Karnataka High Court
A Joseph Fathiraj S/O Antony vs State By Cbi Rep By Its Public Prosecutor on 25 August, 2011
Author: As. Pachhapure
Bench: As. Pachhapure
7 a. IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 25 DAY OF AUGUST, 2011 : BEFORE ; THE HON'BLE MR. JUSTICE AS. PACHHAPURE CRIMINAL APPEAL NO: 15 33 2004 : BETWEEN A. Joseph Fathiraj, Aged about 50 years, Son of Antony. 13, 11 Cross Road. Lingarajapuram, Bangalore- 560 034. | .. Appellant (By Sri VA, Raina Sharma Adv.) ; AND: State by CBI represented by. - Its Public Prosecutor, 9 High Court of Karnataka . High Court Bite BANG ALO RE _, Respondent By src oH Jadav. Adv.J This € "riminal Appeal is filed under Section 374(2) CrP. © against the judgment dt.7.10.2004 passed by the sevy, Addl. C.c. & S.J. & Spl. Judge for CBI cases, 7 Barigalore, in Spl CC No.93/90, conv icting the oan appellant- accused for the offence F/ 'U/s. F & 1 3¢1(d) "pAw. Sec. 13(2) of P.C. Act, 1958 and sentencing him to undergo R.I. for 3 years and to pay fine of 710,000 /-, eee L.D. to pay fine amount to undergo S.f. for 6 months tor the offence P/U/S. 7 of the P.C. Act, 1988 and further sentencing him to poderge RU. for 3 years and to.pay fine of 710,000/-, LD. to pay fine to undergo. Sui. for: 6 ; months for the offence P/U/Ss. 13(2) R/w.] 3( id Of P.c. Act. The subsiantive sentence of impris. onment._ shall run concurrently and sentence of: fine skal Fun . consecutively. This Criminal Appeal having been~ heard and reserved, coming on for pronouncement of judgn vient, this day, the Court delivered ¢ thre, following. . | UNGE MENT. : The appeliant has. challenged BS conviction and sentence for the offence punishable under Section 7 and 1SU)}(d) yw Section 132) of the Prevention of Corruption Aci 2988 (hereinafter r called as "the Act" for short) ona trial held 'by Special judge for CBI cases, Ban walore, Phe. facts relevant for the purpose of this appeal are as under: ae 7 The appellant herein is the accused. PW1 . PLR. Karunakaran is an officer in M/s. Elgi Tyres and Tread Limited, Bangalore and the firm was engaged in setreading of old Tyres and the factory was located at Rupena Agrahara Madivala, Bangalore. Wee é 3. During September 1988 the firm of PWI had submitted a tender to Hindusian Aeronautics Limited Service Division, Bangalore com plex . | - | foi _ retreading/restoring of Tyres by cold process : and the. . rates of M/s. Elgi Tyres and Tread Limited were - accepted by Hindustan Aeronautics Limited . iti thie first week of April 1989, accordingly M/s. Bist Tyre and Tread Limited obtained a work order on 05.04.1989 from the Deputy General Manager, HAL, Bangalore for retreading 'saa Tyres. "phe. total value of the contract was for F380, 900/ 7 4. ~ For about-a°month there was no response from, Hindustan. Aeronautics Limited and in the month of May 1989°PW1 enquired that there is no response as to when they would be getting Tyres for retreading and at that time the accused (appellant) was dealing with "the matter in the Tyre section of Hindustan, Aeronautics Limited and asked PW.1 Karunakaran to meet him aller few days. In view of this fact. Manager Sri. K. Padmanabhan met the Transport Manager and he told ---- aa aS eG # ah, that the tyres will be handed over by first week of June 1989. On the next day, a telephone call was received in the office of M/s. Elgi Tyre and Tread Lintited - mstructing them to visit Hindustan Aeronautics Limited | - and inspect the Tyres retreading. ©. D. On 29.05.1989 PWiand another went to the Transport Department | of Hindustan Aeronautics Limited, Bangalore and met : thie accused. They inspected 169 tyres showed to then and selected &5 tyres -- found "suitable | for "retteading, When the complainant asked the accused the reason for the delay in handing over the tyres, he told that the complainant has not approached him properly and that if he wants "he can créate problems for them and when the complainant: understood the accused that there is a demand, for money he undertook to consult the Manager and. he asked him to keep the tyres ready for delivery and he returned back to his office. Lf Ree ee 6. On 36.05.1989 the complainant received a call from Hindustan Aeronautics Limited that tyres 'were ready for retreading and on 31.04.1989 the complainant visited Hindustan Aeronautics Limited and met the -- accused and took up 50 tyres for retrending and at chat. time as well the accused asked whether any decision was taken and complainant told him in the "negative. The accused did not 'say anything further. After few days the complainant "delivered : tine tyres after retreading it in. the central stores and met the accused and handed: | over a. copy ot delivery challan for processing the payment. i. The accused asked as to whether any decisioa was taken and the complainant 'told that the Manager would be there and he asked to nS meet him at-atea-oflice by 3.15 pm. On 08.06.1989 at about 3.00pm the complainant reached the appointed "place and found the accused and took him on the -rmotoreycle to the area office of the complainant and at that time the Manager Mr. Padmanabhan asked him what exactly he wants and accused told that value of the contract is about 74,00,000/- and they should pay ¥10.000/- as bribe. He also threatened that in case if the payment is not made their firm will be lackiisted-. Even on 14.06.1989 when the complainant had. gone te take the delivery of tyres for the retreading the e a consed. insisted for payment of the amount and alse warned that there is no further poftit.in delaying the matter. they would approach the other tyre retreaders, Malanad 'Tyres. 7. ; 7. 0m 26.06, 1989 in the morning the complainant went to the otfie: a. oft the' accused and delivered 34 tyres to the central "stole. . "Before entering the Hindustan Ae 'anautics Lamited, he was waiting near the security . date. acensed called him and asked to pay the amount, . failing | which he would delay the certification and payment - The accused also demanded the bribe os amou nt and an amount of T1,000/- in advance on the eround that he is in need and to pay by 27.06.1989. He also told to pay the remaining amount of €9,000/- within a week. The complainant assured to discuss the eS L matter with the Manager and the higher officials and it is in these circumstances that PW.} and the officials of the firm having no mind to pay any ime rey . ta the - accused, submitted their complaint to the CBI polive op | - 97.06.1989 at about 9.30 a.m. 5. The complaint was : reuistered, pwe and PW3 the witnesses were sectired by, pw G. the police inspector CBI and the complainant Karumdearian' produced 10 notes of £100/- , denomination cand' an entrustment Mahazar was' hala by male a test after treating the notes with 'pheno! iphvhat ein powder and washing the hands of PW2 in 'sodiiim carbonate solution and the solution turned to pink colour and thereafter inetructions were given to the complainant and PW2 . and thereafter they went to the office-cum-residence of 7 the complainant as the accused had told that he would - come and collect the money from their office. The entrustment Mahazar was completed by 3.40 pm on that day. 9. Video coverage and audio coverage recording was also arranged in the premises of the complainant wherein the accused had to come to receive. the bribe. amount and a hidden video was placed in the bed rootn - and also an audio graph. PWs.1 and 2 were at.their residence and at about 4.30 pm the accused. came on his scooter and parked his scooter outside and. came to the complainant. Both together went to the bedroom. The Manager Mr. Padmanabhart was' also there and at that time the. attount of %1.090/ . referred to Supra which wire. created with phénoiphthalein powder were given to the ac nased, on is demand and he received the said notes from his right hand and thereaiter came os outside and sat of a bench by keeping the notes below me, his thigh. Meanwhile the complainant went outside and gave the instructed signal to CBI officer. They gained . entry ixito ihe premises, they took the video graphs of ; _ the 'post-trap proceedings and at that time they asked the appellant to produce the notes. The notes kept below the thigh of the accused were seized. Th erealter & Ps, Ss Re ee hand-wash of the accused in sodium carbonate solution in two different bowls was taken and the liquid turned to pink colour. A Mahazar was held in respect of the - proceedings after the trap. Thereafter the video gra ph | - and audio graph were seized. Atter recording the statement of witnesses a chargeshee!. came to be filed against the accused, 10. During the course of the trial the prosecution pg examined PWs.} to 7 and in their evidence got marked exhibits Pl-to P18 and MOs.} tc 10. The statement of accused was recorded. under Section 313 Cr.p.c. He has taken the defence of total denial and got marked exhibit D. Lt the Xerox copy of the Mahazar. "Ji. Phe. trial Court heard the prosecutor and learned: counsel for the accused and on appreciation of "the material on record convicted accused appellant for .the-offence punishable under Sections 7 and 13, (1)d) p/w 13(2) of the PLC, Act 1988 and ordered the accused to undergo Rl. for three years for the offence ih we 10 punishable under Section 7 of the Act and three years for the offence punishable under Section 13{2) -of. the Prevention of Corruption Act. Agerieved by. the. judgement and order the accused. has preferred the -- present appeal. 12. | have heard the learned cou neel for appellant and also the learned High Court Government Pleader for respondent. The pointe. that arise for my consideration are: | | | ) - W hether she prosecution proves that the | accused, while functioning as a public | servant in the capacity of Senior Helper "in the Tvre, "Section of the Transport Department of HAL, Bangalore, on . 09.06.1989 demanded illegal "gratification of © 10,000/- from PW.1 PK Karunakaran for doing an official favour and repeated his demand on 96.06.1989 and accepted 71,000/- as bribe on 27.06.1989 at about 5.30 p.m. from PW1 as a part of the bribe amount and thereby committed an offence SSS Li punishable under Section 7 of the Prevention of Corruption Act 1988'? ii} Whether the prosecution further proves -- that the accused being 2 public serve ant . while functioning as 4 senior helper. on s, 27.06.1989 by inegal means, | ab using : | his official position as | such public . servant obt ained. Dp secumiary advantage to the tune or 71 006/-- from, PW1- PK. Karunakaran. and thereby committed an offence , punishable "Us. 43d Wd} Rfw. 135 2) of the Prevention of Corruption Act 19887 (ii "Whether the. accused has made out any "grounds: to warrant interference in the _ judgement and order of conviction and sentence'? 13... -At the first instance the learned counse! for "the appellant would contend thal the grant of sanction . te prosecute the appellant is not proved. So far as the person who granted the permission to prosecute the aceused is concerned, he was dead on the date of Re E [pone | 12 recording the evidence by the trial Court, PW.7 in his evidence states that he cannot identify the signature of the sanctioning authority, therefore the learned cotiaset - submits that, in absence of . identification s, of the - signature, the sanction stands not proved and therefore the prosecution is egal. 14. On this aspect. it. isrelevant to refer to provisions of Section 12. clause.S (a) of the Act which is extracted here uiider for the sake of convenience. Notwuhstandina anything contained in the Code of Criminal Procedure | i 973 (2 of 1974): fa No firiding, "sentence or order passed by a : speciol judge shall be reversed or altered by a Court in an appeal confirmation or revision ort the ground of ihe absence, or any error, omission or irregularity in the sanction required under sub Section (ij, 'aimless in the opinion of that Court, a failure of justice has in fact been occasioned thereby: wf 13 m~ 15. So as could be seen from the provisions referred to supra even the absence or error in obtaining the sanction is insufficient to alter the finding, unless - the appellant establishes that a. failure of justice as | - been occasioned thereby. The appellant jas not made - out any such grounds of failu re of j ustice in the absence of sanction, but now a9 could be seen from the records Ex.P18 is the sanction. which has been marked in the evidence of pw7. and + contains all thie reference to the facts. application | of "rain "and. satisfaction of the sanctioning antherity to prosecute the appellant for the offence stated therein, «The document is signed and sealed, | Hence, i 'am.of the opinion that Ex.P18 itself is os suificient to establish that there was a proper sanction S io prosecute:the appellant. The learned counsel for the respondent would rely upon the decision reported in - 2009}. 15 Supreme Court Cases, 72 (State of Madhya . Predesh -- Vs - Jiyalal) wherein it is held as under:- "Held, aforementioned findings of High Court are incorrect ~ High Court, therefore, was nol j ustified _ a mentee 14 in interfering uth "fuiding, sentence or order" passed by Special Judge -- Even if it were acvepted that there was an "error, orlission or irregularity 2 in : passing sanction order, me. finding ned been. - recorded as to how serious failure of justice had - been caused to respondent -- Further, it was nol necessary jor prosecution. te examine DM. to prove ihe same -- Sanction order was ; clearly passed in discharge of routine "official. funetions and hence there was. a presumption that same was done ina bona fide mariner." | am of the opinien that the sanction has been satisfactorily proved and no failure of justice has occasioned. by any error or omission in the sanction order, i@: Se far as the demand for an amount of %1.0.900/- is concerned, PW1L has consistently stated 7 the feo bout the dermand made by the appellant. i complaint Ex.P1, it is stated by the complainant, that in, se = RE & [5 the month of May 1989 and June 1989 and so also on 29.08.1989 whenever the complainant had met. the accused, there was a demand for an amount. cf : %10.000/- and the complainant expressed hie. aiifeulty - and assured to discuss with the Manager and higher officials. It is in these "circumstances" that on 08.06.1989 the accused made a demand fos an amount of £10,000/- which would be about aut to 3% on the contract amount cand in ease iW the demand is not complied, he would delay the supply of used tyres and would reject. the retreading tyres, 17.-_ The request was repeated by the accused on 14,06. 1989 when the complainant had taken action for getting the tyres for retreading. It was aiso repeated on 26.06.1989 when the complainant had delivered 35 tyres. te.the central stores and there was an insistment 7 to pay 71,000/- by 27.06.1989 and remaining 9.000 /- within a week. It is at this juncture PW1 had further discussion with Manager and higher officials. Finally, they decided to isdge a complaint against the accused. ke - PP The facts stated by PW.1 and the contents of | the complainant would not reveal anv ambiguity. or discrepancy so far as the demand of 210,000/- by the - accused. 'The learned counsel for the appellant' draw | - the attention of this Court to the cross-examination. of complainant. Wherein it is stated that he aid hot return to the office of the CBI till the trap was laid. So relying upon this answer of Pw it i. the 'submission of the learned Counsel that when the pre-ti ap Mahazar was held in between 2.00 "to 3.30 pm on 27.06.1989, the o ta that Ex.PS the entrustment evidence of pw i : reve mahazar is conducted. and therefore he claims that no reliance could be placed on Ex.P3. So for as Ex.P3 is - concerned; it is not only PW.1. there is evidence of PW.2 A the . sh adow wines and that of PW6 the investigating officer : and who consistently stated in their evidence : that the pre-irap Mahazar was held on 27.06.1989 in between 2.00 to 3.30 p.m., if a question was posed to PW. i as to whether the pre-trap Mabazar was held on the date and ihe time stated, ne could have recollected a and could have answered in affirmative. When . the question was as to whether he was in the office of CBI after lodging the complaint in the morning at chou 9. 30. am till the trap was laid at about-5.30 Pp. m. PW by | - oversight must have stated that he dial not 20 aps office of CBI betore the trap. and' after lodging 5 'the complaint. This inconsistency inthe context of the other evidence led by "the prosecution prima-facie appears to be by oversight arid it isnot sufficient to establish thar EXPS was created by the prosecution to falsely implic vite the ac cus ised inthe crime. 18.° So far as the trap is concerned, it is relevant to note that the accused himself came to the residence- cum office. of the complainant for the purpose of receiving: the: bribe amount fixed was 710,000/- and the 7 accused, | insisted to pay %1,000/- by 27.06.1989. It is no the accused who approached the complainant on that day in the evening at about 5.30 p.m. and alter entering the office-cum-residence, with Sri. Padmanabhan the Manager and PW.1 and after discussing for sometime, a Le 18 he asked for the money and the complainant gave =1.000/- in the presence of PW. 2, who was also sitting there as an accounts official and in the presence of - Manager Sri. Padmanabam and. PW 2, the accused : received 71,000/-. the bribe: amount and (ook ihe same by his right hand and came » outside the bed. room and sat on a bench by Keeping a ; S amount just below his thigh. So far as the 'pribe. is -- 'ned there is the evidence of pw. oe and "even prier to 'he entry of the accused in the preinises. of. the complainant PW.5 had hidden videouraph in 'the bed oom, so as to cover the proceedings and the s: saine video was played in the open Court and it reveals that the accused was sitting along os with Sri. Padmanabhan on the bed and at that time S Pw picked out something from his pocket and gave it inthe "han ds of the accused, who after counting the - same held it in the right hand and came outside the office. Though the learned Counsel after viewing the video, stated that the object given is nol moncy and i may be a cigar pack, his submission is improbable and, ail | wae ¥ 19 unacceptable for the reason that after the amount was taken by the accused, he went out of the olfice from. the bed room and kept the money just below the thigh ; ané - at the time of receiving the . bribe, 'there * was a | ~ videograph and the amount receiv ed by? aconsed wae not clearly visible, as the Jideograph 'ha the bed 90m was not projected towards the hands oft ihe accused. There is no clear picture at the 'yotea but the consistent version of pWa.l : and. 2 and. corroboration by way of videograph \ w so be sad to. an irresistible conclusion that the accused. receiv ed the bri ibe amount of 71,000/- and after ac wcoeptance oi OF, the: same, he was trapped by the officials of BI and potit the hands of the accused were - aupped'in sodium éarbonate liquid which turned to pink A colon . . $9 (hereby. apart from the oral evidence of PW. there is a videograph and the chemical test of the - hand wash was also taken and that has been stated by the saitnesses inchiding PW.6. So there is consistent of the sare by PW1, the acceptance py ithe accused in MAL 20 the bed room of the office-cum-residence of the complainant. 19. A feeble contention is raised by the learned. | payment of 71,000/- may be towards the advance of sale consideration of ihe scooter uf the.aceused with the complainant. This version. of 'he. accused seems unacceptable for the reason that none of the witnesses including PWs.j and 2 have supported the version of SEES the accused andthe suggestions made have been denied and. the facts.does not reveal any sort of negotiation to-purchase the scooter of the accused and _ therefore the defence cannot be accepted. 20. A farther contention was raised by the . Jearned counsel for the appellant, that while the _ evidence was being recorded the sodium carbonate liquid, which was converted to pink colour was % colourless on the date of recording the evidence ana Lx a therefore he submits that the evidence of PWs.1 and 2 cannot be accepted as trust worthy. On this aspect of ihe matter, it is relevant to note that the incident, tools - place on 27.06.1989 and the evidence of the witness ~ was recorded on 28.11.2002, that fey aiter about 12 | years of the incident, it may be due fo che vical eaciion for the period from 1 989 to 2002, the liquid could have lost its pink colour and thereby it cannot be said that the liquid was 'not pink at che time of trap. Mahazar. Theretore the subsnssion . of the Jeamed Counsel that on the date of-the evidence. MOs:t and 2 were colourless annot' be suificient to nold that after the trap, during the test it 'did not turs to pink colour. Furthermore Oo MOs. L and 2 were sént to the chemical examination and mo Ex. P16 is the 'eertificate issued by the Forensic Science Laboratory. and # reveals that on examination of the . presence ef Phenolphthalein and Sodium Carbonate were detected in MOs.1 and 2. This version strengthens the case of the prosecution and the fact that the accused accepted the amount stands proved. When the &, Sane 22 demand and acceptance are proved, there is a presumption under Section 20 of the Prevention of Corruption Act 1988 and if is for the accused. to ~ establish by preponderance of | probability that the © prosecution case is false. Except the suggestion that . towards the negotiation of putchasitig the scooter, 'the amount of €1,000/- 1s giver, the, same suggestion having been denied, there is no nothing to rebut the said presumption. | 21, 'Fhe learned. Counsel for the appellant ¢ inviting the. attention, af this Court to the cross- examination of PW at page No.5G6 stated, that prior to the trap, he visited the office of CBI on 26.06.1989 and thet ine does not know whether his Manager PW.2 also . accoiparied. him or not. It is relevant to note that it is on 37.06.1 989 the complaint Ex.Pl came to be filed and - after lapse of about 12 years, the evidence of PW.1 was recorded and in such circumstances by mistake or by oversight he could have m entioned the date as 96.06.1989 instead of 27.06. (429. This is 4a minor MO ta om discrepancy, which is common in all cases due to lack of memory. 99 The learned counsel also contended that the ' copies of the video cassette and audio cassette were not : given at the time when the chargesheet was filed. eis | relevant to note that Ex.P12 isthe mahivar, which was drawn at the time of seiding the MOs.3.and 5 and 6 the copy of the Mahazar was given to 'the accused at that time, though the "co pies of the videocassette and the audio cassette vere given at the later stage, after the seizure of MOs.3.t6 5. They were played in the open Court duiing the eviderice and in the circumstances it -annot be stated that MOs.3 to 5 were manipulated by the 'prosecution after opening the seized video graph even before the trial Court. The video was played anid a though' the learned trial judge has mot made any - observations. The said video was played before this Court and the contents are consistent with the version of the prosecution. Ye 24 9% There is no dispute that the appellant is the public servant and as such, he has received an amount of %1,000/- as bribe and he has not offered any . - satisfactory explanation for re seipt-of the sare and he: - received the same from the complainant and by using . his official position received the pecuniary | advantage and thereby committed the offence: punishable under Section 7 and Section 13 (3) (a) of the Prevention of Corruption Act 1988. 'The evidence of PWs.1 and 2 and the shadow withesses Ps Sand 5 the persons who had brought the video 'raph, PWs.6 and 7, the investigation officers reveals clinching: material to prove the offences stated supra. Hence T am of the opinion, that the - appellant has not' made out any grounds to warrant ; interfe rence, 80 far as the conviction is concerned. Theugh- the. learned Counsel has relied upon the = "decision of the Supreme Court reported in AIR 1990 " SUPREME COURT 431(Tej Bahadur Singh - Vs - State of Uttar Pradesh) wherein, there were many Suspicious circumstances in the case o i prosecution an cd the we ae vigilance Sub-Inspector himself had gone to the place of the complainant, in addition to other circumstances, the Apex Court granted an order of acquittal, thie. principle - does not apply to the facts on hand, as. the acenised | . herein is not the vigilance officer and "the : other . circumstances which led "tothe "zequittal "are. 'not available in the facts on hand: and ; hence 'the principle laid down is not applicable. 24, 'Taking into consideration: the nature of the offence the punishment provided and the amount that has been received as bribe. i think the sentence has to be reduced to 'one year each for the offences under 7 Section" 7 and. 1S( ud) R/w Section 15(2) of the Prevention..of Corruption Act 1988 with the additional sentence AS ordered by the trial Court. In that view of the matter, | answer point Nos. 1 and 2 in affirmative .- and. proceed to pass the following: ho 26 ORDER
The appeal is allowed in part confirming the conviction of the appellant for the offence punishable - under Seetion 7 arid L8U Md) R/w Section 432) 'of the . Prevention of Corruption Act 1 988. . The Substantial . sentence of imprisonment for 'each of thie offices is reduced to one year confirmin g | th e fine and default sentence ordered by the. trial Court. Phe trial Court is directed to. secure the presence of the accused to undergo the sentence. © ae S*,