA was the Disciplinary Authority to the accused. Hence, the prosecution has proved that, P.W.1 was the Authority to issue Prosecution Sanction Order.
13. The reading of Ex.P.1-Prosecution Sanction Order dated 20.12.2011 would demonstrately indicate that, on scrutiny of the letter of ADGP, Karnataka Lokayukta dated 05.12.2011, the Report of the Investigating Officer in Cr.No.37/11 dated 29.11.2011, copy of Complaint, F.I.R, Entrustment Mahazar, Trap-Mahazar, FSL Report and the statement of the witnesses, the P.W.1 has totally satisfied with regard to the fact that, the accused has committed the offence punishable under section 7, 13(1)(d) r/w section 13(2) of Prevention of Corruption Act. Even in the order itself he has observed that, it is necessary to subject the accused to the process of prosecution for the said offences. It can be gathered from the contents of Ex.P.1 that, the author of the same i.e., P.W.1 has applied his judicious mind and has not passed the order in a mechanical manner.
14. To substantiate the contents of Ex.P.1-Sanction Order, the P.W.1 has reiterated that, he has applied his mind and as he has found sufficient materials to prosecute the accused, he has accorded 10 Spl.CC.No.30/2012 Sanction as per Ex.P.1. No doubt, he has deposed that, he used to supervise the work done by his staff and during his supervision he did not receive any complaint against the accused. However, that evidence of P.W.1 will not come to the aid of the accused that, he is innocent of the offence alleged. The suggestion directed to P.W.1 that he has mechanically accorded sanction is denied by him. In the cross-examination, he has denied the suggestion that without applying his mind he has mechanically issued Prosecution Sanction Order. The denied suggestion is not evidence in the eye of law. Added to above, at the time of his 313 statement also accused has not denied the incriminating circumstances found in the evidence of P.W.1. Therefore, absolutely there are no reasons much less good reasons to disbelieve or to discard the testimony of P.W.1 with regard to he applying his judicious mind and taking decision to accord Prosecution Sanction.
15. The scope of the Sanction to prosecute is to ensure that, honest public servant is not harassed and victimised. The Sanction is an important attribute which was to be scrooplessly insisted upon to ensure fair prosecution. In the present case at the time of cross- examination of P.W.1 nothing is suggested to him to the effect that, he was in enimical terms with the accused and hence, he has passed order as per Ex.P.1. Therefore, there was no need or occasion for P.W.1 to issue Ex.P.1 order without there being any 11 Spl.CC.No.30/2012 material for the issuance of the same. The suggestion that, Ex.P.1 is issued only at the instance of Prosecution, is denied by P.W.1. To impeach the credibility of the testimony of P.W.1 that he has applied his mind and recorded his satisfaction based on the materials placed before him and thereafter he has issued Ex.P.1, nothing worthwhile is elicited at the time of his cross-examination. The evidence of P.W.1 coupled with the contents of Ex.P.1 would clearly establish the fact that, on applying his judicious mind and on recording his satisfaction P.W.1 has issued Ex.P.1. Thus, on appreciation of evidence on record, this court is of the opinion that, P.W.1 being the Disciplinary Authority has perused the prosecution materials and on recording his satisfaction has issued Prosecution Sanction Order as per Ex.P.1. Accordingly it is held that, there is valid Prosecution Sanction Order as per Ex.P.1 to prosecute the accused-Annegowda for the offence punishable under section 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act 1988. Resultantly, Point No.1 is answered in the Affirmative.
16. Point No.2 and 3: These two points are taken together for discussion as the same are interconnected with each other and with an intention to avoid repetition of facts and discussion. In order to bring home the guilt of accused for the offence under section 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act, prosecution has to prove that accused being a public servant demanded and 12 Spl.CC.No.30/2012 accepted illegal gratification. Prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to the complainant. Under Section 20 of Prevention of Corruption Act, there is a presumption available in respect of offence under section 7. The benefit of presumption can be extended in favour of prosecution and onus can be shifted upon accused only when prosecution discharges initial burden of proving that accused has demanded and accepted illegal gratification. Under Section 13(1)(d), accused receiving pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant or receiving any pecuniary advantage without any public interest would constitute the offence.
17. In various decisions of the Hon'ble Supreme Court it has been held that demand of illegal gratification by the accused is sine-quo-non to constitute offence under Section 7 and even under Section 13(1)(d) of Prevention of Corruption Act. Therefore, without proving demand for illegal gratification by the accused, Prosecution cannot proceed further. For the offence under Section 7 of Prevention of Corruption Act even an official act or favour to be done by the Accused to the complainant and demand of bribe to prove such official act or favour is also necessary to be established.
18. P.W.1-Mohammed Rashad Ahamed in his Ex.P.12 Complaint at the earliest point of time has contended that, site 13 Spl.CC.No.30/2012 No.939 of Anjanapura was alloted to his father. It is the case of the Prosecution that, at the time of trap, the Investigating Officer has secured true copy of entire file relating to site No.939 of Anjanapura 9th Block. The entire file secured by the Investigating Officer is got marked by the Prosecution through the evidence of P.W.6 as per Ex.P.16. It is relevant to note at the outset itself that, the genuineness or otherwise of the same has not been denied or disputed by the accused. The meticulous scrutiny of Ex.P.16 would reveal the fact that, site No.939 was alloted to Fayaz Ahamed and accordingly, a sale deed came to be registered on 05.09.2003 in his name. Hence, the materials collected by the Investigating Officer coupled with the evidence of P.W.2 itself is sufficient to establish that, Fayaz Ahamed, the father of the complainant was the allottee/owner of site No.939 of Anajanapura 9 th Block.
19. In his Ex.P.12-complaint, P.W.2 alleged that, he and his father have approached the accused so as to enable them to pay the tax in respect of site No.939. In his evidence P.W.2 has stated that, he and his father approached the accused for several times that too during Ramzan season and requested him to allow them to remit property tax. That evidence of P.W.2 with regard to he and his father repeatedly visiting the office of the accused has not been challenged at the time of his cross-examination. Resultantly that evidence of P.W.2 with regard to that fact remained unchallenged.
14Spl.CC.No.30/2012 Hence, the testimony of P.W.2 that, he and his father approached the accused so as to pay the tax, do inspire the confidence of the court to the effect that the evidence of P.W.2 is trustworthy and not tainted one. Thus, it is proved by the prosecution that, the work of P.W.2 and his father was pending with the accused. However, the pendency of the work with the accused itself is not sufficient to prove the demand or acceptance of gratification other than legal remuneration which the accused is entitled to receive. Under the circumstances, it is just and necessary to subject the testimony of P.W.2 to the process of judicial scrutiny.
20. About presumption contemplated under section 20 of PC Act, Learned PP has submitted that, in the present case the prosecution has not only proved acceptance of bribe but also its recovery by producing oral and documentary evidence and hence he has requested the court to draw presumption under section 20 of PC Act. However, learned counsel for the accused has placed reliance on a decision reported in 2016(3) KCCR 1889(SC) in a case between V.Sejappa Vs. State by Police Inspector Lokayukta, Chitradurga. In the said decision it is held that recovery of tainted money alone is not sufficient to draw presumption. In the said decision the Apex Court has observed that in so far as the offence under section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine-qua-non to constitute the said 15 Spl.CC.No.30/2012 offence and mere recovery of currency notes cannot constitute the offence under section 7 unless it is proved beyond all reasonable doubt that the accused has voluntarily accepted the money knowing it to be a bribe.
21. The learned counsel for the accused has placed reliance on a decision reported in 2016(3) KCCR SN (SC) in a case between Krishan Chander Vs. State of Delhi. In the said decision also it is held that proof of demand and acceptance of bribe is sina-quo-non for convicting the accused under section 7 and 13(1)(d) r/w section 13(2) of PC Act of 1988. The counsel for the accused has also placed reliance on a decision reported in 2018(4) KCCR 2997 in a case between K.S.Thimmappa Vs. Karnataka Lokayukta police, Bengaluru. In the said decision it is held that when complainant has specifically mentioned that work in question was not pending with the accused, prosecution has failed to prove demand and acceptance of bribe. In view of the above referred decisions, it is incumbent upon this court to appreciate the evidence placed by the prosecution. It is relevant to note that, PW.2 at the time of his cross-examination has stated that as on the date of the trap no work was pending with the accused. However, the fact remains that before the trap itself the accused has permitted the complainant to remit the tax in respect of the site of his father. That observation is made because of the fact that as per the true 16 Spl.CC.No.30/2012 copies of challans/receipt available at Ex.P.14, the same was dated 23.08.2011. However, the evidence of P.W.2 would inspire confidence in the mind of the Court that, as the bank hours was over as on 06.09.2011 and hence he has remitted the tax on 07.09.2011 the date of the trap. Therefore, the evidence of P.W.2 in cross-examination that at the time of trap work was not pending with the accused is not a ground to discard entire theory of the prosecution. It is pertinent to mention that P.W.2 has remitted the tax to the government on 07.09.2011 before the execution of the task of trap.
22. In his Ex.P.12-complaint at the earliest point of time P.W.2 has stated that due to some reason the year wise tax was not paid to BDA i.e., from the year 2003. It is also contended in Ex.P.12 that on 09.08.2011 he along with his father visited BDA Office at Banashankari, BDA Complex and met one official by name Raju. From the evidence placed on record it emanates that, Raju was not entrusted with the task of tax or placing the file before the senior Officer so as to enable the owner of the site to pay the tax. On the other hand, it is proved that Mr.Raju was the clerk who was attached to the office as to receive the application from the site owners who are intended to pay the tax.
23. In his Ex.P.12-complaint, it is also stated that, the complainant and his father have give application to Raju and inturn 17 Spl.CC.No.30/2012 he gave an acknowledgement and stated that the cost of the process would be Rs.3000/-. It is also stated that, after verifying the documents, Raju has stated that the said file does not come under him and hence asked them to meet one Annegowda who was sitting at the same office. Though the prosecution has contended that, at the relevant point of time, more precisely on 09.08.2011, the accused Annegowda was working as FDA in the office of BDA at Banashankari is not denied by him. However, to show that Annegowda was working as FDA, the prosecution has placed reliance on the Attendance Register extract as per Ex.P.17. The reading of Ex.P.17 would show that Annegowda was working as FDA in the office of BDA and he has signed the Attendance Register not only during the month of August 2011 but also on 07.9.2011. Thus, by producing the undisputed documents, the prosecution has proved that at the relevant point of time D.K.Annegowda the accused herein was working as FDA in the office of BDA at Banashankari.
24. In Ex.P.12, it is contended that, when the complainant and his father met the accused Annegowda, he said that the total tax amount will be approximately Rs.2000.00 but for the easy procedure he has asked them to pay extra. But the father of the complainant refused to pay the bribe amount and inspite of their repeated approach to the accused Annegowda he has failed to 18 Spl.CC.No.30/2012 attend their file. It is argued by the learned counsel for the accused that, had the allegation made in Ex.P.12 and evidence of P.W.2 were to be true, there was no impediment for him or his father to lodge complaint against the accused to his higher officer. No doubt, the evidence of P.W.2 in the cross-examination would show that, on the demand of the accused, the complainant and his father have not approached the higher officer of the accused. That aspect of the matter, itself is not a ground to discard or disbelieve the testimony of P.W.2. However, with regard to demand for bribe, the evidence of P.W.2 shall have to be considered along with the other evidence produced by the prosecution.
25. In Ex.P.12-complaint, at the earliest point of time, P.W.12 has stated that, as he and his father were not willing to pay bribe amount for their lawful work, they discussed to go to Lokayukta and to show the proof, he thought of recording conversation with the accused and then visit Lokayukta. Therefore, from the contents of the Ex.P.12, it is clear that, it is not the Investigating Officer who has collected evidence prior to lodging of complaint but on the other hand P.W.2 being a educated man has thought of collecting evidence with regard to demand for bribe. As per Ex.P.12 on 23.10.2011 the complainant met Annegowda in his office at Banashankari and requested him to attend his pending work and ultimately he has negotiated for a sum of Rs.2000/- as a 19 Spl.CC.No.30/2012 bribe amount and on his demand he has paid Rs.300/- in advance. In fact P.W.2 during the course of his evidence, has reiterated the said fact.
26. Ex.P.12-complaint, P.W.2 has stated that, he has recorded the whole conversation between himself and accused Annegowda in his mobile and again he has called Mr.Annegowda to his mobile No.9480335312 and on 27.08.2011 once again enquired about his pending work and Mr.Annegowda said that file is ready and will cost upto Rs.2000/- and he has demanded him to pay the balance bribe amount of Rs.1700/- and the same conversation was recorded in his mobile. That contents of Ex.P.12 is incorrobaration with the evidence of P.W.2 in chief examination. It is very relevant to note here itself that, after requesting accused Annegowda on 09.08.2011, both the complainant and his father have repeatedly visited his office so as to request him to attend their work but he did not. On the other hand, he has received advance of Rs.300/- to start work and he has called upon the complainant to pay balance consideration amount after the completion of the work. No doubt the prosecution has produced the CD containing alleged as per conversation recorded in the mobile of the complainant. However, those MO.5 is not supported by the certificate as required under section 65B of Evidence Act. Merely because, the CD's is marked in the evidence it will not 20 Spl.CC.No.30/2012 discharge the statutory liability of the prosecution to produce certificate as required under section 65B of Evidence Act.
27. In addition to the oral evidence of P.W.2 with regard to the demand for bribe and his payment of advance of Rs.300/-, with regard to the telephonic conversation between the complainant and accused, the prosecution has placed reliance on Ex.P.27-CDR in respect of mobile No.9986171786 and in respect of mobile No.9480335312 as per Ex.P.28. No doubt, at the time of marking of those two documents, the counsel for the accused has not raised any objection. However, the prosecution has not produced certificate as required under section 65B of Evidence Act. Hence, Ex.P.27 and 28 are of no avail to prove the demand for bribe.
28. The evidence on record, which is supported by the testimony of P.W.2 would demonstrately indicate that the accused who was supposed to attend his file has demanded bribe to the tune of Rs.2000/- and received advance of amount of Rs.300/- so as to attend the lawful work. The learned counsel for the accused has argued that though P.W.2 has stated that, he received the acknowledgement from the accused, those acknowledgements were not produced by the prosecution. However, the evidence of P.W.2 both in chief and cross-examination would inspire confidence in the mind of the court that, he being a educated man who was not willing to pay bribe amount has approached Lokayukta Police and 21 Spl.CC.No.30/2012 lodged Ex.P.12-Written complaint. The learned counsel for the accused has argued that, though P.W.2 is a educated man has not resorted for lodging of complaint to the higher officer of the accused and therefore, his version cannot be believed. Just because of the fact that, the complainant has not resorted for alternative remedy, it does not mean to say that whatever he has stated is not true. On the other hand, there is no material on record to the effect that, the complainant had enemity or grudge against the accused. In the absence of such a contention, there was no occasion or reason for P.W.2 to lodge Ex.P.12-complaint. Therefore, the evidence placed on record with regard to demand for bribe prior to lodging of complaint is explained by the prosecution to the satisfaction of this court.
29. It is the evidence of P.W.6-Anjan Kumar, the Police Inspector of Karnataka Lokayukta, City Division, Bengaluru that, on 06.09.2011, the complainant Mohammed Rashad Ahmed appeared before him and gave a written complaint as per Ex.P.12 along with CD and documents pertaining to his property and on receipt of the same, he has registered the case and transmitted the FIR to the court. It is very pertinent to note at the outset itself that it can be gathered from the evidence of P.W.6 is that, he on verifying the complaint as per Ex.P.12 and the conversation available in the CD being satisfied with the demand made by the accused for bribe has 22 Spl.CC.No.30/2012 registered the case and transmitted the FIR to the jurisdictional court. Though P.W.6 is subjected to the test of cross-examination, nothing is elicited from his mouth to the effect that, at the instance of the complainant he has registered a false case. Thus, from the evidence on record, it is clear that P.W.6 being the Police Inspector, Karnataka Lokayukta empowered to register the case under the provisions of PC Act of 1988 has registered the case and transmitted FIR to the court. Therefore, the evidence of P.W.2 that he lodged the complaint as per Ex.P.12 to the Police Inspector Anjan Kumar is substantiated by the prosecution through the evidence of P.W.6.
30. P.W.6 has deposed that, he asked the complainant to produce the amount brought by him to pay tax to the government and accordingly he has produced Rs.2000/- in denominations of Rs.500x4 and those notes were noted on a sheet as per Ex.P.2 and signatures were taken. Though the evidence of P.W.6 is in accordance with the contents of Ex.P.2 the sheet which bearing currency note numbers and denominations as well, the accused has not disputed the genuineness of the same. However Ex.P.2 has no relevance with regard to demand for illegal gratification.
31. The evidence of P.W.6 would reveal that, he has called upon the complainant to produce currency notes and currency note numbers of Rs.1700/- were noted in the sheet as per Ex.P.3, which 23 Spl.CC.No.30/2012 is the balance amount required to be paid to the accused. Therefore, the joint reading of Ex.P.2 and 3 coupled with the evidence of P.W.2 and 6, it is crystal clear that, the complainant has not only produced Rs.2000/- towards tax amount but also produced Rs.1700/- towards balance bribe amount required to be paid to the accused.
32. It is the evidence of P.W.6 that, after the mentioning note numbers in Ex.P.3 he through his staff by name M.H.Banna got smeared phenolphthalein Powder on both the sides of currency notes of Rs.1700/-. In fact, P.W.2 being the complainant has in unequivocal tune deposed that serial number of currency notes were noted down on a sheet of paper and some chemical powder was smeared on Rs.1700/- by some Lokayukta Officer. Therefore the evidence of P.W.6 is intune with the evidence of P.W.2. In addition to that evidence, P.W.3 S.Harsha being a shadow witness has deposed that phenolphthalein powder was smeared on Rs.1700/- currency notes and thereafter C.W.3 has kept the tainted notes in the front side of pant pocket of the complainant. That evidence of P.W.3 further substantiate the contention of the prosecution with regard to smearing of phenolphthalein powder to the currency notes to the tune of Rs.1700/-. Though P.W.2, 3 and 6 were subjected to the cross-examination, the process of smearing phenolphthalein powder to currency notes of Rs.1700/- is not 24 Spl.CC.No.30/2012 denied. Thus from the above evidence it is proved that the Investigating Officer has got smeared phenolphthalein powder on the currency notes of Rs.1700/-.
33. It is the evidence of P.W.6 that Sodium Carbonate Solution was prepared and sample was taken as per Article No.6 and when the hands of C.W.3 were washed, the solution turned into pink colour and the same was seized in a bottle by labeling as Article No.7. In fact P.W.3 has also deposed that the hands of C.W.3 were washed in a solution and the solution turned into pink and the same of was seized and sealed in a bottle. The Investigating Officer has secured the Report of Chemical Examiner as per Ex.P.26. As per Ex.P.26 in Article No.7 dark pink colour solution is narrated and on a test both phenolphthalein powder and Sodium Carbonate Solution has come in the positive. Therefore, from the above evidence it is clear that it is C.W.3 who has kept the tainted currency notes in the pant pocket of the complainant. Thus the process of smearing phenolphthalein powder to the currency notes is stands proved.
34. It is the evidence of P.W.6 that, he has conducted pre- trap proceedings as per Ex.P.4 and that process was subjected to the process of Videograph. According to him in respect of videography he has prepared a CD as per Article No.8. No doubt, it is true that CD at Article No.8 is already marked at the time of 25 Spl.CC.No.30/2012 evidence of P.W.6 as per M.O.10. However, the fact remains that in respect of M.O.10-CD, the Investigating Officer has not produced any certificate as required under section 65B of Evidence Act. The evidence of P.W.6 with regard to he drawing Ex.P.4-pre-trap panchanama on 06.09.2011 is supported by the evidence of P.W.2 and 3. It is the definite evidence of P.W.2 that, the Investigating Officer has drawn pre-trap panchanama as per Ex.P.4 in his presence. In addition to the evidence of P.W.2 there is evidence of P.W.6, who is the shadow witness who has in categorically terms deposed that as per the instructions of Lokayukta Police Inspector, C.W.3 kept the amount of Rs.1700/- in the pant pocket of complainant and at that point of time Ex.P.4 panchanama was drawn. It is very relevant here itself that, P.W.3 being the independent shadow witness had no animosity with the accused. Similarly, it is not the contention of accused that P.W.3 is the friend of the complainant. On such circumstances, the evidence of P.W.3 with regard to drawing Ex.P.4 trap panchanama do inspire confidence in the mind of the court that, he has deposed truth before the Court.
35. It is the evidence of P.W.6 that on 06.09.2011, they have reached near BDA Complex, Banashankari and he has reminded the complainant with regard to instructions and complainant and C.W.2 went to the bank to pay tax amount 26 Spl.CC.No.30/2012 mentioned in the challan and came near him. It is also his evidence that at that point of time, he affixed Digital Voice Recorder and spy camera to the complainant and they sent to meet accused.
36. It is the evidence of P.W.6 that he has instructed the complainant to flash a signal by wiping his hand on accused receiving tainted notes and he instructed C.W.2-Harsha to act as shadow witness and accompanied the complainant and to observe the happenings and to report later. The complainant and C.W.2 went to the office of the accused and after few minutes they came back and informed that bank time was over and the accused has asked the complainant to pay the amount in the bank on the next day and then to bring challan before him. Infact P.w.2 and 3 have also deposed that on 06.09.2011 they went to BDA office complex at Banashankari met the accused and as per instructions they have went to the bank to remit the cash of Rs.1924/- and as the bank time was over they could not remit the amount to the Bank. Thus evidence of P.W.2, 3 and 6 is incorroboration with evidence placed on record. It is not out of place to mention here itself that P.W.6 has no interest either in the allegations made by the complainant or in the accusation made against the accused. He being the Police Inspector attached to Karnataka Lokayukta, has acted in a manner as he is required to act.
27Spl.CC.No.30/2012
37. It is the evidence of P.W.6 that he asked the complainant to give the challan given by the accused and complainant has handed over the same to him as per Ex.P.14. The reading of Ex.P.14 would show that the same is dated 23.08.2011 but there is no specific date of the remittance of tax amount of Rs.1924/- to the bank. However, the total amount is shown as Rs.1924/- and the challan was signed by the Revenue Officer of BBMP on 25.08.2011. Just because of the Ex.P.14 is dated 25.08.2011 it does not mean to say that accused has not given that challan to the complainant on 06.09.2011. It is not the case of the accused that Ex.P.14 is a document concocted by P.W.6 in collusion with P.W.2 and 3. Therefore, the evidence of P.W.6 is sufficient to come to the conclusion that Ex.P.14 challans were issued by the accused to the complainant so as to enable him to pay the tax to the Government.
38. It is also the evidence of P.W.6 that the complainant has produced button camera at the time handing over of the challans as per Ex.P.14. According to him, the recordings stored in the button camera is transmitted into the CD and transcription was written as per Ex.P.10. It is also the evidence of P.W.6 that, the complainant has once again handed over the tax amount of Rs.2000/- and tainted notes of Rs.1700/- and the same was separately kept in the Almirah and the trap attempt was postponed 28 Spl.CC.No.30/2012 to the next date. According to him on return from the office of BDA, he has drawn as Ex.P.5 Mahazar. The reading of Ex.P.5- Mahazar would show that, the same is drawn at the instance of P.W.6 in the presence of P.W.2 and 3. The careful reading of Ex.P.5 would demonstrately indicate that the same is drawn at the time of return of a sum of Rs.1700/- towards bribe amount and Rs.2000/- towards the tax amount which C.W.2 required to remit to the government in respect of the property belonging to his father. Infact, P.W.2 and 3 have also in unequivocal terms deposed that they have participated in the process of mahazar as per Ex.P.5. To disbelieve or to discard their testimony or to disbelieve the contents of mahazar at Ex.P.5 absolutely there are no reasons. Thus from the oral evidence of P.W.2,3 and 6 it is clear that on 06.09.2011 a mahazar has drawn and as per Ex.P.5.
39. It is the evidence of P.W.6 on 07.09.2011 both Harsha and Siddalingeshwara once again visited his office and he has drawn further pre-trap panchanama as per Ex.P.6 in the presence of the complainant. The evidence of P.W.2 and 3 would support the evidence of P.W.6 that he has drawn further entrustment mahazar on 07.09.2011 at the office of Karnataka Lokayukta. From the meaningful reading of the evidence of P.W.2, 3 and 6 it is clear that they have stood well in the test of cross-examination with regard to drawing pre-trap panchanama and further Pre-trap 29 Spl.CC.No.30/2012 panchanama as per Ex.P.4 and 6 respectively. Therefore, the prosecution to the satisfaction of this court has proved that proceedings.
40. It is the further case of the prosecution that, after further pre-trap mahazar as per Ex.P.6 the trap team proceeded towards the office of the accused situated at Banashankari, BDA Office and they left the office at 11.15 a.m. In the team 2 witnesses by name S.Harsha and K.A.Siddalingeshwar were present and the Police Inspector has instructed S.Harsha to act as a shadow witness. It is also the case of the prosecution that when they have reached the office of the accused at 11.45 a.m, the Police Inspector has instructed them to follow the instructions already given to them. It is contended by of the prosecution that, thereafter complainant and shadow witness by name Harsha were speaking with a person in the BDA Complex passage and thereafter complainant has given a signal to the trap team and informed about the receipt of the tainted amount by accused.
41. It is the evidence of P.W.2 Harshad Ahmad Khan that on 07.09.2011 at 9.45 a.m. he came to Lokayukta Office and their he found two panchas and the Police Inspector. According to him the tainted notes were taken out from the locker and further entrustment mahazar as per Ex.P.6 was drawn and they left the 30 Spl.CC.No.30/2012 office of Lokayukta at 10.30 a.m. That evidence of P.W.2 would corroborated with the theory of the prosecution.
42. The evidence of P.W.2 would also show that he and panchas went to the office of accused there he produced the challan having paid tax in respect of property of his father and there afterwords the accused has asked him to pay the balance amount. According to him accused took him to balcony and he has received the tainted notes and kept the same in the right side pant pocket. According to him he has flashed the signal to the trap team by wiping his head. That evidence would show that the trap was successful. According to him panch witness by name Harsha took out the tainted notes of Rs.1700/-. That evidence of P.W.2 in corroboration with the evidence of P.W.3.
43. It is the definite evidence of P.W.3-S.Harsha the Section Officer of Medical Education Department, Karnataka Government Secretariat that on the particular day they have visited the office of the accused and the accused has received the tainted amount from the complainant and kept the same in his pant pocket. According to him after receipt of the signal, Police Inspector and his team arrived to the spot and the tainted notes of Rs.1700/- was taken out from the pant pocket of the accused and when they have counted the tainted notes the same was tallied with the notes given to the complainant at the time of pre-trap.
31Spl.CC.No.30/2012
44. According to P.W.3 other than this case, he had gone to a ride case of Lokayukta Police as a witness. However that admission elicited from the mouth of P.W.3 itself is not a suffice to believe the contention of the accused that P.W.3 is a interested witness.
45. The cumulative effect of evidence of P.W.2 and 3 is that the accused has received tainted amount of Rs.1700/- on 07.09.2011 and the same was recovered from his pant and the mahazar was drawn at Ex.P.7.
46. According to P.W.2 and 3, Sodium Carbonate Solution was prepared and the hands of the accused were washed and the same was turned into pink. That evidence of P.W.2 and 3 is in accordance with the evidence of P.W.6 who is the Investigating Officer. According to P.W.6, they have reached the BDA Office at 11.15 a.m. and the complainant and C.W.2 have followed the instructions given by him and on receiving flash signal immediately he and other members of the trap team went inside the BDA Office there the complainant shown a person who was sitting in the chair as a person was demanded and received the tainted notes from his right hand and then counted by both the hands and then kept the same in his right side pant pocket. According to P.W.6, accused who is present before the court was the person who received the bribe amount from the complainant. According to P.w.6, he has got 32 Spl.CC.No.30/2012 prepared Sodium Carbonate Solution in two bouls and a small portion has taken as sample and the remaining solution in one boul the right hand fingers of the accused immersed and the solution turned into pink colour and it was seized in bottle by labeling Article No.10 and in the remaining solution in another boul left hand fingers of the accused were immersed and the solution turned into pink colour and the same seized as Article No.11. That evidence of P.W.6 is in accordance with the evidence of P.W.2 and 3 with regard to the proceedings conducted by P.W.6. Though P.W.2, 3 and 6 were subjected to lengthy cross-examination, nothing worthwhile is elicited to discard the process and proceedings conducted by the Investigating Officer. The evidence of P.W.2, 3 and 6 would inspire confidence in the mind of the court that the trap was successful and a sum of Rs.1700/- as per M.O.1 recovered from the possession of accused. The evidence of P.W.3- Harsha would show that the denomination of currency notes recovered from the possession of the accused and the denominations narrated in Ex.P.3 are one and the same. Absolutely there is no evidence on record to the effect that P.W.2, 3 and Investigating Officer were in enemical terms towards the accused. Therefore to discard or disbelieve their testimony absolutely there are no reasons before the court.
33Spl.CC.No.30/2012
47. As per the prosecution case before giving complaint by P.W.2 to Lokayukta Police and even at the time of trap accused has made demand for bribe amount. The evidence of P.W.2 would indicate that only for the remittance of tax it is for the accused to place the file before his senior officers for their approval and then to issue challans. The dates given by the complainant in his complaint in a chronological manner would show that he and his father have repeatedly approached the accused to get a order from the accused so as to enable them to remit the tax which the accused is bound to do. The case of the prosecution is that with regard to demand of bribe, the CD at M.O.5, 6, 7 and 10 are materials piece of evidence. But it is relevant to note that, in order to establish the CD's as referred to above or the transcriptions as per Ex.P.2 and 3, the prosecution has not produced certificate as required under section 65B of Indian Evidence Act. It is pertinent to note that, the original voice recorder, button camera in which these recordings were recorded are not produced before the court.
48. 2014 AIR SCW 5695 in a case between Anvar P.V -Vs- P.K.Basheer and others in para No.22 it is held that "An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under section 65B are satisfied. Thus, in the case of CD, VCD, Chip, etc., the same shall be 34 Spl.CC.No.30/2012 accompanied by the certificate in terms of section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record is inadmissable.". Since there is no certificate obtained under section 65B of Indian Evidence Act, the transcription as per Ex.P.8, 9, 10, 11 and as M.O.s as per M.O.5, 6, 7 and 10 are not admissible in evidence.
49. The call details of accused and complainant-Harshad Ahmed Khan are produced by the Prosecution as per Ex.P.26 and 27 respectively. So far as these call details are concerned, the Investigating Officer has not collected certificate under section 65B of Indian Evidence Act. In 201(7) 1 SCC 734 in a case between Harpal singh Vs- State of Punjab in para No.11, it is held that ".As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65(2) had been complied with, in absence of certificate under Section 65B (4), the same has to be held inadmissible in evidence." In view of this decision, even the call details at Ex.P.27 and 28 are also not admissible in evidence. Therefore in the absence of recordings in C.D, transcriptions and call details, the prosecution has to establish its case of demand of illegal gratification by the accused prior to giving of complaint and acceptance of the same as on the date of trap.
35Spl.CC.No.30/2012
50. P.W.2 has clearly stated about demand of bribe by the accused before lodging of complainant receipt of Rs.300/- and subsequently demand for balance amount of Rs.1700/- even at the time of trap. As per Ex.P.2-complaint, the complainant and his father have met the accused and at that time the accused has demanded illegal gratification for the purpose of attending their file. The fact that it is the accused who is required to place the file of the complainant before his higher officers so as to get approval to remit the tax in respect of the property of the father of the complainant is not in dispute. The evidence of P.W.3 who is the shadow witness would also demonstrately indicate that on the date of trap itself, accused has demanded the bribe amount and received a sum of Rs.1700/- and the same was recovered from the pant pocket of the accused. Admittedly, P.W.3 is a Government Official, therefore question of he having enimity towards the accused does not arise. In a case like instance one, the court is not required to expect the corroborative evidence from the mouth of independent witnesses. Moreover there is absolutely no evidence to show that there was some ill-motive of P.W.2 and 3 to falsely implicate the accused in the instance case. Added to it, in the evidence of P.W.6 who is the Investigating Officer also nothing is bourn out to the effect that at the instance of the complainant/P.W.2, he has falsely implicated the accused. Thus 36 Spl.CC.No.30/2012 from the appreciation of the evidence placed by the prosecution and as discussed above the demand of bribe by the accused is clearly established. Similarly the recovery of tainted notes of Rs.1700/- from the possession of accused is also established to the satisfaction of this court.
51. The learned counsel for the accused has drawn the attention of this court with regard to the decision of the Hon'ble Supreme Court in 2006 (7) SCC 172 in a case between the State Inspector of Police, Vishakapatnam Vs. Suryashankarama Karri, 2012 (3) KCCR 738 in a case between Ramesh Desai and another Vs. State of Karnataka by Rayachur Lokayukta PS and a decision reported in 2013 (2) AKR 611 in a case between Girish Chandra and another Vs. State by Lokayukta Police and has argued that there is no fair investigation by P.W.6. This court has meticulously perused the evidence of P.W.6 both in chief and cross-examination. However, the reading of the cross-examination portion of the evidence of P.W.6 would show that nothing is elicited from his mouth to show that with an ill-motive he has registered the case and conducted the investigation. On the other hand the evidence of P.W.6 do inspire confidence in the mind of the court that, at the instance of P.W.2 who is a well educated man, being satisfied with the genuineness of the averments made in the complaint he has registered the case, transmitted the FIR to the court and 37 Spl.CC.No.30/2012 subsequently he is successful in laying trap. Therefore absolutely no fault can be attached to the act of the Investigating Officer/P.W.6 in conducting further investigation and filing of Charge sheet against the accused. Hence the ratio of the above decisions is not applicable to the present case.
52. The counsel for the accused has also submitted that the Investigating Officer has collected the evidence before registration of the case and same is not permissible. However, that contention is cannot be accepted because of the decision of the Hon'ble Supreme Court in Lalithakumari Vs. State of U.P and others. In the said decision, the Hon'ble Supreme Court has summerised the law as under.
i) The Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith 38 Spl.CC.No.30/2012 and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay / laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any 39 Spl.CC.No.30/2012 case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected.
53. In the above decision, it is also held that, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. In the present case also, the informant in his complaint has alleged that, the accused has demanded illegal gratification. Thus, from the study of the above proposition of law, it is clear that, the officer who has received a complaint in respect of corruption case is empowered to make a preliminary enquiry depending upon the facts and circumstances of each case. Admittedly, the present case is registered against the accused for the offence punishable under section 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act. Hence the arguments advanced by the learned counsel for the accused is not accepted.
40Spl.CC.No.30/2012
54. It is submitted by Sri.M.S.S. Advocate for the accused that merely recovery of the tainted notes, itself is not sufficient to prove the offence alleged against the accused. On the other hand, it is for the prosecution to prove the demand for illegal gratification. But in the present case, the evidence of P.W.2 and 3 do inspire confidence in the mind of the court that the accused has not only demanded for bribe before lodging of complaint, he has received part bribe amount of Rs.300/- but also subsequently has received the balance amount of Rs.1700/- in the presence of P.W.2 and which was successfully recovered. Therefore, in the present case the requirement of law as provided is proved to the satisfaction of this court.
55. The learned counsel for the accused has placed reliance on a decision reported in 2016 (3) KCCR 1889 in a case between V.Sejappa Vs. State by Police Inspector, Lokayukta Chitradurga. By placing reliance on the said decision it is argued that recovery of tainted notes itself alone is not sufficient to draw presumption under section 20 of Evidence Act.
56. However, the reading of section 20 of Prevention of Corruption Act would show that on proof of demand and acceptance, presumption under section 20 is available to the prosecution. Though this presumption can be rebutted by the accused by preponderance of probability there is no such probable 41 Spl.CC.No.30/2012 defence found in the cross-examination directed to the prosecution witnesses. Though the accused can show that his defence is highly probable, as against the case of prosecution which is to be proved beyond reasonable doubt, in the present case, there is no any specific defence taken by the accused except contending that he is not the authority to do the work of the complainant and that no work was pending as on the date of trap. This defence is also not acceptable in view of the clinching evidence produced by the prosecution through P.W.2 and 3. Thus this court is of the opinion that the ratio of the decisions relied by the learned counsel for the accused is not applicable to the present case. Resultantly presumption contemplated under section 20 of Prevention of Corruption Act is drawn in favour of prosecution.
57. Sri.M.S.S. Advocate for the accused has submitted that the statement of P.W.5 Siddappa as required under section 161 Cr.P.C. has not been recorded, however the IO is managed to take a Report as per Ex.P.15 and hence no value can be attached to Ex.P.15 or the evidence of P.W.5. No doubt the Investigating Officer has not recorded the statement of P.W.5. P.W.5 is not an Expert to give opinion as per Ex.P.15. However this court has already held that the CD so produced by the prosecution is not admissible in evidence. In view of the same this court has not given credit to the evidence of P.W.5. Similarly it is contended that 42 Spl.CC.No.30/2012 though for the first time the complainant has visited the accused on 09.08.2011 and repeatedly visited till 07.09.2011, he has not approached the higher officer of the accused and hence the contention of the complainant is not worthy to trust. The evidence of P.W.5 in cross-examination would show that accused as a FDA was not the authority to change the Khata of the property. But in the present case the complainant and his father have approached the accused to pay tax to the Government and not for the change of Khata. Though P.W.2 has categorically deposed that the file was pending with the accused, that was not challenged by the accused. Therefore the fact elicited from the mouth of P.W.5 that accused was not entrusted with the task of change of Khata will not enure to the benefit of the accused. The arguments to the effect that P.W.2 is a habitual complainant, P.W.3 being government servant has not signed attendance register and the Investigating Officer has not secured the presence of independent panchas as required under section 100(2) of Cr.P.C is of no avail to the defence of the accused because of the simple reason that P.W.2 being the complainant has deposed the allegations made against the accused in a mathematical precision. In his cross examination nothing is elicited to the effect that only to wreck vengeance, he has lodged Ex.P.12 complaint against the accused. The learned counsel for the accused during the course of his arguments has pointed out certain contradictions and 43 Spl.CC.No.30/2012 omissions in the evidence of prosecution witnesses. The perusal of portion of evidence of P.W.2 and 3 pointed out by the learned counsel for the accused would show that same are not major contradictions which are in the nature of destroying the case of the prosecution. On the other hand it is clear that since P.W.2 and 3 are natural witnesses there are minor contradictions and omissions in their evidence. Therefore that aspect of the matter is not helpful to the defence placed by the accused.
58. Hence to conclude, on looking to all the facts and circumstances referred to above, this court is of the considered view that the prosecution has proved both demand and acceptance of bribe amount by the accused. Hence for all these reasons, prosecution has proved the commission of offence by the accused under section 7 of Prevention of Corruption Act beyond reasonable doubt. The accused by abusing his position as a public servant, by corrupt means has obtained pecuniary advantage from the complainant without having any public interest and thereby committed even criminal mis-conduct as per section 13(1)(d) of Prevention of Corruption Act. Therefore, commission of offence by the accused under section 7 and under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act are proved by the prosecution beyond reasonable doubt. Accordingly, Points Nos.2 and 3 are answered in the Affirmative.
44Spl.CC.No.30/2012
59. Point No.4:- In view of my findings on Point No.1 to 3 in the affirmative, I proceed to pass the following:
ORDER Accused is found guilty for the offences punishable under section 7 and 13(2) of Prevention of Corruption Act 1988.
Acting under Section 235(2) of Cr.P.C.
Accused is convicted for the offences punishable under Sections 7 and Section 13(2) of Prevention of Corruption Act, 1988.
M.O.1-Cash of Rs.1700/- is ordered to be confiscated to the State, after expiry of appeal period.
M.O.17 and 18 Metal seals to be returned to Lokayukta Police, after expiry of appeal period.
M.Os.2 to 16 are worthless. Hence destroy the same after expiry of appeal period.
Put up for hearing on quantum of sentence.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court on 20 th day of November 2019).
(Gopalakrishna Rai), LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru 45 Spl.CC.No.30/2012 ORDER WITH REGARD TO IMPOSITION OF SENTENCE TO THE ACCUSED Heard Sri.C.M.S. Advocate for the accused and Learned in- charge Public Prosecutor for the State on sentence to be imposed to the accused.
Accused and his counsel submitted that accused is having wife and children and grand children as well as he is aged about 63 years and he has to look after his large family and is having huge responsibilities and therefore, lenient view may be taken in sentencing him. In addition to it he has submitted that he is suffering from old age ailments. That contention is not refuted by the prosecution.
On the other hand, Learned in-charge Public Prosecutor for the State has submitted that accused being a public servant has committed heinous offence of taking bribe and he is involved in corrupt practices and therefore maximum punishment is to be imposed.
The prosecution has proved that the accused has committed the offence under Sec.7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act. As on the date of commission of the offence in 2011, the offence under Sec.7 of Prevention of Corruption Act was punishable with minimum imprisonment of 6 months and maximum 46 Spl.CC.No.30/2012 of 5 years and also with fine and the offence under Sec.13(1)(d) which is punishable under Sec.13(2) of Prevention of Corruption Act, was punishable with minimum imprisonment of 1 year and maximum of 7 years and also with fine. As per Sec.16 of the Prevention of Corruption Act, where sentence of fine is imposed under Sec.13(2) of Prevention of Corruption Act, the court in fixing the amount of fine shall take into consideration the amount which accused has obtained by committing the offence.
Accused was working as a FDA in the office of BDA. He has received illegal gratification of Rs.1700/- for attending the lawful work of the complainant. He has made him to run to post to pillar for several times so as to remit the tax in respect of his property. Therefore, while imposing sentence to the accused in this type of corruption cases court should not show leniency. While imposing sentence in corruption cases Society's cry for justice should also be kept in mind. When officers tasked with Revenue matters do not act with integrity, the whole society will suffer. Corruption deserves no sympathy and leniency. However, in the present case it is proved that the accused has demanded and accepted bribe amount of Rs.1700.00. Therefore that aspect of the matter is also one of the circumstances that has to be kept in mind while imposing sentence.47
Spl.CC.No.30/2012 Thus on considering all these aspects and looking to the facts and circumstances of the case and gravity of the offence and its consequences on the society, accused has to undergo simple imprisonment for one year and to pay a fine of Rs.10,000/- (Rupees ten thousand only) for the offence punishable under Sec.7 of Prevention of Corruption Act and he has to undergo simple imprisonment for one year and to pay fine of Rs.10,000/- (Rupees ten thousand only) for the offence punishable under Sec.13(2) of Prevention of Corruption Act. Accordingly, the following:
ORDER Accused D.K.Annegowda is sentenced to undergo simple imprisonment for one year and to pay fine of Rs.10,000/- (Rupees ten thousand only) for the offence punishable under Sec.7 of Prevention of Corruption Act 1988, in default of payment of fine he shall undergo simple imprisonment for 2 months.
Further, the accused is sentenced to undergo simple imprisonment for one year and to pay fine of Rs.10,000/- (Rupees ten thousand only) for the offence punishable under Sec.13 (2) of Prevention of Corruption Act 1988, in default of payment of fine he shall undergo simple imprisonment for 2 months.
The substantial sentences of imprisonment shall run concurrently.48
Spl.CC.No.30/2012 Accused is entitled for the benefit of set-off under Sec.428 of Cr.P.C. for the period which he was in judicial custody in this case.
Furnish a copy of this judgment to the accused free of cost forthwith.
(Gopalkrishna Rai.T),
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (P.C.Act),
Date: 20.11.2019 Bengaluru
ANNEXURES
List of witnesses examined for the prosecution:
P.W.1 - Bharathlal Meena
P.W.2- Mohammed Rashad Ahmed
P.W.3 - S.Harsha
P.W.4 - Smt.D.N.Shantha
P.W.5 - V.Siddappa
P.W.6 - K.Anjan Kumar
List of documents exhibited for the prosecution:
Ex.P1 - Prosecution Sanction Order Ex.P.1(a) - Sign of P.W.1 Ex.P2 - List of Currency Notes with numbers Ex.P.2(a) - Sign of P.W.3 Ex.P.2(b) - Sign of P.W.3 Ex.P.2(c) - Sign of P.W.6 49 Spl.CC.No.30/2012 Ex.P.2(d) - Sign of P.W.6 Ex.P3 - List of Currency Notes with numbers Ex.P.3(a) - Sign of P.W.3 Ex.P.3(b) - Sign of P.W.3 Ex.P.3(c) - Sign of P.W.3 Ex.P.3(d) - Sign of P.W.6 Ex.P.3(e) - Sign of P.W.6 Ex.P4 - Pre-trap Mahazar Ex.P.4(a) - Sign of P.W.3 Ex.P.4(b) - Sign of P.W.2 Ex.P.4(c) - Sign of P.W.6 Ex.P5 - Return Mahazar Ex.P.5(a) - Sign of P.W.3 Ex.P.5(b) - Sign of P.W.2 Ex.P.5(c) - Sign of P.W.6 Ex.P6 - Another Pre-trap Mahazar Ex.P.6(a) - Sign of P.W.3 Ex.P.6(b) - Sign of P.W.2 Ex.P.6(c) - Sign of P.W.6 Ex.P7 - Trap Mahazar Ex.P.7(a) - Sign of P.W.3 Ex.P.7(b) - Sign of P.W.2 Ex.P.7(c) - Sign of P.W.6 Ex.P8 - Transcription of conversation recorded Ex.P.8(a) - Sign of P.W.3 Ex.P.8(b) - Sign of P.W.6 Ex.P9 - Transcription of conversation recorded Ex.P.9(a) - Sign of P.W.3 Ex.P.9(b) - Sign of P.W.6 Ex.P10 - Transcription of conversation recorded Ex.P.10(a)- Sign of P.W.3 Ex.P.10(b)- Sign of P.W.6 Ex.P11 - Transcription of conversation recorded Ex.P.11(a)- Sign of P.W.3 Ex.P.11(b)- Sign of P.W.6 50 Spl.CC.No.30/2012 Ex.P12 - Complaint Ex.P.12(a)- Sign of P.W.2 Ex.P13 - Mahazar Ex.P.13(a)- Sign of P.W.4 Ex.P.13(b)- Sign of P.W.6 Ex.P14 - Copy of four Bank Challans Ex.P.14(a)- Sign of P.W.6 Ex.P15 - Report of P.W.5 Ex.P.15(a)- Sign of P.W.5 Ex.P.15(b)- Sign of P.W.6 Ex.P16 - File pertaining to the complainant Ex.P17 - Attendance Register of the accused Ex.P18 - Acknowledgement for receiving metal seal Ex.P.18(a)- Sign of P.W.6 Ex.P19 - Explanation of the accused Ex.P.20 - Acknowledgement for receiving metal seal Ex.P.20(a)- Sign of P.W.6 Ex.P21 - Letter to the PWD to depute the Engineer to draw the sketch of the spot. Ex.P21(a)- Sign of P.W.6 Ex.P22 - Spot Sketch issued by PWD Engineer Ex.P23 - Covering letter of Spot Sketch Ex.P.23(a) - Sign of P.W.6 Ex.P24 - Service details of accused Ex.P.24(a) - Sign of P.W.6 Ex.P25 - Letter of details of work allocation of accused Ex.P.25(a) - Sign of P.W.6 Ex.P26 - Chemical Examination Report Ex.P.26(a) - Sign of P.W.6 Ex.P27 - Call details of the complainant and accused Ex.P28 - Call details of the complainant and accused Ex.P29 - Covering letter of call details Ex.P30 - Requisition to record the Statement of
complainant and his father under section 164 of Cr.P.C.
51 Spl.CC.No.30/2012 Ex.P.30(a)- Sign of P.W.6 Ex.P31 - Statement of Muhammed Rashad Ahmed under section 164 of Cr.P.C. Ex.P32 - Statement of Fayaz Ahammed under section 164 of Cr.P.C. Evidence adduced on behalf of the defence: -NIL- Documents marked on behalf of the defence: -NIL- Material Objects marked by Prosecution: M.O.1 - Cash of Rs.1700.00 M.O.1(a) - Cover of cash M.O.2 - Pant M.O.2(a) - Cover of pant M.O.3 - Bottle containing solution M.O.4 - Bottle containing solution M.O.5 to 7 - C.D's M.O.5(a) to 7(a) - Cover M.O.8 - Bottle containing solution M.O.9 - Bottle containing solution M.O.10 - C.D. M.O.10(a) - Cover M.O.11 - Bottle containing solution M.O.12 - Bottle containing solution M.O.13 - Bottle containing solution M.O.14 - C.D. M.O.14(a) - Cover M.O.15 - C.D. M.O.15(a) - Cover M.O.16 - C.D. M.O.16(a) - Cover 52 Spl.CC.No.30/2012 M.O.17 - Metal Seal M.O.18 - Metal Seal (Gopalkrishna Rai.T), LXXVIII Addl. City Civil & Sessions Judge & Special Judge (P.C.Act), Bengaluru