Bangalore District Court
State Of Karnataka vs K.Venkatesh on 4 February, 2019
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL & SESSIONS JUDGE &
SPECIAL JUDGE (P.C.A.), BENGALURU (C.C.H.No.79)
Present: Sri.Ravindra Hegde, M.A., LL.M.,
LXXVIII Addl.City Civil & Sessions Judge
& Special Judge (P.C.A.), Bengaluru.
Dated: This the day 4th day of February 2019
Special C.C. No.75/2013
Complainant: State of Karnataka, represented by
Police Inspector, Karnataka Lokayukta,
City Division, Bengaluru.
(By Public Prosecutor)
vs.
Accused: 1. K.Venkatesh, S/o Late.N.Krishnappa,
Aged about 50 years,
Sheristedar, Tahasildar Office,
Bengaluru North Taluk,
Yelahanka New Town, Bengaluru.
R/at No. 418/10, 3rd Stage, A Sector,
Yelahanka Upanagar, Bengaluru.
2. D.Nagaraju
S/o Nanjundappa,
Lift Operator, Aged about 24 years,
R/at No.782/1, 6th Cross,
Attur Layout, Yelahanka,
Bengaluru.
(By Sri. Phaniraj Kashyap, Advocate)
Date of commission of offence 01-08-2012
Date of report of occurrence 02-08-2012
Date of arrest of accused 03-08-2012
Date of release of accused on 10-08-2012
bail
2 Spl.C.C.75/2013
Date of commencement of 20-04-2017
evidence
Date of closing of evidence 03-09-2018
Name of the complainant S.A.Mohan Kumar
Offences complained of Under Sections 7,8, 12,
13(1)(d) r/w/s 13(2) of
Prevention of Corruption
Act
Opinion of the Judge A1-Convicted
A2-Acquitted
Date of Judgment 04.02.2019
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against Accused No.1 and 2 for the offences punishable under Sections 7, 8, 12, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.(In short PC Act).
2. The brief facts of the prosecution case is as under:
Accused No.1-Venkatesh, is working as R.R.T. Sheristedar in Tahsildar's office, Bengaluru North Additional Taluk and is public servant. Accused No.2-B.Nagaraju is Lift Operator and is a private person. Complainant-S.A.Mohan Kumar gave complaint before Lokayukta Police on 03-08-2012 stating that in respect of the property of his grand father, there was a compromise decree in O.S.No.113/2004 and application was given for correction of extent and name of kathedars in the
3 Spl.C.C.75/2013 R.T.C. in respect of four properties and Revenue Inspector- Appaji Gowda had demanded Rs.6-lakhs for correction of the R.T.C. and complainant had paid totally Rs.3-lakhs to him and had also given Rs.20,000/- to Sheristedar-Venkatesh, who is accused No.1 in this case and after one week, in respect of four survey numbers, order was passed by Thasildar for correction of extent and name of kathedars and thereafter in respect of three properties correction has been entered. It is also stated that in respect of one property in Sy.No.72/5, R.T.C. was not changed in the name of father of complainant and therefore, complainant went to Thasildar's office and met Revenue Inspector-Appaji Gowda and he told that he has already prepared report and sent it to accused No.1. Thereafter, complainant went to Tahsildar's Office again and met accused No.1 and he asked complainant to bring money for attending the work. On 01-08-2012 at about 11.30 a.m., complainant went to Tahsildar's office and met accused No.1 and then he asked complainant to pay bribe of Rs.1-lakh for correction of the R.T.C. and asked him to call when amount is ready and on the same day, in the evening after making phone call to accused No.1, complainant met him and again he demanded Rs.1-lakh and complainant gave him Rs.20,000/- and Accused informed that he will talk to him again after receiving file. Thereafter, complainant went to Lokayukta Office on 02-08-2012 and he was given voice recorder for recording conversation with accused and then, 4 Spl.C.C.75/2013 along with voice recorder, when he met accused No.1, he asked complainant to make a phone call in the night. When complainant made a phone call at 8.15 p.m., Accused No.1 demanded Rs.1,50,000/- including Rs.20,000/-. This conversation was recorded in voice recorder by switching on loudspeaker mode in the mobile. Thereafter, on 03-08-2012, along with recordings in voice recorder and copies of documents, complainant gave complaint to Lokayukta Police. On receiving complaint, Lokayukta Police Inspector has registered the case against accused No.1 and Revenue Inspector-Appaji Gowda in Crime No.65/2012 and submitted FIR to the Court and secured panchas and made all arrangement for trap. On the same day, Trap Team visited office of accused. When complainant and his friend met accused No.1 and enquired about the work, accused No.1 asked them to give the amount to Lift operator, i.e., accused No.2. Accordingly, complainant came to ground floor and gave tainted notes of Rs.80,000/- to accused No.2 near stair case and then gave signal. Immediately Trap Team surrounded accused No.2 and then he has thrown out tainted notes on the floor. Trap procedures were followed and Accused No.1 and accused No.2-Lift operator Nagaraju were arrested and produced before the Court. Investigating Officer continued investigation and after completion of investigation, filed charge sheet against accused No.1 and present accused No.2 for the offences under Section 7, 8, 12, 13 (1) (d) read 5 Spl.C.C.75/2013 with Section 13(2) of Prevention of Corruption Act.
3. Cognizance of offences is taken by this Court. Accused No.1 and 2 have appeared and are enlarged on bail. Copies of prosecution papers are furnished to Accused. After hearing both sides regarding framing of charge and having found prima-facie materials, my learned predecessor has framed charge against Accused No.1 for the offences under Section 7, 13(1)(d) r/w section 13(2) of PC Act and framed charge against accused No.2 for the offence under Section 8 of PC Act and charge was read over to both accused and they have pleaded not guilty and claimed to be tried.
4. In support of the prosecution case, P.Ws.1 to 7 are examined. Exs.P1 to P25 are marked. M.O.1 to M.O.12 are also marked.
5. After completion of prosecution evidence, statement of Accused, as required under Section 313 of Cr.P.C. is recorded. Accused has denied incriminating evidence appearing against him. Accused No.1 has opted to lead defence evidence.
6. Fr accused No.1, D.W.1 is examined and Ex.D.1 and 2 are marked.
7. Heard both counsels and perused the records.
8. Now, Points that arise for my consideration are:-
1) Whether the prosecution proves that there is a valid prosecution sanction order to prosecute Accused No.1?
6 Spl.C.C.75/2013
2) Whether the Prosecution proves beyond all reasonable doubt that, Accused No.1 being public servant, working as R.R.T. Sheristedar in Bengaluru North Additional Taluk, Tahsildar's Office, Bengaluru, has, on 01-08-2012, when complainant approached him for correction of entries in R.T.C. of Sy.No.72/5, demanded Rs.1,00,000/- and received Rs.20,000/- and thereafter, on 02-08-2012, again when complainant contacted him by phone, he demanded Rs.1,50,000/- and asked to give Rs.1,00,000/- immediately and Rs.50,000/- at the time of preparing check list and on 03-08- 2012 between 3.40 p.m. to 4.00 p.m. in his chamber in Tahsildar's Office, Bengaluru North Additional Taluk, he has again demanded amount and asked complainant to give the bribe amount in the hands of accused No.2 and accused No.2 has received the tainted notes of Rs.80,000/- on behalf of accused No.1 in the ground floor and thereby, accused No.1, through Accused No.2, received illegal gratification as a motive or reward to do official act or official favour to complainant and thereby committed an offence punishable under Section 7 of Prevention of Corruption Act?
3) Whether the prosecution further proves beyond all reasonable doubt that Accused No.1 being public servant working as R.R.T. Sheristedar in Bengaluru North Additional Taluk Tahsildar's Office, Bengaluru, has on 03- 08-2012 between 3.40 to 4.00 p.m. in the Tahsildar's Office, Bengaluru North Additional Taluk, Yelahanka, has directed complainant to give bribe amount in the hands of accused No.2-lift operator and has, by corrupt or illegal 7 Spl.C.C.75/2013 means or by abusing his position as public servant, obtained pecuniary advantage of Rs.80,000/- without public interest, from complainant through accused No.2 and thereby committed offence of criminal misconduct under Section 13(1)(d) of PC Act, punishable under Section 13(2) of Prevention of Corruption Act?
4) Whether the prosecution proves beyond all reasonable doubt that accused No.2, being a private person, working as Lift Operator, has, on 03-8-2012 between 3.55 p.m to 4.00 p.m., on the steps near outside entrance of the passage, in the ground floor in Rudreshwara Chambers, in Yelahanka New Town, has accepted tainted notes of Rs.80,000/- from complainant on behalf of Accused No.1 and also as a motive or reward to induce accused No.1, who is a public servant, by corrupt means to do his official act or to show official favour to complainant and thereby committed offence punishable under Section 8 of Prevention of Corruption Act?
5) What Order?
9. My findings on the above Points are:-
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : In the Affirmative Point No.4 : In the Negative Point No.5 : As per Final Order, for the following:
REASONS
10. Point No.1 : As accused No.1 is working as R.R.T. Sheristedar in Tahsildar's Office, he is a public servant. The offences alleged against accused No.1 are under section 7, 8 Spl.C.C.75/2013 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. As per section 19 of PC Act, sanction is necessary to prosecute accused No.1 for the offences under PC Act. Prosecution Sanction Order given against accused No.1 is produced and is marked as Ex.P.1. K.Shivaram-Regional Commissioner, Bengaluru North Additional Taluk is the Prosecution Sanctioning Officer. He has given evidence as P.W.1 and has stated about requisition received from ADGP, Karnataka Lokayuktha seeking Prosecution Sanction Order against accused No.1 along with investigation records. He has stated that he has gone through the records and found prima- facie case and accordingly issued Prosecution Sanction Order as per Ex.P.1. In the cross-examination, he has denied that without applying his mind he has mechanically issued prosecution sanction order.
11. On going through the Prosecution Sanction Order- Ex.P.1 and evidence of P.W.1, it is clear that P.W.1 has received requisition along with investigation records and he has gone through the records and he applied his mind and then issued Prosecution Sanction Order to prosecute accused for the offences under PC Act. Authority of P.W.1 to issue Prosecution Sanction Order is not disputed. Moreover, this court has taken cognizance of offence and has framed charge on the basis of charge sheet materials, which were even available before P.W.1 while according sanction. Therefore, Prosecution Sanction Order issued as per Ex.P.1 is valid. Accordingly, Point 9 Spl.C.C.75/2013 No.1 is answered in the Affirmative.
12. Point Nos. 2 & 3: Since these Points are inter- linked with each other, they are taken together for discussion to avoid repetition.
13. To prove the charge against Accused No.1 for offences under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and for the offences against accused No.2 under Section 8 of Prevention of Corruption Act, prosecution has examined seven witnesses as P.Ws.1 to 7. P.W.2-S.A.Mohan Kumar is the complainant. P.W.3-Shivanna @ Shivakumar is a friend of complainant, who had accompanied P.W.2 while he meeting accused. P.W.4-H.V.Murthy and P.W.5- Damodaran are the panch witnesses. Among them, P.W.4 is the shadow witness. P.W.6-B.Venkatesh was the Tahsildar in Bengaluru North Additional Taluk at the relevant time, who is said to have identified voice of accused in the recordings. P.W.1-K.Shivaram is the Prosecution Sanctioning Officer. P.W.7- K.Ravishankar is Lokayukta Police Inspector and Investigating Officer in this case.
14. On behalf of the prosecution, documents are marked at Exs.P1 to P25. Complaint is marked as Ex.P2 and F.I.R. is marked as Ex.P13. R.T.C. Produced by complainant at the time of giving complaint is marked as Ex.P3. Copy of order sheet of O.S.No.113/2004 and copy of Compromise petition, which were produced while giving complaint are marked as Exs.P15 10 Spl.C.C.75/2013 and P16. Sheet containing number of currency notes is marked as Ex.P6. Pre-Trap Mahazar and Trap-Mahazar are marked as Ex.P4 & 5. Ex.P7 is transcription of the recordings made by complainant on 02-08-2012 and produced while giving complaint. Ex.P8 is the transcription of recordings of the conversation between complainant and accused No.1 on 03-08-2012 when complainant met accused. The report given by P.W.4 is marked as Ex.P9. Written Explanation given by accused No.1 is marked as Ex.P11. Written Explanation given by accused No.2 in Telugu language is marked as Ex.P10. The Order of Special Tahsildar in respect of work of the complainant is marked as Ex.P14. Ex.P17 is copy of the file pertaining to work of complainant, which was secured at the time of trap. Ex.P18 is the copy of Attendance Register. Rough sketch of the spot is marked as Ex.P19 and sketch given by Assistant Engineer is marked as Ex.P23. Service Particulars of accused No.1 is marked as Ex.P24 and Report of Special Tahsildar -K.Gopalaswamy regarding work of complainant is marked as Ex.P25. Chemical Examination Report is marked as Ex.P22. Call details of mobile phones of accused No.1 and complainant are marked as Exs.P20 and P21. Prosecution Sanction Order is marked as Ex.P1. For the prosecution, M.O.1 to M.O.12 are also marked. Pant of accused No.2, which was seized during trap, is marked as M.O.1. Cash of Rs.80,000/- seized in this case is marked as M.O.2. Metal Seal is marked as M.O.3. Bottles containing solution taken at 11 Spl.C.C.75/2013 different stage of proceedings are marked as M.O.4 to 8. C.Ds. are marked as M.O.9 to 12.
15. Accused No.1 in his defence has given evidence as D.W.1. He has also produced copy of Circular with regard to mutation and correction in the RTC as Ex.D.1. Copy of Gazette Notification is also produced as Ex.D.2 with regard to work distribution among Regular and Thahasildar-Grade-II.
16. Prosecution case stems from the complaint given by P.W.2 against accused No.1-K.Venkatesh and Appaji Gowda- Revenue Inspector alleging demand of bribe. As per the complaint in respect of properties belonging to their family, compromise was arrived in O.S.No.113/2004 and after the compromise application was given for correction of RTC, with regard to extent and name and Thasildar has passed orders on 11.06.2012 as per Ex.P.14 for correction of RTC in respect of four survey numbers including Sy.No.72/5. Though order was passed for correction, RTC of Sy.No.72/5 was not completely corrected and name of grand father of P.W.2 and his brother Narayanappa and Krishnappa still continued in the subsequent RTC by mistake. Since, name of Narayanappa and Krishnappa is not deleted in the RTC of Sy.No.72/5 inspite of order of Thasildar as per Ex.P.14, P.W.2 met Appajigowda- Revenue Inspector and he asked him to approach accused No.1-K.Venkatesh-RRT-Sheristedar by stating that he had already sent report to RRT-Sheristedar. When P.W.2 12 Spl.C.C.75/2013 approached accused No.1, he damanded money to attend work of complainant and correct RTC. On 01.08.2012 accused No.1 demanded bribe of Rs.1,00,000/- and received Rs.20,000/- from P.W.2. Thereafter, PW.2 went to Lokayuktha Office on 02.08.2012 and informed about the demand of bribe and P.W.7 gave a voice recorder to P.W.2 and asked him to record conversation with accused to confirm demand of bribe. Then, PW.2 met accused along with voice recorder at 4.30 P.M. and on the say of accused No.1 he brought file from case worker- Ramanjinappa and gave to accused No.1 and he asked PW.2 to call at night. At about 8.15 p.m., P.W.2 made phone call to accused No.1 and recorded his conversation by talking to accused in loud speaker mode and in this conversation accused No.1 asked him to pay Rs.1,50,000/- and asked him to pay Rs.1,00,000/- immediately and to give balance at the time of preparing checklist. Thereafter, P.W.2 along with this recorded conversation went to Lokayuktha Office on 03.08.2012 and gave complaint as per Ex.P.2. On receiving complaint, P.W.7 registered the case against accused No.1 and also against Appajigowda. P.W.7 secured P.W.4 and 5 as panch witnesses and introduced them to complainant and they have ascertained veracity of complaint from P.W.2. P.W.2 produced Rs.80,000/- in denomination of Rs.1000x50 and 500x60 and number of notes were noted down as per Ex.P.6 and Signatures were taken. Phenolphthalein powder was smeared on the notes and thereafter P.W.5 has verified the 13 Spl.C.C.75/2013 tainted notes again and then kept it in the right side pant pocket of complainant. Thereafter sodium carbonate solution was prepared and hands of P.W.5 were washed in the solution and solution turned to pink colour and it was seized in bottle. Digital voice recorder produced by P.W.2 was played and contents were transcribed on paper as per Ex.P.7 and transmitted to C.D and after taking copy, CD was seized and is produced in this case as M.O.9. P.W.2 and 3 were instructed to meet accused in his office and P.W.2 was instructed to enquire about his work with accused No.1 and to give tainted notes only in case of demand and then flash signal by wiping his head with hand and digital voice recorder was given to him and button camera was given to P.W.3 and was instructed to accompany P.W.2. P.W.4 was also instructed to follow P.W.2 & 3 as shadow witness and to watch the happenings and to report later. The pre-trap proceedings were videographed and then transmitted to C.D. Pre-trap Mahazar was prepared as per Ex.P.4 and Signatures were taken.
17. It is further case of the prosecution that, after Pre- trap Mahazar, trap team proceeded towards office of accused No.1 in Bengaluru North Additional Taluk, Yelahanka Town and vehicles were stopped near the office at about 3.30 p.m and instructions were reminded to P.Ws.2, 3 and 4 and were sent to office of accused. Tahsildar office is in 3 rd floor in Rudreshwara Chambers, H.I.G. III Sector, Yelahanka New Town and P.Ws.2, 3 and 4 proceeded to Tahsildar's Office. Other 14 Spl.C.C.75/2013 members of the Trap Team also went to third floor and scattered themselves in the vacant passage and waited for signal. P.W.2 and 3 went to the chamber of accused No.1 and P.W.4 was standing near doors of chamber of accused No.1. P.W.2 and 3 met accused No.1 and talked to him and accused No.1 shown the File which was on the table and P.W.2 informed him that names other than Aswath Reddy is to be removed from the R.T.C. and accused No.1 told that he will attend the work and asked P.W.2 to give the amount to lift operator-Nagaraju, who is short in height and called Nagaraju by his mobile and told him to receive amount from Singanayakanahalli Reddy and P.W.2 took mobile Number of Nagaraju, who is accused No.2. Thereafter, P.Ws.2 and 3 came out of chamber of accused No.1 and gave signal to trap team to follow them and came to ground floor. P.W.2 made a phone call to accused No.2 from mobile and he told that he will be coming and on the steps near outside entrance of the passage in front of the lift, accused No.2 came and gave signal to give the amount and then P.W.2 gave the tainted notes to accused No.2 and he has received it and then counted it and kept it in his right side pant pocket and immediately complainant gave signal to Trap Team and Trap Team surrounded accused No.2. It is further case of the prosecution that after seeing the Trap Team, Accused No.2 took out tainted notes from his pant pocket and thrown it on the floor. P.W.7 introduced himself to accused No.2 and 15 Spl.C.C.75/2013 informed the purpose of visit and ascertained details of accused No.2 and accused No.2 informed that as per the direction of accused No.1, he has received the amount. As per the instructions of P.W.7, P.W.4 has collected tainted notes from the floor and as it was busy place and place of public movement and was inconvenient for further activities, they all came to the chamber of accused No.1 in the third floor. In the chamber of accused No.1 and hand wash of accused No.2 in Sodium carbonate solution was made and solution turned to pink colour and it was seized in bottles. Tainted notes collected from the Floor by P.W.4 was verified and it tallied with Ex.P6 and then it was kept it in a cover and seized. On instructions of P.W.7, accused No.1 produced File of P.W.2, which was on his table and by taking attested copies of file and Attendance Register, original file was returned. A rough sketch was prepared as per Ex.P19 and as the chamber of accused No.1 was not convenient for further proceedings, entire tram team along with accused No.1-Venkatesh, accused No.2-Nagaraju and Special Tahasildar-Gopalaswamy, came to Lokayukta Office. In Lokayukta Office, pant of accused No.2 was got removed and by marking pocket portion, pant was seized in a cover. Digital voice recorder given to complainant and button camera given to P.W.3 were played and P.W.6 has identified voice of accused No.1 and also identified visuals in video recording and gave report as per Ex.P9. Thereafter, recordings in button camera and voice recorder were 16 Spl.C.C.75/2013 transmitted to C.D and transcription was also made as per Ex.P8. The CD was seized and is produced in this case as M.O.11. On questioning, accused No.1 and 2 have given written explanation and the explanation given by accused No.1 found to be not acceptable and that of accused No.2 was found to be true. Thereafter, accused No.1 and 2 were arrested by following procedure and trap mahazar was prepared as per Ex.P5 and signatures were taken. P.W.7 continued investigation and after completion of investigation, prepared final report and after receiving Prosecution Sanction Order as per Ex.P1, he has filed charge sheet.
18. In order to bring home the guilt of accused No.1 for the offence under section 7, 13(1) (d) r/w/s 13(2) of Prevention of Corruption Act, prosecution has to prove that accused being a public servant demanded and accepted illegal gratification. Prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to complainant. Under Section 20 of Prevention of Corruption Act, there is a presumption available in respect of offence under section 7. On proving acceptance of pecuniary advantage by accused without public interest by corrupt or illegal means or by abusing his position as a public servant, criminal mis-conduct of accused under section 13(1)(d) of Prevention of Corruption Act will also be established.
19. In various decisions of the Hon'ble Supreme Court, it 17 Spl.C.C.75/2013 has been held that demand and acceptance of illegal gratification by accused is sine-quo-non for the offence under section 7 of Prevention of Corruption Act and even for the offence under section 13(1)(d), demand of illegal gratification is necessary to be proved. As per the prosecution case before giving complaint by P.W.2 to Lokayuktha police and even at the time of trap, accused No.1 has made demand for bribe amount. Though name of Appajigowda is mentioned in Ex.P.2-complaint and F.I.R., P.W.7 in his evidence has stated that no materials were found against Appajigowda in the course of investigation. Therefore, charge sheet is not filed against him. Charge sheet is filed against accused No.2- Nagaraju, a Private person and accused No.1-Venkatesh, a public servant. As against accused No.1, prosecution must prove demand of bribe amount to proceed further in the case.
20. As per Ex.P.2-complaint, for correction of RTC complainant had paid huge bribe amount amounting to Rs.3,00,000/- and thereafter order was passed as per Ex.P.14 and even thereafter name of Narayanappa and Krishnappa in RTC in Sy.No.72/5 was not deleted and therefore P.W.2 on the say of Appajigowda met accused No.1 and he asked him to bring money. On 01.08.2012, accused No.1 is said to have demanded Rs.1,00,000/- from complainant and on the same day in the evening, P.W.2 met accused No.1 along with his friend P.W.3 and Accused No.1 received Rs.20,000/-. Therefore, on 01.08.2012, there was clear demand for bribe of 18 Spl.C.C.75/2013 Rs.1,00,000/- by accused in the presence of P.W.2 and P.W.3 as per the complaint. Thereafter along with voice recorder P.W.2 is said to have met accused No.1 on 02.08.2012 and then accused No.1 asked him to make a phone call in the night and when P.W.2 made a phone call at about 8.15 p.m. accused No.1 demanded Rs.1,50,000/- and asked him to give Rs.1,00,000/- immediately and balance Rs.50,000/- at the time of putting check list. Therefore as per Ex.P.2 on 01.08.2012 and 02.08.2012, accused No.1 made demand for bribe. To prove the alleged demand of bribe by accused prior to giving of complaint and at the time of trap, prosecution is mainly relying on the evidence of P.W.2 and 3 and recordings in voice recorder produced by complainant while giving complaint and also in the voice recorder and button camera which were given to P.W.2 and 3 at the time of trap.
21. According to prosecution, after taking voice recorder from P.W.7, P.W.2 met accused No.1 in his office on 02.08.2012 and then accused asked him to make a phone call in the evening and when P.W.2 made a phone call at 8.15 pm, accused demanded Rs.1,50,000/- and this talk was recorded in the voice recorder. During Pre-trap Mahazar, recordings in voice recorder was transcribed on the paper as per Ex.P.7 and then transmitted to C.D as per M.O.9. Re1cordings at the time of trap in the button camera and voice recorder were transcribed as per Ex.P.8 and transmitted to C.D as per M.O.11. P.W.7 in his cross-examination has admitted that in 19 Spl.C.C.75/2013 respect of these C.D's and transcriptions no certificate under section 65B of Indian Evidence Act is obtained. The original voice recorder and button camera in which these recordings were made are not produced before Court.
22. Learned counsel for Accused has drawn my attention to a decision of Hon'ble Supreme Court reported in 2014 AIR SCW 5695(Anvar P.V -Vs- P.K.Basheer and others). In para No.22 of this decision, Hon'ble Supreme Court has held as under;
22. ...An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under section 65B are satisfied. Thus, in the case of CD, VCD, Chip, etc., the same shall be accompanied by the certificate in term of section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record,is inadmissable."
Since there is no certificate obtained under section 65B of Indian Evidence Act, M.O.9, 11 and Ex.P.7 and 8 transcriptions are not admissible and are not helpful to prove the alleged demand and even acceptance of bribe amount by accused.
23. P.W.7 in his evidence has stated that he also obtained Call details of accused No.1 and complainant as per 20 Spl.C.C.75/2013 Ex.P.20 and 21 in the course of investigation. In Ex.P.20, calls exchanged between complainant and accused No.1 on 02.08.2012 is high lighted and even call made at the time of trap by accused No. 1 to Accused No.2 found in these call details is highlighted by prosecution. In the call details of complainant as per Ex.P.21, the calls exchanged between complainant and accused No.1 and 2 are highlighted. Even in respect of these Call details certificate under section 65B of Indian Evidence Act is not obtained.
24. Learned Counsel for accused has drawn my attention to a decision of Hon'ble Supreme Court reported in (2017) 1 SCC 734 (Harpal singh Vs- State of Punjab), in para No.11, it is held as under:
" .......As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65(2) had been complied with, in absence of certificate under Section 65B (4) , the same has to be held inadmissible in evidence."
In view of this decision, even Call details at Ex.P.20 and 21 are not admissible in evidence.
25. Therefore, in the absence of recordings in the CD, transcriptions and Call details, prosecution has to establish its case of demand of illegal gratification by accused No.1 prior to giving of complaint and at the time of trap. P.W.2 and 3 have clearly stated about demand of bribe by accused in their chief evidence. As per Ex.P.2-complaint, on 01.08.2012, P.W.2 and 21 Spl.C.C.75/2013 3 together met accused in the evening and at that time accused has demanded Rs.1,00,000/- and P.W.2 gave Rs.20,000/- to him. P.W.2 has stated in his evidence that he has met accused No.1 and he told him that he has not yet received the file and asked him to keep Rs.1,00,000/- ready and he paid Rs.20,000/- to accused No.1 and thereafter he approached Lokayuktha police and they gave him voice recorder. Though the dates mentioned by P.W.2 does not match with dates mentioned in complaint, evidence of P.W.2 clearly states about demand of bribe amount of Rs.1,00,000/- by accused and accused No.1 receiving Rs.20,000/- from him and thereafter on the next day he calling accused No.1 by phone and then Accused No.1 demanding Rs.1,50,000/- and that this conversation is recorded. As per the complaint, conversation about demand of bribe of Rs.1,50,000/- is on 02.08.2012 and demand of Rs.1,00,000/- is on 01.08.2012. Minor discrepancy of one day between Ex.P.2 and evidence of P.W.2 will not have much relevance, as there is clear evidence about demand of bribe by accused on two dates one is when complainant met him and another when complainant made a phone call. In the cross-examination of P.W.2, there is nothing elicited to disprove his evidence with regard to P.W.2 meeting accused No.1 and accused No.1 demanding bribe for correction of RTC of Sy.No.72/5. In his cross-examination, P.W.2 has denied the suggestion that while meeting accused No.1 he was alone.
22 Spl.C.C.75/2013
26. Evidence of P.W.3 also completely supports the case of prosecution. Both P.W.2 and 3 have stated that they are friends from about 10 years. P.W.3 has stated that on 02.08.2012 they met accused No.1 in his office and he demanded bribe of Rs.1,00,000/- and on that day P.W.2 gave Rs.20,000/- to accused No.1 and told to pay balance after work is done. Though P.W.3 has stated that, conversation by phone call with accused No.1 was recorded by P.W.2 in his mobile as well as voice recorder and both were produced before Investigating Officer, according to prosecution, conversation was recorded in voice recorder and recording was transmitted to C.D as per M.O.9. Whether it was recorded or not, evidence of P.W.3 makes it clear that there was conversation by phone between P.W.2 and Accused No.1 about demand for illegal gratification. The evidence of P.W.3 is even specific about the date on which they met accused No.1 and he demanded Rs.1,00,000/- and also received Rs.20,000/- from P.W.2. In the cross-examination of P.W.3 there is nothing elicited to show that P.W.3 is having some grudge or some grievance against accused No.1 to give false evidence against accused No.1. Any motive of both P.W.2 and 3 to give false evidence and to falsely implicate accused No.1 in this case is not elicited or stated in their evidence. Merely because P.W.2 and P.W.3 are friends from 10 years, their evidence cannot be brushed aside. The evidence of P.W.2 and 3 is clear about demand of bribe by accused No.1 amounting 23 Spl.C.C.75/2013 to Rs.1,00,000/- and they together meeting accused No.1. Their evidence is also definite about Accused No.1 demanding Rs.1,50,000/- when P.W.2 made phone call to accused No.1 in the evening. In the cross-examination of both these witnesses, there is nothing elicited to make their evidence unbelievable and unacceptable. Though the CD containing recorded conversation and transcriptions are not admissible, evidence of P.W.2 and 3 clearly proves the demand of amount by accused No.1 on 01.08.2012 when P.W.2 and 3 met accused with regard to correction of RTC of Sy.No.72/5. Evidence of these witnesses also prove the phone calls exchanged between P.W.2 and accused No.1 on 02.08.2012, in which there was again demand for bribe of Rs.1,50,000/- by accused No.1.
27. Learned counsel for accused has drawn my attention to a decision reported in 1994 CRI.L.J.1710 (Gurucharan Singh Vs. State of Haryana), in which Hon'ble High Court has held that in any trap case evidence of complainant or trap witness cannot be relied upon in the absence of independent corroboration in proving of demand and acceptance. On going through the decision, it is not helpful to the prosecution case as evidence of P.W.2 about demand of bribe is corroborated by evidence of P.W.3 and no other independent witness can be expected to say the same. Moreover there is absolutely no evidence to show that there was some ill motive of P.W.2 and 3 to falsely implicate accused 24 Spl.C.C.75/2013 No.1. Though accused No.1 himself has given evidence as D.W.1, he has not stated any reasons for falsely implicating him by P.W.2. The evidence of P.W.2 and 3 clearly establish the demand of illegal gratification by accused No.1 prior to giving complaint, i.e., on 01.08.2012 and even on 02.08.2012.
28. As per section 7 of Prevention of Corruption Act, demand of illegal gratification must be for doing official act or official favour. Along with complaint, P.W.2 has produced RTC of Sy.No.72/5 as per Ex.P.3 and copy of order of Special Tahasildar dated 11.06.2012 as Ex.P.14 and even order sheet and Compromise petition as Ex.P.15 and 16. These documents show that there was a suit pending between members of joint family of father of P.W.2 for partition and that suit was settled between parties and thereafter application was filed for correction of names and extent in RTCs. In respect of four survey numbers, order for correction has been passed as per Ex.P.14 by Special Tahasildar by clearly showing the correction to be made. In Sy.No.72/5, name of Narayanappa and Krishnappa which was appearing in the RTC was to be deleted and extent of 0-21 shown in the name of Ashwath Redddy was to be corrected as 0-20 as per Ex.P.14. In the subsequent RTC produced as per Ex.P.3, though Extent is shown as 0-20 for S.N.Awhath Reddy, name of Narayanappa and Krishnappa was not deleted. Thereafter, complainant who is the son of Ashwathreddy, appears to have approached Thahasildar Office. Though no separate 25 Spl.C.C.75/2013 application was given by P.W.2 or his father, as clearly stated by DW1, Ex.P.17-report of Revenue Inspector clearly states that name of Narayanappa and Krishnappa is to be deleted from Col.No.9 as per order dated 11.06.2012 i.e., Ex.P.14. This Report was received in RRT- section Yelahanka on 05.07.2012 as appearing in Ex.P.17. Admittedly accused No.1- is RRT-Sheristedar in Yalahanka.
29. Accused No.1 has given evidence as DW.1, wherein he has stated that complainant had given application for correction of RTC in Tappal section and Special Tahasildar is the authority for correction of RTC and after receiving application, it will be sent to Revenue Inspector seeking report and after receiving report from Revenue Inspector, concerned case worker will put up the file before Sheristedar and Sheristedar will place the file for passing orders. Ex.P.17 is the report of Revenue Inspector. Evidence of DW.1 makes it clear that after report from Revenue Inspector, concerned case worker will put up the file before Sheristedar i.e., accused No.1 and he have to place it before Special Tahasildar for passing the order. Therefore, File will move from Case worker to Sheristedar and from him to Special Tahasildar. Hence, it is clear that Accused No.1 Sheristedar has some role to play in this process of correcting RTC. In Ex.P.2-complaint, it is clearly mentioned that on 02.08.2012 when complainant met accused No.1 he asked him to bring the case file from case worker Ramanjinappa and accordingly he brought the file from 26 Spl.C.C.75/2013 Ramanjanappa and gave it to accused No.1 and accused told that he will see the file and asked him to call in the night. Even at the time of trap, this file was on the table of accused. DW.1 in his evidence has no where stated that File was not on his table when Lokayuktha police visited his chamber. Therefore, evidence of DW.1 stating that he is not the authority to pass order for correction of RTC etc., is not of any help to this accused as his evidence and documents available before Court clearly show that File pertaining to correction of RTC of Sy.No.72/5 was received by accused No.1 from the case worker and it was on his table even at the time of trap. Accused No.1 has produced a Circular of the Government as Ex.D.1 and Gazette notification regarding work distribution as Ex.D.2. In these documents what is work of RRT-Sheristedar is not mentioned. However, in Ex.D.1, there is reference to RRT- Sheristedar for correction of RTC. This Ex.D.1 also show that accused No.1, as RRT-Sheristedar is having some role to play in correction of entries in the RTC. Merely because final authority to pass order for correction of RTC is Special Tahasildar, it cannot be held that accused No.1 is not concerned with this work or that he had no capacity to do any official favour to complainant in getting RTC corrected.
30. Even report of Special Tahasildar as per Ex.P.25 states that RRT-Sheristedar have to obtain order from Special Tahasildar and then send the same to Computer section and after preparing of check list and verification by Revenue 27 Spl.C.C.75/2013 Inspector, RRT-Sheristedar have to give approval by putting his thumb impression on Computer. Therefore, contention of accused No.1 that he had no work to do in connection with correction of RTC of Sy.No.72/5 cannot be accepted. As discussed above accused No.1 demanding bribe of Rs.1,00,000/- and then Rs.1,50,000 and receiving Rs.20,000/- on 01.08.2012 for doing the work of complainant with regard to correction of RTC is clearly established in this case. Contrary contentions of accused No.1 does not even appear to be probable. Therefore, demand of bribe by accused prior to giving of complaint is clearly proved and pendency of official act to be done by accused No.1 is also established.
31. Now, coming to the acceptance of bribe amount by accused No.1, as per prosecution case, P.W.2 and 3 went to chamber of accused No.1 and another panch witness P.W.4 was standing near the door of chamber and other members of trap team had scattered themselves in the passage of 3 rd floor, wherein office of accused No.1 is situated. P.W.2 and 3 have met accused No.1 and he promised to do the work and asked to give amount in the hands of Accused No.2, Lift operator Nagaraju and thereafter P.W. 2 and 3 came out and gave signal to other members of trap team to follow them and then they came down to ground floor and after Accused No.2 coming there, P.W.2 gave tainted notes by stating that accused No.1 asked him to give it. Then accused No.2 has received the amount and kept it in his pant pocket.
28 Spl.C.C.75/2013 Thereafter trap team surrounded accused No.2 and then he is said to have taken out tainted notes from his pant pocket and thrown it in passage near the lift. Therefore even according to prosecution, Accused No.1 has not personally received tainted notes of Rs.80,000/- from P.W.2, but accused No.2 has received the amount on the say of accused No.1.
32. As discussed above, demand of bribe by accused No.1 is clearly established. Accused No.1 had asked P.W.2 to give Rs.1,00,000/- immediately and balance Rs.50,000/- when check list is prepared. Since P.W.2 already paid Rs.20,000/- earlier, he had brought Rs.80,000/- with him. Accused No.2 and 3 meeting P.W.2 and 3 in his chamber on the day of trap before giving tainted notes to accused No.2 is clearly stated by most of the witnesses i.e., P.W.2, 3, 4, and P.W.7. P.W.3 and 4 have stated that they came to 3 rd floor in which chamber of accused is situated and P.W.2 and 3 entered the chamber of accused and P.W.4 was standing near the doors of chamber and P.W.2 and 3 have talked with accused No.1 for a while and then they came out and gave signal to trap team to follow them. Therefore on the day of trap, P.W.2 and 3 meeting accused No.1 is clearly established by the evidence of prosecution witnesses. Evidence of D.W.1 is not clear as to whether Complainant had talked to him by phone or he had personally met him in office earlier to 3.8.2012. When evidence before the Court clearly prove that P.W.2 and 3 have met accused No.1 on 3.8.2012 and they have stated that they 29 Spl.C.C.75/2013 met accused No.1 to give bribe amount of Rs.80,000/- as demanded by him, then, accused No.1 have to say why they met him on that day, if it is not for giving bribe. D.W.1 has not given any reasons for P.W.2 and 3 meeting him before trap of accused No.2 on 3.8.2012. Instead of explaining the reason for their visit, Accused No.1 in his evidence given as D.W.1 has totally denied their visit to his chamber, which is not acceptable in view of clear evidence to the contrary. Therefore evidence before the Court clearly show that P.W.2 and 3 met accused No.1 and this was seen by P.W.4 and 7 and after some time they came down. P.W.2 and 3 have stated that accused No.1 asked them to give amount to accused No.2 who is short and then they came to ground floor and met accused No.2 and gave amount and accused No.2 received tainted notes from P.W.2 on the say of accused No.1.
33. Proper assessment of entire evidence lead for prosecution and also accused, clearly prove that P.W.2 and 3 had visited chamber of accused No.1 to give tainted notes on 3.8.2012 as per his demand for illegal gratification and on the say of accused No.1 tainted notes were given to accused No.2 in the ground floor and accused No.2 accepted the same. Subsequently, hands of accused No.2 were washed in Sodium carbonate solution and solution turned to pink colour as stated by all the witnesses. Acceptance of tainted notes of Rs.80,000/- by accused No.2 on the instructions of accused No.1 is clearly established by the evidence led before the 30 Spl.C.C.75/2013 Court. Though subsequently accused No.2 has thrown out the tainted notes by taking out from his pant pocket, accused No.2 receiving the amount from P.W.2 is clearly established. Even presence of Phenolphthalein content in pant pocket of accused No.2 is sated in Chemical Examination Report- Ex.P.22. Hand wash of accused No.2, Chemical Examination Report and evidence of P.W.2, 3, 4, 5 and 7 clearly prove the receipt of tainted notes by accused No.2.
34. Accused No.2 is a private person and Lift operator. He is not concerned with work of correction of RTC. P.W.2 and 3 have clearly stated that as per the instruction of accused No.1, amount was given to accused No.2. Even accused No.2 gave written explanation as per Ex.P. 10 in Telugu language, translation of which is appearing in Ex.P.5 Trap Mahazar. He has stated that he has received the amount as accused No.1 called him and asked him to receive towards loan amount from Singanayakanahalli Reddy. Though D.W.1 in his evidence has referred to alteration in Ex.P.10, receipt of amount by accused No.2 is established even in the absence of such written explanation. Though accused No.1 has not personally received the tainted notes, as it was received by accused No.2 on the say of accused No.1, it would be acceptance by accused No.1. Therefore, acceptance of tainted notes by accused No.1 through accused No.2 as illegal gratification at the time of trap is clearly established by the evidence of prosecution. Therefore, demand and acceptance of bribe 31 Spl.C.C.75/2013 amount by accused No.1 is clearly established in this case.
35. Learned Counsel for accused has drawn my attention to a decision of Hon'ble Supreme Court in Crl.Appeal No.1276/2010 (Dasharath Singh Chowhan Vs. Central Bureau of Investigation) Dated 09.10.2018 in which in para No.32 it is held as under:
"32). Since in order to attract the rigors of sections 7,. 13(2) read 13 (1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of "demand and acceptance of bribe money by the accused", the proving of one alone but not the other was not sufficient. ... "
36. In AIR 2010 SC 1589 (Banarsi Dass Vs. State of Haryana) also it is held that demand of money and voluntarily acceptance of the same is necessary to be prove and mere recovery of money from accused is not enough. Even in AIR 2003 SC 2169 (Subash Parbat Sonvane Vs. State of Gujarat) also held that mere acceptance of money is not sufficient for convicting accused under section 13 (1)(d) of PC Act. In AIR 2000 SC 3377 (Smt. Meena Belavanth.M.K. Vs. State of Maharastra ) also by considering facts of the case, Hon'ble Supreme Court has held that when recovery is not from person or table drawer of accused, such recovery does not conclusively lead to 32 Spl.C.C.75/2013 inference of acceptance of bribe by accused.
37. In another decision in Hon'ble High Court reported in LAWS (KAR) 2004 6 40 (G.D.Mariswamy Vs. State of Karnataka) Hon'ble High Court has held in Para No. 26 as under:
"26. ... The mere recovery of the tainted notes and the hand wash tested positive itself does not lead to an irresistible conclusion that it was received by the accused as bribe money when there was nothing to do for the accused."
On going through all these decisions, they are not helpful to the accused No.1 as demand of illegal gratification by the accused No.1 and acceptance of the amount by accused No.2 on the say of accused No.1 is clearly established in this case.
38. On proof of demand and acceptance, even presumption under section 20 of Prevention of Corruption Act is available to the prosecution. Though this presumption can be rebutted by accused by preponderance of probability, there is no such probable defence found in the evidence of D.W.1 and materials placed by accused No.1. Though accused No.1 can show that his defence is highly probable, as against the case of prosecution which is to be proved beyond reasonable doubt, in the present case, there is no any specific defence taken by accused No.1, except contending that he is not the authority to do the work of complainant. This defence 33 Spl.C.C.75/2013 is also not acceptable in view of clear admission of D.W.1 that file pertaining to complainant was before him and he have to submit it before Tahasildar. It is not even the case of accused No.1 that this file was put up before Tahsildar before the trap with necessary notes. Though presence of P.W.2 and 3 in the chamber of accused No.1 is clearly established by prosecution, D.W.1 has not given any explanation for their presence in his chamber. Accused No.1 has not taken any defence of any ill will of P.W.2 and 3 towards him or any ill motive for filing false case against him. If, as stated by accused No.1, he had met P.W.2 only once or only once he had talked to P.W.2 by phone, there would not have been any occasion for P.W.2 to give complaint alleging demand of bribe against accused No.1 and P.W.3 to give evidence against accused No.1.
39. On looking to all these aspects, prosecution has proved, both demand and acceptance of bribe amount by accused No.1. Though accused No.1 has not personally received the tainted notes, he has accepted the amount through accused No.2. Since, Accused No.2 is not concerned with work of complainant, receipt of amount by accused No.2 is only on behalf of accused No.1 and it would be acceptance by accused No.1 himself. For all these reasons, prosecution has proved the commission of offence under Sec.7 of PC Act by accused No.1 beyond reasonable doubt. Accused by abusing his position as public servant, by corrupt means has 34 Spl.C.C.75/2013 obtained pecuniary advantage from complainant without having any public interest and thereby committed even criminal mis-conduct as per section 13(1)(d) of Prevention of Corruption Act. Therefore, commission of offence by accused No.1 under Section 7 and section 13(1)(d) of the PC Act are proved beyond reasonable doubt. Accordingly, point Nos.2 and 3 are answered in the Affirmative.
40. Point No. 4:- This point is with regard to commission of offence by accused No.2. Admittedly accused No.2 is a lift operator and a private person. Office of accused No.1 was functioning in private building in Rudreshwara Chambers in which accused No.2 was working as lift operator. On the day of trap, P.W.2 and 3 met accused No.1 in his chamber. At that time accused No.1 asked P.W.2 to give amount in the hands of Nagaraju i.e., accused No.2. Clear evidence of P.W.2 and 3 show that accused No.1 had even made phone call to accused No.2 and asked him to receive the amount from Singanayakanahalli Reddy and he also gave phone number of accused No.2 and thereafter P.W.2 and 3 came to ground floor and trap team also followed them and there, P.W.2 made a phone call to accused No.2 and then he came and received tainted notes from P.W.2. Accused No.2 has received the amount and kept it in his pant pocket and after Investigating Officer and trap team surrounded, he has taken out the same from his pocket and thrown it on the floor. This is established by the prosecution in this case. In the 35 Spl.C.C.75/2013 entire case of prosecution, role of accused No.2 is only of receiving the tainted notes from P.W.2 on the instructions of accused No.1. There is no case of any demand of bribe by accused No.2 or pendency of any work of P.W.2 before him. Charge sheet has been filed against accused No.2 for offence under section 8 and 12 of Prevention of Corruption Act. However, charge is not framed against accused No.2 for the offence u/s 12 of PC Act. As per Section 8 of PC Act, a person obtaining illegal gratification for inducing a public servant to do any official act or to show official favour would be an offence. In the present case there is no demand of bribe amount by accused No.2 from P.W.2. Accused No.2 has not received this amount for inducing accused No.1 to do the work of P.W.2. Since accused No.2 is only a lift operator, he had no capacity to influence accused No.1 who is RRT- Sheristedar.
41. It is also not the case of prosecution that Accused No.2 had demanded bribe to induce Accused No.1 to do work of P.W.2 or he has received the tainted notes for this purpose on his own. Except receiving tainted notes from accused No.2 on the say of accused No.1, accused No.2 has not done any positive or negative act. He had received it as stated by accused No.2 and amount was payable to accused No.1 and not to accused No.2 and he was not to be personally benefitted by this amount. Therefore, materials placed before the Court does not show the commission of offence by 36 Spl.C.C.75/2013 accused No.2 under section 8 of Prevention of Corruption Act. There is no Mens rea on the part of accused No.2 in receiving amount. As per his written explanation-Ex.P.10, accused No.1 had told him that towards loan, Reddy is giving amount and accordingly, he has received it. There is no evidence before the Court to show that accused No.2 has received tainted notes from P.W.2 by knowing well that this amount is illegal gratification amount. In the absence of any clear evidence, innocent receipt of tainted notes by Accused No.2 from P.W.2, on the say of RRT-Sheristedar-accused No.1 cannot be considered as crime. Since there is no evidence to show that accused No.2 has received the tainted notes by knowing that it is a bribe amount payable to accused No.1, accused No.2 cannot be considered as abater and cannot be convicted even for the offence under section 12 of Prevention of Corruption Act. He is not the person who has assisted accused No.1 to commit a crime or to encourage accused No.1 to commit the crime. Section 8 of Prevention of Corruption Act is totally not applicable in the present case against accused No.2 and even section 12 cannot be applied to the acts of accused No.2. Therefore commission of any offence by accused No.2 is not proved beyond all reasonable doubt. Accordingly point No.4 is answered in the Negative.
42. Point No.5: For the discussion and findings on Point Nos. 1 to 4, accused No.1 is to be convicted and accused 37 Spl.C.C.75/2013 No.2 is to be acquitted. Hence, following order is passed:
ORDER Accused No.2 is found not guilty.
Acting under Section 235(1) of Cr.P.C. Accused No.2 is acquitted from the charges levelled against him for the offence under Sections 8 of Prevention of Corruption Act, 1988.
The bail bond executed by Accused No.2 and his surety stands cancelled.
Accused No.1 is found guilty for the offences under Sec.7 and 13(1)(d) of the Prevention of Corruption Act, 1988.
Acting u/s 235(2) of Cr.P.C. accused No.1 is convicted for the offences punishable under Sections 7, 13(1)(d) r/w Sec. 13(2) of the Prevention of Corruption Act, 1988.
M.O.2 cash of Rs.80,000/- is ordered to be confiscated to the State Government after expiry of appeal period.
M.O.3 metal seal is ordered to be returned to Karnataka Lokayukta police after expiry of appeal period.
M.Os.1 and 4 to 12 are ordered to be destroyed, after expiry of appeal period, as they are worthless.
Put up for hearing on sentence. c (Dictated to the Stenographer, transcribed by her, corrected, signed by me and then pronounced in the Open Court on this the 4 th day of February, 2019).
(Ravindra Hegde), LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru
38 Spl.C.C.75/2013 ORDER ON SENTENCE ON ACCUSED NO.1 Heard accused No.1, Learned counsel for accused and Learned Public Prosecutor on sentence to be imposed on accused No.1.
Accused No.1 and and his counsel have submitted that accused is having wife and three children who are studying and he have to look after his family and is having huge responsibilities and therefore, lenient view may be taken in sentencing him.
On the other hand, Learned Public Prosecutor has submitted that accused No.1 being a public servant has committed heinous offence of taking bribe and he is involved in corrupt practice and therefore maximum punishment is to be imposed.
Commission of offence by accused No.1 under Sec.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act is proved in this case and accused No.1 is found guilty for said offences. As on the date of commission of offence in 2012, offence under Sec.7 of Prevention of Corruption Act was punishable with minimum imprisonment of 6 months and maximum of 5 years and also with fine and offence under Sec.13 (1)(d) which is punishable under Sec.13 (2) of Prevention of Corruption Act, was punishable with minimum imprisonment of 1 year and maximum of 7 years and also with fine. As per Sec.16 of Prevention of Corruption Act, where sentence of fine is imposed under Sec.13 (2) of Prevention of Corruption Act, the court in fixing amount of fine shall take into consideration amount which accused has obtained by committing the offence.
39 Spl.C.C.75/2013 Even though by way of recent amendment, minimum and maximum imprisonment provided for the offence punishable under section 7 and 13(2) of Prevention of Corruption Act are enhanced, those amended provisions are not applicable to this case, as offences alleged against accused were committed prior to coming into force of amendment.
Accused was RRT Sheristedar in Office of Thasildar at the time of commission of alleged offence and was aged about 39-40 years. The demand of illegal gratification was for Rs.1,50,000/- and at the time trap, he instructed Accused No.2 to receive amount and on his instruction Accused No.2 received tainted notes of Rs.80,000/-. Accused No.1 has demanded big amount of Rs.1,50,000/- to attend the work of correction of RTC. On looking to the nature of duties and position of accused as Sheristedar in Taluk Office, effect of corrupt act of accused on the society is grave and serious. While imposing sentence in this type of corruption cases, Society's cry for justice should also be kept in mind. When officers tasked with Revenue matters do not act with integrity, whole society will suffer. Corruption deserves no sympathy and leniency. There are no such mitigating circumstances to show any leniency in imposing sentence on this accused. On the other hand, act of accused No.1 in directing a Lift Operator to receive the amount on his behalf, show his intention and preparation to escape from the clutches of law and show deliberate and well planned action to commit offence. This circumstance increases the severity or culpability of criminal act of accused No.1 and supports stiffer penalty.
40 Spl.C.C.75/2013 On considering all these aspects and looking to the facts and circumstances of the case and gravity of the offence and its consequences on the society, accused No.1 can be sentenced to undergo simple imprisonment for four years and to pay fine of Rs.1,00,000/- for the offence under Sec.7 of Prevention of Corruption Act and can be sentenced to undergo simple imprisonment for four years and to pay fine of Rs.2,00,000/- for the offence under Sec.13 (1)(d), punishable under Sec.13 (2) of Prevention of Corruption Act. Accordingly, following order is passed.
ORDER Accused No.1, K Venakatesh is sentenced to undergo simple imprisonment for four years and to pay fine of Rs.1,00,000/- ( Rupees one lakh only) for the offence punishable under Sec.7 of Prevention of Corruption Act, and in default of payment of fine, to undergo further Simple imprisonment for 6 months.
Further, Accused No.1, K Venakatesh is sentenced to undergo simple imprisonment for four years and to pay fine of Rs.2,00,000/- (Rupees two lakh only) for the offence under Sec.13(1)(d), punishable under Sec.13 (2) of Prevention of Corruption Act, and in default of payment of fine, to undergo further Simple imprisonment for 6 months.
Both Substantial sentences of imprisonment shall run concurrently.
41 Spl.C.C.75/2013 Accused No.1 is entitle for the benefit of set-off under Sec.428 of Cr.P.C. for the period for which he was in Judicial custody in this case.
Copy of judgment be furnished to accused forthwith.
(Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru ANNEXURE List of witnesses examined for the prosecution:
P.W.1 : K.Shivaram P.W.2 : S.A.Mohan Kumar P.W.3 : Shivanna @ Shivakumar P.W.4 : H.V.Murthy P.W.5 : Damodaran P.W.6 : B.Venkatesh P.W.7 : K.Ravishankar
List of documents exhibited for the prosecution:
Ex.P1 : Prosecution Sanction Order
Ex.P.1(a) : Signature of PW.1
Ex.P2 : Complaint
Ex.P.2(a) : Signature of PW.2
Ex.P.2(b) : Signature of PW.7
Ex.P.3 : RTC
Ex.P.4 : Pre-Trap Mahazar
Ex.P.4(a) : Signature of PW.2
Ex.P.4(b) : Signature of PW.4
Ex.P.4(c) : Signature of PW.5
Ex.P.4(d) : Signature of P.W.7
Ex.P.5 : Trap-Mahazar
Ex.P.5(a) : Signature of PW.2
42 Spl.C.C.75/2013
Ex.P.5(b) : Signature of PW.4
Ex.P.5(c) : Signature of PW.5
Ex.P.5(d) : Signature of PW.7
Ex.P.6 : List containing Number of Currency Notes
Ex.P.6(a) : Signature of PW.4
Ex.P.6(b) : Signature of PW.5
Ex.P.6(c) : Signature of PW.7
Ex.P.7 : Transcription of Recordings in Voice Recorder.
Ex.P.7(a) : Signature of PW.4
Ex.P.7(b) : Signature of P.W7
Ex.P.8 : Transcription of Recordings at the time Trap.
Ex.P.8(a) : Signature of PW.4
Ex.P.8(b) : Signature of PW.7
Ex.P.9 : Report of PW.6
Ex.P.9(a) : Signature of PW.4
Ex.P.9(b) : Signature of PW.6
Ex.P.10 : Explanation of Accused No.2
Ex.P.10(a) : Signature of PW.4
Ex.P.11 : Explanation of Accused No.1
Ex.P.11(a) : Signature of PW.4
Ex.P.12 : Acknowledgement for receiving Seal
Ex.P.12(a) : Signature of PW.5
Ex.P.13 : FIR
Ex.P.13(a) : Signature of PW.7
Ex.P.14 : Copy of order of Tahasildar
Ex.P.14(a) : Signature of PW.7
Ex.P.15 &16: Copy of order sheet & Compromise petition
Ex.P.17 : Attested copies of file pertaining to work of
complainant
Ex.P.18 : Copy of Attendance Register
Ex.P.19 : Rough Sketch
Ex.P.19(a) : Signature of PW.7
Ex.P.20 & 21: Call details of Accused No.1 & complainant Ex.P.22 : Chemical Examination Report Ex.P.23 : Spot Sketch issued by PWD Engineer Ex.P.24 : Service Particulars of Accused No.1 Ex.P.25 : Report of Spl.Tahasildar Ex.P.25(a) : Signature of PW.7 43 Spl.C.C.75/2013 Evidence adduced on behalf of the defence:
D.W.1 : K.Venkatesh Documents marked on behalf of the defence:
Ex.D.1 : Circular about mutation and correction in RTC. Ex.D.2 : Copy of Gazette Notification with regard to work distribution.
Material Objects marked by Prosecution:
M.O.1 : Pant
M.O.1(a) : Cover
M.O.2 : Seized Cash of Rs.80,000/-
M.O.2(a) : Label containing Number of notes
M.O.2(b) : Sealed cover
M.O.3 : Metal Seal
M.O.4 to 8 : Five bottles labelled as article
No.1, 2, 6 to 8
M.O.9 to 12 : C.D.'s
M.O.9A
to MO12A : C.D.Covers
(Ravindra Hegde),
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Bangalore.
***