Bangalore District Court
The State Of Karnataka vs Mr.Ashoka on 4 March, 2017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT 1988, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 4th MARCH 2017.
Spl. C.C.No. 34/2011
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing, Bengaluru.
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: Mr.Ashoka, Aged 48 years,
S/o C.Mari,
Assistant Revenue Inspector,
BBMP, Queens Road, Bengaluru,
R/o No.33/2, 'B' Type,
Robertson Road, Frazer Town,
Bengaluru -05
Also R/a No.34, 120, Giri Farms,
Mysore Road, Bengaluru 80.
(Rep by V.A.R.S. Associates, Advocate)
******
2 Spl. C.C. No.34/2011
1. Nature of Offence: Offence punishable under
Sec.7, 13(1)(d)R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 23-11-2010.
of offence:
3. Date of First Information 23-11-2010.
Report:
4. Date of Arrest: 23-11-2010.
5. Date of Commencement 05-01-2015.
Of recording of evidence:
6. Date of Closing of evidence: 20-09-2016.
7. Date of Pronouncement of 04-03-2017.
Judgment.
8. Result of the case: Accused is convicted
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City, has charge sheeted the above named accused with an allegations that the accused has committed the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
2. The case of the prosecution, in brief is as follows:
The Accused, being a public servant, was working as Assistant Revenue Officer in the BBMP office at Queens Road, 3 Spl. C.C. No.34/2011 Bengaluru. One Balaraj has lodged a complaint before the Lokayuktha Police on 23-11-2010 by alleging that when he has approached the accused for getting the NOC for registration of the quarters allotted to his father, accused demanded the bribe amount from him and received a sum of Rs.5,000/- from him. It was further alleged in the complaint that accused has conducted the spot inspection and demanded further bribe amount of Rs.50,000/- from him. Since the complainant has not ready to pay the same, he has approached the Lokayuktha Police with the complaint. On the basis of the said complaint, Lokayuktha Police have registered the case in Cr.No.55/2010. The Investigating Officer has secured the witnesses and conducted the pre trap proceedings in their presence and drawn the pre trap mahazar. On 23-11-2010 at about 1.15 p.m. this accused was trapped by the Lokayuktha Police, when he was found receiving the bribe amount of Rs.25,000/- from the complainant in his office at Queens Road, Bengaluru. The Lokayuktha Police have conducted the trap proceedings and drawn the trap mahazar. The accused was arrested and produced before the court. The Investigating Officer has continued the further investigation, recorded the statement of witnesses, secured the documents and also chemical analysis report relating to the seized material objects and after completion of the investigation, submitted 4 Spl. C.C. No.34/2011 the final report before the sanctioning authority. After obtaining the sanction, Lokayuktha Police have filed the charge sheet before this court, by alleging that the accused has committed the offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
3. This court took the cognizance and accused produced before this court was enlarged on bail. The accused was provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charges and having found the prima facie materials, framed the charges against the accused for the offence punishable under Sec.7 and 13(1) (d) R/w Sec.13(2) of Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 6 witnesses as PW.1 to 6 and got marked Ex.P-1 to P-21 documents and MO.1 to 17 material objects.
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against him. The accused has not let in any defence evidence on his behalf.
6. I have heard the arguments of both the parties.
5 Spl. C.C. No.34/2011
7. The points, that arose for my consideration are:
1. Whether there is valid sanction to prosecute the accused?
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Assistant Revenue Officer in BBMP Office at Queens Road, Bengaluru, for the purpose of registering the Corporation house No.11 at Benson Town, which was allotted to the complainant's father, demanded the illegal gratification of RS.50,000/- from the complainant and on 23-11-2010, at about 1-15 PM in his office at Queens Road, accused demanded and accepted Rs.25,000/-
from the complainant as an illegal gratification, other than legal remuneration, so as to render the official favour to him and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, Assistant Revenue Officer in BBMP Office at Queens Road, Bengaluru, on 23-11-2010, abused his official position by illegal means and as a public servant demanded and accepted the illegal gratification of Rs.25,000/-
from the complainant against public interest and there by committed criminal misconduct and there by committed the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988?
4. What order?
6 Spl. C.C. No.34/2011
8. My answers for the above point is in the followings because of my below discussed reasons.
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.
REASONS
POINT No.1:
9. This point is relating to the sanction obtained to prosecute the accused and validity of said sanction. As the accused is a public servant working as Assistant Revenue Officer in BBMP Bengaluru and the allegations against him was about he committing the offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, obtaining the valid sanction from the competent authority is a mandatory and statutory requirement to prosecute the accused. Before proceedings to consider the question relating to validity of sanction, let me first discuss the evidence let-in by the prosecution before this court.
10. CW.1 J. Balaraj was examined as PW.1 and during his evidence, he deposed that his father was allotted with the Quarters No.11, Benson Town, Bengaluru, by BBMP and they filed an application 7 Spl. C.C. No.34/2011 for registration of the said quarters. PW.1 further deposed that, when he met the accused for the said work, he demanded the bribe amount of Rs.5,000/- and accordingly he paid the same. PW.1 further deposed that, accused has conducted the spot inspection and thereafter when he met the accused, he demanded the further bribe amount of Rs.50,000/- and he refused to pay the same and lodged the complaint before Lokayuktha Police as per Ex.P.1. PW.1 further deposed that, he has recorded the conversation between him and the accused in his mobile phone and transmitted the same into CD and produced the same before the Lokayuktha Police, while lodging the complaint. PW.1 further deposed about Lokayuktha Police secured CW.3 and 4 as witnesses and conducted the pre trap proceedings in their presence and drawn the pre trap mahazar. PW.1 further deposed that, a button camera was given to him to record the conversation between him and the accused, while approaching the accused and pre trap mahazar was drawn as per Ex.P.3. PW.1 further deposed that, thereafter they went towards the office of accused at Queens road and their vehicle was stopped in front of the Cubbon Park, Traffic Police Station and he along with CW.3 proceeded inside the office. PW.1 further deposed that, he wished the accused and told that he has brought Rs.25,000/- and accused asked him to keep the same on his table and thereafter he 8 Spl. C.C. No.34/2011 gave the signal to the Lokayuktha Police. PW.1 further deposed that thereafter the Lokayuktha Police have entered office of accused, hand wash of accused was conducted in sodium carbonate solution and same turned into pink colour. PW.1 further deposed that Lokayuktha Police have seized the tainted currency notes of Rs.25,000/-, which was found on his table drawer and thereafter they came to the Lokayuktha Police station and trap mahazar was drawn as per Ex.P.4.
11. CW.2 P.S.Ranganath was examined before the court as PW.2 and during his evidence, he deposed that on 23-11-2010 he prepared the sodium carbonate solution in the office of CW.19 and sample was obtained in a bottle and thereafter finger wash of CW.4 was made in the said solution, which turned into pink colour and same was seized. PW.2 further deposed that, pre-trap mahazar was drawn in the office of CW.19 and thereafter they went to the office of accused at Queens Road, Bengaluru and PW.1 went inside the office and he entered the first floor of the building and within one minute, PW.1 came out and entered that room. PW.2 further deposed that, two minutes later, PW.1 came out of the room, proceeded towards the ground floor and entered the room of the accused. PW.2 further deposed that he saw PW.1 keeping the currency notes on the table of the accused and he heard the voice of the accused stating that PW.1 has not met on 9 Spl. C.C. No.34/2011 Thursday. PW.2 further deposed that PW.1 proceeded towards the ground floor of the building and thereafter Lokayuktha Police staff entered the room of accused and PW.1 pointed out the accused and accused took out the tainted currency notes from the table drawer and thereafter a trap mahazar was drawn by CW.19.
12. CW.4 Sheik Mohammad was examined as PW.3 and during his evidence, he has deposed that on 23-11-2010, CW.19 came to their office and requested their CAO to depute officials for conducting the trap and accordingly, he was deputed to assist the Lokayuktha Police to conduct the trap. PW.3 further deposed that on the same day he appeared before CW.19 and complainant Balaraj was present and in their presence, CW.19 explained to them regarding this accused demanding the bribe amount and the procedures, which they have to follow while trapping. PW.3 further deposed about Lokayuktha Police conducting the pre trap proceedings in their presence and drawing the pre trap mahazar. PW.3 further deposed that thereafter they went towards the office of accused at Pulikeshinagar and CW.1 and 3 went inside the office. PW.3 further deposed that thereafter CW.19 received the phone message about accused receiving the bribe amount and immediately they entered inside the office of accused and CW.19 recovered the amount and followed the procedure of trap and drawn 10 Spl. C.C. No.34/2011 the mahazar. PW.3 further deposed that hand wash of the accused was conducted in the chemical and it turned into reddish colour. PW.3 further deposed that an amount of Rs.43,000/- was found with the accused and same was recovered. PW.3 further deposed that bribe amount of Rs.25,000/- was found on the table of the accused and same was seized. PW.3 further deposed that all these proceedings were conducted at the time of trap and script of the recordings were made as per Ex.P.6. PW.3 further deposed that trap mahazar was drawn as per Ex.P.4 and seal used to seize the articles were handed over to him by obtaining an acknowledgement from him as per Ex.P.7.
13. CW.11 Siddaiah was examined as PW.4 and during his evidence, he deposed that on 15-12-2010, he received a requisition from ADGP, Lokayuktha seeking sanction to prosecute the accused and along with the said requisition, they have sent the documents like mahazar, complaint, FIR and statement of witnesses. PW.4 further deposed that he has gone through the report and documents and found prima facie that there was demand of bribe for execution of the sale deed, which was allotted in favour of the complainant and issued the sanction order as per Ex.P.8. PW.4 further deposed that since the accused is working as a Manager in the office of Assistant Revenue Office and he was in charge of Revenue Officer of Pulikeshi Nagara, 11 Spl. C.C. No.34/2011 BBMP office, he is competent person to accord sanction to prosecute the accused.
14. CW.3 K.R.Basavaraju was examined as PW.5 and during his evidence, he deposed that as per the instruction of their Administrative Officer, he appeared before the Lokayuktha Police to act as a witness on 23-11-2010 and one Balaraj, who was found in the office of CW.19, was introduced to him and it was told that he has lodged the complaint. PW.5 further deposed that Lokayuktha Police have conducted the pre trap proceedings in their presence and drawn the pre trap mahazar. PW.5 further deposed that thereafter they went near the BBMP office at Queens Road, Bengaluru and CW.1 went inside the office of accused. PW.5 further deposed that after receiving the signal from the complainant, he entered the office of accused and envelope containing the currency notes were found in between the file on the table of accused. PW.5 further deposed that an amount of Rs.7,000/-, Rs.4,000/- and Rs.5,000/- were also found in his almairah and cupboard and Rs.21,000/- was found in his pocket and same were seized. PW.5 further deposed about Lokayuktha Police conducting the hand wash of accused in the solution and same turned into pink colour. PW.5 further deposed that Lokayuktha Police have recovered the Xerox copy of the file relating to the complainant and thereafter 12 Spl. C.C. No.34/2011 they came back to office of CW.19 and trap mahazar was drawn as per Ex.P.4. PW.5 further deposed that the conversation in the CD was transcripted as per Ex.P.5.
15. CW.19-Krishnappa was examined as PW.6 and he deposed that on 23-11-2010, at about 10.30 p.m., CW.1 appeared before him and lodged a complaint as per Ex.P.1, on the basis of which, he has registered the FIR as per Ex.P.9. PW.6 further deposed that, by issuing the requisition letters as per Ex.P.10 and 11, he has secured CW.3 and 4 as witnesses and he introduced the complainant to them and gave the copy of the complaint to CW.3 and 4 and after reading the same, CW.3 and 4 have enquired the complainant about the correctness of the complaint and complainant has admitted the same. PW.6 further deposed that he conducted the pre trap proceedings in the presence of CW.1, 3 and 4 and drawn the pre trap mahazar as per Ex.P.3. PW.6 further deposed that he instructed the complainant to hand over the tainted currency notes to the accused, when demanded by him and then give the signal to them by wiping his face. PW.6 further deposed that he handed over a button camera to CW.1 and asked him to record the conversation between him and the accused. PW.6 further deposed that thereafter they went near the office of accused and CW.1 and 3 were sent inside the office and few minutes later, CW.1 came out and 13 Spl. C.C. No.34/2011 gave the signal by wiping his face and thereafter they entered the office of accused. PW.6 further deposed that CW.1 shown the accused to them and said that he has received the tainted currency notes of Rs.25,000/- from him. PW.6 further deposed that hand wash of the accused was conducted in sodium carbonate solution and same turned into pink colour and it was seized. PW.6 further deposed that apart from tainted currency notes of Rs.25,000/-, other amount to the tune of Rs.43,015/-, which was found with the accused, were also seized. PW.6 further deposed that thereafter they came back to his office and file relating to the complainant was seized as per Ex.P.12 and attendance register was also seized as per Ex.P.13. PW.6 further deposed that the recordings in the button camera was shown before CW.5 and 6, who identified the accused and his voice and said recordings was transmitted into CD and same was seized. PW.6 further deposed that accused has given his statement as per Ex.P.14 and CW.5 and 6 have given the report as per Ex.P.15 and 16. PW.6 further deposed that he has drawn the trap mahazar as per Ex.P.4. PW.6 further deposed about he continuing the investigation and recording the statements of witnesses and receiving the service particulars of the accused. PW.6 further deposed that he received the sketch as per Ex.P.19 and 20 and chemical analysis report as per Ex.P.21. PW.6 14 Spl. C.C. No.34/2011 further deposed that, after receiving the sanction order, he has filed the charge sheet before this court.
16. The accused has not let in any defence evidence on his behalf. There is no dispute that the accused is a public servant, working as Assistant Revenue Officer in BBMP. Under Sec.19 of the Prevention of Corruption Act 1988, obtaining the prior sanction to prosecute the accused is an essential requirement, since he is a public servant and charged with the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
17. In order to prove the sanction and validity of sanction, prosecution examined CW.11, Sri Siddaiah as PW.4 and he was the commissioner of Bruhath Bengaluru Mahanagara Palike, when the requisition for issuing the sanction was given. PW.4 deposed about they receiving the requisition from the ADGP, Lokayuktha, along with the final report and entire case papers, with a request to accord the sanction to prosecute the accused. PW.4 further deposed that he has perused all those papers and found prima facie case and satisfied about the grounds to accord sanction and accordingly issued the sanction order as per Ex.P.8.
15 Spl. C.C. No.34/2011
18. The evidence of PW.4 was not seriously challenged by the accused by cross examining him, in disputing the authority of PW.4 to issue sanction and application of mind by him before issuing the sanction. In-fact, there is no serious dispute as such regarding the sanction and validity of sanction accorded to prosecute the accused, as no arguments were canvassed by the learned counsel for the accused in respect of sanction and validity of sanction accorded by PW.4 to prosecute the accused.
19. There is no serious dispute regarding the authority of CW.11/PW.4 to issue the sanction to prosecute the accused, being the Commissioner of BBMP. There is also no dispute regarding application of mind by the sanctioning authority before according the sanction to prosecute the accused. In-fact, there was prima facie case against the accused to file the charge sheet. Having found the same, this court has taken the cognizance and registered this case. This court, having found the prima facie case, also proceeded to frame the charge. Under such circumstances, one cannot say that the sanctioning authority has not applied its mind before issuing the sanction. Considering all these aspects, I hold that there is valid sanction to prosecute the accused. Accordingly, I answer the point No.1 in the Affirmative. 16 Spl. C.C. No.34/2011
POINT No.2 & 3:
20. To avoid the repetition of my discussion on facts, I have taken these two points together for determination. This accused was charged for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, with an allegation that the accused, being a public servant, working as Assistant Revenue Inspector in BBMP, has demanded the bribe amount of Rs.5,000/- from the complainant for registering the house allotted the complainant's father and accused was trapped, while he was receiving the bribe amount of Rs.5,000/- from the complainant on 23-11-2010.
21. In order to bring home the guilt of the accused for the offence under Sec. 7 and 13 of the Prevention of Corruption Act 1988, prosecution has to establish mainly two factors. Firstly, prosecution has to prove that there is demand and acceptance of the bribe amount by the accused. Secondly, prosecution has to establish that, said demand and acceptance of the bribe amount must be in respect of an official act to be performed by the accused. Only if the prosecution able to establish these two factors, one can say that prosecution has discharged its initial burden and entitled to get the benefit of presumption in their favour.
17 Spl. C.C. No.34/2011
22. It is true that the prosecution has got benefit of presumption, as provided under Sec. 20 of the Prevention of Corruption Act 1988, in respect of the commission of offence under Sec. 7 of the said Act. However, benefit of presumption can be extended in favour of the prosecution and onus can be shifted upon the accused, only when the prosecution discharges the initial burden of proving that the accused has demanded and accepted the illegal gratification for doing any official act in favour of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2010(3) KCCR 1851 (State of Karnataka v/s M. Gopala Krishna and Others). It was held by the Hon'ble High Court of Karnataka in the above decision that, even to draw the presumption under Sec.20 of the Prevention of Corruption Act 1988, prosecution is required to prove that there was demand and acceptance of the illegal gratification. It was further held in the above decision that, if the demand and acceptance for the purpose of doing official favour is proved by the prosecution beyond reasonable doubt, burden may shift on the accused. However, when the initial burden of proving the demand and acceptance is not established, drawing the presumption under 18 Spl. C.C. No.34/2011 Sec.20 of the Prevention of Corruption Act 1988 would not arise.
23. Same view was expressed by the Hon'ble Supreme Court in a decision reported in 1997 (1) Crimes 186 (Supreme Court) (Mehaboob Khan Patan V/s State of Maharastra) 2010 (2) SCC (Cri) 385 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede), 2014 AIR SCW 4924 (Satwir Singh V/s State of Delhi) and 2016 (1) KCCR 815 (R.Srinivasan and another V/s State by Lokayuktha Police). So, in view of Sec.20 of the Prevention of Corruption Act 1988 and the ratio laid down in the above referred decisions, it is incumbent on the part of the prosecution to discharge the initial burden of proving the demand and acceptance of the bribe amount by the accused, for doing official act in favour of the complainant, so as to get benefit of presumption in their favour and also to shift the onus on the accused to rebut and displace the presumption.
24. As I said earlier, one of the essential requirements to constitute the offences under Sec. 7 of the Prevention of Corruption Act, 1988 is pendency of official work before the accused in respect of the complainant. In this regard, it is necessary to refer a decision of 19 Spl. C.C. No.34/2011 Hon'ble High Court of Karnataka reported in 2012(1) KCCR 414 (R. Malini V/s State of Karnataka). It was held in the above decision that, when no work is pending before the accused at the time of lodging the complaint, demanding the bribe amount for doing any work does not arise.
25. The Hon'ble High Court of Karnataka has reiterated the same view in a recent decision reported in 2016 (1) KCCR 815 (R. Srinivasan and another V/s State by Lokayuktha Police, Bengaluru). It was held by the Hon'ble High Court of Karnataka in the above decision that the scope of demanding the bribe amount by a public servant would arise, if there is a possibility of doing any official act in favour of the complainant.
26. Same view was expressed by the Hon'ble Supreme Court in one of its decision reported in AIR 2014 SCW 2080 (B. Jayaraj V/s State of A.P.). So in view of the ratio laid down in the above decisions and also Sec. 7 of the Prevention of Corruption Act 1988, which mandates that receipt of bribe amount should be for doing or for not doing any official act, prosecution has to prove before this court that some official work has to be done by the accused, relating to the complainant, so as to demand the illegal gratification from him. 20 Spl. C.C. No.34/2011
27. As per the complaint allegations and according to the prosecution, demand of bribe made by the accused is for issuing the NOC for execution of the sale deed in favour of the complainant's father, who was allotted with a property at Benson Town, during the year 1999. According to the complainant, when he approached the office of BBMP, Pulikeshi Nagar, Queens Road, Bengaluru for registration of the sale deed, this accused, being the Assistant Revenue Officer, has demanded the bribe amount. On the other hand, it is the contention of the accused before this court that, being Assistant Revenue Officer of BBMP, he is not a authorized officer to execute the sale deed in favour of the complainant's father. Therefore, there is no official work relating to the complainant was pending before him. Hence, it was contended by the accused that, question of he demanding the bribe amount and accepting the same from the complainant would not arise.
28. In this regard, learned counsel for the accused has drawn the attention of this court to the evidence of sanctioning authority, who was examined as PW.4. During the course of cross-examination of CW.11/PW.4, when it was suggested to him that the Assistant Revenue Officer of the BBMP is not authorized to execute the sale 21 Spl. C.C. No.34/2011 deed, PW.4 said that the authority to execute the sale deed is always with the commissioner of BBMP and he can delegate the same to any other officials. PW.4 further deposed that, as per the duties and responsibilities of the Assistant Revenue Officer, which are shown in page 40(c) of the charge sheet, this accused was not authorized with the duty of executing the sale deed. It is on the basis of these statements given by PW.4, it was argued on behalf of the accused that no official work relating to the complainant i.e. execution of sale deed in favour of the complainant's father, vest with the accused. Therefore, question of he demanding and accepting the bribe amount from the complainant would not arise.
29. During the course of investigation, Lokayuktha Police have secured the file relating to the demand of bribe and also the duty and service particulars of the accused. These documents secured from the office of BBMP were marked during the course of evidence of Investigating Officer as per Ex.P.12, P.17 and P.18 respectively. Ex.P.18 is the information furnished by the BBMP to the Lokayuktha Police regarding the duty allotted to this accused as the Assistant Revenue Officer. Page 40(c) of the charge sheet, which is along with Ex.P.18, goes to show that duty of this accused is to fix the tax of the properties, which measures less than 2000-Sq.feet and he has power 22 Spl. C.C. No.34/2011 to recommend to the higher authorities for sanction of properties, which is measuring less than 2000-Sq.feet. It is also provided in that letter that, being the Assistant Revenue Officer, accused holds and control the maintenance of the lease of the properties of the BBMP and has also the power to change the katha, rounding for bifurcation and registration of the katha and he can also able to recommend. It is true that, from all these particulars furnished by the BBMP relating to the duties of the accused, being the Assistant Revenue Officer, he has no authority to execute the sale deed. Rather, authority to execute the sale deed on behalf of the BBMP vests with the Commissioner of Bruhath Bengaluru Mahanagara Palike, who can authorize the same to any of his sub-ordinate officials. Admittedly, accused was not authorized by the Commissioner of BBMP to execute the sale deed in favour of the complainant's father. But, on that score, one cannot say that the accused has got no official work to perform in respect of application filed by the complainant seeking registration of the sale deed.
30. If I draw my attention to the duty particulars of the accused produced as per Ex.P.18, along with the file relating to the demand of bribe, which is marked as per Ex.P.12, being the Assistant Revenue 23 Spl. C.C. No.34/2011 Officer, it is the accused who has to receive the application and verify the same, conduct the spot inspection and also recommend for the registration of the sale deed. Though the accused is not the authority to execute the sale deed, he got official duty to perform in respect of the registration of sale deed, by receiving the application, maintain the file, verifying the application, conduct the spot inspection, recover the requisite fee and thereafter put up the file before the concerned authority to get approval for the registration of the sale deed.
31. The Lokayuktha Police, during the course of investigation, have secured some particulars relating to the accused and work done by him in respect of application filed by the complainant and same is marked as per Ex.P.17 and P.18. Ex.P.12 file, Ex.P.17 and 18 particulars furnished by the BBMP to the Lokayuktha Police were not at all disputed or denied by the accused. Ex.P.18 goes to show that, being the Assistant Revenue Officer, it is the accused who has recommended for the spot inspection on 07-08-2010. On 27-08-2010, accused, being the Assistant Revenue Officer, has given the report before the Revenue Officer and in turn Revenue Officer has submitted the same before the Joint Commissioner(East) BBMP. The opinion from the legal cell was also obtained and thereafter the Joint Commissioner 24 Spl. C.C. No.34/2011 has sent back the file to Revenue Officer on 15-10-2010 and thereafter the file was again sent back to this accused on 18-10-2010. On 16-11- 2010, this accused, being the Assistant Revenue Officer, has directed for the payment of arrears of rent and to produce the stamp paper for the execution of the sale deed. On 19-11-2010, arrears of rent was paid and on 20-10-2010 stamp paper was produced and accordingly on 26-11-2010 i.e. three days later the trap, sale deed was issued. All these documentary evidence would prove that, though the accused is not the competent authority to execute the sale deed, he has got official work to be performed in respect of the application filed by the complainant for getting the sale deed in respect of the property allotted to his father. It is the accused, who has verified the application and held the spot inspection and thereafter put up the file before his senior officials to get the approval. It is to perform all these acts, it was alleged that the accused has demanded the bribe. Under such circumstances, I found no substance in the contention of the accused that no official work relating to the complainant was pending before him on the date of lodging the complaint or on the date of trap. The issuance of the sale deed in favour of the complainant was three days after the trap, as evident from Ex.P.18. All these would clearly establish that on the date of trap and on the date of lodging the 25 Spl. C.C. No.34/2011 complaint, file was with the accused and he has got duty to perform. Hence, prosecution has established the first requirement of accused having official work to be done in respect of the application filed by the complainant.
32. The next important question, which requires to be considered by this court is about the demand of bribe amount, which is also one of the important requirements to constitute the offence punishable under Sec.7 of the Prevention of Corruption Act. Regarding the demand of bribe amount as one of essential requirement to prove the guilt of the accused, it is necessary to refer the decision of Hon'ble Supreme Court reported in 2010 (2) Supreme Court Cases (Crl) 385 (State of Maharastra V/s Dnyaneshwar Laxman Rao Wankhede), wherein it was held that demand of illegal gratification is a sine qua non for constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
33. The Hon'ble Supreme Court has reiterated the same view in a subsequent decision reported in 2015 AIR SCW 951 (C. Sukumaran V/s. State of Kerala) wherein it was held that demand of illegal gratification by the accused is sine qua non for 26 Spl. C.C. No.34/2011 constituting the offences under Sec. 7 and 13 of the Prevention of Corruption Act 1988.
34. The Hon'ble Supreme Court has expressed the same view in its Judgment reported in (2013) 14 Supreme Court Cases 153 (State of Punjab V/s Madan Mohan Lal Verma), wherein it was held that mere recovery of tainted notes is not enough, as there is necessity of showing the demand for illegal gratification. Same view was expressed by the Hon'ble Supreme Court in the subsequent decision reported in 2015 STPL (Web) 354 SC (Gulbar Hussain and others V/s State of Assam and another). So the ratio laid down in all those decisions are very clear on this point that the initial burden is upon the prosecution to prove that there was demand of illegal gratification made by the accused.
35. As per the prosecution case, in the case on hand, demand of illegal gratification by the accused is on two stages. Firstly, there was demand before lodging the complaint and secondly, there was demand of illegal gratification made by the accused subsequent to the lodging of complaint, when the complainant, along with the trap team approached the accused to trap him.
27 Spl. C.C. No.34/2011
36. Regarding the demand of bribe amount by the accused before lodging the complaint, prosecution relied upon the complaint allegations, evidence of the complainant and also the CD produced by the complainant along with the complaint, which contains the recording of the conversation between him and the accused about the demand of bribe amount. In the complaint, which is marked as per Ex.P.1, complainant has specifically alleged that his father has applied for NOC for registration of the sale deed in respect of the site allotted to him at Benson Town, Bengaluru and when he met the accused for issuance of NOC, he demanded the bribe amount. It was also alleged in the complaint that, he gave bribe amount of Rs.5,000/- to the accused and thereafter the accused conducted the spot inspection and demanded further bribe amount of Rs.50,000/-. The complainant further alleged that though he has met the accused 15-times for getting the NOC, accused not obliged and thereafter he met the accused along with his uncle Byyanna, who is the retired employee of BBMP and in spite of the same, accused has not obliged. It was also alleged in the complaint that on 22-11-2010, he met the accused and beg to give NOC and accused did not obliged and when he offered Rs.8,000/- to the accused, he refused to receive the same by saying that bribe amount of Rs.50,000/- has to be paid to him. According to 28 Spl. C.C. No.34/2011 the complainant, he recorded that conversation in his mobile phone and transmitted the same into CD and produced the same along with the complaint.
37. The complainant, in support of said complaint, has also deposed during the course of his evidence as PW.1 regarding the demand of bribe amount made by the accused and he paying the bribe amount of Rs.5,000/- initially. PW.1 also deposed about the accused demanding the bribe amount of Rs.50,000/- from him and refusing to receive the amount of Rs.8,000/- and insisted for the payment of Rs.50,000/-. Even though PW.1 was cross-examined by the learned counsel for the accused, no material aspects were brought out from the cross-examination of PW.1 regarding the demand of bribe amount made before lodging the complaint. I found absolutely no reasons to disbelieve the oral evidence of PW.1 regarding the demand of bribe amount made by the accused before lodging the complaint. The accused, even after receiving the bribe amount of Rs.5,000/-, failing to do the work in favour of the complainant and refusing to receive the amount of Rs.8,000/- offered by the complainant and insisting for the payment of Rs.50,000/- would also demonstrate before the court that accused has demanded the bribe amount from the complainant before lodging the complaint.
29 Spl. C.C. No.34/2011
38. The accused, during the course of cross-examination of PW.1, tried to impress upon this court that, CW.1 has lodged the complaint at the instigation of CW.8, who is a retired employee of BBMP. Therefore, it is a false complaint registered against the accused. Of-course, complainant/PW.1, during the course of his cross- examination, has admitted that, CW.8 told him that his work will be attended only in case of lodging the complaint. PW.1 also admitted that CW.8 has instructed him to record the voice of the accused and then to lodge the complaint. On the basis of all these statements given by the complainant, accused tried to impress upon this court that CW.8 instigated the complainant to lodge the false complaint against him.
39. It is true that CW.8 is a retired employee of BBMP. Even in the complaint and in his evidence, complainant has referred about CW.8 accompanying him when he met the accused in respect of his work. It was specifically stated in Ex.P.1 complaint that he met the accused along with his uncle Sri. Byyanna, who is a retired BBMP employee. Said Byyanna is none-other than CW.8. Even in his examination in chief, complainant/PW.1 specifically said that he approached the accused many a times along with CW.8. If it is a false complaint lodged at the instigation of CW.8, his name would not have 30 Spl. C.C. No.34/2011 been referred by the complainant in the complaint or during the course of his examination in chief. Since CW.8 is the retired BBMP employee and he is the uncle of the complainant, he might have accompanied him and also advised him to lodge the complaint, when the accused failed to do his work and demanded the bribe amount. On that score one cannot say that the complaint lodged by CW.1 is a false complaint at the instance of CW.8. The accused has not suggested any enmity between him and CW.8 so as to instigate CW.1 to lodge the false complaint. The accused also failed to suggest any enmity between him and complainant so as to register a false complaint against him and to trap him. If there was any such enmity between the accused and CW.1 and 8, one would have accepted the plea of the accused that it is a false complaint registered because of the vengeance. No such enmity was suggested and made out during the course of examination of prosecution witnesses. Under such circumstances, I found no reasons to doubt the evidence of PW.1 regarding the demand of bribe made by the complainant before lodging the complaint.
40. It is pertinent to note here that the application seeking NOC for registration of the sale deed in favour of the complainant's father was made during April 2010. The complainant/PW.1 has deposed 31 Spl. C.C. No.34/2011 about the same and there is also reference about the same in the complaint. The file seized by the Lokayuktha Police, which is marked as per Ex.P.6, would also shows that the application filed by the complainant's father was during April and proceedings were also initiated. Till November 2010, work of the complainant was no completed and NOC for registration of the sale deed was not issued. The information furnished by the BBMP to the Lokayuktha Police as per Ex.P.18 goes to show that on 26-11-2010 i.e. within three days after the trap, work of the complainant was completed and sale deed was issued to the complainant. This would also goes to show that, by expecting the bribe amount, accused has not completed the work relating to the complainant from April 2010 to November 2010. If there was any impediment or hurdle for the issuance of the sale deed, it would have taken some more time even after the trap. But, after the trap of the accused, within three days, sale deed was issued on 26-11- 2010, which would also demonstrate that the accused has demanded the bribe amount, because of which, he has failed to do the work relating to the complainant in issuing the sale deed.
41. Another evidence produced by the prosecution, to prove the demand of bribe before lodging the complainant is in the form of CD. According to the prosecution, complainant, in his mobile phone, has 32 Spl. C.C. No.34/2011 recorded the conversation between him and the accused, regarding demand of bribe amount and transmitted those recordings into a CD and produced the same before the Lokayuktha Police, while lodging the complaint. There is also reference about the same in the pre trap mahazar and said CD was produced before this court as per M.O.4. The Investigating Officer has recorded the conversation found in the said CD in the pre trap mahazar, which is marked as per Ex.P.3. The separate transcription of those recording was made as per Ex.P.5. There is no evidence as to when the said recording was made and through which mobile phone, recording was made. Only evidence produced before this court is the CD, in which the recording made in the mobile phone was transmitted.
42. The evidence produced by the prosecution before this court in the form of CD is the secondary evidence of the recordings made in the mobile phone. The primary evidence is the mobile phone, in which the recording was actually made. Said mobile phone was not seized and not produced before this court. So, it is a case of prosecution producing only the secondary evidence of the recordings in the mobile phone and not the primary evidence. The secondary evidence produced before this court in the form of CD is not accompanied by the 33 Spl. C.C. No.34/2011 certificate, which is required under Sec.65-B of the Indian Evidence Act. When the prosecution has not produced the primary evidence of electronic record and produced only the secondary evidence, which is not accompanied by the certificate under Sec.65-B of the Indian Evidence Act, such evidence cannot be considered and accepted by this court. This view of mine is based upon the three Judges Bench Decision of Hon'ble Supreme Court reported in 2015(1) SCC Crl. 24 (2014(10) SCC 473) (Anwar P. B Vs P.K. Basheer and others). It was held in the above decision that, when the primary evidence of the electronic records are not produced before the court, unless the secondary evidence is accompanied by the certificate under Sec.65-B of the Indian Evidence Act, said secondary evidence is not admissible in evidence.
43. So, now it is well established principle of law that in case of any electronic records or evidence, primary evidence has to be produced before the court. If the primary evidence is not produced before the court and only secondary evidence is produced, said secondary evidence should be accompanied by a certificate under Sec. 65-B of the Indian Evidence Act in respect of genuineness of the said secondary evidence. In the case on hand, though the prosecution has 34 Spl. C.C. No.34/2011 produced only the secondary evidence in respect of the recordings in the mobile phone, it is not supported by the certificate under Sec. 65- B of the Indian Evidence Act. According to me, on this score only, this court has to discard the evidence produced by the prosecution in the form of recordings in the voice recorder in order to prove the demand of bribe before lodging the complaint. Hence, CD produced as per M.O.1 deserves no consideration by this court.
44. The Investigating Officer has not made any attempt to obtain the specimen voice of the accused and send the same to the forensic examination, by comparing his voice in the recordings made in the mobile phone and found in the MO.14 CD. Though the prosecution had the opportunity to prove the voice of the accused in the CD by getting the opinion of the expert, after comparing the same with the specimen voice of the accused, investigating agency has not made that effort and not utilized that option available to them. No explanation is forth coming from the Investigating Officer, either for not obtaining the expert opinion regarding the voice of the accused or for getting the certificate under Sec.65-B of the Indian Evidence Act, regarding secondary evidence produced before this court. Therefore, 35 Spl. C.C. No.34/2011 all these evidence produced by the prosecution cannot be accepted by this court.
45. Even though the electronic evidence produced by the prosecution, in the form of CD to prove the demand of bribe amount before lodging the complaint, is not admissible in evidence, still there is evidence of complainant and the complaint allegations to prove that there was demand of bribe amount by the accused before lodging the complaint. The evidence of complainant and the complaint allegations were also corroborated with the other circumstances, which I have pointed out before the court. There are absolutely no reasons to discard the evidence of complainant and to disbelieve the same. Under such circumstances, I hold that the prosecution has established the first requirement that there was demand of bribe amount made by the accused before lodging the complaint.
46. The next question, which requires to be considered by this court is regarding the demand of bribe after complaint and just before the trap and acceptance of the illegal gratification by the accused in the form of tainted currency notes. To prove the same, prosecution relies upon the pre trap proceedings conducted by them, evidence of the complainant, shadow witnesses and another panch witness. The 36 Spl. C.C. No.34/2011 prosecution also relies upon the positive phenolphthalein test report, when hand wash of accused was conducted. The prosecution also rely upon the electronic evidence in the form of CD in which recordings in the button camera given to the complainant was transmitted. Again, in respect of this, only the secondary evidence in the form of CD was produced and primary evidence, which was the button camera given to the complainant, in which the recording was made, has not been produced before this court. The secondary evidence in the form of CD is not supported by the certificate under Sec. 65-B of the Indian Evidence Act. Hence, because of the above said reasons and the decision of Hon'ble Supreme Court in 2015(1) SCC Crl. 24 (2014(10) SCC 473) (Anwar P. B Vs P.K. Basheer and others), I cannot accept the said CD.
47. However, prosecution has got other evidence to prove the demand and acceptance of the bribe amount by the accused at the time of trap. Regarding conducting of pre trap proceedings and drawing of pre trap mahazar, there is no serious dispute as such. After the registration of the FIR, Investigating Officer has secured CW.3 and 4, who are the official witnesses, to evidence the pre trap proceedings in their presence. The pre trap proceedings were made and pre trap 37 Spl. C.C. No.34/2011 mahazar was drawn. All the witnesses like complainant, CW.3 and 4 and one of the Lokayuktha Police staff, who was examined as PW.2 and the Investigating Officer, who was examined as PW.6, have all deposed regarding the pre trap proceedings conducted by the Lokayuktha Police, before proceeding to lay the trap. In respect of evidence of these witnesses, regarding pre trap proceedings and drawing of pre trap mahazar, there is no such cross-examination. Therefore, I found no reasons to disbelieve the evidence of these witnesses regarding conducting of pre trap proceedings and drawing of pre trap mahazar. There by prosecution proved that, before proceeding to lay the lap, Lokayukth police have conducted the pre- trap proceedings and drawn the entrustment mahazar.
48. The complainant, who was examined before the court as PW.1, during the course of his examination in chief deposed that after the pre trap proceedings they proceeded towards the office of accused which is at Queens Road, Bengaluru and he and CW.3 proceeded inside the office of the accused. PW.1 further deposed that he entered the office room of accused and wished him and in response to which, accused asked as to what about his demand and he replied him that cash of Rs.25,000/- is brought. PW.1 further deposed that accused asked him to keep the same on his table and thereafter he came out of 38 Spl. C.C. No.34/2011 the office and gave the signal to Lokayuktha Police. So complainant/PW.1 specifically deposed that the accused has asked him to keep bribe amount on his table and accordingly it was kept on his table. The shadow witness/CW.3, who was examined as PW.5, deposed during the course of examination in chief that he and CW.1 entered the office of accused and complainant again went inside the office and he was standing out side and thereafter they received the signal from the complainant and when they entered the office, envelope containing tainted currency notes, which was given to the complainant, was found in between the file on the table of the accused. So, shadow witness has also said that accused has received the tainted currency notes by keeping the same on the file.
49. In order to prove the acceptance of illegal gratification in the form of tainted currency notes, there is positive phenolphthalein test report. After receiving the signal from CW.1, Lokayuktha Police entered the office of the accused and CW.1 told them that accused has demanded the bribe amount and received the tainted money of Rs.25,000/-. The Investigating officer, who was examined as PW.6, further said that the tainted currency notes received by the accused was found in a card, which was kept inside the wedding invitation card 39 Spl. C.C. No.34/2011 on the right side of the table and thereafter hand wash of accused was made and when the fingers of both the right and left hands of the accused was immersed in sodium carbonate solution, it turned into pink colour. The seized sodium carbonate solution was subjected for the chemical examination and chemical examination report, which is produced as per Ex.P.21, would also prove that there is positive phenolphthalein test. It will also prove that the accused has actually received the tainted currency notes.
50. Even though complainant said that he has kept the tainted currency notes on the table of the accused as per his direction, when the Lokayuktha Police came to the spot, after receiving the signal from CW.1, tainted currency notes were found inside the wedding invitation card, which is on the right side of the table. The accused, after receiving the same, keeping it in the wedding invitation card, is also proved because of the positive phenolphthalein test report. The Investigating Officer has also seized the wedding invitation card and produced before this court as M.O.12. As per the Ex.P.21 chemical analysis report, even in the seized wedding card there was phenpthelene powder. All these facts would demonstrate before this court that the accused has accepted the tainted currency notes. If the 40 Spl. C.C. No.34/2011 accused has not demanded the illegal gratification and he was not ready to receive the tainted currency notes, he would have pushed the same when it was kept on his table by CW.1 and would not have kept it inside the wedding invitation card.
51. Now it is relevant to refer the explanation offered by the accused after the trap. The accused was asked by the Lokayuktha Police to give his explanation regarding finding of currency notes with him and positive phenolphthalein test of his hand wash. The explanation given by the accused is marked as per Ex.P.14. The accused has not disputed about he issuing the said explanation in his hand writing and signing the same as per Ex.P.14(a). There is also no allegation that the said explanation was obtained forcibly by the Lokayuktha Police. Regarding the relevancy and necessity of obtaining such explanation in the cases like this, it is necessary to refer one of the decision relied upon by the accused, which is reported in 2015(1) KCCR 898 (N.A.Suryanarayana @ Suri V/s State by Inspector of Police, CBI). As per the said decision, trap laying officer should give an opportunity to the accused to have his say about the receipt of tainted money and if such opportunity is not given, entire proceedings vitiates. In this particular case, Lokayuktha Police have complied that requirement by giving an opportunity to the accused to have his say 41 Spl. C.C. No.34/2011 regarding the finding of tainted currency notes on his table and his hand wash turning into pink colour, which positively proves that he has touched the currency notes.
52. In his explanation as per Ex.P.14, this accused stated that the complainant has initially forced him to receive the tainted currency notes and he refused to receive the same and few minutes later again complainant came before him and kept the cover on his table and ran away and he was not aware as to what is there inside the cover and subsequently, he has kept that cover by the side of the table and continued his work. So, explanation offered by the accused is that complainant has forcibly kept the cover containing tainted currency notes on his table and thereafter he has kept the same by the side of his table. This explanation offered by the accused cannot be said as a prudent explanation in order to accept the same. As I said earlier though the application filed by the complainant seeking NOC for registration of the sale deed was in the month of April 2010, till November 2010, process was not completed and it was kept pending. As I said earlier, immediately after three days of the trap, sale deed was issued to the complainant, which indicate that deliberately it was kept pending by expecting the bribe amount. More over complainant allegations and evidence of complainant also proves that when amount 42 Spl. C.C. No.34/2011 of Rs.8,000/- was offered to the accused, he refused to receive the same, by insisting for payment of Rs.50,000/-. If all these circumstances are considered along with the finding of tainted currency notes in the file and positive phenolphthalein report, it would clearly establish before this court that the accused has demanded and accepted the illegal gratification from the complainant. So, I hold that the prosecution has proved the demand and acceptance of the illegal gratification by the accused.
53. Now, let me draw my attention to some of the decisions relied upon by the learned counsel for the accused in support of his arguments. One of the decision is reported in 1981 Supreme Court Cases (Crl.) 586 (Gulam Mahamood A. Malek V/s State of Gujart). It was held in that particular case that, in the trap cases the complainant himself is in the nature of an accomplice and his story is prima facie suspect, for which corroboration in material particulars is necessary. It was also held in the above decision that the conviction solely on the basis of testimony of panch witness is not proper. In this particular case, there is corroboration for the testimony of the complainant. More over, this court is not accepting the prosecution version only on basis of evidence of complainant or shadow witness or panch witness.
43 Spl. C.C. No.34/2011
54. Regarding the seizure of tainted currency notes and positive phenolphthalein test and trap proceedings, there is evidence of another panch witness, who was examined as PW.3. The police official, who has assisted the Investigating Officer in conducting the pre trap proceedings and trap proceedings, who has also accompanied the complainant and the shadow witness, while going inside the office of accused, was examined as PW.2 and he has also deposed in respect of all these incidents taken place in his presence. So there is evidence before this court to corroborate the evidence of the complainant, to prove that there is demand and acceptance of the illegal gratification by the accused.
55. Another decision relied upon by the learned counsel for the accused is the decision of Hon'ble Supreme Court reported in 2015 AIR SCW 951 (C. Sukumaran V/s State of Kerala), wherein it was held that 'demand of illegal gratification by the accused is a sine qua non for constituting an offence under Sec. 7 and 13 of the Prevention of Corruption Act 1988. In that particular case the prosecution has failed to prove the demand. Therefore the conviction of the accused by the trial court and High Court was set aside by the Hon'ble Supreme Court. In this particular case, prosecution has proved the demand and acceptance of the illegal gratification by the accused. 44 Spl. C.C. No.34/2011
56. Another decision which was relied upon by the learned counsel for the accused is the decision of Hon'ble High Court of Karnataka reported in 2010(3) KCCR 1851 (State of Karnataka V/s M. Gopalakrishnaiah and Others). I have already referred this decision to say that, to get the benefit of presumption under Sec. 20 of the Prevention of Corruption Act, prosecution is required to prove that there was demand and acceptance of illegal gratification by the accused. In this particular case, prosecution has successfully established the same and there for they are entitled for the benefit of presumption.
57. Another decision relied upon by the learned counsel for the accused in support of his arguments is the decision of Hon'ble Supreme Court reported in 2010(2) Supreme Court Cases (Crl.) 385 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede), wherein it was held that the explanation offered by the accused has to be considered only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. In this particular case, accused has not offered satisfactory explanation regarding finding of currency notes with him and positive phenolphthalein test report of his hand wash.
45 Spl. C.C. No.34/2011
58. Another decision, which was relied upon by the learned counsel for the accused, in support of his argument, is the decision of Hon'ble High Court of Karnataka reported in 2016(1) KCCR 815 (R. Srinivasan and Another V/s State by Police Inspector Lokayuktha Bengaluru), wherein it was held that since the complainant is an interested witness, corroboration is required in material particulars to accept his evidence and there should be official favour which the accused can do for demanding and accepting the illegal gratification. In this case, pendency of the official act before the accused in respect of the complainant is proved. More over, there is also corroboration for the evidence of the complainant, regarding the demand and acceptance of the illegal gratification.
59. One more decision relied upon by the accused is the above referred decision of Hon'ble High Court of Karnataka in N.A.Suryanarayana @ Suri V/s State by Inspector of Police, CBI reported in 2015(1) KCCR 898. In this decision, Hon'ble High Court has reiterated the principles in the above referred decisions regarding pendency of the official act before the accused and also requirement of corroboration for the evidence of the complainant, for convicting the accused for the offence punishable under Sec.7 and 13 of the Prevention of Corruption Act. With great respect to all these decisions, 46 Spl. C.C. No.34/2011 this accused has no benefit from all those decisions, because the prosecution has established all the requirement, which are necessary to constitute the offence under Sec.7 and 13 of the Prevention of Corruption Act.
60. By leading all these evidence before this court, prosecution has discharged the initial burden placed upon them to prove that accused has demanded and accepted the illegal gratification of Rs.25,000/- from the complainant, in order to render the official favour to him for issuance of sale deed. As I said earlier, when the initial burden placed upon the prosecution has been discharged, it has got the benefit of presumption, as provided under Sec.20 of the Prevention of Corruption Act 1988, in respect of the offence punishable under Sec.7 of the Prevention of Corruption Act 1988. By drawing the presumption, this court has to hold that the tainted currency notes received by the accused is to do some official act in favour of the complainant and it is an illegal gratification. Therefore, onus shifts upon the accused to rebut and displace the presumption. In the case on hand, accused has miserably failed to rebut or displace the presumption in favour of the prosecution, either through the cross examination of the prosecution witnesses or by leading independent evidence before this court. The explanation offered by the accused 47 Spl. C.C. No.34/2011 were also not proved either though the cross-examination of prosecution witnesses or by leading independent evidence before this court. Hence, accused has to be held as guilty of committing the offences punishable under Sec.7 and 13 of the Prevention of Corruption Act 1988.
61. Under Sec. 21 of the Prevention of Corruption Act 1988, the accused person to be a competent witness in case of trial of offences under the provisions of the Prevention of Corruption Act 1988. It is true that, as per the criminal jurisprudence, accused cannot be compelled to say anything during the course of criminal trial and he cannot be called as a witness, except at his own request. Sec. 21 of the Prevention of Corruption Act 1988 is also not an exception to the said Rule of Criminal Jurisprudence. The proviso to Sec. 21 of the Prevention of Corruption Act specifically provides that the accused shall not be called as a witness, except at his own request. In spite of the same, Sec.21 of the Prevention of Corruption Act provides that the accused person to be a competent witness. The reason behind incorporating the Sec. 21 of the Prevention of Corruption Act is to afford an opportunity to the accused to prove his defence. When Sec.21 of the Prevention of Corruption Act 1988 says that the accused 48 Spl. C.C. No.34/2011 is a competent witness, this court cannot brush aside his evidence by holding that he is an interested witness or his statement on oath is only a self-serving statement. Rather, this court has to accept his evidence, because Sec. 21 of the Prevention of Corruption Act specifically says that accused is a competent witness. Therefore, this provision is for the benefit of the accused. Hence, accused would have used this provision and entered into witness box to substantiate his defence. By entering into the witness box, accused would have explained the circumstances under which the tainted currency notes were found with him. The accused would have also explained the motive or intention of the complainant to register false case against him. But, for the reasons best known to the accused, he has failed to avail the opportunity given to her under Sec.21 of the Prevention of Corruption Act, by entering into witness box.
62. The learned counsel for the accused, during the course of his arguments, has pointed some contradictions, which emerged from the evidence let in by the prosecution. It is true that there are some minor variations in the oral evidence of complainant, shadow witnesses, trap witness and the Investigating Officer, if they are compared with each other and compared the complaint, pre-trap and 49 Spl. C.C. No.34/2011 trap mahazar. However, that cannot be a ground to disbelieve their oral testimony. These kinds of variations and inconsistencies in the oral evidence of prosecution witnesses bound to appear in each and every prosecution case and the evidence let in by them. There cannot be any prosecution case, which is free from all these minor variations and inconsistent statements. When any incident is witnessed by more than one person and they were asked to explain that incident, they will explain in their own ways and little bit of variations bound to appear in their explanations. Human beings with different perception would look towards an incident in their own way and explain the same in their own way. These variations also natural because of passage of time, as the human memory is very short and it vary from person to person. In this particular case, these witnesses were called upon to depose before the court in respect of an incident, which has taken place about six years before they giving their oral testimony before the court. Under such circumstances, these minor inconsistent and variations bound to appear in the oral testimony of these witnesses. But, what the court has to consider is as to whether they are major contradictions to disbelieve their oral testimony. I have not found any major contradictions and any such reasons to doubt the oral testimony of these witnesses and also to discard the same.
50 Spl. C.C. No.34/2011
63. To sum up my discussion, prosecution proved that there is a valid sanction to prosecute the accused. The prosecution has also proved that an official act relating to the complainant is pending before the accused. The demand of the bribe amount by the accused is also proved by the prosecution, in order to issue the registration certificate. The prosecution has also proved the demand of the bribe amount, made both before filing the complaint and also subsequent to filing of the complaint and while trapping the accused. The prosecution has also proved the acceptance of the bribe amount, while trapping the accused. On the other hand, accused has failed to prove his explanation about finding of tainted currency notes on his table and also positive phenolphthalein test of his hand wash. Because of all these circumstances, I hold that the prosecution has proved the guilt of the accused for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The accused receiving the tainted currency notes in order to render the official favour for the complainant amounts to criminal misconduct. Therefore, accused has to be convicted for the offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. Accordingly, I answer points No.2 and 3 in the Affirmative. 51 Spl. C.C. No.34/2011
POINT No.4:
64. In view of my findings on the above points, accused is liable to be convicted. Accordingly, I proceed to pass the following order:
ORDER The accused found guilty.
Acting under Sec.235(2) of Cr.P.C.
accused is convicted for the offence punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of Prevention of Corruption Act 1988.
MO.1 metal seal is ordered to be returned to the Karnataka Lokayuktha Police after expiry of the appeal period.
MO.2 to 15 are worthless and ordered to be destroyed after expiry of the appeal period.
MO.16 and 17 currency notes are ordered to be confiscated to the state government after expiry of the appeal period.
Put up for hearing on sentence.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 4th day of March 2017) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78)
()()()()()
52 Spl. C.C. No.34/2011
ORDERS ON S E N T E N C E.
I have heard the accused, learned counsel for the accused and also the learned Public Prosecutor on sentence to be imposed on this accused.
The accused and learned counsel for the accused submitted that accused is aged about 55 years and suffering from illness and he has to look after his family and he is only the bread earner in their family. Therefore, prayed to show the leniency on him while imposing the sentence.
On the other hand, learned Public Prosecutor submitted before me that accused, being the public official, has committed the heinous offence of demanding and accepting the bribe amount. The accused, being a public servant, is found to be involved in the corrupt practice. Therefore, prayed for imposing the maximum punishment to the accused.
The accused found guilty of committing the offence punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. So far as the Sec.7 of the Prevention of Corruption Act 1988, is concerned, it is punishable with imprisonment, which shall not be less than six months and 53 Spl. C.C. No.34/2011 it may extend up to five years and shall also be liable to fine. So far as Sec.13(2) of the Prevention of Corruption Act is concerned, it is punishable with imprisonment, which shall not be less than one year and which may extend up to seven years and shall also be liable to fine. Under Sec.16 of the Prevention of Corruption Act 1988, while imposing the fine, this court shall take into consideration amount or value of the property, which the accused person has obtained while committing the offence.
Even though by way of recent amendment to the Prevention of Corruption Act 1988, minimum and maximum imprisonment provided for the offence punishable under Sec.7 and 13(2) of the Prevention of Corruption Act 1988 is enhanced, those amended provisions are not applicable to this case, because said amendment was introduced recently, whereas in the case on hand, alleged offences were committed during the year 2010. As per the criminal jurisprudence, this court has to impose the sentence to the accused, which is provided for the particular offence, as on the date when the offence is actually committed.
As the minimum punishment is provided for these offences, question of invoking the provisions of Probation of 54 Spl. C.C. No.34/2011 offenders Act and releasing the accused on probation would not arise.
The accused was an Assistant Revenue Officer in Bruhath Bengaluru Mahanagara Palike at the time of commission of alleged offence. The demand and acceptance of the bribe amount by this accused is Rs.25,000/-. Considering all these aspects and also grounds shown by the accused, I feel it is just and proper to impose him the minimum imprisonment provided under the Prevention of Corruption Act 1988 and made him liable to pay the fine. Accordingly, I proceed to pass the following order on sentence:
ORDER The accused is sentenced to under go simple imprisonment for six months and to pay the fine of Rs.10,000/- for the offence punishable Sec.7 of the Prevention of Corruption Act 1988.
In default to pay the fine amount, accused shall under go simple imprisonment for two months.
The accused is sentenced to undergo simple imprisonment for one year and to pay the fine of Rs.15,000/- for the offence 55 Spl. C.C. No.34/2011 punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
In default to pay the fine amount, accused shall under go simple imprisonment for three months.
The substantial sentences of imprisonment shall run concurrently. The accused is entitled for the benefit of set-off, as provided under Sec.428 of Cr.P.C., for the period for which, he was in judicial custody in respect of this case.
Office to furnish the copy of this
judgment to the accused with
free of cost, forth with.
(MANJUNATH NAYAK)
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
(CCH-78)
()()()()()
ANNEXURE
LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: J. Balaraj
PW.2: P.S.Ranganath
PW.3: Sheik Mohammed
56 Spl. C.C. No.34/2011
PW.4: Siddaiah
PW.5: K.R.Basavaraju
PW.6: Krishnappa
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Complaint
Ex.P.1(a & b): Signatures of Pw.1 and 6
Ex.P.2: Currency notes detail sheet
Ex.P.2(a to e): Signatures of Pw.3,5 and 6
Ex.P.3: Pre trap mahazar
Ex.P.3(a to d): Signatures of PW.1,3,5 and 6
Ex.P.4: Trap mahazar
Ex.P.4(a to d): Signatures of PW.1,3,5 and 6
Ex.P.4(e): Signature of accused
Ex.P.5: Script of CD
Ex.P.5(a to f): Signatures of PW.3 and 5
Ex.P.6: Script recordings
Ex.P.6(a to i): Signatures of PW.3,5 and 6
Ex.P.7: Acknowledgment
Ex.P.7(a): Signature of Pw.3
Ex.P.8: Sanction order
Ex.P.8(a): Signature of Pw.4
Ex.P.9: FIR
Ex.P.9(a): Signature of PW.6
Ex.P.10: Requisition letter
Ex.P.10(a): Signature of Pw.6
Ex.P.11: Requisition letter
Ex.P.11(a): Signature of Pw.6
57 Spl. C.C. No.34/2011
Ex.P.12: Copies of file No.1 at page 45 to 50 in charge sheet Ex.P.13: Attendance register Ex.P.14: Accused statement Ex.P.14(a): Signature of Pw.6 Ex.P.15: Statement of Cw.5 Ex.P.16: Statement of Cw.6 Ex.P.16(a): Signature of PW.9 Ex.P.17 & 18: Service particulars of accused Ex.P.19 & 20: Sketch Ex.P.21: Chemical analysis report.
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Seal MO.2: Sample solution of sodium carbonate MO.3: Light pink color solution MO.4: CD MO.5: Sample solution of sodium carbonate MO.6: Pink color solution MO.7: Pink color solution MO.8: Pink color solution MO.9: Pink color solution MO.10: Blank envelope MO.11 & 12: Marriage invitation cards MO.13 & 14: CDs (Conversation) MO.15: CD (Video) MO.16: Currency notes MO.17: Currency notes 58 Spl. C.C. No.34/2011 LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
-NIL-
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78)