Bangalore District Court
State By Cbi/Acb vs Shri. K.C. Misra on 18 August, 2018
IN THE COURT OF XXI ADDL. CITY CIVIL AND
SESSIONS JUDGE AND PRINCIPAL SPECIAL JUDGE FOR
CBI CASES, BENGALURU (CCH-4).
Spl. C.C. No.260/2016
DATED THIS THE 18th DAY OF AUGUST, 2018
PRESENT: Sri. SADASHIVA S. SULTANPURI,
B.Com., LL.B., (Spl.)
XXI Addl. City Civil and Sessions Judge and
Prl. Special Judge for CBI Cases, Bengaluru.
Complainant: State by CBI/ACB, Bengaluru
(By Public Prosecutor)
V/s
Accused: Shri. K.C. Misra,
S/o Late Shri. Motilal Misra
Aged about 60 years
Chief Manager,
Peenya Industrial Estate Branch,
Peenya, Bengaluru.
Suspension w.e.f., 03.03.2016 to 09.03.2016.
Retired from service on 31.03.2016.
No.G-2, Bharat Enclave II,
Phase I, Plot No.699,
Bharat Nagar,
Magadi Main Road,
Bangalore-560 091.
Permanent address:
Village Ratanpur,
Mohiuddinpur (Post),
Pasgawan (PS)
2
Spl.C.C. No.260/2016 J
Lakkhimpur (Kheri) District
Uttar Pradesh.
(By Sri. B.J. Prakash Singh, Advocate)
JUDGMENT
This is a charge sheet filed by the Inspector of Police, CBI/ ACB, Bengaluru, against the accused for the offences punishable under Sec.7, 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988.
2. The brief facts of the prosecution case is as under : -
(a) During 2015 Complainant/Cw1/Ashok Babu a resident of Bangalore and his wife Smt. Shivagami have decided to buy a flat of 2BHK from GM Infinity, a builder developer at Bangalore for approximate cost of Rs.55 lakhs. They made initial payment of Rs.2 lakhs and decided to apply for Housing loan of Rs.46 lakhs at Syndicate Bank, Peenya Industrial Estate Branch. The Complainant/CW-19/Ashok Babu and his wife CW-20 Smt. Shivagami had applied for joint housing loan with the Syndicate Bank, Peenya Industrial Estate Branch on 21.11.2015 for Rs.46 lakhs in a prescribed format before Accused, the Chief Manger of 3 Spl.C.C. No.260/2016 J Syndicate Bank, Peenya Industrial Branch, Bangalore. The housing loan proposals of Rs. 5 lakhs and above received at Peenya Industrial Branch, which is falling under the Bengaluru North Region would be dealt, evaluated and sanctioned at the Central Processing Centre, Bengaluru.
(b) The accused being the then Chief Manager after collecting necessary supporting documents, handed over this loan application to the Assistant Manager and a loan officer, Syndicate Bank, Peenya Industrial Estate branch on 16.12.2015 for further processing at branch level. The Assistant Manager further verified the housing loan application and checked the supporting documents and the same was forwarded to Central processing Centre (Herein after referred as CPC) by the branch on 17.12.2015.
The housing loan of CW-19/Ashok Babu and CW.20/Shivagami received at Syndicate Bank, CPC on 19.12.2015. After receipt of clarifications and the required documentation, CPC sanctioned the housing loan on 28.1.2016 and CPC officials informed to the branch and the borrower orally about the sanction of the housing loan and advised the borrower to bring builder approval letter and 4 Spl.C.C. No.260/2016 J other terms and conditions like bringing margin money and to appear at Syndicate Bank, CPC, Bangalore for execution of loan documents with stamp papers, original sale agreement and construction agreement. On completion of documentation of Complainant/CW-19/Ashok Babu and his wife CW-20 Smt. Shivagami, on 18.2.2016 CPC issued sanction letter dated 28.1.2016 and sent the sanction letter with covering letter to the branch by hand through Complainant/CW-19/Ashok Babu and his wife CW-20 Smt. Shivagami.
(c) Further, on 18.2.2016 CW-19/ Ashok Babu and CW-20/ Smt. Shivagami visited the Syndicate Bank, Peenya Industrial Branch and met the accused and handed over the sanction letter of housing loan and requested for early release of the loan, as the builder is insisting for an early payment. After receipt of the sanction letter, accused informed CW-20/Shivagami and CW-19/ Ashok Babu about the completion of site visit /inspection and asked them to arrange for margin money about Rs. Nine lakhs for early release of Housing Loan.
(d) On 29.2.2016 CW-20 Smt. Shivagami visited the 5 Spl.C.C. No.260/2016 J Syndicate Bank, Peenya Branch, Bengaluru and met the accused to pursue the Housing Loan disbursement. On that day i.e., 29.2.2016 accused told CW-20/Smt. Shivagami that for release of housing loan they have to give 1% of the loan amount as bribe for disbursement of the said loan. After going back to home, CW- 20/Shivagami informed her husband CW-19/Ashok Babu on the same day night about the accused demanding the bribe.
(e) On 01.03.2016 after arranging margin money, CW-19/ Ashok Babu and CW-20/Shivagami visited the Syndicate Bank, Peenya Industrial Estate Branch met accused and submitted written request to release the housing loan in two parts of Rs.36.00 lakhs and Rs.10.00 lakhs. They also obtained RTGS remittance instruction from the account No. 04551400000260 in the name of Viswakarma industries as a margin money to the tune of Rs.9 lakhs. The same was remitted to GM Infinity Dwellings India Pvt., Ltd., account No. 043801601000289 maintained at Corporation Bank on 1.3.2016. On 2.3.2016, the branch disbursed Rs.36.00 lakhs directly to the vendor i.e., M/s. G M Infinity Dwelling India by way of RTGS remittance. Not knowing this developments, on 6 Spl.C.C. No.260/2016 J 2.3.2016, in the afternoon, CW-19/Ashok Babu visited the Syndicate Bank, Peenya Branch and met accused and requested him for early disbursement of the loan amount to the builder, as the builder was insisting for an early payment. Accused told that he has already released Rs.36 lakhs to the account of the builder and wanted CW-19/Ashok Babu to pay Rs.45,000 or 46,000/- as bribe for releasing of loan. CW-19/Ashok Babu pleaded before him that the said bribe amount cannot be given to him, but he kept on insisting for payment of bribe. Later at about 2000 hours accused called CW-20/Smt. Shivagami on her mobile No. 9731297318 from his residence land line phone 080-2340 8486 and asked her when they are going to hand over the said bribe. Whether in the morning or in the evening. CW-20/Smt. Shivagami did not answer for his demand. In the night, after CW-19/Ashok Babu reached the house, they discussed the matter and both of them felt unhappy and annoyed with the behaviour of the accused.
(f) On 3.3.2016, CW-19/Ashok Babu called the accused from his wife's mobile No. 9731297318 to the accused residential land line No. 08023408486 and verified about the demand made to 7 Spl.C.C. No.260/2016 J his wife. This call was recorded by the CW-19/Ashok Babu in the SD card installed in the mobile. During that time also accused reiterated his demand for the bribe and directed him to give the bribe amount at 20.00 hours(8P.M.) at his residence in Vijayanagar. CW-19/Ashok Babu is not willing to pay the bribe under any circumstances. As such the CW-19/Ashok Babu visited the CBI office and gave written complaint stating the above said facts to Shri E.P. Suresh Kumar, Dy. SP & HOB In-charge at the office of SP, CBI, Anti-Corruption Bureau, Ganganagar, Bangalore.
(g) Further, on receipt of the complaint, the said complaint was marked to CW-11/Vivekananda Swamy, Inspector, ACB, Bangalore for verification. CW-11/Vivekananda Swamy conducted discreet verification through his sources in the bank, in order to have an independent corroboration of the facts. He learnt that the accused who is presently working as Branch Head, Peenya Branch and who is on the verge of retirement. He is having bad reputation and he is having the habit of taking illegal gratification from the borrowers. He also mentioned the allegations in the complaint are true as a reward for having processing the loan application and for 8 Spl.C.C. No.260/2016 J disbursement of the first installment of the housing loan. He also confirmed that the accused is staying at KGS Layout, Marenahalli, Vijayanagar, Bengaluru.
(h) Accordingly he submitted verification report and returned the original complaint to the HOB incharge of CBI, ACB, Bengaluru, who in turn ordered for registration of the case vide RC 5(A)/CBI/ACB/ Bengaluru against the accused for the offence u/s 7 and 13(2) r/w 13(1)(d) of the PC Act.
(i) The said case was entrusted the investigation to the CW- 11 Vivekananda Swamy, Inspector. As such herein after CW-11/ Sri. Vivekananda Swamy, Inspector will be refereed as TLO (Trap Laying Officer). The TLO decided to have trap. Therefore after securing independent witnesses C.W.2/A.V. Rajashekar and CW- 1/Pesala Surender along with Complainant and his team of officers drawn pre-trap proceedings at 19.05 hours with the complainant, independent witnesses and other designated trap team members.
(j) During the pre-trap proceedings of CW-11/Vivekananda Swamy explained the purpose of gathering and entrusted the team members among themselves and shown the written complaint 9 Spl.C.C. No.260/2016 J written by C.W.19/Ashok Babu and explained the result of the verification of the complainant to the CW-1 and CW-2(independent Witness). The complainant/CW-19 produced bribe of Rs.45,000/- in denomination of Rs.500/- and both the independent witnesses noted down the details. The trap laying officer demonstrated the Sodium Carbonate Phenolphthalein test for the purpose of trap operation and explained chemical reaction and its significance in the trap operation. Further the trap laying officer placed tainted currency notes on the right shirt pocket of the complainant and directed him not to touch the same unless and until the accused demands for the same. He has also instructed the complainant pre- arranged signal by calling him on his mobile after the accused demanded and accepted the bribe amount from him. Thereafter he incorporated all the events and the proceedings in the entrust mahazar drawn and signed by all the members of the trap team. The said proceedings were concluded at 19.55 hours.
(k) Thereafter the trap team left the CBI Office at about 20 hours(8p.m.) in three vehicles including the one that of complainant to the residence of the accused, the trap spot. 10
Spl.C.C. No.260/2016 J Thereafter the team reached at 1st Main, KGS Layout, Marenahalli, Vijayanagar, Bengaluru at about 20.45 (8.45 p.m.) hours and after reaching the nearby area, the complainant got down from the vehicle and he was asked to proceed to the trap spot. While going, he was talking with the accused and informed him and he was near his house. For that accused told him that he is away from his house and asked him to wait for 15 to 20 minutes. About 20 to 25 minutes CW19/Ashok Babu was roaming on the street near the house of the accused and again he called the accused and learnt that the accused already reached his house and the accused the asked CW-19/Ashok Babu to come to his house. Immediately after the call the complainant- Ashok Babu proceeded to the residence of the accused at No.56, Jayanthi Nilaya.
(l) Further, it is the case of the prosecution that the trap team took positions just beside the entrance of the residence of the accused, CW-19/ Ashok Babu went to the house of the accused and rang the bell. The accused opened the door and thereafter the accused sat in the room, asked CW-1 the 1% of the loan amount rounded off to Rs.45,000/- for which he has already released the 11 Spl.C.C. No.260/2016 J amount yesterday. The accused extended his hands towards the complainant/CW-19/Ashok Babu , thereafter, the complainant/ CW-19 took out the bribe amount of Rs.45,000/- tainted with the phenolphthalein powder from his left side shirt pocket and handed over to the accused, who received the same into his left hand and counted by using his both hands. Thereafter at about 21.35 hours, CW-19/Ashok Babu came out of the house of the accused and gave the pre-arranged signal by calling to TLO,The CW-11/Vivekananda Swamy, Inspector of CBI.
(m) After getting the pre-arranged signal, CW-11/ Vivekananda Swamy, Inspector, along with CW-2/ Rajashekara Reddy rushed to the residence of the accused while going, the CW- 11 asked the complainant to accompany him into the house of the accused. By that time, the other trap team members who are in and around the residence of the accused have also followed them into the house of the accused along with trap kit.
(n) Further, after entering into the house of the accused, the complainant identified the accused, then CW-11/Vivekananda Swamy, Inspector, after disclosing his identity, asked the accused 12 Spl.C.C. No.260/2016 J whether he has received any bribe amount from CW-19/Ashok Babu. The accused was completely shocked and could not utter anything. He kept mum for repeated questions of Trap Laying Officer Vivekananda Swamy.
(o) The CW-11/Trap Laying Officer started further proceedings. During the proceedings the hand wash of both hands of the accused were taken, which turned into pink colour. The said solutions were preserved in bottles. The said bottles were sealed and seized. Then CW-11/ Vivekananda Swamy, Inspector, placed accused under arrest, after explaining the grounds of arrest, for having demanded and accepted the bribe amount from the complainant which was proved through the hand washes.
(p) The Trap Laying Officer repeated questions about the whereabouts of bribe money, which was just then demanded and accepted from the complainant, accused stood up from the sofa and indicated his intention to show the place and led the trap team to the dining space from the sitting hall and proceeded towards the work area situated besides the kitchen in the house.
(q) After going to the work area, accused pointed left corner 13 Spl.C.C. No.260/2016 J of the work area, near the drainage pipe. A bundle of currency notes were found available there. On asking, accused disclosed that it was the same money demanded and accepted from CW- 19/Ashok Babu and kept it there.
(r) Then on Trap Laying Officer's instructions, CW-2/ Rajashekara Reddy, independent witness took the currency notes, all in the denomination of Rs.500/- notes wrapped in a rubber band. CW-11/Vivekananda Swamy, the Trap Laying Officer requested both independent witnesses tally those recovered currencies with the details of currency numbers mentioned in the Entrustment Mahazar. After tallying the said notes with the entrustment mahazar the witnesses assembled, they match exactly as per the details noted in the entrustment mahazar. As such the said currency notes were seized.
(s) Later on a rough sketch of the trap spot including the place from which the trap money was recovered was prepared and signed by CW-11/Vivekananda Swamy Trap Laying Officer and independent witnesses for the purpose of investigation. The Post trap proceedings which commenced from 22.15(8.15pm) hours on 14 Spl.C.C. No.260/2016 J 3.3.2016 and concluded at 00.30 hours of 4-3-2016 (midnight at 12.30 of 3-3-2016), accordingly a detailed Recovery Mahazar was prepared incorporating all the happenings, which was signed by all the trap team members.
(t) Investigation revealed that on 3.3.2016, CW-19/Ashok Babu called the accused from his wife's mobile to the accused residence land line number and verified about the demand made to his wife. The said conversation were recorded by the CW-19. During the said time accused reiterated his demand for the bribe and directed CW-19 to give the bribe amount at 20 hours at his residence in Vijayanagar. The transcription of the said conversation were recorded by the CW-19. Thereafter the completion of the said trap proceedings, the trap team came back to the CBI Office and the independent witnesses came back to their residence.
(u) Thereafter, the further investigation was carried out by the Investigating Officer CW-23/Dy.S.P. of CBI who has sent the said phenolphthalein bottles for chemical examination analysis. Further he seized the mobile of CW-1, wherein he has recorded 15 Spl.C.C. No.260/2016 J the conversation of the CW-19 in respect of the demand made by the accused. He transcribed the said contents of same into two CDs and sent the said CDs to the Voice Analysis Report. He recorded the statement of witnesses. On collecting the necessary documents as it is found that accused has demanded and accepted the bribe amount from the CW-1 in order to favour CW-19 and CW-20 for disbursement of the said house loan amount, as such on completion of the investigation, the CW-23 Sri. V.N. Raju, Dy.SP., CBI/ACB, Bengaluru has filed the charge sheet against the accused for the offence punishable u/s 7, 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
(v) In view of the said trap proceedings, the accused was arrested on 4.3.2016 and produced before this court. Thereafter he was released on bail as per the order dated 9.3.2016.
3. My predecessor in office has taken cognizance on the basis of the charge sheet filed by the Investigating Officer. The Charges framed were framed against the accused for the offence punishable u/s 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988. and read over to the accused. Accused 16 Spl.C.C. No.260/2016 J pleaded not guilty and claims to be tried.
4. In support of their case, the prosecution has examined in all 15 witnesses as PWs.1 to 15 and got exhibited 56 documents as Ex.P.1 to Ex.P.58 and M.Os. 1 to 6 were marked and closed its side. The statement of Accused as required U/s 313 Cr.P.C., was recorded. The accused submits that he has no defence evidence.
5. I have heard both the sides.
6. In view of the above controversies, the points that would arise for my consideration are:
1) Whether the prosecution proves that the Investigating Agency before registering the case against the accused have taken consent from the competent authority or Government as required under section 6 of Delhi Police Establishment Act?
2) Whether the accused proves that non-taking of sanction from the competent authority as required either u/s 19 of the PC Act or u/s 197 of Cr.P.C., in respect of this particular case is fatal to the case of the prosecution?
3) Whether the accused proves that not submitting the FIR to the magistrate/court immediately after its registration, i.e., prior to the trap is fatal to the case of the prosecution?
4) Whether Accused proves that in this case investigation has started much prior to 17 Spl.C.C. No.260/2016 J registration of FIR, as such it is fatal to case of prosecution?\
5) Whether the prosecution proves beyond all reasonable doubt that the Accused being a public servant worked as Chief Manager, Syndicate Bank, Peenya Industrial Estate Branch, Bengaluru that the PW.1 Ashok Babu and CW-20 Shivagami have jointly applied for the housing loan of Rs.46 lakhs with the bank and the said loan was sanctioned. further on 2.3.2016 in the afternoon that the PW-1 Ashok Babu visited the bank and met the accused for an early disbursement of the loan amount, the accused has asked the PW.1 to pay Rs.45,000/-
or 46,000/- as bribe amount for releasing the sanctioned amount in favour of the PW-1 and CW-20. On 3.3.2016, the PW-1 has called the accused from his wife's mobile number bearing No. 9731297318 to the residential land line phone number of the accused bearing No. 080 23408486 and the accused reiterated the said demand of bribe and illegal gratification and directed PW-1 to pay the said bribe amount on the same day on 3-3-2016 at 20.00 hours at his residence. In pursuance of the same on 3.3.2016 PW-1 has visited the residence of the accused at No.56 , Jayanthi Nilaya, KGS Layout, Marenahalli, Vijayanagar, Bengaluru at 20.00 hours and paid Rs.45,000/- ( Rs.500/-
currency notes of 90) as demanded by the accused for the purpose of disbursement of the housing loan, which was already sanctioned. Therefore, the accused being the public servant being the Chief Manager of the Syndicate Bank and having the authority and responsibility for disbursement of the said loan amount have demanded and accepted Rs.45,000/- for himself 18 Spl.C.C. No.260/2016 J as illegal gratification other than the legal remuneration. Thereby, the accused has committed offence punishable u/s 7 of the Prevention of corruption Act, 1988?
6) Further, Whether the prosecution prove beyond reasonable doubt that the accused being the public servant working as Chief Manager, Syndicate Bank, referred above at the said date, time and place referred above have demanded and obtained bribe amount of Rs.45,000/- for himself for the purpose referred above as a pecuniary advantage by corrupt or illegal means thereby the accused has abused his official position as a public servant for the purpose of obtaining pecuniary advantage other than legal remuneration and thereby committed an offence of criminal misconduct punishable u/s 13(1)(d) r/w 13(2) of Prevention of Corruption Act?
7) What Order?
7. My findings on the above points are as follows:
POINT No.1: In the Affirmative POINT No.2: In the Negative POINT No.3: In the Affirmative POINT No.4: In the Affirmative Point NO.5 : In the Negative POINT No.6: In the Negative POINT No.7: As per final order, 19 Spl.C.C. No.260/2016 J for the following REASONS
8. POINT No.1 to 6: - For the sake of convenience and in order to avoid repetition of facts, I will take points 1 to 6 together for discussion.
9. Before going to discuss the facts of this case I would like to reproduce relevant provision of law relating to Prevention of Corruption Act, 1988.
Sec. 7. Public servant taking gratification other than legal remuneration in respect of an official act: - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, 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 or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
Sec.13. Criminal misconduct by a public servant: - 20
Spl.C.C. No.260/2016 J (1) A public servant is said to commit the offence of criminal misconduct: -
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) ...
(c) ....
(d) If he: -
a. by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
b. by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or c. while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.
Sec.20 of Prevention of Corruption Act, 1988:
20. Presumption where public servant accepts gratification other than legal remuneration: -
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, 21 Spl.C.C. No.260/2016 J it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as it mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-
sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
Further, Therefore in order to constitute an offence u/s 7 of the PC Act the ingredients of the offences are:
To establish offence under this section, it must be proved that: -
a. The accused was a public servant or expected to be a public servant at the time when the offence was committed.
b. The accused has demanded the bribe to do any official favour or not to do some act ,which is in favour the complaint.22
Spl.C.C. No.260/2016 J c. The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
d. For himself or for any other person. e. Such gratification was not a remuneration to which the accused was legally entitled.
f. The accused accepted such gratification as a motive or reward for: -
1. doing or forbearing to do an official act, or
2. doing or forbearing to show favour or disfavour to someone in the exercise of his official functions, or
3. rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the Legislature of any State, of with any local authority, Corporation or Government Company referred to in Sec.2 clause (c) or with any public servant, whether named or otherwise.
Further, As per Sec. 4 of the Indian Evidence Act, May presume, Shall presume and Conclusive proof have been defined as under: -
"May presume": - Whenever it is proved by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:
"Shall presume": - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:
"Conclusive proof":- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.23
Spl.C.C. No.260/2016 J Sec. 3 of the Indian Evidence Act defines Proved, Disproved and Not proved as under: -
"Proved": - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved": - A fact is said to be disproved, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
"Not proved": - A fact is said not to be proved when it is neither proved nor disproved.
10. It is the case of the prosecution that accused being the Chief Manager of Syndicate Bank, Peenya Industrial Estate Branch, Bengaluru has demanded and accepted illegal gratification of Rs.45,000/- from the complainant PW-1 on 3.3.2016, for having done favour to him for disbursement of the housing loan sanctioned in favour of the PW-1 and CW-20.
11. In this regard, the learned PP argued that PW-1 the complainant has deposed in his evidence that he and his wife have applied for the housing loan with the Syndicate Bank, Peenya Industrial Estate Branch, Bengaluru, the said loan was sanctioned. 24
Spl.C.C. No.260/2016 J Thereafter, the wife CW-20 approached the accused for the disbursal of the said loan, at that time accused has made illegal demand of 1% of the for disbursement of the said loan. PW.1 has specifically deposed that on 2.3.2016 itself on return to his house, CW.20/the wife of the PW.1 told about the illegal demand made by the accused. Thereafter the PW.1 called the accused on 3-3-2016 through his wife's mobile to the land line Phone of the accused. Once again the accused demanded illegal gratification. Further, PW.1 has specifically deposed that the accused asked the PW.1 to come at 8 PM night on 3-3-2016 to his residence for payment of the bribe amount. As the PW.1 was not intending to pay the said bribe amount on 3.3.2016 itself he approached the CBI and lodged the complaint to the CBI as per Ex.P-2.
12. Thereafter as per the instructions of CBI the complainant brought Rs.45,000/- in 90 notes of Rs.500/- currency, which thereafter were affixed with the phenolphthalein power and pre-trap proceedings were conducted in the presence of independent witnesses i.e., PW.2 and 6. The Trap Laying Officer PW.3 Sri. Vivekananda Swamy has demonstrated as to how the 25 Spl.C.C. No.260/2016 J PW.1 has to handle the currency notes, tainted with phenolphthalein powder and he has also instructed PW.1 to take one of the independent witness as a shadow witness along with him. Further, the PW.3 Vivekananda Swamy, Trap Laying Officer has also demonstrated how the said phenolphthalein after hand wash turned into pink colour, accordingly pre-trap proceedings were drawn as per Ex.P.3.
13. Thereafter they all left to the CBI office and went near the house of the accused at Vijayanagar. When they came near the house of the accused, they got down and dispersed each other. PW.1 called the accused on phone at that time accused told that he is not in the house and he will come back within a short while after some time. Once again the PW.1 called the accused on phone, accused confirm that he is in the house and asked PW.1 to come to his house. At this stage the PW.1 told the independent witnesses not to accompany with him as the accused may get doubted of his presence. As such the PW.1 came to the house of the accused and rang calling bell, some lady member of the accused family opened the door, accused was sitting in the hall on a sofa. Further, the 26 Spl.C.C. No.260/2016 J PW.1 gave the said amount of Rs.45,000/- to the accused.
14. Thereafter PW.1 came out of the house of the accused and made signal to the Trap Laying Officer PW.3, soon thereafter the trap team rushed to the house of the accused. PW.3/TLO introduced himself to the accused and asked whether he has received the said bribe amount from the PW.1, the accused kept quiet as he was shocked and surprised. Thereafter, the Trap Laying Officer/PW.3 conducted phenolphthalein test by washing both the hands of the accused by dipping his hands in the glass of water. The said water turned into pink colour. As such it confirmed that the accused has touched the said tainted currency notes handed over by the PW.1. Thereafter the PW.3/Trap Laying Officer asked the accused where he has kept the said amount received from the P.W.1, the accused pointed out his finger towards the kitchen, they went there and they found the bundle of currency notes of Rs.45,000/- in the dust bin in the kitchen. Further, the PW.3/Trap Laying Officer conducted the trap mahazar as per Ex.P.4 in the presence of independent witnesses and the said proceedings completed till 00.30 hours on 4.3.2016 that is till the mid night of 27 Spl.C.C. No.260/2016 J the said day.
15. PW.2 and PW.6 are the independent witnesses, who have accompanied the trap team, have specifically deposed about the trap proceedings. PW.2 was asked to accompany the PW.1 the complainant while complainant was entering the house of the accused. P.W.2 has deposed that as the PW.1 told that as the accused may get doubt, if he accompanies him, PW.1 asked the PW.2 to stay back outside the house of the accused and he will alone enter the house of the accused. Further, he has deposed that PW.1 after entering the house of the accused has gave the said bribe amount. Immediately thereafter P.W.1 came out of the house and gave signal to the TLO. Thereafter all the trap team members rushed into the house of the accused. Further, PW.2 and PW.6 have specifically deposed that TLO introduced himself to the accused, and asked the accused whether he has received the said bribe amount given by the PW.1. The accused was shocked. The TLO conducted phenolphthalein test by washing both the hands of the accused. The said test found that the sodium carbonate solution turned into pink colour. Thereby, the TLO came to the conclusion 28 Spl.C.C. No.260/2016 J that the accused has accepted the said bribe amount and as such asked the accused where he has kept the said bribe amount. Thereafter the accused has pointed out his fingers towards the kitchen. They searched nearby the kitchen about the said amount, thereafter they found the said amount of Rs.45,000/- containing currency note bundles near the drainage pipe in the kitchen. Thereafter, the said amount was taken out by the PW.6. Thereafter TLO once again drawn the trap proceedings/recovery as per Ex.P.4 in the presence of the independent witness. The TLO and the trap officers have searched the house of the accused and seized some of the articles under the search memo. The PW.3 Trap Laying Officer has also deposed about the said trap.
16. Therefore,it is argued by the Learned P.P. that on reading the evidence of PW.1/the complainant, PW.2 and PW.6 the independent witness read with the evidence of PW.3./TLO/the Inspector of Police, it is proved by the prosecution that on 3.3.2016, the accused has accepted the bribe amount given by the PW.1 in his residence.
17. Further, PW.4/Sri. M.M. Arangannal, Bank Officer 29 Spl.C.C. No.260/2016 J worked as Assistant Manager has deposed about the production of the loan documents, sanction letter of the loan, transfer of RTGS amount of Rs. Nine lakhs to the GM Infinity (Builder).
18. PW.9/Sri. Somappa H.G. the Manager of Syndicate Bank, Central Processing Center Branch, Bengaluru has deposed about the contents of Ex.P1 loan document, the contents of the bunch of documents of correspondence between the Syndicate Bank, Peenya Branch with the CPC as per Ex.P.13. Further he has also deposed about the bunch of documents as per Ex.P12 containing the sanction letter, housing loan agreement, tripartite agreement, agreement to sell, etc. Further, he has deposed that after ascertaining the income eligibility and loan eligibility of the borrower, he gone through the all the documents, scrutinised the same, after processing the said application, he obtained necessary some other documents from the borrowers. Thereafter, after considering the banking norms he has sanctioned the said loan of Rs.46 lakhs in favour of the PW.1 and CW.20. This witness identifies the eligibility sheet prepared by him at Ex.P43. Further, this witness has also identified the loan ledger extract of the said 30 Spl.C.C. No.260/2016 J loan at Ex.P48.
19. Further, PW.12 Sri. C.V. Sundaramoorthy, Chief Manager who succeeded the accused has deposed about the fact that accused was working as the Chief Manager in the Peenya Industrial Estate Branch, Syndicate Bank, along with him. This witness has produced the computer print out of "the Role & Responsibility of the Chief Manager" in the Syndicate Bank. Further, this witness has also produced Ex.P54 the Pay Particulars of the accused issued by the Deputy General Manager, Regional Office, Syndicate Bank, Personal Cell. Further, he has deposed that the accused was provided with the official mobile bearing No. 9449860056 given to use in official capacity by the Chief Manager of the Syndicate Bank, Peenya Industrial Estate Branch. The said mobile was given under common users group (CUG) scheme.
20. Therefore, it is argued by Learned P.P. that on reading the evidence of PW.4, 9 and 12, the Bank officials,it is proved by the prosecution that the said loan was processed by the CPC and sanctioned in favour of the PW.1/CW.20. Further, it is also proved by the said evidence of the bank officials that the said mobile given 31 Spl.C.C. No.260/2016 J under the CUG Scheme to the accused for using the same as a Chief Manager of the said bank.
21. Further, the PW.5 Ramesh S. Jabi, Assistant General Manager of BSNL has deposed about the fact that the mobile number 9449860056 was issued to the Branch Manager, Syndicate Bank, Peenya Industrial Estate, Bengaluru by the BSNL. Further, he has deposed about the documents produced by him at Ex.P34, the call details records pertaining to the said mobile for the period 1.2.2016 to 30.4.2016.
22. Further, PW.7 Smt. Swarnamba C, the Customer Relation Officer in BSNL, has furnished Ex.P35 the call details of land line phone bearing No. 23408486 belonging to the accused K.C. Misra for the period from 1.2.2016 to 30.4.2016 and has deposed about the document. Further, she has specifically identified at Sheet No.3 of Ex.P35 the relevant entry that is outgoing call from the said phone on 1.3.2016 to the mobile No. 9731297318 which is marked at Ex.P35(a). Further, she has identified another phone call to the same mobile which is at Ex.P35(b). She has further clarified on 2.3.2016 there is a 32 Spl.C.C. No.260/2016 J outgoing call from the said land line phone to the same mobile number as shown in Ex.P35(c).
23. PW.8 Sri. Stanley Angelo, the Nodal Officer of Bharathi Airtel has deposed about the mobile phone number 9972869465, 9731297318 and mobile No. 9886196867. Further, he deposes about the call details of the mobile number 9972869465 from 1.2.2016 to 30.4.2016 and so also the mobile call details of the mobile No. 9731297318 for the period 1.2.2016 to 30.4.2016 as per Ex.P38, 39 and 40.
24. Further, PW.10 Sri. Satya Keerthi C, Commercial Officer in BSNL has deposed about the land line telephone number bearing 23408486 standing in the name of the accused K.C. Misra. Further, the said officer has deposed that the said telephone connection was given on 5.3.2002, at the time of giving connection the provisional number was given as 3289799 subsequently from 10.5.2010, the said number was changed to 23408486. Therefore, it is argued that on reading the evidence of PW.5, 7, 8 and 10, the service providers, it is proved by the prosecution the accused was provided with the said mobile phone, land line phone number to 33 Spl.C.C. No.260/2016 J his residence, the mobile number belonging to the CW.20 Smt. Shivagami and PW.1 the complainant.
25. Further, PW.11 Dr. P. Narasimhaiah, the Chemical Examiner has deposed about the chemical examination of the said two sealed bottles (which were said to have been containing sodium carbonate solution and the phenolphthalein power test) and gave his opinion as per Ex.P51 to the effect that there is presence of phenolphthalein in both the sample bottles marked as L & R belong to the accused K.C. Misra.
26. PW.15 Sri. Deepak Kumar Tanwar, Senior Scientific Officer - Grade-I-CU-Asst. Chemical Examiner of Govt. of India, who has conducted Voice Recording contained in the CD in respect of conversation of duration of 57 seconds recoded from the Micro SD Card has deposed about the report given by him as per Ex.P.56. This expert witness has identified the said voice probably belongs and resembles with the voice of the accused.
27. PW.13 Sri. S.A. Senthil Kannan, Assistant Programmer of CBI, ACB, Bengaluru who has transmitted the contents of SD Card of the mobile belong to the accused to the 34 Spl.C.C. No.260/2016 J computer, thereafter he has transmitted the said conversation from the computer into two CDs has deposed to that effect. Further, he has given certificate as per Ex.P9 under Sec. 65-B of the Evidence Act. Further, he has deposed about the proceedings drawn as per Ex.P24 on 23.5.2016 in his presence.
28. Therefore, it is argued by Learned P.P. that on reading the evidence of PW.11, Chemical Examiner who has conducted the scientific test and has given his opinion about the contents of M.O.4 and 5, the bottles containing the sodium carbonate solution read with evidence PW.13, it is proved that the contents of the said SD card belonging to the complainant, wherein the conversations between the accused and the PW.1 were recorded on 3.3.2016 were transmitted to the computer kept in the CBI office. Thereafter the said Assistant Programmer has transmitted the said conversation into two CDs. Further, PW.15 the Senior Scientific Officer who has scientifically examined the said CDs and came to the conclusion that the voice contained in the said CDs at M.Os. 2 and 6 wherein the voice found in the said conversation belongs and resembles with the voice of the accused. Thereby, it is argued that 35 Spl.C.C. No.260/2016 J the prosecution has proved that the said conversation wherein the accused has made for the said bribe has been proved. Further, it is also proved by the evidence of PW.11, Chemical Examiner that the said two bottles M.O. Nos. 3 and 4 contains the presence of phenolphthalein.
29. Therefore, It is argued that on reading the overall evidence of the trap team i.e., evidence of Pws.1, 2, 3 and 6, read with the evidences of bank officials at Pws.4, 9 and 12, the evidence of the officers deposed about the land line and mobile phones i.e., PW.5, 7, 8 and 10 read with the evidence of the experts i.e., Pws. 11 and 15, the prosecution has proved that the Investigation Officer PW.14. V.N. Raju, the Dy.S.P., CBI, Bengaluru has conducted the investigation by collecting all the necessary documents, thereby it is vehemently argued that the prosecution has proved beyond all reasonable doubt about the acceptance of illegal gratification by the accused.
30. The learned PP vehemently argued that there are sufficient materials to prove that the accused has demanded and accepted the bribe amount of Rs.45,000/- from PW.1 in order to 36 Spl.C.C. No.260/2016 J disburse the said housing loan sanctioned in favour of the PW.1,which was sanctioned in favour of the PW.1 and his wife CW.20. Hence, it is argued that the prosecution has proved the guilt of the accused to the effect that accused had accepted the bribe amount punishable u/s 7 of the PC Act and accused being the public servant and Chief Manager of the Syndicate Bank has abused his official power. Thereby, he has committed offence of criminal breach of misconduct punishable u/s 13(2) r/w 13(1)(d) of the PC Act. Hence, it is argued that the prosecution has proved the guilt of the accused beyond all reasonable doubt and prayed accused be convicted.
31. On the contrary, the learned advocate for accused argued in length that the prosecution has failed to prove the guilt of the accused. In this regard, I would like to discuss the arguments of the advocate for accused stage by stage and give my findings on the points raised by the advocate for accused.
32. Initially it is the specific defence of the advocate the accused that the CBI have not taken sanction by the Government to register FIR against the accused and to conduct the investigation. 37
Spl.C.C. No.260/2016 J In this regard, the learned advocate for accused brought to the notice of this court Section 6 of the Delhi Special Police Establishment act and argued that without taking sanction from the concerned Government, no case can be instituted and investigated by the CBI. Hence it is argued that as the CBI have not taken the sanction ,the whole proceedings against the accused gets Vitiated.
33. In this regard, at this stage, I would like to reproduce Section 6 of the Delhi Special Police Establishment Act, which reads as under: -
Section 6: Consent of State Government to exercise of powers and jurisdiction: - Nothing contained in Sec. 5 shall be deemed to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area without the consent of the Government of that State.
34. PW.14. IO/DySP/CBI/ACB/ Bengaluru has deposed in the cross-examination to the question raised by the advocate for the accused at page No.8 which reads as under: -
Q.1: Did you obtain consent from the Government of Karnataka before commencing investigation in this case?
Ans: Blanket consent Notification was already granted by the Government of Karnataka in respect of cases registered and investigated by the CBI.
35. It is brought to the notice of this court that wherein the 38 Spl.C.C. No.260/2016 J Joint Secretary of the Government, Home and Transport Department, Law and Order as per the Notification dated 10.1.2005 have published, wherein the State of Karnataka has accorded sanction for the exercise of powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Karnataka for investigation of all types of cases involving either Central Government servants or officers belonging to public sector undertakings. So also the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) have published in the Gazette of India in the Gazette Notification No. 228/7/2003- AVD.II dated 28.2.2005 by the Under Secretary of Government of India wherein a blanket sanction was granted by the Central Government to the whole of Karnataka for investigation of all types of cases involving either Central Government Services or belong to the Public Sector Undertakings. The Gazette Notification of Government of Karnataka dated 10.1.2005.
36. Further, in order to have more clarity, I would like to reproduce the said notifications as under:
39
Spl.C.C. No.260/2016 J TO BE PUBLISHED IN THE GAZETTE OF INDIA IN PART-II SECTION 3(iii) No.228/7/2003-AVD.II GOVERNMENT OF INDIA MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS (DEPARTMENT OF PERSONNEL AND TRAINING) New Delhi, dated the 28th February, 2005 NOTIFICATION S.O. ................ In exercise of the powers conferred by Sub-section (1) of section 5 read with section 6 of the Delhi Special Police Establishment Act, 1946 (Act No.25 of 1946), the Central Government with the consent of State Government of Karnataka vide Notification No. HD 234 PCR 2004 dated 10.01.2005 hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Karnataka for the investigation of all types of cases involving either Central Government servants or officers belonging to public sector undertakings under the Central Government, under different State and Central Acts.
Sd/-
(Shubha Thakur) Under Secretary to the Government of India GOVERNMENT OF KARNATAKA No. HD 234 PCR 2004 Karnataka Government Secretariat Vidhana Soudha Bangalore, dated 10.01.2005.
40
Spl.C.C. No.260/2016 J NOTIFICATION In exercise of the powers conferred by section 6 of the Delhi Special Police Establishment Act, 1946 (Central Act No.25 of 1946) and in supersession of the previous orders, Notifications the State of Karnataka hereby accords consent under the said section for the exercise of powers and jurisdiction by the Members of the Delhi Special Police Establishment within the State of Karnataka for the investigation of all types of cases involving either Central Government servants or officers belonging to public sector undertakings under the Central Government, under different State and Central Acts.
By Order and in the name of the Governor of Karnataka Sd/- 10/01/05 (V.S. VASANTHAMONEY) Joint Secretary to Government, Home & Transport Department, (Law and Order)
37. Therefore, in view of the said notifications, the Government of India and Government, and of State of Karnataka, wherein, they have accorded blanket sanction as required under Section 6 of the Delhi Special Police Establishment Act to register and investigate the case against the Central Government Service and officers belong to the public sector undertakings. Hence, in view of the above discussion, I am of the considered opinion that there is no force in the argument of the learned advocate for the 41 Spl.C.C. No.260/2016 J accused that the prosecution i.e., CBI has not obtained sanction as required under Section 6 of the Delhi Special Police Establishment Act as alleged. On the contrary, when the Government of India and Government of State of Karnataka have granted blanket sanction it is not necessary for the CBI/ prosecution to once again obtain sanction in this regard to register the case and investigate against the present accused. Accordingly I answer point no.1 against the accused.
38. Further, it is argued that admittedly at the time of filing the charge sheet, the accused was retired from the service as such the CBI have not obtained sanction to prosecute the public servant i.e., accused. Further, it is vehemently argued that as the accused being the Chief Manager of the Syndicate Bank worked as a public servant. The prosecution ought to have obtain sanctioned as required u/s 197 of Cr.P.C., even though the charge sheet is filed after retirement of the accused. Hence, it is argued by the learned advocate for the accused as the prosecution has not obtained sanction as required u/s 197 of Cr.P.C., it is fatal to the case of the prosecution as the such the total proceedings got vitiated. 42
Spl.C.C. No.260/2016 J
39. In this regard, I would like to reproduce Section 19 of the PC Act as under:
19. Previous sanction necessary for prosecution: - (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013] : -
(a) in the case of a person show is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
Further, admittedly in the present case on hand, the accused has retired before filing charge sheet against him. Therefore, the Investigating Officer has not obtained necessary sanction to prosecute against the accused. Admittedly, the offence alleged against the accused does not fall u/s 197 of Cr.P.C. There is a distinction between Section 19 of PC Act and Section 197 of Cr.P.C., to take sanction against the public servant to prosecute him. In this regard, I would like to relay on the the ruling reported in AIR 1998 SC 2895 IN Kalicharan Mahapatra vs. State of Orissa, their Lordships have discussed about the distinction 43 Spl.C.C. No.260/2016 J between Section 19 of the PC Act and u/s 197 of Cr.P.C. Further in the reported ruling of (2004) 2 SCC 349 of Division Bench in State of H.P. vs. M.P. Gupta, their Lordships have held:
D. Criminal Procedure Code, 1973 - S. 197 - Prosecution of a retired public servant - Necessity of obtaining sanction for - Held, is essential in cases where S. 197 has application - But an accused facing prosecution for offences under the Prevention of Corruption Act, 1947 or Prevention of Corruption Act, 1988 cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences.
Further, in the said judgment, at para-14 to 17 their Lordships have discussed in length about the sanction as required u/s 19 of PC Act, I would like to reproduce the said paragraphs observed in the said judgment as under: -
14. In S.A. Venkataraman v. State (AIR 1958 SC 107 :
1958 Cri.LJ 254) and in C.R. Bansi v. State of Maharashtra [(1970) 3 SCC 537 : 1971 SCC (Cri) 143] this Court has held that: (AIR p.111, para 14) "There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed."
15. The above position was illuminatingly highlighted 44 Spl.C.C. No.260/2016 J in State of Maharashtra v. Dr. Budhikota Subbarao [(1993) 3 SCC 339 : 1993 SCC (Cri) 901].
16. When the newly worded section appeared in the Code (Section 197) with the words "when any person who is or was a public servant" (as against the truncated expression in the corresponding provision of the old Code of Criminal Procedure, 1898), a contention was raised before this court in Kalicharan Mahapatra v. State of Orissa [(1998) 6 SCC 411 : 1998 SCC (Cri) 1455] that the legal position must be treated as change even in regard to offences under the old act and the new Act also.
The said contention was, however, repelled by this Court wherein a two-Judge Bench has held thus: (SCC p.416, para 14) "A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the court taken cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of the offence without any such sanction."
17. The correct legal position, therefore, is that an accused facing prosecution for offences under the old Act or the new Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. But the position is different in cases where Section 197 of the Code has application.
Therefore, on going through the observations made by the Hon'ble Supreme Court discussed above, it is made clear that, when a public servant against whom a charge sheet is filed for the offence 45 Spl.C.C. No.260/2016 J punishable under PC Act no sanction is required to be obtained u/s 19 of the PC Act if he retires by the time, the charge sheet is filed or cognizance is taken against him. Further, as the offence alleged against the accused in the present case on hand does not fall u/s 197 of Cr.P.C., admittedly and offences recorded against the accused are punishable under PC Act and as per the discussion made above, as the accused has retired by the time charge sheet is filed and cognizance is taken, there is no necessity of taking sanction against the accused either u/s 19 0f P.C. act or u/s 197 of Cr.P.C. to prosecute him for the said offences. Hence, I am of the considered opinion that there is no force in the argument of the learned advocate for the accused that not taking sanction against the accused either u/s 19 of the PC Act or u/s 197 of Cr.P.C., is fatal to the case of the prosecution. Accordingly this point is answered.
40. It is argued by the learned advocate for accused that in the present case on hand, even though as per the recitals in the Ex.2 complaint it is said to have been submitted on 3.3.2016 but the FIR has been registered on 3.3.2016 at about 5 PM and the said FIR has been submitted to the Magistrate at 10.45 AM on 4.3.2016. Further, 46 Spl.C.C. No.260/2016 J admittedly as per the case of the prosecution the trap has been conducted on 3.3.2016 after 8 PM onwards. In other words the FIR has been submitted to the Magistrate after the trap proceedings.
41. Hence it is argued by the learned advocate for accused that the submitting of the FIR along with complaint to the Magistrate belatedly is fatal to the case pf the prosecution. Further, it is argued that there arises a suspicion with regard to the genuineness of the complaint as per Ex.P-2. In this regard, the learned advocate for accused relied upon ruling reported in 2015(1) KCCR 898 Karnataka High Court by Justice A.V. Chandrashekar in Sri. N.A. Suryanarayana Vs. State by Inspector of Police CBI/SPE/Bengaluru that:
I. Prevention of Corruption Act, 1988 - Sections 7 and 13
- Case registered on basis of complaint, Should be sent to Special Court in a sealed cover without delay with a request that cover be opened only after outcome of trap is made known to court.
Further, one more ruling reported in ILR 2013 Karnataka page 983 (Division Bench) by Justice K. Sridhar Rao Acting as Chief Justice and S. Abdul Nazeer in Girishchandra and another vs. 47 Spl.C.C. No.260/2016 J The State by Lokayuktha Police, Yadgir wherein their Lordships have held:
B) TRAP CASES - SURPRISE RAID IN THE ABSENCE OF COMPLAINT AND FIR - Legality of -
Procedure to be followed - Written guidelines to be laid down and to be followed in protocol of investigation in a trap case - Held, In all trap cases, it is just and necessary that recording of complaint and submission of FIR to the jurisdictional Court before embarking upon the protocol of raid is mandatory. If this type of investigation by surprise raid in trap cases is permitted, it would demoralize the public administration and the SHOs of Lokayuktha Police Stations would tend to misuse the powers of investigation. It is therefore necessary that the Director General of Police shall properly educate all SHOs of Lokayuktha Police Stations in the State about the legal requirements of investigation to be complied in trap cases. Besides, written guidelines be laid down to be followed in the protocol of investigation in a trap case. Non-adherence of protocol of investigation by the Investigating Officer should necessarily result in disciplinary action: - FURTHER HELD, with regard to the question whether registration of FIR should precede the investigation or that FIR should precede the investigation or that FIR could be registered under the midst of the process of investigation would always depend upon the facts and circumstances of each case. In a situation where an offence is committed right in the presence of a Police Officer, it would be imprudent to insist that he should rush to the Police Station to record the FIR. The Police Officer should immediately act, like apprehending the accused, sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other type of cases, registration of FIR is mandatory since an FIR is 48 Spl.C.C. No.260/2016 J to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible. If the FIR is sent to the Court, all further investigation by surprise raid in the absence of FIR is untenable. Hence, it is argued that submitting of FIR in this case after trap is fatal to the case of the prosecution.
42. Obviously on going through the Ex.P2/complaint, it does not disclose as to when the said complaint has been registered as FIR. Further, admittedly there is no any endorsement on the Ex.P2/complaint that on what date,at what time the said complaint has been received and who has received the said complaint. Further, even there is no endorsement on the said complaint for which Section of the offences the cognizance is taken on the basis of allegations made in the said complaint. In this regard PW3/TLO admitted in his cross examination in page 18 para 30 that "It is true to suggest that whenever a complaint is received date ,time of receipt of the complaint will be endorsed on the said complaint."
43. Further, admittedly as per Ex.P-27 FIR there is an endorsement by the Presiding Officer of this court that the said FIR 49 Spl.C.C. No.260/2016 J has been received in a sealed cover at 10.45 AM on 4.3.2016. Therefore, obviously in view of the findings given in the said judgment referred by the learned advocate for accused, I do accept in the present case on hand, FIR has been submitted to this court after trap in the residence of the accused. Further, obviously as per the case of the prosecution the said complaint has been received by the incharge HOB prior to 5 PM on 3.3.2016 and FIR has been registered at 5 PM on 3.3.2016. Further, admittedly incharge HOB has entrusted at about 4.30 PM on 3.3.2016 to the PW.3 Sri. Vivekananda Swamy, the Inspector of Police, CBI/ACB/Bengaluru to lay trap on the residence of the accused. Therefore, the TLO had sufficient time to dispatch the said FIR along with complaint to the Magistrate/ this court immediately after its registration before the trap that took place after 8 PM onwards on 3.3.2016. There is no explanation coming forth on record to show as to why the FIR has been dispatched to the Magistrate/this court has belatedly after the trap. Therefore, in view of the above discussion, I do accept and upheld the argument of the learned advocate for accused that as there is a delay in submitting the FIR to this court, i.e., after the 50 Spl.C.C. No.260/2016 J trap on the residence of the accused. It is fatal to the case of the prosecution. Accordingly I answer point no. 3 in favour of accused.
44. Further, it is argued by the learned advocate for accused that the complaint lodged by the PW.1 has been registered as FIR at belated stage. Further, on the basis of evidence it can be gathered that the investigation has been started much before registration of the FIR. Further, independent witnesses have been secured in order to arrange for the pre-trap proceedings started before registration of the FIR. Therefore, it is argued by the learned advocate for accused that in view of the investigation before registration of the FIR, the whole proceedings got vitiated. In this regard, I would like to discuss these facts considering the arguments of the learned advocate for accused and the facts and circumstances of the case and provision of law relied by the learned advocate for accused.
45. Admittedly, Ex.P-2 complaint even though said to have been registered on 3.3.2016 at 5 PM, it is dated 3.2.2016 it appears that the said date as 3.2.2016 might have been put by the complainant by mistake, because on reading the complaint and 51 Spl.C.C. No.260/2016 J allegations made out in the complaint, it goes to show that that the said complaint must be dated as 3.3.2016. Therefore, it goes to show that the said complaint must be dated as 3.3.2016. Therefore, much importance will not be given to the mistake committed by the complainant in putting the date as 3.2.2016 instead of 3.3.2016 on the Ex.P.2.
46. Further, the PW-1 the complainant in his examination in chief itself has deposed that on 3.3.2016 at 10.30 AM he alone went to the CBI Office at Ganga Nagar and told the CBI Officer he had applied for home loan with the Syndicate Bank and the said loan was already sanctioned and he has told that accused is demanding bribe of 1% of the loan as commission for release of the said home loan. At that time the said CBI Officer asked him as to what you are going to do, the said officer also asked him whether he is having any proof to the effect that the accused demanded commission or bribe from him for release of the housing loan. Further he has deposed that thereafter he went to CBI office at 6 p.m on that day. Therefore, the said version of the evidence of the PW-1 goes to show that he must have lodged complaint on 52 Spl.C.C. No.260/2016 J 3.3.2016 at 10.30 AM itself.
47. Further, PW.3/the Trap Laying Officer/Inspector of Police, CBI Sri. Vivekananda Swamy has deposed that on 3.3.2016 at about 4 PM Sri. E.P. Suresh Kumar, Dy.S.P., incharge HOB called to his chamber and gave him written complaint lodged by Sri. Ashok Babu (PW.1) alleging the illegal demand made by the accused for release of the housing loan amount. In this regard, on reading the evidence of PW. 3 it goes to show that the PW.3 came to know of the said complaint as per Ex.P-2 on 3.3.2016 at 4 PM. Thereafter he has submitted his preliminary report as per Ex.P.26 regarding the same. Further the PW.3 in para-4 of his examination- in-chief itself has deposed that Sri. Suresh Kumar informed that he has going to register a case in RC No. 5/2016 against the accused and directed PW.3 to make arrangement for secrete operation. Therefore, on going through the evidence of PW.3, PW.3 has submitted his report as per Ex.P-26 and thereafter the case has been registered at 5 PM. In other words, before registration of the case itself, the Sri. Suresh Kumar, Dy.S.P., and incharge HOB have arranged for secrete operation. Further, PW.2/Pesala Surendra one 53 Spl.C.C. No.260/2016 J of the independent witnesses to the trap proceedings in examination-in-chief has deposed that he along with PW.6/ A.V. Rajashekara Reddy working as Social Security Employment Provident Fund Office. Further, PW.2/Surendra has deposed that he has received circular from his higher officer on 2.3.2016 at about 5.30 PM to attend the said secrete operation and asked him to go to CBI office on 3.3.2016. Therefore, on going through the evidence of PW.2 it goes to show that the PW.2 has received intimation from his administrative office on 2.3.2016 to attend the said secrete operation to be conducted against the accused. Admittedly, as per the Ex.P-27 the FIR in this case has been registered on 3.3.2016 at 17.00 hours i.e., 5 PM. Therefore, it goes to show that the PW.2 has received intimation even much prior to lodging of the complaint by the PW.1 as per Ex.P-2. Further CW.2/PW.6 A.V. Rajashekara Reddy has deposed that he has received instructions from his Administrative Officer on 3.3.2016 at about 3.30 PM to go to CBI office to attend secrete operation. It also go to show that the PW.6/Rajashekara Reddy an independent witness has received intimation much prior to registration of the 54 Spl.C.C. No.260/2016 J FIR at 5 PM on 3.3.2016.
48. Further, even PW.3/Sri. Vivekananda Swamy, Inspector of Police CBI/ACB Bengaluru who has admitted during the cross-examination that he was having copy of the complaint prior to submitting his verification report as per Ex.P-26 i.e., prior to registration of complaint. In this regard to have clarity I would like to reproduce the said portion of the evidence of PW.3 as under:
-
Question: Whether you have mentioned in your report about the release of part of loan amount of Rs.36 lakhs in your verification report at Ex.P-26?
Ans: In the complaint itself the complainant has stated that the loan was already sanctioned and part of the loan was already released. As such I have not mentioned the said fact in my verification report. Witness volunteers that the incharge HOB has handed over the complaint, after verification I have submitted my report.
Further, he has deposed that he has not made any endorsement on the complaint Ex.P-2 soon after he received from incharge HOB.
Further, it is admitted by the PW.3 in para-30 of his cross-
examination that whenever a complaint is received, date, time of the receipt of the complaint will be endorsed on the said complaint.
Admittedly, on perusal of the Ex.P-2 complaint nowhere in the said 55 Spl.C.C. No.260/2016 J complaint there is endorsement to the effect when the said complaint has been registered, who has received the said complaint. Further there is no endorsement to the effect that when the FIR has been registered in respect of the said complaint and for what offence the cognizance as been taken at the time of registration. Therefore, on going through the evidence of PW.1, 2, 3 and P.W.6 read with Ex.P-2 complaint and Ex.P-27 FIR, obviously it goes to show that there is no proper evidence to the effect that at on what date, at what time,from whom the said Ex.P-
2/complaint has been received by CBI. Further, it also goes to show that on going through the evidence of PW.1, 2, 3 and 6, the investigation has been started much prior to registration of the FIR as per Ex.P-27.
49. Further, admittedly, for the sake of arguments, if we consider that on receipt of the complaint from the PW.1, the incharge HOB has made preliminary investigation with regard to the said complaint, then it is the duty of the receiptant to make an entry in respect of the receipt of the said complaint in General Diary maintained at the police station/CBI office. In this regard, I 56 Spl.C.C. No.260/2016 J would like to rely upon the findings and observations made by Hon'ble Supreme Court of India reported in 2018 SC 2701 by Justice N.V. Ramana and S. Abdul Nazeer in State by Lokayuktha police vs. H. Srinivas, wherein it is held that:
Police Act (5 if 1861), S. 44 - General diary - Non-maintenance of, by Police Officers - Does not render whole prosecution illegal - However, it may have consequences on merits of case, which is matter of trial.
Concept of maintaining General Diary has its origin under S. 44 of Act of 1861 as applicable to States, which makes it obligation for concerned Police Officer to maintain General Diary, but such non-maintenance per se may not be rendering whole prosecution illegal. However, on other hand, such non-maintenance of General Diary may have consequences on merits of case, which is matter of trial. Morevoer, explanation of genesis of criminal case, in some cases, plays important role in establishing prosecution's case. Absence of entries in General Diary concerning preliminary enquiry would not be per se illegal.
Further, their Lordships have discussed in para-15 of the said judgment in respect of the ruling of P. Sirajuddin vs. State of Madras 1970 (1) SCC 595 = AIR 1971 SC 520 and have relied upon the sub-para 120.8 of the said judgment, I would like to reproduce as under: -
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information 57 Spl.C.C. No.260/2016 J 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, as mentioned above.
Further, in para-17 of the said judgment, it is held that
17. In light of the discussion above, the absence of entries in the General Diary concerning the preliminary enquiry would not be per se illegal. Our attention is not drawn to any bar under any provision of Cr.P.C., barring investigating authority to investigate into matter, which may for some justifiable ground, not found to have been entered in the General Diary right after receiving the Confidential Information. It may not be out of context to mention that nothing found in the paragraph 120.8 of the Lalitha Kumari Case (AIR 2014 SC 187) (Supra), justifies the conclusion reached by the High Court by placing a skewed and literal reading of the conclusions reached by the Bench therein. It is well settled that judgments are not legislations, they have to be read in the context and background discussions [refer Smt. Kesar Devi v. Union of India & Ors., (2003) 7 SCC 427: (AIR 2003 SC 4195)].
Therefore, in view of the law laid down by the Hon'ble Supreme Court of India referred above, even though it is permissible under category of cases to register the complaint after making a preliminary enquiry, it is mandatory that when such a complaint is received, even if it is not registered as FIR, at least it must be mandatorily registered in General Diary. If in the preliminary 58 Spl.C.C. No.260/2016 J investigation its found that there is no cognizable offences made out in the said complaint, the said complaint should be returned to the complainant. Therefore, as already discussed in the above said paragraphs in the absence of entry in the General Diary, on reading the evidence of PW.1, 2, 3 and 6 read with Ex.P-2, and Ex.P-27 even though complaint has been received much prior to registration of the FIR i.e., much prior to 3.3.2016 at 5 PM, the receiptant of the complaint i.e., HOB of CBI or PW. 27 have not registered the receipt of the said complaint in the General Diary. Further, as already discussed in the above said paragraphs at the cost of repetition, I repeat that on going through the said evidence, it goes to show that the investigation has been started by the HOB of CBI, as already decided to initiate secret operation even much prior to registration of the FIR. Further, even though PW. 3 has stated that he has received the copy of the complaint before he submitted his report as per Ex.P-26. In this regard, on going through the contents of Ex.P-26 it also goes to show that the PW.3 even though has submitted verifying report he has not stated that he has actually received the copy of the complaint from the HOB. Therefore, it 59 Spl.C.C. No.260/2016 J clearly goes to show that the incharge HOB of CBI have predetermined to conduct some operation even much prior to registration of the FIR, which is fatal to the case of the prosecution. Accordingly I answer point no.4 in favour of the accused as affirmative.
50. Further, it is vehemently argued by the learned advocate for accused that there is no demand and acceptance by the accused in respect of the said allegation of acceptance of bribe by the accused. In this regard, the learned advocate for accused further enlighten that admittedly that the accused being Chief Manager of the Syndicate Bank, Peenya Industrial Estate Branch is not authorised to sanction the loan. In this regard, admittedly on going through the evidence of PW.1, along with his wife CW.20 have submitted loan application for housing loan on 21.11.2015 for Rs.45 to 50 lakhs as per Ex.P-1. Admittedly, the accused along with PW.4/M.M. Ranganal, Assistant Manager of the said Syndicate Bank, Peenya branch, after receipt of the loan application from the CW.20 and PW.1, they have submitted the same to the Central Processing Centre,branch, Bengaluru along 60 Spl.C.C. No.260/2016 J with recommendation on 15.12.2015. Thereafter Central Processing Centre, Bengaluru have called the complainant PW.1 and his wife CW.20 collected necessary documents, thereafter they have sanctioned the said loan on 28.1.2016. The said loan documents ware received by the Peenya Industrial Estate Branch on 18.2.2016 as per Ex.P-12. Thereafter the accused and PW.4 have made physical inspection of the said flat on 26.2.2016 at GM Infinity, Dasarahalli, Bengaluru. In this regard, the said verification report is found at Ex.P-10. Further, PW.4 stated that on 1.3.2016 CW.20/Shivagami has came to the bank and gave mandate to remit the margin money of Rs. Nine lakhs from the account of M/s. Vishwa Karna Finance belonging to her brother CW.18. Therefore, after depositing of the margin money of Rs. Nine lakhs on 1.3.2016. Thereafter as per the direction of the CPC, the accused has released Rs.36 lakhs. Therefore, on going through the evidence of PW.1 read with PW.4, it goes to show that the said loan was sanctioned by the CPC at Bengaluru and it was also disbursed as per the direction of the CPC. Therefore, accused was not having authority to sanction or to disburse the said loan, he was 61 Spl.C.C. No.260/2016 J supposed to obey the orders of the CPC. Therefore, when the accused was not having any authority to do any favour or refrain from doing anything, it cannot be said that the accused has demanded any bribe from the complainant and there is no chance of demanding any bribe by the accused.
51. In this regard, before going to the provision of law in respect of demand and acceptance I would like to enlighten the evidence of the bank officials. PW.4 The Assistant Manager of Syndicate Bank, Peenya Branch who worked along with the accused during the cross-examination at page No.10 admitted "It is true to suggest that the said loan was sanctioned and disbursed as per the banking norms." Further, PW.9, the Manager of Syndicate Bank, Central Processing Center, Bengaluru during the cross-examination at para-12 of page No.4 has admitted as under: -
"12. It is true to suggest that after verification of the loan documents, we will obtain legal opinion and also valuation report. The said loan application and other documents will be processed according to the banking norms. After sanctioning of the said loan, we have intimated the branch office to release the said loan after collecting the margin amount. Accordingly, the branch has to comply with the terms and conditions of the said sanction order. The branch has to obey our order for disbursal of the 62 Spl.C.C. No.260/2016 J loan."
Further, PW.12, the Chief Manager of Syndicate Bank, Yeshwanthpur Branch during the said period has admitted during the cross-examination at page No.3 para-4 as under:
"It is true to suggest that at that time, the housing loan papers used to be received by the branch office and it will be forwarded to the CPC and in turn the CPC department used to scrutinize the loan documents, valuation reports, legal opinion and annexed documents and accord the sanction after due satisfaction. It is true to suggest that CPC is the competent authority to accord housing loan. It is true to suggest that the Chief Manager is competent to sanction loan upto Rs.5 lakhs only. It is true to suggest that the CPC will also impose terms and conditions for disburse of the loan. It is true to suggest that as per the direction of the CPC the branch has to comply and disburse the said loan."
52. In view of the admissions of PW.4, 9 and 12 referred above, the Bank Managers/officials have admitted in unambiguous terms with regard to the fact that the accused was not having authority to sanction the said housing loan of Rs.46 lakhs in favour of the PW.1 and CW.20. Further, admittedly, it is the CPC who have sanctioned the said loan and also directed the Peenya Industrial Estate Branch to disburse the said loan after deposit of margin money by the PW.1. It is also admitted fact that CW.20 has 63 Spl.C.C. No.260/2016 J deposited the margin money to the bank through RTGS on 2.3.2016, therefore, on the same day, the part of the loan of Rs.36 lakhs has been disbursed to the account of the builder. Thereby, it goes to show that the accused even though working as Chief Manager of the branch was not having authority either to sanction or disbursement of the said loan. He is supposed to obey the orders and directions of the CPC. Therefore, it cannot be said that the accused might have demanded the bribe amount for either sanction or disbursement of the said loan. Further, admittedly after the registration of this case against the accused, the bank initially have suspended the accused on 3.3.2016. The said suspension order was in force till 9.3.2016. Thereafter, it appears that the bank have came to the conclusion that the accused is not erred, they have reinstated him by revoking the said suspension order on 9.3.2016. The accused continued to be in service till he retired on 31.3.2016. Admittedly no domestic enquiry was initiated against the accused. These facts primarily goes to show that the accused might not have having any grounds to make demand of bribe amount from the PW.1 or CW.20.
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53. Further, I would like to discuss about the provision of law, in this regard, I would like to rely upon the ruling reported in ILR 2017 Karnataka 5591 in N.A. Suryanarayana @ Suri vs. State by Inspector of Police, CBI/SPE, Bengaluru, Wherein it is held that B) PREVENTION OF CORRUPTION ACT, 1988 - ('the P.C. Act' for brevity) - SECTION 13(1)(d) - Receipt of bribe by a public servant - Initial burden on the prosecution to prove the capacity of a public servant and demand made by him.
HELD, The Court is expected to look into closely as to whether the accused had the official role to play in order to do an official favour: - In a trap case relating to the role of a public servant receiving bribe money, prosecution is expected to discharge its initial burden to prove that the public servant in question had capacity to do official favour in order to demand bribe and that the said bribe amount was received only after demand as contemplated under Section 7 of the Act: - Prosecution is expected to prove that the acceptance of bait money by the accused was preceded by demand. Hence heavy burden is on the prosecution to prove both demand as well as acceptance in a trap case - Acceptance of bribe amount or possession of tainted money by the public servant must be preceded by demand and evidence has to be appreciated properly giving the benefit to the accused. The explanation offered by the accused for possession of the alleged amount must be considered. Therefore, in view of the above principle of law, the prosecution 65 Spl.C.C. No.260/2016 J has to prove that there is a demand by the accused and more particularly the accused has done some favour in favour of the complainant. In the present case on hand, admittedly prior to the trap i.e., prior to 3.3.2016, the loan was already sanctioned, the complainant has also deposed initial margin amount of Rs. Nine lakhs, the bank has also released the part of the loan amount of Rs.36 lakhs in favour of the builder on 2.3.2016 itself and balance of Rs.10 lakhs is to be released in favour of the complainant after he takes possession of the said house property. Therefore, in fact as on date of trap or demand as alleged by the prosecution there was no any pending work with the accused to be done in favour of the complainant.
54. In this regard, I would like to rely upon the ruling reported in 2006 Crl. L.J. SC 518 in State of Andra Pradesh vs. K. Narasimhachari wherein the Supreme Court has held:
"The court is expected to look into the closure as to whether accused had the official role to play in order to do an official favour."
55. Further in same judgment of ILR 2017 Karnataka 5591 in N.A. Suryanarayana @ Suri vs. State by Inspector of 66 Spl.C.C. No.260/2016 J Police, CBI/SPE, Bengaluru, wherein in para-66 of the said judgment their Lordships have held as under:
"In a trap cases, the complainant will be an interested witness, in the sense that he would be interested in trapping the accused who is stated to have not done what ought to have been done legally."
56. According to him, the evidence of the complainant needs corroboration in material aspects and this should be corroborated by shadow witness who would be accompanied him at the time of alleged demand and receipt of the bite money by the accused. Therefore, as per the said observation made by the Hon'ble High Court of Karnataka obviously the complainant/PW.1 is an interested witness. In fact in the present case on hand also as per the case of the prosecution, it was decided in the CBI office before the trap, PW.1 alone shall have to enter in the house of the accused. Admittedly, there is no evidence found of voice recorded in the said DVR. Therefore, except the oral evidence of the complainant there is no any corroborating evidence to prove that the demand and acceptance of bribe amount by the accused on 3.3.2016.
57. Further, the said judgment is also reported in 2015(1) 67 Spl.C.C. No.260/2016 J KCCR 898 Karnataka High Court their Lordships have specifically held that which I would like to reproduce as under: -
E. Prevention of Corruption Act, 1988 - Section 7 - Laying trap - Procedure - Complainant going to a particular place to meet accused - An independent witness has to be sent along with him with clear instruction to stand at a reasonable distance so as to over-hear conversation between complainant and accused.
58. Therefore, in the present case on hand, as there is no corroborative evidence of PW.1, the only evidence of PW.1 is to be relied upon. In this regard, I would like to further appreciate the evidence of PW.1 in page-31 at para-42 as under: -
"On that day, I alone went inside the house of the accused. It is not true to suggest that as nothing was transpired between myself and the accused, I returned back within two minutes from the house of the accused. It is not true to suggest that I conveyed my inability to pay the said amount to the accused."
59. Further, it is also the contention of the prosecution that PW.1 on 3.3.2016 in the morning, when he called the accused on his residential land line telephone through his wife's mobile, he has recorded the demand made by the accused in the said mobile. In this regard, admittedly the Investigating Officer has not seized the said mobile. Further, it is the case of the prosecution that the said 68 Spl.C.C. No.260/2016 J sim of the mobile has been seized by the Investigating Officer on 23.5.2016. In this regard, on going through the Ex.P-9 the proceedings drawn on 23.5.2016, even if we presumed for the sake of argument that the Investigating Officer successful in properly seizing the said documents in accordance with law. On perusal of Ex.P.24 the Voice Transcription said to have been recorded on 3.3.2016, in fact there is no any word 'demand' made by the accused in the said conversation. It has been vehemently argued by the learned advocate for accused, that the Investigating Officer has not at all made any effort to seize the said sim or mobile of the accused immediately on 3-3-2016 itself. As per the case of the prosecution, I repeat that the complainant/PW.1 claims that he has recorded the said conversation on 3.3.2016. In this regard, on perusal of the Ex.P-2/complaint, Ex.P-3/pre-trap proceedings, and Ex.P-15/the copy of the statement made by the PW.1 u/s 164 Cr.P.C., before the XVII ACMM also does not disclose that PW.1 has recorded the said conversation in his mobile. Further, on going through the evidence of the Investigating Officer/PW.14 he has taken over the investigation of this case on 18.3.2016, thereafter he 69 Spl.C.C. No.260/2016 J has summoned PW.1 on 20.5.2016 and even on 20.5.2016 the PW.1 has not stated about the fact that he has recorded the said conversion of demand made by the accused in his wife's mobile. Therefore, for the first time on 23.5.2016 the complainant has made it known and claims that he has recorded the conversation of demand made by the accused. Therefore even though admittedly the trap has been laid down on 3.3.2016 till 23.5.2016 i.e., about more than two months, this material object i.e., sim card said to have been containing demand made by the accused was not at all came to the picture. Further, obviously the said sim card said to have been containing the demand made by the accused was with the PW.1 from 3.3.2016 till 23.5.2016. As such there is every chance of manipulation, modification and fabrication of the said document i.e., sim card. Therefore, the veracity, truthfulness and genuineness of the said document i.e., sim card cannot be accepted as evidence against the accused.
60. Further, it is also the case of the prosecution that the accused has not only made his demand of bribary prior to 3.3.2016, even when the PW.1 went to the house of the accused at that time 70 Spl.C.C. No.260/2016 J the accused had demanded the money and PW.1 has paid the Rs.45,000/-. In this regard, I would like to discuss about the legality and the procedure of the trap proceedings in my further paragraph of this judgment. However, now I would like to discuss whether the prosecution proves that the accused has demanded and accepted the said amount from PW.1. Further it is also case of the complaint that accused has demand bribe on 2.3.2016 with the wife of PW1. Admittedly the prosecution has not examined CW.20/ Smt.Shivagami in order to prove the said fact. Therefore non examination of CW20 is also fatal to the case of prosecution. Further, admittedly as per the case of the prosecution the trap team decided to go to the house of the accused on 3.3.2016 at 8 PM, before that in the CBI office itself at the presence of the Trap Laying Officer, the trap proceedings as per Ex.P-3 were drawn. In Ex.P-3/Pre trap proceedings itself it is stated that in page No.4, para-2 which I would like to reproduce as under: -
"The TLO instructed Sri. P. Surendra the independent witness to accompany with the complainant to see and over hear the conversation and transaction about to take place at the residence of K.C. Misra i.e., by trap spot. The complainant immediately informed that if he is taking another person along with him that will 71 Spl.C.C. No.260/2016 J create a doubt in the mind of Sri. K.C. Misra. Hence, as per his suggestion Sri. P. Surendra was asked to be as much as closure to him to watch and over hear the happenings and the transaction to be taken place at the trap spot. Further, it is decided to hand over a DVR (Digital Voice Recording) to the complainant for recording the happenings during the trap time. Sri. Vivekananda Swamy also explained the operation of the recording device to the complainant Sri. Vivekananda Swamy instructed the independent witnesses and other CBI officers to act on the instructions on the spot to be available in scattered manner without giving any suspicion."
Therefore, on reading the said para of the Ex.P-3 pre-trap proceedings, it goes to show that prior to trap itself it was decided by the Trap Laying Officer (TLO) and the complainant that the shadow witness should not go along with complainant inside the house of the accused.
61. Whereas PW.2/Surendra an independent witness in his examination-in-chief at page No.6 after about 7 lines has deposed that:
"CBI Officer told me to accompany PW.1 to the house of the accused. The said CBI officer has also told Ashok to take me along with him to the house of accused. Then PW.1 told me that if I accompany him to the house of the accused, accused may get doubt. Therefore, he asked me to follow him from a distance. Thereafter, PW.1 alone went to the next street where the house of accused 72 Spl.C.C. No.260/2016 J situated, I was watching about 20 feet away from the house of the accused. Other officers were watching the house of the accused from a distance."
62. Therefore, on going through the evidence of PW.2 independent witness it goes to show that, it was decided at the instruction of the PW.1 nearby the house of the accused that PW.1 alone will go, into the house of the accused at the time of trap proceedings. In other words, as per the trap proceedings Ex.P-3 it goes to show that prior to the trap itself, i.e., before entering the house of the accused in the CBI office itself it was decided not to go send the shadow witness along with complainant. PW.2 deposed that only PW.1 told him near by the house of the accused not to accompany him. Therefore, he will alone go into the house of the accused and as such PW.2 remained at some distance from PW.1, while he was entering the house of the accused.
63. Even on going through the evidence of PW.3/TLO at page No.7, after about 10 lines which I would like to reproduce as under: -
"Sri. P. Surendra was also given indication to accompany the complainant. Later, I observed that Sri. N. Ashok alone entered into the house of the accused and came back after a few minutes."73
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64. Here also PW.3/Trap Laying Officer deposed that he has instructed PW.2 to accompany PW.1 to the house of the accused, where as the pre-trap proceedings Ex.P-3 disclose that it was decided prior to the trap itself that PW.1 alone shall have to enter the house of the accused. Therefore, here it goes to show that the trap proceedings officer has already decided to send PW.1 alone as such he has deposed that he has given DVR to the complainant to record the voice/conversation of demand made by the accused. In this regard, admittedly as per the evidence on record immediately after the PW.1 came out of the house of the accused by making signal, the trap team rushed into the house of the accused.
65. PW.3/ Trap Laying Officer asked the complainant and took the DVR from the complainant, on playing the said DVR he found nothing was recorded in the said DVR. In this regard the learned advocate for accused vehemently argued that there is no demand and acceptance by the accused as such intentionally the prosecution has washed out entire conversation recorded in the DVR. If at all the accused has made demand and accepted the said 74 Spl.C.C. No.260/2016 J amount, it would have been recorded in the said DVR. Further, admittedly as per the case of the prosecution the said DVR has been handed over to the PW.1 at the CBI office itself. Therefore, if at all the said DVR was functioning, admittedly as per the case of the prosecution when the Trap Team came near the house of the accused, he has made 2 or 3 phone calls to the accused and ascertained the presence of the accused in his house. But this conversation of telephone calls also not recorded in the said DVR. Admittedly, the Investigating Officer has not seized the said DVR. The prosecution claims that the PW.1 has not switched on the said DVR before he enters the house of the accused, as such there was no recording in the said DVR. Under these circumstances if we take out the said DVR from the picture, Admittedly except the evidence of PW.1, no other evidence to prove the fact that accused has demanded and accepted the said bribe amount in his house on 3.3.2016 at the time of acceptance of alleged bribe as alleged by the prosecution. In this regard, whether the only sole evidence of the PW.1 the complainant is to be believed to the effect that accused has demanded and accepted the said bribe amount of 75 Spl.C.C. No.260/2016 J Rs.45,000/- on 3.3.2016 in his house. In this regard, I would like to further rely upon the ruling reported in ILR 2017 Karnataka 5591 in N.A. Suryanarayana @ Suri vs. State by Inspector of Police, CBI/SPE/Bengaluru. Wherein para 72 of the said judgment, it is observed as under
"When the complainant goes to a particular place to meet the accused before laying trap ,normal procedure is to send an independent witness with strict instructions to go along with the complaint to that place where the accused will be, and stand at a reasonable distance so as to over hear their conversation and to see what exactly transpires between them."
66. Further, it is has admitted fact that the said tainted amount was found near the kitchen drainage pipe. Whereas PW.6 the independent witness has deposed that he took up the said bundle of notes containing 90 notes of Rs.500 beside the drainage pipe in between main wall of the house of the accused and kitchen. Therefore, as per the case of the prosecution, the said tainted amount was found near the drainage pipe of kitchen, whereas as per Rough sketch of the spot of the raid as per Ex.P-19, the said trap amount was recovered out side the house of the accused. Admittedly on reading the evidence of PW.1, 2, 3 and 6 76 Spl.C.C. No.260/2016 J immediately after the PW.1 came out of the house and gave signal, all the trap members went inside the house of the accused and it is deposed by PW.3 that accused himself has opened the door whereas PW.2 has stated that one woman has opened the door and accused was sitting in the hall. Further, immediately thereafter the Trap Laying Officer/PW.3 introduced himself of his identity to the accused and thereby he asked the accused whether he has received Rs.45,000/- from the complainant/PW.1, the accused did not respond as he was shocked. Thereafter they have conducted phenolphthalein test and found that the said Sodium Carbonate solution turned into pink, as such the TLO came to the conclusion that the accused has received the said amount and he arrested the accused and drawn the arrest memo, their itself. Thereafter he has informed the higher officers of the bank the fact of arrest of the accused. Here, the Trap Laying Officer, before tracing out the said trap amount either from the custody of the accused or in the house of the accused, has arrested the accused by coming to the conclusion that the accused has received bribe amount. But admittedly as already discussed in the earlier paragraphs the said 77 Spl.C.C. No.260/2016 J amount was traced outside the house of the accused as per the rough sketch drawn at Ex.P-19. Therefore, without tracing the amount and recovery of the said trap amount, the TLO has hurriedly came to the conclusion that the accused has demanded and accepted the said amount. Admittedly, as per the case of the prosecution this Trap Laying Officer asked PW.1 as to whether he has recorded the conversation in the Digital Voice Recorder and found that there was no recording found therein. This is also fatal to the case of the prosecution. Admittedly, the Trap Laying Officer have not seized the said DVR for the best reasons known to him.
67. Further, the Trap Laying Officer after recovery of the said amount for the sake of convenience even if you admit the said amount is recovered inside the house of the accused and even if he admit the said amount has been accepted by the accused, it is the duty of the Trap Laying Officer to ask for the explanation from the accused as to how he(accused) came in possession of the said amount. Admittedly, the Trap Laying Officer/PW.3 has not sought for any explanation from the accused. In this regard, I would like to rely upon the ruling reported in ILR 2017 Karnataka 5591 in 78 Spl.C.C. No.260/2016 J N.A. Suryanarayana @ Suri vs. State by Inspector of Police, CBI/SPE/Bengaluru held as under:
C) PREVENTION OF CORRUPTION ACT, 1988 -
SECTION 13(1)(d) - Offences under - Procedure to be adopted by the trap laying officer -
HELD,
(a) The normal procedure that would be adopted by the trap laying officer is to give an opportunity to the accused to give his statement about the receipt of bait money soon after washing his hands in sodium bicarbonate solution at the time of drawing recovery mahazar. Accused could be asked to give a statement in writing or if he is not in a position to write the statement, he can be asked to have his oral say which would be reduced into writing in the presence of the complainant, independent witnesses and thereafter it will be signed by all the concerned including the accused. In the present case, the Investigating Officer has not complied with this important procedure." Admittedly, in the present case on hand, the Trap Laying Officer has not complied the important procedure of getting the explanation from the accused with regard to the said tainted amount, which is fatal to the case of the prosecution.
68. Further, admittedly, there is no any strict rules laid down as to how the trap is to be conducted. But there is settled practice of the investigation to follow certain procedures. In this regard, I would like to lay down the observations made by their 79 Spl.C.C. No.260/2016 J Lordships reported in ILR 2013 Karnataka page 983 by Division Bench of Hon'ble K. Sridhar Rao, Acting Chief Justice and Justice S. Abdul Nazeer in Girishchandra and another s. State of Lokayuktha Police, Yadgir with regard to the regular practice of laying trap is observed in gist as follows:
5. The normal protocol of investigation in trap cases commences with recording of a complaint of a specific allegation against the specific public servant. The Investigating Officer registers the complaint, would send the copy of the FIR to the jurisdictional Court and two panch witnesses are secured from the Government Departments. The demonstration of the effect of phenolphthalein powder on the sodium carbonate solution would be given by colour test by smearing phenolphthalein powder on the bait money produced by the complainant. Sodium carbonate solution is prepared in two bowls, the complainant is asked to handle the tainted currency notes and later on asked to dip his fingers in the solution, which would turn pink. This scientific exercise is employed to corroborate the version of acceptance of bribe or in other words, to infer that the accused person has handled the bribe money.
6. One of the panch witnesses would be sent as a shadow witness and the other panch witness is retained with the Investigating Officer. The complainant and the shadow witness would be asked to go and meet the accused. The shadow witness should keep himself close and discreet in the company of the complainant.
The tainted currency notes are given to the complainant with specific instructions to hand over the same upon demand. The complainant and the panch 80 Spl.C.C. No.260/2016 J witness would go and meet the accused and they are followed by the Investigating Officer, his staff and the other panch witness. If the complainant, after meeting the accused, pays the money on demand, the shadow witness is employed to corroborate the version of demand and acceptance of bribe money and to testify the circumstance relating to demand and acceptance of bribe money.
7. The complainant, after the trap, gives signal, the Investigating Officer and the other panch witness would come and the hands of the accused are held, sodium carbonate solution is prepared in two separate bowls, both the hands of the accused are made to dip in the solution and if the colour turns pink, it is a strongest circumstance to suggest that the accused has received or handled the tainted currency notes. The accused will be asked to produce the bribe money. Thereafter, seizure mahazars are held. The Investigating Officer, after completing the other formalities of investigation, places the final report before the sanctioning authority and after sanction, files the final report before the Court.
69. Therefore, as per the observation made by their Lordship, I do accept even though there is no any strict rules or laws or straight jacket formula in respect of the procedures of laying trap, it is generally accepted practice of laying trap, as described by their Lordships in the above said judgment. If we consider the said practice in comparison with the present trap in this case, admittedly in the present case immediately after receipt 81 Spl.C.C. No.260/2016 J of the complaint, the FIR was not registered. Further, even if the FIR was registered at 5 PM on 3.3.2016, immediately the said FIR and complaint was not dispatched to the Magistrate. Admittedly, in this case the FIR and complaint were dispatched to the Magistrate on the next day after completion of the trap proceedings i.e., complaint has been received by the Magistrate at 10.45 AM on 4.3.2016. Further, admittedly immediately after the hand wash of the accused with phenolphthalein powder, the trap laying officer did not sought any explanation from the accused in respect of the said tainted amount. Admittedly, the said tainted amount was not recovered before the arrest of the accused. The Trap Laying Officer has arrested the accused before recovery of the tainted amount, which goes to show that he has predetermined and prejudiced to the statement made by the complainant. Further, admittedly in the present case on hand the trap amount is recovered outside the house of the accused as per rough sketch map drawn at Ex.P-19.
70. Further, on going through the said act of the Trap Laying Officer, it goes to show that he has been prejudiced by the allegations made in the complaint. In this regard, I would like to 82 Spl.C.C. No.260/2016 J rely upon the observations made by their Lordships in 2012 (3) KCCR Page 1738 Karnataka High Court Circuit Bench at Gulbarga in Ramesh Desai and another vs. The State of Karnataka by Raichur Lokayukta P.S. it is held that:
B. CRIMINAL PROCEDURE CODE, 1973 - Section 172 - Investigation - Role of investigating officer - He should act as impartial and independent investigating agency - He should not associate himself and assist the complainant, giving tape recorded to record conversation (via Bribe case) with regard to demand of bribe does not constitute preliminary enquiry, rather it amounts to collecting the evidence against in person accused of.
71. Further, admittedly as per the case of the complainant himself before registration of the complaint itself he has played recorded voice in the mobile with regard to the conversation of demand made by the accused. Admittedly said SIM of the said mobile was seized by the IO after two months i.e,. on 23-5-2016 as per Ex.P.24. Further, after registration of complaint, before laying the trap as per the Ex.P-3/pre-trap mahazar, the Investigating Officer has given digital voice recorder to the complainant and allowed to enter the house of the accused alone without the assistance of the shadow witness. In this regard, giving DVR to 83 Spl.C.C. No.260/2016 J the complainant before the trap, goes to show that the Trap Laying Officer as predetermined to send the complainant alone, to enter the house of the accused. Admittedly nothing was found recorded in the said DVR. In this regard, I would like to rely upon the findings given by their Lordships reported in 2016(5) KCCR page 477 Karnataka High Court Dharwad Bench in State by Police Sub-Inspector, Karnataka Lokayuktha Police Station, Belgaum vs. Mohan Sathu Malagi held as under: -
B. PREVENTION OF CORRUPTION ACT, 1988 - Section 13 - Bribe - Allegation of - Police not registering case - However, giving voice recorder to complainant - Asking him to record conversation between him and accused - Amounts to collection of evidence even before registration of case - Shows personal interest - Investigation not impratial.
Therefore, in view of the said observations when the Trap Laying Officer has given the DVR to the complainant before the trap itself, it goes to show that the trap laying officer is obviously in favour of the complainant and against the accused. Thereafter the investigation is said to be a biased one.
72. Further, in this regard, I would like to rely upon one more ruling reported in 2006 (3) KCCR page 1445 of Karnataka 84 Spl.C.C. No.260/2016 J High Court in State of Karnataka vs. K.T. Hanumanthaiah wherein their Lordships have held:
A. PREVENTION OF CORRUPTION ACT, 1988 - Sections 7, 13(1)(d) r/w 13(2) - There should be independent corroboration for proving the case of demand and acceptance of bribe for the offence under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
B. PREVENTION OF CORRUPTION ACT, 1988 - Sections 7, 13(1)(d) r/w 13(2) - The Investigating Officer has not understood the very shadow witness to the trap proceeding - Since independent corroboration is a must to prove the theory of demand and acceptance of bribe.
73. Further, as I have discussed in the above said paragraphs PW.6 has deposed that the said amount was recovered from a dust bin outside the kitchen drainage pipe. If we accept the said evidence of PW.6, the question arises as to why the Trap Laying Officer has not seized the said dust bin, wherein alleged trap amount is found. In this regard, the learned advocate for accused relied upon the ruing reported in AIR 2017 SC 3382 IN Mukhtiar Singh (since deceased) through his L.R. vs. State of Punjab wherein their Lordships have held as under:
Prevention of Corruption Act, 1988 (49 of 1988), S.7, S.13(2) - Illegal gratification - Demand and 85 Spl.C.C. No.260/2016 J acceptance of - Proof - Bald allegations that accused, SHO accepted Rs.3,000/- to favour complainant in investigation and further demanded Rs.2,000/- on day of trap operation - Evidence regarding demand of illegal gratification inadequate - Date or time of first demand/payment not mentioned - Nor person in whose presence it was paid, was produced either in investigation or at trial - Evidence of complainant and shadow witness contradictory with regard to location of transaction relating to demand of Rs.2,000/- - Unusual that bribe amount placed casually in card board box on table instead of being kept with complainant - Guilt of accused not proved beyond reasonable doubt - Conviction of accused, set aide.
Therefore, as per the observations made by their Lordship in the said judgment, the card board box kept on the table wherein the amount said to have been found is not seized. Therefore, their lordships have observed that the said card board box ought to have been seized. Considering the same analogy in the present case on hand, if we accept the said amount is found in the dust bin box, the Trap Laying Officer ought to have been seized the said dust bin.
Admittedly, the said dust bin is not seized in this case. Further PW.14/I.O. has deposed in examination in chief itself, that "on 30.05.2016 he visited the scene of crime/place of crime along with Sri. Vivekaanda Swamy (PW.3) and Sri. Sasi Kumar (CW.16) Head Constable and taken the Photographs of the scene of crime/place of crime"86
Spl.C.C. No.260/2016 J This goes to show that photograph of spot where tainted money is found is taken. But for the best reasons known to prosecution said photograph is not produced before the court. Had the prosecution has produced the photograph, it would have been supporting document to Ex.P.19,Rough Sketch of scene of crime. This also creates doubt with regard to the recovery of the said tainted amount from the house or outside the house of the accused as claimed by the prosecution.
74. Therefore, in view of the above discussion, admittedly the Investigating Officer has not seized the said DVR and admittedly the Investigating Officer even if has seized SIM card of the mobile on 23.5.2016 as per Ex.p.24, i.e., after about more than two months of the said trap, which creates doubt with regard to the veracity of the said SIM card/M.O.1. Further, as already discussed in the above said paragraphs even on considering the Voice Record Test as per Ex.P-24, and Ex.P.56/CFSL Expert Opinion read with Ex.P-9 I do not find the words Demand made by the accused.
Therefore, in the absence of Specific demand of the bribe by the accused, even if the it is the said tainted amount /the bribe amount 87 Spl.C.C. No.260/2016 J found with the accused, it cannot be said and presumed that it is a bribe amount as claimed by the prosecution. In this regard, I would like to rely upon the ruling reported in 2008 (2) KCCR page 985 in State by Lokayuktha Police, Mandya vs. K.M. Gangadhar wherein their Lordships have held :
PREVENTION OF CORRUPTION ACT, 1988 - Sections 7 and 13(1)(d) - Evidence on record brings out the fact of the currency notes being recovered from the pocket of the accused and his hands being tested positive yet they themselves are not sufficient to hold that the accused demanded illegal gratification from the complainant and received the same. When the prosecution failed to prove the factum of demand by the accused, presumptions under Section 20 of P.C. Act not available for the prosecution to press into service .
One more ruling reported in 2012(1) KCCR page 144 Karnataka High Court in R. Malini vs. State of Karnataka wherein it is held:
A. PREVENTION OF CORRUPTION ACT, 1988 - Sections 7, 13(1)(d) - Therefore when the certificate was kept ready much before lodging of the complaint the question of accused demanding bribe amount for doing any work does not arise as no work was pending at the time of Lodging the complaint.
B. PREVENTION OF CORRUPTION ACT, 1988 - Sections 7, 13(1)(d) - Therefore mere possession of the amount by the accused cannot be taken as receipt of the amount by the accused after demand made by him as the 88 Spl.C.C. No.260/2016 J evidence of demand is totally lacking.
C. PREVENTION OF CORRUPTION ACT, 1988 - Sections 7, 13(1)(d) - It is not the passing of the money alone that establishes a Corruption charge because the gravemen of the offence lies in the fact that the money was paid for a corrupt purpose and it is that aspect which is paramount.
D. PREVENTION OF CORRUPTION ACT, 1988 - Sections 7, 13(1)(d) - In the absence of any evidence of demand and acceptance of the amount as illegal gratification - Mere acceptance of Money by the appellant will not be sufficient to fasten the guilt.
75. Further, one more ruling reported in 2015 SAR (Criminal) 96 SC by Division Bench in M.R. Purushotham vs. State of Karnataka wherein their Lordships have held that:
R- Corruption case - Acquittal of accused by trial court - Reversal thereof by High Court - Propriety. Prevention of Corruption Act, 1988 - Secs 7, 13(1)(d) read with Sec. 13(2) - Illegal gratification - Demand and acceptance - Proof - Appellant/accused, working in the office of Assistant Director of Land Records, demanded an illegal gratification for issuance of survey sketch pertaining to a village - Trap was organized - Acquittal of accused by trial court - Reversal thereof by High Court - Property - Held, In such type of cases the prosecution has to prove that there was a demand and acceptance of illegal gratification by the accused - As already seen the complainant did not support the prosecution case insofar as demand by the accused - No other evidence was adduced by the prosecution to prove the demand made by the accused, with the complainant - When 89 Spl.C.C. No.260/2016 J complainant himself had disowned what he has stated in his initial complaint before Inspector and there is no other evidence to prove that the accused had made any demand, the evidence of other witness and the contents of complaint cannot be relied upon to conclude that the said material furnishes proof of demand allegedly made by the accused - High court was not correct in holding the demand alleged to be made by the accused as proved - Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Sec. 13(1)(d) of the Act and the conviction and sentence imposed on the appellant are liable to be set aside.
76. One more ruling reported in 2014 SAR (Criminal) 554 SC in B. Jayaraj vs. State of A.P. wherein it is held that:
(A) Prevention of Corruption Act, 1988 - Secs. 7 and 13(1)(d)(i)(ii) read with Sec. 13(2) - Bribery - Proof -
Allegation that accused/appellant, at relevant point of time, working as Mandal Revenue Officer demanded a bribe of Rs.250/- from complainant for releasing his essential commodities - Complainant did not support the prosecution case - He disowned making the complaint and had stated in his deposition that the amount of Rs.250/- was paid by him to the accused with a request that the same may be deposited with the bank as fee for the renewal of his licence - He was therefore, declared hostile - Demand of illegal gratification which is sine qua non to constitute the offence under Sec. 7 of act, is not proved - Mere possession and recovery of the currency notes from the accused without proof of demand will not brin home the offence under Sec. 7 of Act - The same also will be conclusive in so far as the offence under Sec. 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public 90 Spl.C.C. No.260/2016 J servant to obtain any valuable thing or pecuniary advantage cannot be held to be established - Conviction and sentence passed against appellant is liable to be set aside.
(B) Prevention of Corruption Act, 1988 - Secs. 20, 13, 7
- Legal presumption of taking illegal gratification - Permissibility - Such presumption can only be in respect of the offence under Sec. 7 and not the offences under Sec. 13(1)(d)(i)(ii) of the Act - In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Sec. 20 of the Act that such gratification was received for doing or forbearing to do any official act - Proof of acceptance of illegal gratification can follow only if there is proof of demand - As the same is lacking in present case the primary facts on the basis of which the legal presumption under Sec. 20 can be drawn are wholly absent.
One more ruling reported in 2011 SAR (Criminal) 719 in P. Parasurami Reddy vs. State of A.P. wherein their Lordships have held:
Prevention of Corruption Act, 1988 - Secs 7 and 13(1)(d) r/w Sec. 13(2) - Sole evidence of the fingers being soiled in sodium carbonate turned pink - Not sufficient to convict the accused - Loan was sanctioned - According to the appellant who was working as Mandal Development Officer demanded a bribe - Charge sheet was filed - Appellant claimed that he never demanded and had never accepted the bribe money - Conviction - Affirmed by High Court - Hence, this appeal - Time and place to receive the money - Not proved - Complainant was driven out of the room when he approached the accused - There is no evidence to suggest as to what transpired between the accused and the complainant 91 Spl.C.C. No.260/2016 J when the accused was approached - No seizure of the treated currency notes - Held : it is not established that money was demanded and was accepted as bribe, appeal allowed.
77. Therefore, in view of the observations made by their Lordships, in the above said judgments it is held by their Lordships in the absence of demand by the accused, even if the said amount is recovered, it cannot be said that it is a bribe amount received by the accused as an illegal gratification to do favour the complainant i.e., releasing the housing loan in favour of the PW.1.
78. In view of the above discussion, the prosecution has utterly failed to prove beyond reasonable doubt that accused being the Chief Manager of Syndicate Bank, Peenya Industrial Estate Branch, Bengaluru being a public servant by abusing his official capacity has made illegal demand of Rs.45,000/- for sanction and disbursement of housing loan in favour of PW.1/CW.20 as alleged. Further, the prosecution has also failed to prove that the accused being the public servant in order to enrich himself by misusing the official authority in order to make illegal gain has demanded illegal gratification in order to cause loss to the bank, thereby the prosecution has failed to prove that the accused has 92 Spl.C.C. No.260/2016 J committed offence of criminal misconduct beyond all reasonable doubt as alleged by leading cogent, convincing evidence.
79. Further, by summarizing all my above said finding, the prosecution has proved that the CBI in view of the blanket sanction issued by the Government of Karnataka as per the notification referred in the above judgment is competent to register the complaint, inquire and investigate the case against the accused.
Further, the accused has failed to prove that as accused has already retired by the time, the charge sheet is filed or cognizance is taken, the prosecution has not obtained sanctioned either u/s 197 of Cr.P.C., or u/s 19 of PC Act is fatal to the case of the prosecution. Further, the accused has proved that in view of the fact that the complaint as per the pleadings and evidence on record has been lodged by the complainant PW.1 at 10.30 AM on 3.3.2016 and admittedly the said complaint has been registered as per the FIR had dispatched to Magistrate at 10.45 AM on 4.6.2016 i.e., after laying the trap on the house of the accused at about 8 PM on 3.3.2016 itself. Therefore, the delay in dispatching the complaint and FIR to the Magistrate is fatal to the case of the prosecution. 93
Spl.C.C. No.260/2016 J Further accused has proved that in this case as per discussion made above investigation has commenced much before the registration of FIR ,which is fatal to the case of prosecution .Further, the accused has proved that as the Investigating Officer who claims that he has seized the Sim Card of the Mobile belonging to the complainant on 23.5.2016 but in fact as per the case of the prosecution is the complainant/PW.1 claims that he has recorded the version of the accused on making demand in the Sim Card belonging to the mobile of his wife on 3.3.2016 itself, but the said fact has not been disclosed either in the complaint at Ex.P-2, pre- trap proceedings at Ex.P-3, the statement of the PW.1 recorded u/s 164 of Cr.P.C., as per Ex.P-15. Further, admittedly the said Sim Card has been produced by the PW.1 on 23.5.2016 i.e., after about more than two months below by alleging to have been containing the version in the said Sim card. It is fatal to the case of the prosecution. Further, the prosecution has utterly failed to prove that accused has demanded and accepted the illegal gratification as bribe amount at Rs.45,000/- by trap proceedings as claimed by the prosecution. Further, the prosecution has also failed to prove that 94 Spl.C.C. No.260/2016 J accused has committed offence of criminal misconduct as alleged beyond all reasonable doubt by leading cogent and convincing evidence. Accordingly, I am of the considered opinion that the accused is entitled for an acquittal. Accordingly, the above said Points are answered.
80. Point No.7: In view of my findings to the above points, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C., Accused is hereby not found guilty and acquitted for the offences punishable u/s 7, Sec. 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
Bail bond of accused stands valid for a period of six months or till accused receives notice of appeal filled by CBI or anybody on behalf of prosecution in accordance with Law and appears before the said court.
Further, M.O.1- S.D.Card, M.O.2. one C.D., M.O.4&5 two bottles containing hand wash of the accused , M.O.6.C.D. as worthless, are ordered to be destroyed after the appeal period.
Further, it is noticed from the order sheet that Rs.45,000/- has already been paid by the CBI from 95 Spl.C.C. No.260/2016 J their funds to PW-1 N. Ashok Babu upon his request. Therefore, the said Rs.45,000/- i.e., M.O.3 consists of Rs.500/- (old) currency notes are ordered to be returned to the CBI.
Further, the said Rs.45,000/- consisting of old Rs.500/- currency notes which already declare as demonetized notes as per order of Govt. of India. Hence office is here by directed to issue a necessary certificate in favour of the CBI in order to enable the CBI to en-cash the said amount in accordance with Law.
(Dictated to the Judgment Writer, transcribed by him, revised by me personally and incorporated additional paragraphs directly on computer, corrected and then pronounced by me in the Open Court on this the 18th day of August, 2018) (Sadashiva S. Sultanpuri) XXI Addl. City Civil and Sessions Judge And Prl. Special Judge for CBI Cases, Bengaluru City.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW-1: N. Ashok Babu
PW-2: Pesala Surendra
PW-3: V. Vivekananda Swamy
PW-4: M.M. Arangannal
PW-5: Ramesh S. Jabi
PW-6: A.V. Rajashekar Reddy
PW-7: Smt. Swarnamba C
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PW-8: Stanley Angelo
PW-9: Somappa H.G.
PW-10: Satya Keerthi C.
PW-11: Dr. P. Narasimhaiah
PW-12: C.V. SUndaramoorthy
PW-13: S.A. Senthil Kannan
PW-14: V.N. Raju
PW-15: Deepak Kumar Tanwar
LIST OF WITNESS EXAMINED FOR DEFENCE:
Nil
LIST OF DOCUMENTS EXHIBITED FOR THE
PROSECUTION:
Ex.P1 Original Loan application with annexures submitted
by the complainant and his wife to the Syndicate Bank.
Ex.P1(a) Signature of PW.1
Ex.P1(b) Signature of the wife of PW.1
Ex.P1(c) Signature of K.C. Misra
Ex.P1(d) Signature of PW.4
Ex.P1(e) legal opinion of Sri. B. Gopalakrishna Adiga
Ex.P1(f) Inspection Report
Ex.P1(g) Valuation Report
Ex.P2 Original Complaint given by PW.1 to CBI
Ex.P2(a) Signature of PW.1
Ex.P3 Entrustment Mahazar dt. 3.3.2016
Ex.P3(a) Signature of PW.1
Ex.P3(b) Signature of PW.2
Ex.P3(c) Signature of CW.2
Ex.P3(d) Signature of PW.3
Ex.P4 Recovery Mahazar
Ex.P4(a) Signature of PW.1
Ex.P4(b) Signature of PW.2
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Ex.P4(c) Signature of CW.2
Ex.P4(d) Signature of PW.3
Ex.P5 Opened sealed cover contains marking as "Exhibit
SD"
Ex.P6 One brown cover contains marking as "SD"
Ex.P6(a) Signature of PW.2
Ex.P6(b) Signature of CW.2
Ex.P6(c) Signature of PW.14
Ex.P7 One Opened cover contains marking as "Exhibit R"
Ex.P8 One Opened brown cover contains marking as "R"
Ex.P8(a) Signature of PW.2
Ex.P8(b) Signature of CW.2
Ex.P8(c) Signature of PW.14
Ex.P9 Proceedings dated 23.5.2016 contains transcription of
the conversation said to be done by PW.1 with the accused along with Certificates under Sec. 65-B of Indian Evidence Act.
Ex.P9(a) Signature of PW.1 on proceedings Ex.P9(b) Signature of PW.1 on 65-B Certificate.
Ex.P9(c) Signature of PW.2 Ex.P9(d) Signature of CW.2 Ex.P9(e) Signature of PW.13 Ex.P9(f) Signature of PW.14 Ex.P10 Request letter dt. 1.3.2016 given from PW. 1 and his
wife to the bank requesting to transfer Rs.36 lakhs to the builder by way of RTGS.
Ex.P10(a) Signature of PW.1 Ex.P10(b) Signature of wife of PW.1 Ex.P10(c) office Note dated 2.3.2016 Ex.P10(d) Signature of PW.4 Ex.P10(e) Signature of the accused Ex.P10(f) Endorsement made by the accused 98 Spl.C.C. No.260/2016 J Ex.P11 Receipt dt. 2.3.2016 for Rs.36 lakhs signed by PW.1 and his wife along with payment details.
Ex.P12 One bunch of documents contains sanction letter, HL Agreement, Tripartite Agreement to sale etc., Ex.P12(a) Sanction letter dt. 28.1.2016 Ex.P12(b) Letter dt. 18.12.2016 to the Chief Manager.
Ex.P13 One bunch of documents contains correspondence between Syndicate Bank, Peenya Branch with CPC in respect of Housing Loan .
Ex.P13(a) Handwritten letter dt. 2.1.2016 by PW.1 and his wife. Ex.P13(b) Inspection Report captioned as "Due Diligence (On Builder)".
Ex.P14 One opened sealed cover containing cash of Rs.45,000/-.
Ex.P14(a) Signature of PW.2 Ex.P14(b) signature of CW.2 Ex.P15 Certified copy of statement of PW.1 recorded u/s 164 Cr.P.C., Ex.P16 Copy of the complaint Ex.P6(a) Signature of PW. 2 Ex.P17 Search List dt. 4.3.2016. Ex.P17(a) Signature of PW.2 Ex.P17(b) Signature of CW.2 Ex.P17(c) Signature of PW.3 Ex.P18 Inventory dt. 4.3.2016. Ex.P18(a) Signature of PW.2 Ex.P18(b) Signature of CW.2 Ex.P18(c) Signature of PW.3 Ex.P19 Rough sketch in two sheets Ex.P19(a) Signature of PW.2 99 Spl.C.C. No.260/2016 J Ex.P19(b) Signature of CW.2 Ex.P19(c) Signature of PW.3 Ex.P20 Brass Seal Impression with inscription CBI. Ex.P20(a) Signature of PW.2 Ex.P20(b) Signature of CW.2 Ex.P20(c) Signature of PW.3 Ex.P21 Specimen Brass Seal Impressions. Ex.P21(a) Signature of PW.2 Ex.P21(b) Signature of CW.2 Ex.P22 Opened Sealed cover contains marking as "S". Ex.P22(a) Signature of PW.2 Ex.P22(b) Signature of CW.2 Ex.P22(c) Signature of PW.14 Ex.P23 Opened Sealed cover contains marking as "ExhibitS". Ex.P24 Proceedings dated 23.5.2016 with declarations, text
prepared and Certificate under Sec. 65-B of Indian Evidence Act.
Ex.P24(a) Signature of PW.2 Ex.P24(b) Signature of CW.2 Ex.P24(c) Text prepared for recording Ex.P24(c-1) Signature of PW.2 Ex.P24(d) Signature of PW.13 Ex.P24(e) Signature of PW.14 Ex.P25 Specimen Brass Seal Impressions in four sheets. Ex.P25(a) Signature of PW.2 Ex.P25(b) Signature of CW.2 Ex.P26 Complaint verification report dt. 3.3.2016. Ex.P27 Original FIR Ex.P28 Arrest cum inspection cum personal search memo. Ex.P28(a) Signature of PW.3 100 Spl.C.C. No.260/2016 J Ex.P29 Record made under Sec. 165(1) Cr.P.C., Ex.P30 Statement of account in respect of M/s. Viswakarma
Industries and Mrs. A. Shivagami and N. Ashok Babu along with certificate u/s 65-B I.E. Act. Ex.P30(a) Relevant entry dated 1.3.2016 for Rs.9 lakhs. Ex.P30(b) Relevant credit entry dated 2.3.2016 for Rs.36 lakhs. Ex.P30(c) Relevant debit entry dated 2.3.2016 for Rs.36 lakhs.
Ex.P31 Receipt Memo dt. 01.4.2016.
Ex.P31(a) Signature of PW.4
Ex.P32 Demand Note/Letter dt. 23.2.2016 of M/s. G.M.
Infinite addressed to Mrs. Shivagami.
Ex.P32(a) Signature of Mrs. Shivagami.
Ex.P33 Certified copy of customer application form for
mobile No. 9449860056 along with certificate u/s 65- B of Indian Evidence Act - 8 sheets.
Ex.P34 Receipt Memo dt. 13.5.2016 Ex.P34(a) Signature of PW.5 Ex.P35 Statement of call details of land line No. 23408486
along with certificates u/s 65-B of I.E. Act - 9 sheets. Ex.P35(a) to Relevant entries at Ink page 3
(c) Receipt Memo dt. 13.5.2016.
Ex.P36 Receipt Memo dt. 13.5.2016
Ex.P36(a) Signature of PW.7
Ex.P37 Receipt Memo dt. 13.5.2016 through which 3
documents handed over to the CBI.
Ex.P37(a) Signature of PW.8
Ex.P38 Attested copy of customer application form in respect
of Mobile No. 9972869465 - 2 sheets.
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Spl.C.C. No.260/2016 J
Ex.P39 Attested copies of customer application form
submitted by In Leather Company and enclosure.
Total 4 sheets.
Ex.P39(a) Relevant entries at 3 sheets.
Ex.P40 Call details statement pertaining to Mobile No.
9731297318 (contains 94 pages)
Ex.P40(a) Relevant entries dt. 2.3.2016 at page No.35.
Ex.P40(b) Relevant entry dt. 3.3.2016 at page No.35.
Ex.P41 Statement of call details in respect of Mobile No.
9972869465 (144 pages)
Ex.P41(a) & Relevant entries at page No.49 dt. 3.3.2016.
(b) Ex.P42 Certificate u/s 65-B of Indian Evidence Act for Ex.P40 & Ex.P41.
Ex.P43 Original process Note with loan review format and
loan eligibility sheet - 7 sheets
Ex.P43(a) Signature of PW.9
Ex.P43(b) Signature of Chief Manager, CPC
Ex.P43(c) Signature of Chief Manager, CPC in page No.6
Ex.P44 Receipt Memo dt. 1.4.2016.
Ex.P44(a) Signature of PW.9
Ex.P45 Receipt Memo dt. 3.5.2016.
Ex.P45(a) Signature of PW.9
Ex.P46 Computer print out showing list of documents
required along with 65-B of I.E. Act - 2 sheets Ex.P47 Attested copy of extract of circular No. 132/08 contains role and responsibility of CPC along with 65- B of I.E. Act.
Ex.P48 Inward Ledger extract for the day 19.12.2015 -1 sheet Ex.P48(a) Relevant entry dt. 19.12.2015.
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Spl.C.C. No.260/2016 J Ex.P49 One file contains original application form etc., [file No. CIS NO. G/9915] (34 sheets + 2 note sheets) Ex.P50 Receipt Memo dt. 18.5.2016.
Ex.P50(a) Signature of PW.10 Ex.P51 Chemical Examiners' Report dt. 30.3.2016 Ex.P51(a) Signature of PW.11 Ex.P52 Extract of computer print out of Role & Responsibilities of Chief Manager in Syndicate Bank with certificate u/s 65-B of I.E. Act and covering letter dt. 21.4.2016.
Ex.P52(a) Signature of PW. 12 on covering letter. Ex.P53 Letter dt. 26.4.2016 of Deputy General Manager (Vig) Syndicate Bank addressed to the SP, CBI containing personal details of the accused - 2 sheets.
Ex.P54 Pay particulars of K.C. Misra dt. 12.5.2016 - 1 sheet Ex.P55 Letter dt. 17.5.2016 of AGM, Syndicate Bank, R.O., North, Bengaluru regarding CVG Mobile No. 1 sht. Ex.P56 CFSL Expert opinion dt. 19.9.2016 along with enclosures - 6 sheets Ex.P56(a) Signature of PW.15.
Ex.P57 Receipt Memo dt. 21.4.2016. Ex.P57(a) Signature of PW.14 Ex.P58 Computer print out showing details of RTGS
transactions dt. 1.3.2016 for Rs.9.00 lakhs and dt. 2.3.2016 for Rs.36 lakhs along with certificate u/s 65- B Evidence Act - 7 sheets.
103
Spl.C.C. No.260/2016 J LIST OF DOCUMENTS MARKED FOR DEFENCE:
NIL LIST OF MATERAIL OBJECTS MARKED FOR PROSECUTION: -
M.O.1 S.D. Card M.O.2 One C.D. marked as 'R' M.O.3 Cash of Rs.45,000/- (Rs. 500 x 90 nos.) (old currency notes) M.O.4 Bottle contains right hand fingers wash of the accused. M.O.5 Bottle contains right hand fingers wash of the accused. M.O.6 One C.D. marked as 'S' (Sadashiva S. Sultanpuri) XXI Addl.City Civil and Sessions Judge And Prl. Special Judge for CBI Cases, Bengaluru City.Digitally signed by SADASHIVA SIDDAPPA SULTHANPURI DN: cn=SADASHIVA
SADASHIVA SIDDAPPA
SIDDAPPA SULTHANPURI,ou=HIGH
COURT,o=GOVERNMENT
SULTHANPURI OF
KARNATAKA,st=Karnataka,
c=IN
Date: 2018.08.18 17:42:04
IST