Bangalore District Court
The State Of Karnataka vs Mr. B.H. Prakash on 21 February, 2023
KABC010325872018
IN THE COURT OF THE XXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE ( P.C. Act) BENGALURU
(C.C.H.No.24)
Dated: This the 20th day of February, 2023
:PRESENT:
LAKSHMINARAYANA BHAT K.
XXIII Additional City Civil and Sessions Judge
and Special Judge ( P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.819/2018
Complainant: The State of Karnataka
represented by erstwhile Police
Inspector, Anti Corruption Bureau,
Bengaluru.
Now the Karnataka Lokayuktha,
Bengaluru Urban Police station,
Bengaluru.
(By Sri. Santhosh S. Nagarale
the Special Public Prosecutor)
V/s
2 Spl.C.C.819/2018
Accused : Mr. B.H. Prakash,
S/o.Hanumanthaiah,
aged 44 years,
Surveyor,
Office of the Tahsildar,
K.R. Puram, Bengaluru.
Residing at No.70, Siri, 5th Cross,
Patel Pillegowda Layout,
Ramachandrapura, Jalahally post,
Bengaluru.
(By Sri Bahubali A Dhanawade,
Advocate)
JUDGMENT
The accused has been charge sheeted by the Police Inspector, the then Anti Corruption Bureau, (in short the 'ACB') Bengaluru presently the Karnataka Lokayuktha Police Wing, Bengaluru City Division for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988 (in short the "PC Act").
2. The short facts of the prosecution case leading to the filing of the charge sheet are that, the accused is working as the Surveyor in the office of the Tahsildar, 3 Spl.C.C.819/2018 K.R.Puram, Bengaluru East Taluk, Bengaluru. Cw.1 - Mr. P.K.Raveendra and his brothers intended to effect partition of the landed property appearing in the name of their mother Smt. Kanthamma. In this regard Cw-1 in order to obtain Form 11(e) sketch had filed an application to the office of the Nada Kacheri, Bellanduru. The applicant ascertained that the said application had been allotted to the accused. Thereafter Cw.1 approached the accused in connection with preparing of 11(e) sketch, but he alleged to have demanded Rs.2 lakhs as the illegal gratification. The informant was not inclined to make such payment and hence he had recorded the said conversation made with the accused. He had lodged the first information statement before the ACB Police and they have registered the case against the accused. After complying the required procedure, they laid the trap, arrested the accused at the time of receiving the advance bribe amount of Rs.50,000/- from Cw-1 and the bribe money was recovered from his possession. After fulfilling the post-trap formalities, the arrested accused was produced before the Court and 4 Spl.C.C.819/2018 later he was enlarged on bail. After completion of the investigation and on obtaining the required sanction, the prosecution has filed the charge sheet against the accused.
3. After taking cognizance of the offences, the presence of the accused has been secured and complied Section 207 of the Cr.P.C. On hearing both sides the charges were framed and the accused pleaded not guilty and claimed to be tried.
4. In order to bring home the guilt of the accused the prosecution has examined Pw.1 to 10 witnesses and got marked Ex.P1 to P-53 documents. During the trial, M.O.1 to 8 material objects were produced and identified. After completion of the prosecution side evidence, necessary questions were framed regarding the incriminating circumstances appearing in the evidence against the accused. He was examined under Section 313 (1)(b) of the Cr.P.C. He did not chose to lead any oral evidence in support of his defence. However, during the 5 Spl.C.C.819/2018 cross-examination of the prosecution witnesses Ex.D1 and D.2 documents were marked on behalf of the defence.
5. Heard the arguments of both the side. The learned Public Prosecutor has also filed memorandum of written arguments.
6. After analytical appreciation of the oral and documentary evidence placed on record by the prosecution and appreciation of the defence version, facts and circumstances of the case, the points that would arise for the determination are :
1. Whether the prosecution proves that it has secured valid sanction as per Ex.P-1 to prosecute the accused in compliance of Section 19 of the P.C. Act?
2. Whether the prosecution beyond reasonable doubts prove the fact that the accused being the public servant working as the Surveyor in the office of the Tahsildar, K.R. 6 Spl.C.C.819/2018 Puram, Bengaluru East Taluk, on 15.11.2016 had demanded an illegal gratification of Rs.2,00,000/-
to prepare 11(e) sketch and thereafter demanded to pay the advance amount of Rs.50,000/- and on 23.6.2017 in between 6.00 p.m. and 6.20 p.m. near K.R.Puram Flyover, Bengaluru demanded and accepted the illegal gratification of Rs.50,000/- from Pw-2 and thereby guilty of the offence punishable under Section 7 of the PC Act?
3. Whether the prosecution beyond reasonable doubts prove the fact that the accused being the public servant by abusing his official position as such public servant on 23.6.2017 in between 6.00 p.m. and 6.20 p.m. near K.R.Puram Flyover, Bengaluru demanded and obtained an amount of Rs.50,000/-
as pecuniary advantage from Pw.2 Mr. P.K.Ravindra and thereby committed an offence of criminal misconduct as defined under 7 Spl.C.C.819/2018 Section 13(1)(d) and punishable under Section 13(2) of the P.C. Act?
4. What order?
7. The aforesaid points are answered as:
Point No.1 : in the affirmative;
Point No.2 : in the affirmative;
Point No.3 : in the affirmative;
Point No.4 : as per the final order
for the following
REASONS
Point No.1 :
8(a). The accused as on the date of offence was
working as the Surveyor and hence he was a public servant within the ambit of Section 2(c) and he was discharging the public duty as defined under Section 2(b) of the PC Act. Section 19 of the PC Act prescribes the requirement to obtain the valid sanction to prosecute the public servant. Therefore, it is incumbent upon the prosecution to prove that the valid sanction has been granted by the sanctioning authority.
8 Spl.C.C.819/2018 8(b). In order to prove the aforesaid fact, the prosecution has examined Pw.1 Mr. Munish Moudgil, Commissioner, Land Survey and Revenue System. In his evidence he stated that he had received the letter from the A.D.G.P., ACB, Bengaluru by seeking the prosecution sanction against the accused. The investigating agency along with the requisition had sent the first information statement, FIR, mahazar, chemical analysis report, statement of witnesses etc. After verification of the documents he ascertained that prima-facie case is made out and the accused is involved in the demand and acceptance of the bribe. Hence he has proceeded to accord the sanction to prosecute the accused by issuing the Ex.P1 order.
8(c). The accused during cross-examination of Pw.1 has contended that the investigation agency along with the documents did not send the CD containing the recorded conversation. Pw-1 has not disputed this fact in his evidence and also there is no reference regarding production of CD in Ex.P-1 order. The witness further 9 Spl.C.C.819/2018 admitted that the prosecution has not produced any document to show the survey work pertaining to the application of the Pw.2 was entrusted to the accused. The suggestion posed to the witness that he has mechanically passed Ex.P-1 order was specifically denied. 8(d). It is important to mention here that during cross- examination the accused has not disputed the authority of Pw-1 as the Commissioner is empowered to dismiss the accused from the post of the surveyor. In addition, the accused has also not challenged the authority of Pw.1 to accord the sanction as per Ex.P1. Therefore, from the evidence of Pw.1 and defence of the accused, the prosecution is able to prove the fact that Pw.1 is the authority competent to accord the sanction to prosecute the accused.
8(e). In the judgment of the Apex Court in State of Maharastra vs Mahesh G.Jain, reported in (2013) 8 SCC 119 the Hon'ble court held that the adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the 10 Spl.C.C.819/2018 sanction order. Therefore, if the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction. The sanction should not be construed in a pedantic manner and there should not be a hyper- technical approach to test its validity. In the case on hand, the pre-trap and the trap mahazar contains the transcript of recorded conversations. Therefore even in the absence of the production of the CDs containing the recorded conversation by the investigating agency before the sanctioning authority, Pw-1 had the opportunity to go through the transcript of conversations contained in the mahazar. After application of the above ratio to the facts of the case, the contentions raised by the accused regarding production of the CDs before the sanctioning authority is not legally sustainable. 8(f). In the judgment reported in (2012) 3 SCC 64 in Subramanian Swamy Vs. Dr. Manmohan Singh case the Hon'ble Supreme Court held that the grant or refusal of sanction is not a quasi-judicial function. The competent 11 Spl.C.C.819/2018 authority is required to see whether the facts placed before it by the investigating agency prima-facie disclose the commission of an offence by the public servant. If it is satisfied that the material placed are sufficient for prosecution of the public servant, then it is required to grant the sanction. The competent authority cannot undertake a detailed inquiry to decide whether the allegations made against the public servant are true.
8(g). The law does not lay down what are the minimum facts which should be brought to the notice of the sanctioning authority. The satisfaction of the sanctioning authority is entirely subjective. If the facts placed before him are not sufficient to enable him to exercise his discretion properly, he will ask for more particulars but it is for him and him alone to determine this matter. The sanction to prosecute the public servant implies first, full knowledge of the facts of the case and secondly a deliberate decision of the sanctioning authority that he may be prosecuted.
12 Spl.C.C.819/2018 8(h). The prosecution in the case on hand has fulfilled all the legal requirements. In this regard the prosecution has produced Ex.P-1 the sanction order which itself contains the facts constituting the offence. Secondly the contents of the sanction order are proved by examining Pw-1 the sanctioning authority. Therefore, the prosecution from the oral evidence of Pw.1 and Ex.P-1 documentary evidence has proved the material documents were placed before the sanctioning authority and after it was satisfied that a case for sanction has been made out, valid sanction has been granted. In the result, point No.1 is answered in the affirmative.
Points No.2 and 3 :
Both these points are interconnected, hence in order to avoid the repetition of reasons and for brevity, they are taken up together for common discussion.
9(a). In order to prove the charge framed against the accused, the prosecution has examined following witnesses and placed documentary evidence. The gist of the prosecution evidence are:
13 Spl.C.C.819/2018 Pw.2 - Mr. Ravindra P.K. is the informant who has lodged Ex.P-2 first information statement and he is the witness to the entire pre-trap and trap proceedings. Pw.3 - Mr. Vinay is the shadow witness and Pw.4 - Mr. S.Murali is co-pancha and they are the signatories to Ex.P-3 and Ex.P-4 pre-trap and trap mahazars and also witness to the entire trap proceedings.
Pw.5 - Mr. K.C.Lakshminarayana is the Dy.S.P. and he has received Ex.P-2 first information statement from Pw.2 and registered the case as per Ex.P7 FIR. Pw.6 - Ms. Chandrika G. is the Assistant Director Forensic Science Laboratory, Bengaluru and she is the author of Ex.P8 voice analysis report. Pw.7 - Mr. Dilip Kotagi and Pw.8 - Mr. Stanley Agnelo are the Nodal Officers and they have issued Ex.P15 and 17 call detail register and copy of the customer application form.
Pw.9 - Mr. Balakrishna C. is the Police Inspector who has conducted conclusive part of 14 Spl.C.C.819/2018 investigation, secured Ex.P1 sanction order and filed the charge sheet.
Pw.10 - Mr. Manjunatha K.R. is the Police Inspector and trap laying officer and he has conducted the investigation regrading the entire trap proceedings. 9(b). The accused is charged for the offences punishable under Section 7, 13(1)(d) read with 13(2) of the PC Act. The prosecution, in order to bring home the guilt of the accused, is required to satisfy the following requirements:
(i) The accused was a public servant at the time when the offence was committed;
(ii) He has accepted, or obtained, or agreed to accept or attempted to obtain illegal gratification from Pw-2;
(iii) For himself or for some other person and
(iv) Such gratification was not a remuneration to which he was legally entitled.
(iv) He has accepted such gratification as a motive or reward for
(a)doing or forbearing to do an official act,
(b) doing or forbearing to show favour or dis-favour to someone in the exercise of his official functions.
15 Spl.C.C.819/2018 9(c). Similarly to establish the guilt of the accused under Section 13(1)(d) of the PC Act, the prosecution is required to prove the following factors.
i) The accused being the public servant obtained for himself or for any other person any valuable thing or pecuniary advantage,
a) by corrupt or illegal means or
b) by abusing his position as public servant or
c) without any public interest.
10(a) Amongst the prosecution witnesses examined Pw.2 - Mr. Ravindra P.K. is the informant and as per his evidence his mother Smt. Kanthamma owned property comprised in Sy.No.102/1 of Panatturu Village. Pw-2 and his brothers intended to effect partition of the said property between themselves and in this connection in order to obtain Form-11(e) sketch, on 15.11.2016 he had filed an application in the office of the Nadakacheri, Bellanduru. After five months he came to know that the said application has been forwarded to the Taluk Office, K.R.Puram, Bengaluru. When Pw-2 approached the accused who was working as the Surveyor, he had 16 Spl.C.C.819/2018 demanded Rs.2 lakhs as the bribe. The informant has further stated that he had recorded the said conversation made with the accused. Since he was not willing to make payment of the illegal gratification as demanded by the accused, on 23.6.2017 he had lodged Ex.P2 first information statement before the police. 10(b). Pw.5 - Mr. K.C. Lakshminarayana is the Dy.S.P. and in his evidence he has stated that on 23.6.2017 Pw.2 appeared before the ACB police station and has lodged Ex.P-2 first information statement. In furtherance of the said information he has registered Ex.P7 FIR against the accused and further investigation has been entrusted to Pw-10.
10(c). Pw.10 - Mr. Manjunath K.R. is the Police Inspector and the trap laying officer (in short the 'IO'). In his evidence he has stated that after taking over the investigation of the case from Pw.5 he had secured the presence of Pw.3 and 4 independent pancha witnesses to the proposed trap proceedings, introduced them to Pw.2, furnished them the copy of Ex.P2 first information 17 Spl.C.C.819/2018 statement and after going through the contents they had consented to assist in the proposed trap proceeding as the witnesses.
10(d). Pw.3 - Mr. Vinay and Pw.4 - S. Murali are working as the First Division Assistants in the Revenue Department and they are the panchas to the trap proceeding. Pw.2 to 4 and 10 in their evidence in detail have stated that in the ACB police station Pw.2 has produced the CD containing the recorded conversation, it was played in their presence, they had heard the conversation, preparation of Ex.P22 transcript of conversation and seizure of the said CD as per Ex.P11. They further stated that Pw.2 has produced the cash of Rs.50,000/-, smearing of the phenolphthalein powder to the currency notes and Pw-4 after counting the currency notes kept it in the trouser pocket of Pw.2. Pw.10 has deposed that he had given necessary instructions to be followed and nominated Pw.3 as the shadow witness to accompany with Pw.2 during the trap. In the presence of the witnesses, Pw.10 subjected Pw.4 to undergo the chemical hand wash test, after demonstration, collected 18 Spl.C.C.819/2018 the colour changed hand wash solution for scientific examination. Pw.10 has explained to Pw.2 to Pw.4 the chemical reaction of the sodium carbonate with phenolphthalein.
10(e). It is further evidence of Pw.10 that he has provided a USB flash drive instrument to Pw.2 and instructed him to record the conversation during the trap. Pw-10 has stated that in the presence of the panchas and the informant Pw.2, he had drawn Ex.P3 mahazar. Pw.2 to 4 in their evidence have spoken that they are the witnesses to the pre-trap proceedings and signatories to the Ex.P3 document.
10(f). Pw.2 to 4 and 10 in their evidence have further stated that after completion of the pre-trap procedure, they reached K.R.Puram Tahsildar Office and Pw.2 and 3 as instructed by the IO went to the office to meet the accused. When Pw.2 had made the phone call, the accused assured to meet him near the tea stall. The accused as informed came and after brief conversation he has obtained the signature of Pw.2 in some papers and 19 Spl.C.C.819/2018 retained those documents. It is the evidence of Pw.2 that the accused had ascertained whether he had brought the money and thereafter informed that he will collect it later.
10(g). Pw.2 in his evidence has stated that at about 6.00 p.m. the accused asked him to sit in the car and the vehicle proceeded towards old Madras road. During the travel the accused had instructed him to keep the amount in the file. After keeping the currency notes in the file, Pw.2 got down from the vehicle near K.R. Puram the flyover.
10(h). Pw.3, 4 and 10 in their evidence have spoken that they have tried to chase the car in which the accused and Pw.2 were traveling, but they could not follow on account of heavy traffic. When they reached near K.R.Puram fly over service road, Pw.2 was standing on the side of the road. It is the evidence of Pw.10 that Pw.2 has informed the developments happened when he had traveled with the accused and the demand and 20 Spl.C.C.819/2018 acceptance of the gratification and as directed by the accused keeping of the amount in the file. 10(i). Pw.10 in his evidence has stated that immediately he had instructed the other police officers to ascertain the location of the accused from his mobile phone sim number. From the said police he had received information at about 8.35 p.m., that the accused reached his house situated at Ramachandrapura, Jalahally, Bengaluru. Pw.2 to 4 and 10 in their evidence have stated that at about 9.20 p.m. they reached the house of the accused. Pw.10 had subjected the accused to undergo the chemical hand wash test and in the examination the sodium carbonate solution turned to pink colour. As per the statement of Pw.10 the accused has disclosed that the bribe amount is in the bag kept inside the car.
10(j). Pw.2 to 4 and 10 in their evidence have further stated that as instructed by Pw.10, Pw.4 took the bag and found the cash of Rs.50,000/- was kept in Ex.P24 file cover. He had collected the said cash and rubbed the cotton ball in the place where the cash was kept in 21 Spl.C.C.819/2018 Ex.P24 file. The cotton ball was seized by the police and it is identified as M.O.7 during the trial.
10(k). It is further evidence of Pw.10 that the accused had requested him not to conduct the further trap proceedings in the presence of his family members. Therefore along with the arrested accused, Pw.2 to 4 the informant and witnesses proceeded to the ACB office and he has continued the trap proceedings. He has collected the USB flash drive from Pw.2, prepared Ex.P25 transcript of conversation recorded during the trap and copy of the said conversation was secured in Ex.P12 CD. Pw.10 has stated regarding the collection of sample voice of the accused in Ex.P-13 CD and of the informant Pw-2 in Ex.P- 14CD. Pw.2 to 4 and 10 in their evidence have stated that the accused has submitted his explanation statement in writing as per Ex.D-2, drafting of the trap mahazar as per Ex.P4 and they are the signatories to the said document. The witnesses during their examination- in-chief have identified Ex.P27 to 44 the photos relating to pre-trap and trap proceedings.
22 Spl.C.C.819/2018 10(l). Pw.10 in his evidence has further stated that during the investigation he has recorded the statement of the witnesses, collected the certificates under Section 65-B of the Indian Evidence Act as per Ex.P45 to 47, call details register ( in short the CDR) as per Ex.P-50 sketch of the place of incident as per Ex.P52.
10(m). Pw.6 - Ms. Chandrika G. is the voice analyst and she is the author of Ex.P-8 voice analysis report. In her evidence she deposed that the respective speeches of the accused recorded in Ex.P-11 and Ex.P.12 DVD and the CD and the sample voice in Ex.P13 are similar and belongs to the same male speaker. She further opined that the sample speeches of the accused contained in Ex.P13 is free from any type of disguise.
10(n). Pw.7 - Mr. Dileep Kotagi is the Nodal officer, BSNL and he has spoken regarding issuance of Ex.P15 the CDR and Ex.P16 certificate under Section 65B of the Indian Evidence Act. Pw.8 - Mr. Stanly Agnelo is the Nodal officer, Bharthi Airtel and he has spoken regarding 23 Spl.C.C.819/2018 issuance of Ex.P17 CDR and Ex.P18 the certificate under Section 65B of the Indian Evidence Act. 10(o). Pw.9 - Mr. Balakrishna C. is the Police Inspector and he has conducted further investigation of the case. In his evidence he has stated as to the recording of the statement of witnesses and after obtaining Ex.P1 sanction order, filing of the charge sheet against the accused.
11(a). The learned Special Public Prosecutor has submitted in his argument that Pw.2 traveled in the car with the accused is not disputed and the said car belongs to the third party known to the accused. Therefore the burden is on the accused to explain how the file, cash and the bag kept in the said car were found in his car. The accused is having special knowledge regarding this aspect. In order to prove the demand, acceptance and recovery, the prosecution has placed sufficient evidence.
24 Spl.C.C.819/2018 11(b). The further argument of the prosecution is that the demand and acceptance of the amount is also proved from the circumstantial evidence. Pw.3 the shadow witness had followed Pw.2 till he boarded the car. Thereafter Pw-2 traveled along with the accused. The foundational facts regarding the demand and acceptance are proved. The corroborative and circumstantial evidence shows that the accused has demanded and accepted the bribe. The accused has failed to rebut the presumption appearing against him under Section 20 of the PC Act. Hence he submitted that the charges framed against the accused are proved.
12. The points addressed in the argument of the learned defence counsel are:
There is discrepancy in the evidence of Pw.2 with regard to the date of recording of the audio conversation.
Pw.2 has not recorded all the conversations made with the accused before lodging of Ex.P-2 the first information statement.
25 Spl.C.C.819/2018 There is discrepancy in the duration of the audio conversation, contradiction in the evidence and the prosecution has edited the contents.
As per the evidence of Pw.2 to 4 and 10 when they reached the place, the accused was inside his house. The disputed cash was in the car and there is no evidence placed by the prosecution to prove when the accused had touched the said currency notes. As per the evidence of Pw.3, Pw.2 had produced pen drive whereas Pw.2 has stated that he had produced CD and in this regard there is discrepancy. The prosecution has not produced any documents to show that the survey work relating to the application filed by the Pw.2 was allotted to the accused. There is contradiction in between the evidence of Pw.2 informant, Pw.3 and 4 panchas and Pw.10 the investigating officer and other corroborative evidence such as voice analysis report and the chemical examiner's report.
26 Spl.C.C.819/2018 For these reasons the accused has prayed for the judgment of acquittal.
The demand and acceptance 13(a). The prosecution in order to prove the twin ingredients of the offence the demand and acceptance, has placed on record evidence of Pw.2, the informant and Ex.P-2 the first information statement. In addition, the prosecution has also produced the corroborative evidence by way of recorded audio conversation and the voice analysis report issued by the expert of the Forensic Science Laboratory, Bengaluru. The specific evidence of Pw.2 is that on 15.11.2016 himself and his brothers had filed an application to obtain form 11(e) sketch and the said file was allotted to the accused. As per the contents of Ex.P2, on 20.5.2017 the accused had demanded Rs.2 lakhs as the illegal gratification from Pw.2 and further directed him to make payment of Rs.50,000/- as advance in order to commence the survey work.
13(b). The prosecution has produced Ex.P11 DVD containing the recorded conversation and according to 27 Spl.C.C.819/2018 Pw.2 originally he had recorded the said conversation in his mobile phone. Ex.P-22 is the transcript of conversation and in the said document there are following portion of the conversations which are relevant to ascertain the existence of the demand:
ಫರರರದ ಸರರರ ನಮಮ ಅಣಣಣಣಣರತತ ಇಬತತತ ಹಣಣಣದಣ ಸರರರ ಅಲಲ ಇಸಣಣಸಸಡಡ ಬರಣಣಣಣರ ಕರಸರಅಸತ ನಣವರಹಣಣಳದರಹಣಣಳಡದತಲಲ ನಣವವ ಆರಣಣಣಪ ಹಣ ಫರರರದ ಎರಡರಲಕಕ ಕಣಣಳರಳ ಇದರದರಣ ಅಸತ ಆರಣಣಣಪ ಹರ ಫರರರದ ನರನರಹಣಣಳದದಕಣಸ ಆರಣಣಣಪ ಹರ ಫರರರದ ಒಬಡತದಣದ ಅಲಲಲರಲ ಎಲರಲರಣ ಇದರಮರಡಬಣಬಣಕಲಲ ------------------ ಫರರರದ ಹಸಗಣ ಜರಸಳ ಅಸದಡತ ಒಸದಣ ಸಲಣ ರರಕಸದಣತ ಎಲಲರಣ ಒಸದರಒಸದರಕಣಲಲ ಆರಣಣಣಪ ......ಫಣಫನಲರ ....... ಈಗ ಹಣಚಡಚ ಕಮಮ ಮರಡಲ ಕಣಣಡಡಲ ಈಗ ಏನರಗಣಣತರಳ ನಮಡದ ಫಣಫನಲರ, ನಮಡದ ರಜಣಕಣಕಡರ ಪಣಸರ.......
ಫರರರದ .......ನರನರಬಣಣರಣರರ ಹತತ ಕಣಲಲ ಮರಡಣಣಣದಡ, ನರನಡನಡ ಆರಣಣಣಪ ಆಯಡಳ ಫರರರದ ನರವಣಲಲ ಅಡಣಡಸರಕ ಮರಡಣಣಸಣಬಣಣಕಡ ಕರಸಡ ಆರಣಣಣಪ ........ರಣಡ ಮರಡದರತ ಫರರರದ ಅದಣಣ ಇವರಗ ಐವತರಳ ಸರವತ ರಣಪರಯ ಕಣಣಟಕದರದರಣ ಇಬಡತ, ಅಡರಲನರಲ ಥರರ
ಕಣಣಡ ಆಮಣಲಣ ಇನರಸಲಲಲ ಇನರಲನನಲಣಮಸಟಟಲಲ ಕಣಣಡಣಣಣಣ ಇನಣಣಟಸದರಸಲ, ನಣಕರಲನ ಆಗದರತಕಕಣ ...........
ಆರಣಣಣಪ ಹಹದರ ಒಸದರ ಕಣಲಲ ಮರಡ ... ............ಎಷರಕ ಕಣಣಟಕದದರರ ಇವತಡಳ ...........ಎಷಡಕ ತಸದದದಣರರ ಇವತಡಳ ಫರರರದ ಇವತರ ಏನಡ ತಸದಲಲ ಸರರರ, ನರನರ ಹಸಗಣ ಬಸದಣ, ನಮಟ ಕಣಣಳರ ಬಟರ...........ಅವತ ಹತತನಣಣ ಇದಣ ಆರಣಣಣಪ ಆಯಡಳ ಇಸಣಣಸಸಡಡ ನಣವರನಸಗಣ ಎಲಲ............ಹರ ಈಗ ನರವರಪಣತಣಗಣರ ಹಣಸಗಣ ಹಣಣಣಗಣಬಣಕಡ ಇದತಸದ ಸಲಲಲ ಸರಲಟರತಣಣಣಸರ ಆರಣಣಣಪ ಪಕಪರ ಮರಡಸಳನ......ರಣಡ ಮರಡ ನರನರ ಹಸಗಣ ನಣಣಣಡಣಣಸಸಡರ ಇದರ ಮರಡಣಣಣಣ, ನಣವರ ಹಣಣಣಗಬಟಡಕ ರಣಡ ಮರಡಣಣಸಸಡಡ ಅಲಲಗಣ ಬನಟ, ನಮಗಣಣನಲಲ ಅದಡ ಇನಣಲನನಮಸಟರನವಗಣರ ಫಸರಕ ಕಣಣಡಬಣಬಣಕಡ
28 Spl.C.C.819/2018 ಫರರರದ ಆಯಡಳ ಆರಣಣಣಪ ರಣಡ ಮರಡಣಣಸಸಡಡ ಬನಟ ಆರಣಣಣಪ ಬಣಣಗ ಇಸಣಣಸಸಡಡ ಬಸದರಬಡ ಅಟಲಸರಕ.............. ಆರಣಣಣಪ ಒಸದರಕಣಲಲ ಮರಡ ಇವತರಇಸಣಣಸಸಡರಬಸದರಬಡ ಇವತರತಣಣಣಸರ ನಸಗಣ , ಸಣಣಣಮವರರ ಇರಲಲ ನರನರ ಆರಣಣಣಪ ನಣವರರಣಡ ಮರಡಣಣಸಸಡಡ ನನಣನ ಫಣನರಹರಕ, ನರನಡ ಅಸಗಸದ ಅಸಗಣ ಬರರನ ಇವತಡಳ ಕರಸರತಣಣಣಸರ ಪಕರಮರಡಣಣಣದಡ ಅಥರ ಆರರಳ . 13(c). Pw.2 during his cross-examination in para-12 has admitted that his friend had copied the conversation from the mobile phone to Ex.P11 DVD. The prosecution has produced Ex.P46 certificate issued by Pw-2 under Section 65B of the Indian Evidence Act. The contents of the said document are contrary to the oral evidence of Pw.2. The evidence of Pw.2 regarding the demand of the bribe by the accused and the allegations made in Ex.P-2 first information statement are admissible. But the contents of Ex.P22 transcript of conversation in Ex.D11 DVD cannot be accepted for non-compliance of the requirements under Section 65B of the Indian Evidence Act. The prosecution ought to have produced the certificate as per Ex.P46 issued by the friend of the Pw-2 29 Spl.C.C.819/2018 who had actually secured the copy of the recorded audio conversation from mobile phone to the DVD.
13(d). It is the evidence of Pw.2 that on the date of trap he went to K.R.Puram Taluk office and met the accused and thereafter both of them went to the nearby tea stall. In the said place the accused questioned Pw-2 whether he had brought the money and he has answered it in the affirmative. Pw.2 further stated that the accused has informed that later he will collect the amount. In this connection Pw.3, 4 and 10 - the IO in their evidence have stated that they have seen the conversation between Pw.2 and the accused near the office premises and in the tea stall.
13(e). The prosecution has produced Ex.P25 transcript of conversation recorded during the trap. Ex.P12 is the CD containing the copy of the said recorded conversation. The relevant portion of the conversation regarding the demand and acceptance during the trap are re-produced herein below:
30 Spl.C.C.819/2018
ಆರಣಣಣಪ ಅವರತ ರರರಣಣಣ ನಮನ ಕರರರಳ ಇದರತ
ಫರರರದ ಇಲಲ ಸರರರ ರರರಣಣಣ ............ನಮನ ಎಲಲ
ಆರಣಣಣಪ ಅವವತ ರರರಣಣಣ ಕಣಫ ಎರಳದತಲಲ ನಮನ
ಫರರರದ ಇಲಲ ಇಲಲ ನಮನಲಲ
ಆರಣಣಣಪ ಓ
ಫರರರದ ನಮನಲಲ ಸರರರ -----------------
ಆರಣಣಣಪ ನರನರಅವರತ ರರರಣಣಣ ನಮರಕಡಣರಡ ಇಬಣಣರಕಡ ಅಸದಣಣಸಸಡಣ ----------
ಆರಣಣಣಪ ಸಣಫಡಣನ ಹರಕ, ಸರ ನರಳಣ ........ಇದರಮರಡ
ಫರರರದ ಅಮಹಸಟರನರಳಣ ಇದರಮರಡಲ ಸರರರ
ಆರಣಣಣಪ ಹಣಸ ನರಳಣನಣ ಮರಡ
ಫರರರದ ಇಲಲ ಈಗ ಕಣಣಟರ...........ಸರರರ ಇವರಗ............ಅಮಹಸಟರ
ಆರಣಣಣಪ ತಸದದದಣರರ
ಫರರರದ ಹಣ
ಆರಣಣಣಪ ಇಲಲ ಇಟರಬಡ ಹಸಗರದಣತ
ಫರರರದ ತಗಣಣಳಳ
ಆರಣಣಣಪ ಕಣಫಗಣ ಬಣಣಡ ಅಲಲ ಇಟರಬಡ, ಕಣಳಗಡಣ ಇಟರಬಡ
ಫರರರದ ನರಳಣ ಎಲಲ ಕಣಣಡಲ ಸರರರ...............ಒಸದಣ ಸಲಗಣ
ಆರಣಣಣಪ ರರವರಗ
ಫರರರದ ನರಳಣ, ಇನರಮಕಸದಡದ
ಆರಣಣಣಪ ನರನರಪಣನರಮರಡಳಣನ ಬಡ ನಮನ
ಫರರರದ ಆಯಡಳ.
13(f). The aforesaid portion of the recorded
conversation in Ex.P25 shows that the accused has formed suspicion after seeing the presence of some person who had waved his hand towards Pw.2. In this regard, Pw.10 in his evidence para-12 has stated that on the date of incident the accused got suspicion after 31 Spl.C.C.819/2018 noticing the presence of some police personnel in the vicinity. Ex.P12 is the CD produced by the prosecution containing the conversation recorded during the trap. The reasons behind the accused asking Pw.2 to accompany with him in the car and thereafter he had demanded and accepted the illegal gratification from the informant can be connected to the aforesaid conversation. Therefore, in this connection the evidence of Pw.10 gets support from Ex.P25 transcript of conversation.
13(g). The prosecution has produced Ex.P8 voice analysis report and examined Pw.6 the author of document to prove the report. As per the evidence of Pw.6 and Ex.P8 report, she has opined that the respective speeches of the accused Mr. B.H.Prakash found recorded in Ex.P12 (Article-9) CD and the sample speeches recorded in Ex.P13 (Article-10) are similar.
13(h). The accused when he was examined under Section 313 of the Cr.P.C. to the question No.24, 43 and 108 has admitted that during the post trap proceeding he 32 Spl.C.C.819/2018 has been asked by the IO to read the contents of transcript for six times. But he has denied at that time his sample voice was recorded by the IO in the CD.
13(i). During cross-examination Pw.6 has admitted that she cannot say the article sent for analysis whether contained the original or copied conversations. The argument of the accused is that Ex.P25 is the edited portion of the transcript of conversation because the USB flash drive contained total recorded conversation for two hours. But Ex.P25 the conversation contains only for 158 seconds and hence the prosecution has not explained as to who had edited the contents of the document. In Ex.P8 (Article-9) report shows Ex.P25 contains total duration is 7,200.51 seconds. Pw.6 has enclosed the Cepstrum sheets along with report in page No.269 to 272 to show the details of examination and the sample voice and the questioned voice of the accused are similar and belong to the same speaker.
33 Spl.C.C.819/2018 13(j). Pw.6 in Ex.P8 report has specifically mentioned that at the time of giving Ex.P8 report, the audio authentication software was not available in the FSL, Bengaluru and therefore audio authentication of the audio recordings regarding Ex.P11 and 12 were not carried out. From the oral evidence of Pw.2 and Ex.P12 CD, Ex.P25 transcript of conversation and Ex.P8 report the prosecution is able to prove the conversation recorded when Pw.2 was traveling along with the accused in the car. The above referred evidence is sufficient in corroboration to the testimony of Pw-2 regarding the demand and acceptance of M.O.8 cash by the accused.
The recovery of M.O.8 cash 14(a). The accused in his defence has admitted and got marked Ex.D2 explanation submitted by him to Pw.10 during the post-trap proceedings. In order to appreciate the specific defence of the accused raised during the trial, it is necessary to know the contents of Ex.D2 document and it reads as under:
34 Spl.C.C.819/2018 ಶತಣ ಪತಕರಶರ ಭಣಮರಪಕ ಆದ ನರನಡ ತಮಮಲಲ ಕಳಕಳಯಸದ ನವಣಣದಸಕಣಣಳಡಳವವದಣಣನಣಸದರಣ ದನರಸಕ 23-6-2017 ರ ಸರಯಸಕರಲ ನನಗಣ ಪಣತಣಳರಡ 11 ಇ ಕಡತಕಣಸ ಸಸಬಸಧಸದಸತಣ ನಮಮ ಹರಳರ ಮರತನರಡಬಣಣಕಡ ಎಲಲದದಣರ ಎಸದಡ ನನಗಣ ದಣರವರಣ ಕರಣ ಮರಡ ನನಟ ಬಳ ಕಛಣಣರ ಎದಡರಡ ಸಲಲಲ ದಣರದಲಲರಡವ ಟಣ ಸರಕಲರ ಬಳ ಬಸದಡ ನನಟ ಜಣಣತಣ ಟಣ ಸಣಣವನಣ ಮರಡ ಮರತನರಡ ನರವವಗಳಡ ಇಷಡಕ ದವಸದಸದ ಇರಲಲಲ ನರವವಗಳಡ ನರಳಣ ಅಣಣ ತಮಮಸದರಣಲಲರಣ ನರಳಣ ಸಣಣರಕಣಣಳಡಳತಣಳಣವಣ ಎಸದಡ ರಳಸರಡತರಳರಣ. ನರಳಣ ಅಳಣಳ ಮರಡಲಡ ಬಸದರಣ ಇರಡರಳಣರ ಎಸದಡ ಕಣಣಳದದಕಣಸ ಹಹದಡ ಎಸದಡ ರಳಸರಡತರಳರಣ. ಸರ ಎಸದಡ ಹಣಣಳ ಹಣಣಣಗಬಣಣಕರದರಣ ನರನಣ ಆ ಕಡಣ ಬರಡತಣಳಣನಣ ಎಸದಡ ಪರಚಯಸಸರ ಕರರನಲಲ ಜಣಣತಣ ಹಣಣಣಗಬಣಣಕರದರಣ ಅವರಡರ ಜಣಣತಣಯಲಲ ಬಸದಡ ಆ ಕಡಣ ನರನಣ ಬರಡತಣಳಣನಣ ಎಸದಡ ಹಸಬದ ಸಣಟನಲಲ ಕಡಳತಡಕಣಣಳಡಳತರಳರಣ. ಆಗ ದರರ ಮಧಧದಲಲ ನಮಮವರ ಜಣಣತಣ ನರನಡ ಇಲಲಯಣ ಹಣಣಣಗಡತಣಳಣನಣ ಎಸದಡ ರಳಸ ಹಣಣಣಗರಡತರಳರಣ. ಹಸಬದಯಲಲ ನನಟ ಫಣಫಲಡಗಳಡ ಬರಧಗಡ ಇರಡತಳದಣ. ನರನಡ ನನಟ ಕರರಡ ಸರಣರಸಗಣ ಬಟಕದದ ಜರಗಕಣಸ ಹಣಣಣಗ ನನಟ ಫಣಫಲಡ ಬರಧಗನಡಟ ತಣಗಣದಡಕಣಣಸಡಡ ಹಣಣಣಗ ನನಟ ಕರರಡ ಸರಣರಸನಸದ ಪಡಣದಡ ಫಣಫಲದದ ನನಟ ಬರಧಗನಡಟ ಕರರಗಣ ಇರಸಕಣಣಸಡಡ ನರನಡ ಮನಣಗಣ ಹಣಣಣಗರಡತಣಳಣನಣ. ಆಗ ಗಣಣಟನ ಬಳ ಮರನಧ ಇನಣಣಲನಕಕರವರಡ ಬಸದರಗ ರಷಯ ರಳಸ ಬರಧಗನಡಟ ಪರಶಣಲಸದರಗ ನನಗಣ ಅರರಲಲದಣಯಣ ಅದರಲಲ 35 Spl.C.C.819/2018 ಹಣರರಡವವದರಗ ನಣಣಣಡ ನನಗಣ ಗರಬರರರಗ ದಡಗಡಡವರಗರಡತಣಳ. ಇದದ ರಷಯವನಡಟ ನರನಡ ತಮಗಣ ನವಣಣದಸಕಣಣಸಡರಡತಣಳಣನಣ. 14(b). The accused was examined under Section 313 of the Cr.P.C., and he has filed separate written statement of his defence. As per the contents of the said written statement the specific defence of the accused is that he never demanded any money from the informant, the application filed by Pw.2 was rejected and the survey work was not entrusted to him, on the date of incident he went to the car service station in his friend's car and Pw.2 also requested to accompany with him and without his knowledge Pw-2 had kept the money in the file. After going home he parked the car and went inside the house and after fresh-up changed dress and after an hour, the Police came, checked his car and asked him to remove the files and when he opened the file from the bag, given the money to the Police and thereafter he was subjected to undergo the chemical hand wash test. The accused has alleged that the informant in collusion with the police has deliberately trapped him in the false case.
36 Spl.C.C.819/2018 14(c). After considering the forgoing defence the immediate explanation of the accused during the trap in Ex.D2 statement and written statement filed when he was examined under Section 313 of the Cr.P.C. are inconsistent and contradicting with one another. It is true that in criminal trial the accused is having liberty to put forward inconsistent, contradicting and conflicting defence. As per the admitted case of the accused in Ex.D2 statement, when he went to the home from the service station in his car, the Police Inspector had stopped him in the gate. On verification of the bag in the car he was surprised to see the cash was found in the file without his knowledge. Therefore, the argument addressed by the accused and the contents of the written statement filed during his examination under Section 313 of Cr.P.C. that an hour after he reached the home, he was called out from the house and thereafter subjected to undergo the chemical hand wash test is totally false and unbelievable. Moreover, the defence of the accused taken during the cross-examination of the prosecution witnesses and in the course of argument that when the 37 Spl.C.C.819/2018 ACB police came, he was inside his house is also false. The contents of Ex.D-2 shows that the accused was stopped by the police inspector in the gate itself when he had arrived to his house. From the evidence of Pw.10 and other prosecution witnesses and documents it appears that the Police Inspector who was present in the house had waited till the arrival of Pw.10 and other trap team to proceed with the trap process. Therefore, the aforesaid defence of the accused is false, unbelievable and it falls to the ground.
14(d). Pw.2 in his examination-in-chief has specifically stated that after the trap team went to the house, the accused was subjected to undergo the chemical hand wash test. But during the cross- examination Pw.2 has stated that as directed by the Police, the accused himself took the cash from the bag kept in the car and handed over to the police and thereafter he was subjected to undergo the chemical hand wash test.
38 Spl.C.C.819/2018 14(e). Pw.3 in his evidence has specifically stated that Pw.4 took M.O.8 cash from Ex.P-24 file cover. During cross-examination in para-26, Pw-3 has also stated that the police directed the accused to collect the money, and thereafter he was subjected to undergo the chemical hand wash test. But Pw.4 in his evidence in clear and unambiguous terms reiterated that he took the cash from the bag. The efforts made by the learned defence counsel during the cross-examination of Pw.4 in para-17 to elicit the material contradiction has been failed. Pw.4 is the witness who took the money from Ex.P24 file from the bag kept in the car. Pw.2 and 3 were subjected to undergo the lengthy cross-examination by the seasoned lawyer. Therefore it is natural there is possibility of eliciting some minor contradictions in the evidence. Moreover, Pw.2 and 3 were cross-examined in the month of December-2019 and September-2021, whereas the trap was laid on 23.6.2017. The huge time gap between the date of incident and the date of examination before the court are also the relevant factors to be considered while appreciating the evidence. The memory capacity of 39 Spl.C.C.819/2018 the witness to recollect all the transactions during the trap changes from person to person. However in the case on hand Pw.4 being the witness, who as per the prosecution documents collected the money from the bag found in car and counted the currency notes has clearly deposed evidence without any contradiction. Hence the discrepancy elicited during the cross- examination of Pw.2 and 3 is insignificant and it can be ignored.
14(f). Ex.D2 is the explanation statement submitted by the accused during the trap. However in the said document the accused has not stated that firstly he was asked to handle the tainted currency notes and thereafter he was subjected to undergo the chemical hand wash test. The evidence of Pw.2 to 4 and 10 and Ex.P-4 trap mahazar show that after subjecting the accused to undergo the chemical hand wash test, and recovery of MO NO. 8 cash from the bag, Pw.10 had given an opportunity to the accused to submit his explanation. The failure of the accused to raise above said irregularity in 40 Spl.C.C.819/2018 Ex.D-2 explanation shows that it is an after thought and false defence. Therefore, the efforts made by the accused to contend that the Police have directed him to handle the currency notes and thereafter subjected him to undergo the chemical hand wash test is false. Hence, on this ground also the aforesaid defence of the accused cannot be believed. Ex.D-40 to 44 are the photos taken during the trap also show that Pw.4 had collected the tainted currency notes and after comparing it with the pre-trap mahazar he had handed over the same to the Pw-10.
14(g). Ex.P49 is the chemical analysis report and as per the document presence of the phenolphthalein was detected in both the right hand and left hand finger wash of the accused in M.O.3, 7 and 8 (Article No.3, 7 and 8). It is vehemently argued by the learned defence counsel that how the hand of the accused detected with phenolphthalein because there is no evidence to show when he had handled the tainted currency notes.
41 Spl.C.C.819/2018 14(h). As per the evidence of Pw.2 he had kept the cash in Ex.P24 file and the said file was on the back seat of the car. The accused in Ex.D2 explanation has admitted that he had collected the file from his friend's car and had brought those files to his house in his car. Therefore, after Pw.2 had got down from the car, before the accused arrived to his house, he had the opportunity to count the currency notes kept in the Ex.P24 file. This fact is exclusively within the knowledge of the accused. The prosecution cannot be expected to prove the said fact transpired after Pw.2 got down from the vehicle. Moreover the accused was stopped in the gate by the police when he came to the house. Pw.4 has stated that he had collected the tainted currency notes from Ex.P24 file. Therefore the defence of the accused that there was no opportunity for him to handle the tainted currency notes is unacceptable. There is very strong circumstance that during the travel the accused had counted the currency notes and thereafter kept it in the same Ex.P24 file is possible. Moreover, even in the event Ex.P49 chemical analysis report is excluded from the evidence, 42 Spl.C.C.819/2018 the prosecution has proved M.O.8 cash was recovered from the possession of the accused. It is for the accused to prove without his knowledge Pw.2 had kept the currency notes in Ex.P24 file. But he has failed to substantiate his defence.
14(i). Ex.P23 file was seized during the trap from the possession of the accused. The said file/documents are relating to the property of Smt. Kanthamma. The application available in Ex.P23 file bears the signature of Pw.2 and his 4 brothers. In Ex.P 23 file there are two form 11(c) applications dated 08-5-2017 and 13-6-2017. In the document the date of application is shown as 15- 11-2016. The signature of the accused contains in the notice dated 08-5-2017.
14(j). From the aforesaid Ex.P23 document the prosecution has proved that the application of Pw-2 for conducting the survey of the property was allotted to the accused. Hence the official work of Pw-2 was pending with the accused and he had the opportunity to extend the official favour. It appears from the document that 43 Spl.C.C.819/2018 the accused as on the date of trap had obtained the signature of Pw.2 in Ex.P23 page-59 half blank sheet. The document is having the title as the statement of Pw.2. Therefore Ex.P23 form-11(c) contains the signature of the accused is sufficient to prove work of Pw.2 was pending before him. Therefore, the argument of the defence that the prosecution has not produced any documents to show the survey work relating to Pw.2 was allotted to the accused cannot be accepted. Moreover, during the cross-examination of Pw.10, the IO, Pw.2 to 4, the informant and other witnesses the seizure of Ex.P23 file from the vehicle of the accused has not been disputed.
14(k). During cross-examination, Pw.1 has specifically denied the contention of the accused that the survey work will be randomly allotted to the Surveyors through the computers. The accused has failed to explain on the date of incident why he had taken Ex.P23 file in his car and he took the file to his house. The accused has obtained the signature of Pw-2 on Ex.P23 ( page 59) 44 Spl.C.C.819/2018 seized during trap is one of the strong circumstances to show that he was expecting bribe from Pw.2. It is also not the defence of the accused that the survey work of Pw.2 was allotted to any another surveyor.
14(l). The learned defence counsel further argued that how the cash, bag and the file found in the car in the front seat boot space during the trap mahazar. The accused himself has admitted that from the office he went to the service station in his friend's car and thereafter collected the file from the car and from the service station he came to his house in his own car. In Ex.D-2 also the accused has admitted this fact. Therefore at that time the accused had collected the file from his friends car in all probability he might have kept those files and the bag in the front seat boot space of his car.
14(m). It is further argument addressed on behalf of the accused that the bag containing Ex.P23 documents, Ex. P24 file and the cash was not seized by the IO. The bag and other files are not the subject matter of the 45 Spl.C.C.819/2018 offence. Pw.10 has seized Ex.P23 and 24 file from the possession of the accused and those documents are relevant for the case. Moreover, even in Ex.P-4 the trap mahazar in page No.7 it is specifically stated that the application, documents found in the said vehicle during the trap not concerned to the present case would be handed over to the higher officers of the accused. Therefore, failure of Pw-10 to seize the bag containing the file is not going to cause any impact on the prosecution case.
14(n). The prosecution has produced Ex.P15 CDR of the mobile phone of Pw.2 and examined Pw.7 the Nodal Officer Mr. Dileep Kotagi who had issued the said document. Ex.P16 is the certificate issued by Pw.7 under Section 65B of the Indian Evidence Act. Ex.P19 is customer application form submitted by the accused and Ex.P17 is his CDR pertaining to the mobile phone of the accused. Ex.P18 is the certificate issued by Pw.8 the Nodal officer under Section 65B of the Indian Evidence Act. Ex.P15 and 17 CDR and the evidence of Pw.7 and 8 46 Spl.C.C.819/2018 show the exchange of few phone calls in between Pw.2 and the accused. During cross-examination of Pw.7 and 8 the accused has failed to elicit any damaging admission to dislodge the documents produced by the prosecution and the oral evidence of Pw-7 and 8.
14(o). Therefore, as per the evidence of Pw.2 and Ex.P2, the prosecution has proved the accused has demanded illegal gratification of Rs.2 lakhs and agreed to receive Rs.50,000/- as advance for preparing form-11(e) sketch. The evidence of Pw.3 and 4 supports the case of the prosecution regarding the entire pre-trap and the post-trap proceedings. The accused has informed Pw.2 to accompany with him in his car as a precaution to accept the bribe during the travel in order to avoid the trap. In pursuant to the voluntary statement of the accused, M.O.8 cash was recovered from the bag and Ex.P24 file kept in the car. Ex.P23 original file pertaining to Pw.2 was found in the vehicle in the custody of the accused and this is also one of the strong circumstances to prove in order to demand illegal gratification the accused was retaining the said file.
47 Spl.C.C.819/2018 15(a). The learned advocate appearing on behalf of the accused in support of his argument has relied upon the following judgments:
(1). Criminal Appeal 2760/22 in Umesh vs State the Honorable High Court, Dharwad bench noticed that the complainant has not totally supported the prosecution case, no work was pending with the accused, nephew of the complainant Pw.23 not supported the case and he has turned hostile, no evidence to prove the demand and acceptance, seizure of the tainted currency, there was discrepancy in the chemical test examination report and Pw.9 to 21 turned hostile. In the above circumstances the Honorable High Court noticed the trial court has recorded finding on surmises and conjectures. The judgment was pronounced on 21-7-2022 and the directions in para 71 can be applied to the cases prospectively regarding the electronic records.
(2). criminal appeal No. 3644/2011 in the case of Wilson Vijaya Kumar vs The State the defence of the
48 Spl.C.C.819/2018 accused was that he was not in a position to show any official favour, there was financial transaction and the accused was under the impression that the payment was made towards repayment of the loan. In the above circumstances the Honorable High Court held the demand of bribe is not proved.
(3). In the judgment reported in 2022 LiveLaw (SC) 192 in the case of K. Shanthamma vs the State the Hon'ble Supreme Court after considering the facts of the said case held that the demand of illegal gratification by the accused is not proved by the prosecution. In the case on hand there is no inconsistency in the evidence regarding the demand and acceptance. Hence the ratio of the judgment is not applicable to the facts of the case.
15(b). The Hon'ble Supreme court in the judgment relied by the learned Special Public Prosecutor reported in (1995) 3 SCC 567 M.W. Mouhiuddin vs State of Maharastra held that once the complainant parted with the tainted money and the same comes under the control 49 Spl.C.C.819/2018 and possession of the accused, the requirement is satisfied and the only inference to be drawn is that the accused has obtained the pecuniary advantage. In the absence of satisfactory explanation from the accused regarding the currency notes obtained by him the irresistible inference must follow that he has voluntarily accepted the amount. In another judgment relied by the prosecution reported in (1980)2 SCC 390 in Hazari Lal vs State the Hon'ble Supreme Court held that the passing of money to the possession of the accused can be proved by direct as well as circumstantial evidence. In the case on hand the passing of money is proved from the evidence of Pw-2 and from the circumstantial evidence. Further it was recovered from his possession.
15(c). In the recent constitutional bench judgment of the Hon'ble Supreme Court relied by the prosecution reported in 2022 SCC OnLine SC 1724 in the case of Mr. Neeraj Dutta Vs. State, in para-68 held that in order to bring home the guilt of the accused the prosecution has to prove the fact of demand and acceptance of illegal 50 Spl.C.C.819/2018 gratification either by direct evidence or by circumstantial evidence. The demand by the public servant and the bribe giver tenders the demanded illegal gratification has been received by the public servant has to be proved by the prosecution. When the foundational facts are proved, the presumption of facts by way of inference may be drawn. On proof of the fact in issue, Section 20 mandates the court to raise the legal presumption that the illegal gratification was received for the purpose of a motive or reward. The accused is required to show that the gratification was legally due to him or it is lawful. The burden resting on the accused would not be as light where a presumption is raised under Section 114 of the Indian Evidence Act. The reasonable and probable explanation offered is not sufficient. The presumption has to be rebutted by proof and not by plausible explanation. In the case on hand from the documentary and oral evidence of Pw-2 to 4, and 10 the demand and acceptance of the illegal gratification of Rs. 50,000/- by the accused is proved.
51 Spl.C.C.819/2018 The Presumption of Law 16(a). As per Section 20 of the PC Act, there is a statutory presumption wherein if it is proved that a public servant accused of an offence has accepted or obtained for himself or for any other person any undue advantage it shall be presumed, unless the contrary is proved, that he accepted or obtained that gratification as a motive or reward for performing or to cause performance of a public duty either by himself or by any other public servant.
16(b). The presumption under Section 20 is obligatory and it is a presumption of law and it is an obligation on the court to apply in every case comes under Section 7 of the PC Act. In the present case it is proved from the evidence that the accused had obtained MO.8 cash from Pw-2. Therefore on application of the above principle to the facts of the case on hand, from the proved facts, this court proceeds to legitimately draw the presumption that the accused had demanded and obtained Rs.50,000/- illegal gratification from Pw-2.
52 Spl.C.C.819/2018 Accordingly, the presumption as prescribed under law is drawn against the accused. The accused has miserably failed to rebut the presumption appearing against him. The explanation of the accused in Ex.D-2 is that without his knowledge Pw-2 kept the tainted currency notes in Ex.P-24 file is proved to be false. On the other hand it is proved from the evidence and circumstances that the accused asked Pw-2 to accompany with him in the car in order to collect the bribe amount. Hence this court arrived to the conclusion that the prosecution has proved the accused has obtained the illegal gratification as motive for the performance of public duty i.e. to conduct the survey of the land.
17(a). The evidence placed on record by the prosecution is consistent with the guilt of the accused and inconsistent with his innocence. The minor discrepancies and contradictions appearing in the evidence which do not affect the merits of the case requires to be ignored. The courts do not merely discharge the function to ensure that no innocent man is 53 Spl.C.C.819/2018 punished, but also that a guilty man does not escape and both these aspects are the duty and the responsibility of the court.
17(b). The charges proved against the accused demanding and obtaining the illegal gratification constitutes an offence both under Section 7 and 13(1)
(d) of the P.C. Act. There is evidence to the effect that the accused has obtained the pecuniary advantage from Pw- 2 by corrupt and illegal means by abusing his position as the surveyor. Therefore the ingredients to bring home the act of the accused within the ambit of Section 7, and 13(1)(d) of the PC Act are fulfilled. 17(c). The defence of the accused raised during the trial and the explanation in Ex.D2 statement that he is unaware of the fact Pw.2 had kept the tainted currency notes inside the file in the car cannot be accepted. During the cross-examination of Pw.2 and Pw10, the accused has failed to make out the informant was having enmity to implicate the accused in false prosecution. Therefore, the defence of the accused that he was 54 Spl.C.C.819/2018 unaware of the fact that Pw.2 had kept currency notes in the file is entirely false. In the absence of demand of bribe, there was no necessity or occasion for Pw.2 to lodge Ex.P2 first information statement against the accused at the earliest point of time. Therefore the theory of the accused is innocent or he has been falsely implicated are beyond reasonable doubt is ruled out. In the above circumstances the prosecution from the foundational facts, the oral, documentary and circumstantial evidence beyond reasonable doubts has proved that the accused has demanded and accepted M.O.8 illegal gratification of Rs.50,000/- from Pw.2. After considering the aforesaid evidence this court arrived to the definite conclusion that the prosecution has proved the charges framed against the accused under Sections 7, and 13(1)(d) of the PC Act. In the result, points No.2 and 3 are answered in the affirmative.
18. Point No.4 :- In view of the above findings on point No.2 and 3, the accused is liable to be convicted of the offence under Sections 7, and 13(1)(d) of the PC Act. Accordingly this court proceed to pass the following:
55 Spl.C.C.819/2018 ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973, the accused is convicted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bond and surety bond executed by the offender and his surety are hereby stand discharged.
M.O. No.8 cash of Rs.50,000/- (Rupees fifty thousand) is ordered to be confiscated to the State after expiry of the appeal period. Office is directed to return M.O. No.1. metal seal to the Karnataka Lokayukta Police Bengaluru Urban.
Office is directed to destroy M.O. No. 2 to 6 sodium carbonate solution bottles, M.O. No.7 cotton swab as they are worthless after completion of the appeal period.
(Dictated to the judgment writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open Court on this the 20 th day of February, 2023) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
56 Spl.C.C.819/2018 21.2.2023 The judgment is pronounced by finding that the offender is guilty of the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.
2. Heard the offender in person and the learned Ms. RNH advocate appearing for the offender on the quantum of sentence proposed to be imposed against him. The learned defence counsel has submitted that the offender recently met with a road traffic accident, sustained fracture of his leg. He is having wife, children and aged parents to look after and they are depending upon him for their livelihood. Hence prayed for the lenient approach while passing the sentence.
3. In the case of The State Vs. Parthiban reported in 2006 Crl.L.J. 4772 the Hon'ble Supreme Court held that demanding and accepting the illegal gratification constitutes an offence both under Section 7 and 13(1)(d) of the PC Act and the offence being single transaction but falling under two different sections, the offender cannot 57 Spl.C.C.819/2018 be liable for double penalty. The court further held that the benefit of Probation of Offenders Act cannot be extended for the offenders under the PC Act.
4. In the decision reported in AIR 2015 SC 2678 in the case of Shanthilal Meena vs State of NCT Delhi, the Hon'ble Supreme Court held that the punishment for the offences under the PC Act, there is no scope for reforming of the convicted public servant.
5. As per Amended Act No.1 of 2014, which came into effect from 16-01-2014, the offence under section 7 of the PC Act was punishable with imprisonment for seven years and the minimum sentence of not less than three years. Similarly the offence under Section 13 (2) of the PC Act was punishable with imprisonment for ten years and the minimum punishment of not less than four years.
6. In the light of the facts and circumstances of the case and the offender was working as the surveyor, the quantum of sentence to be imposed has to be 58 Spl.C.C.819/2018 determined. The offender is aged 49 years. Pw-2 the informant had applied for obtaining form 11(e) sketch of the property appearing in the name of his mother for effecting partition in between himself and his brothers. The offender who is working as the surveyor demanded Rs.2.00 lakhs as the bribe and directed Pw-2 to make payment of Rs. 50,000/- as the advance amount. Hence he should be punished by apposite sentence of imprisonment, after taking into consideration of the age and other mitigating factors.
7. In the judgment reported in (2006) 8 SCC 693 State of M.P. Vs. Shambhu Dayal Nagar, the Hon'ble Supreme Court expressed its concern against passing of lenient sentence on conviction of public servants under the P.C Act. In AIR 2013 SC 1682 Niranjan Hemchandra Sashittal case the Apex court held that the gravity of the offence under PC Act is not judged on the measure of quantum of bribe, as corruption is not to be justified in degree.
59 Spl.C.C.819/2018
8. By virtue of 2018 amendment to the PC Act, the offence under Section 13(1)(d) is deleted from the statute book and the said offence is incorporated in Section 7 of the Act. In the present case on hand, the incident occurred on 23-6-2017 prior to the coming into force of the amended P.C. Act. As on the date of offence Section 7 of the PC Act was punishable with imprisonment for seven years and Section 13(1)(d) was punishable with imprisonment for 10 years. Therefore after the amendment the demand and acceptance of the bribe by the public servant is punishable only under Section 7 of the Act.
9. In this regard, whether the accused is entitled to avail the benefit of the aforesaid amendment it is apposite to refer the judgment reported in (2020) 10 SCC 763 in the case of Trilokchand Vs. State of Himachal Pradesh. In the said decision the Hon'ble Supreme Court held that if the amendment is beneficial to the accused it could be applied with respect to earlier cases as well as which are pending in the Court. If the amendment of the 60 Spl.C.C.819/2018 act reduces the punishment for an offence, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigor of law. The aforesaid ratio laid down by the Hon'ble Supreme Court is applicable to the facts of the case on hand.
10. The minimum punishment prescribed for the offence under Section 7 of the PC Act is imprisonment for 3 years and the maximum punishment is for 7 years. After considering the above aspects this Court finds that it is just and proper to strike a balance between the maximum and minimum punishment prescribed under Section 7 of the PC Act. The sentence to be imposed on the offender is having far reaching consequences and an impact on the remaining service of the offender as well as on the other like minded public servants who are involved in corruption. After considering the age of the offender it is just and proper to sentence him to undergo rigorous imprisonment for five years. As per Section 16 of 61 Spl.C.C.819/2018 the PC Act while fixing fine the court has to take into consideration the amount the offender has obtained by committing the offence. In view of extending the benefit of the 2018 amendment of the PC Act, this court is not inclined to sentence the offender under Section 13(1)
(d) read with 13(2) of the PC Act. Accordingly, proceed to pass the following:
ORDER The offender is sentenced to undergo rigorous imprisonment of five years and also liable to pay fine of Rs.1,00,000/- (Rupees one lakh) for the offence under Section 7 of the PC Act. In default of payment of fine, he shall undergo simple imprisonment for further period two months.
Acting under section 428 of the Cr.P.C the period of detention undergone by the offender during investigation from 24-6-2017 to 04-7-2017 shall be set off as against the sentence of imprisonment.
Free copy of the judgment be furnished to the offender forthwith.
62 Spl.C.C.819/2018 (Dictated to the judgment-writer directly on computer, typed by him, corrected, signed and then pronounced by me in the open Court on this the 21 st day of February, 2023.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Munish Mouthgil PW 2 : Ravindra P.K. PW 3 : Vinay PW 4 : S.Murali PW 5 : K.C.Lakshminarayana PW 6 : Chandrika G. PW 7 : Dilip Kotagi PW 8 : Stanley Agnelo PW 9 : Balakrishna C. PW 10 : Manjunatha K.R.
List of documents marked on behalf of prosecution:
Ex P1 : Sanction order Ex P1(a) : Signature of PW 1 Ex P2 : Complaint Ex P2(a) : Signature of PW 2 Ex P3 : Pre-trap mahazar
63 Spl.C.C.819/2018 Ex P3(a) : Signature of PW 2 Ex P3(b) : Signature of PW 3 Ex P3(c) : Signature of PW 4 Ex P3(d) : Signature of PW 10 Ex P4 : Trap mahazar Ex P4(a) : Signature of PW 2 Ex P4(b) : Signature of PW 3 Ex P4(c) : Signature of PW 4 Ex P4(d) : Signature of PW 10 Ex P5 : Voice sample transcription Ex P5(a) : Signature of PW 2 Ex P6 : Currency details sheet Ex P6(a) : Signature of PW 3 Ex P6(b) : Signature of PW 4 (Pre-trap) Ex P6(c) : Signature of PW 4 (Trap) Ex P7 : FIR Ex P8 : FSL report given by Pw.6 Ex P8(a) : Signature of PW 6 Ex P9 : Sample seal impression Ex P10 : Cepstral plots Ex P11 : CD containing conversation between complainant and accused (Article-1) Ex P11(a) : Cover Ex P12 : CD containing conversation between complainant and accused (Article-9) Ex P12(a) : Cover Ex P13 : CD containing sample voice of the accused Ex P13(a) : Cover Ex P14 : CD containing sample voice of the complainant 64 Spl.C.C.819/2018 Ex P15 : Call data records given by BSNL Ex P16 : Certificate u/S.65-B of Indian Evidence Act given by Pw.7 Ex P17 : Call data records given by Bharati Airtel Ltd. Ex P18 : Certificate u/S.65-B of Indian Evidence Act given by Pw.8 Ex P19 : Customer application form of Airtel Ex P20 : Letter dt.23.6.2017 of Pw.10 Ex P21 : Official memorandum dtd.23.6.2017 of Addl.D.C. deputing 2 persons.
Ex P22 : Transcription of voice speech contained in Ex.P11 Ex P23 : Attested copy of file pertaining to accused Ex P24 : Pink colour wrapper file of tainted money Ex P25 : Transcription of Ex.P12 CD Ex P26 : Transcription of sample voice of accused Ex.P27 : Photos to Ex.P44 Ex P45 : Certificate u/S.65-B of Indian Evidence Act given by Cw.17/Jayaprakash Ex P46 : Certificate u/S.65-B of Indian Evidence Act given by complainant Ex P47 : Certificate u/S.65-B of Indian Evidence Act given by Pw.10 Ex P48 : Copy of attendance register extract 65 Spl.C.C.819/2018 Ex P49 : Chemical examiner's report Ex P50 : Attested copy of given by BSNL Ex P51 : Attested copy of documents relating to duties and responsibilities of accused Ex P52 : Covering letter with engineer sketch Ex P53 : Sample seal impression List of material objects marked on behalf of the prosecution:
MO 1 : "B" Metal Seal MO 2: Bottle containing sodium carbonate solution (Article-II) MO 3: Bottle containing hand wash of witness-2 (Art.III) MO 4: Bottle containing sodium carbonate solution (at the time of trap) (Article-4) MO 5: Bottle containing right hand wash of the accused (Article-5) MO 6: Bottle containing left hand wash of the accused (Article-6) MO 7 : Cotton swab MO.7(a) : Cover MO 8: Cash of Rs.50,000/- (Article-7) MO.8(a) : Cover List of witnesses examined on behalf of defence side:
- Nil -
66 Spl.C.C.819/2018 List of document marked on behalf of defence side Ex.D1 - Portion of statement of Pw.13 Ex.D2 - Explanation of accused XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
67 Spl.C.C.819/2018
Judgment pronounced in the open
Court vide separate Judgment. The
operative portion of the Judgment reads as under:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973, the accused is convicted of the offences punishable under Sections 7 and 13(1)
(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bond and surety bond executed by the offender and his surety are hereby stand discharged.
M.O. No.8 cash of Rs.50,000/- (Rupees fifty thousand) is ordered to
be confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to the Karnataka Lokayukta Police Bengaluru Urban.
68 Spl.C.C.819/2018 Office is directed to destroy M.O. No. 2 to 6 sodium carbonate solution bottles, M.O. No.7 cotton swab as they are worthless after completion of the appeal period.
(LAKSHMINARAYANA BHAT K.), XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
69 Spl.C.C.819/2018 Orders on sentence pronounced in the open Court.
ORDER The offender is sentenced to undergo rigorous imprisonment of five years and also liable to pay fine of Rs.1,00,000/- (Rupees one lakh) for the offence under Section 7 of the PC Act.
In default of payment of fine, he shall undergo simple imprisonment for further period two months.
Acting under section 428 of the Cr.P.C the period of detention undergone by the offender during investigation from 24-6-2017 to 04-7-2017 shall be set off as against the sentence of imprisonment.
Free copy of the judgment be furnished to the offender forthwith.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.