Bangalore District Court
State By Cbi/Acb vs Dr. B.V. Navaneeth on 25 April, 2018
IN THE COURT OF XXI ADDL. CITY CIVIL AND
SESSIONS JUDGE AND PRINCIPAL SPECIAL JUDGE
FOR CBI CASES, BENGALURU (CCH-4).
Spl. C.C. No.276/2016
DATED THIS THE 25TH DAY OF APRIL, 2018
PRESENT : Sri. SADASHIVA S. SULTANPURI,
B.Com., LL.B., (Spl.)
XXI Addl. City Civil and Sessions Judge and
Prl. Special Judge for CBI Cases, Bengaluru.
Complainant: State by CBI/ACB, Bengaluru
(By Special Public Prosecutor)
V/s
Accused: Dr. B.V. Navaneeth,
S/o Sri. B.N. Viswanath
Aged about 48 years
Professor and Head of Department,
Microbiology, ESIC MC PGIMSR,
Ministry of Labour & Employment,
Govt. of India,
Rajaji Nagar,
Bengaluru-560 010.
(By Sri. Harsha P. Banad, Advocate)
JUDGMENT
This is a charge sheet filed by the Inspector of Police, CBI/ACB, Bengaluru, against the accused for the 2 Spl.C.C. 276/2016 J offences punishable under Sec. 7, 11, 13 (2) r/w 13(1) (d)
(ii) of the Prevention of Corruption Act, 1988.
2. The brief facts of the prosecution case are that: -
(a) Dr. B.V. Navaneeth/accused was working as public servant as a Professor and Head of Department, Microbiology, ESIC MC & PGIMSR, Rajaji Nagar, Bangalore from 18.10.2010 to 17.11.2015. While the accused was working as Professor of the said department, his nature of duties were as a Head of Department is to set up high standard of professional conduct, plan the teaching schedule, plan of practical training, organize seminars, panel discussion, symposia, debates, carry out teaching work, and conduct tests, guide the students, conduct of examinations, overall supervision of the department, co-ordinate and facilitate the work among the staff members of the Department etc.
(b) Further, as per the orders of Rajiv Gandhi University of Health Sciences hereinafter referred to as
3 Spl.C.C. 276/2016 J RGUHS, Karnataka, Bengaluru, (1)the accused, (2) Dr. Saroj Golia (CW.2/PW.1) from Dr. Ambedkar Medical College and Dr. Ambica.R. from Bengaluru Medical College were detailed as internal examiners (3) Dr. Umapathy (CW.3), Professor, Department of Microbiology from Sree Mookambika Institute of Medical Sciences, Kaniyakumar District, Tamil Nadu (4) Dr. Srinivasulu Reddy (CW.6), Professor and Head of Department of Microbiology, Narayana Medical College, Nellore, Andhra Pradesh were detailed as external examiners for conduct of practical/viva-voce examination of MD Microbiology at ESIC MC & PGIMSR from 14.10.2015 to 16.10.2015.
(c) Further, as per the RGUHS Schedule, the ESIC MC & PGIMSR Bengaluru Centre No.150 is to conduct practical/viva-voce examination of MD Microbiology from 14.10.2015 to 16.10.2015 in respect of four candidates i.e., 2 candidates from ESIC MC & PGIMSR viz., Dr. Nandini (CW.17/PW.12) and Dr. Sharmila (CW.16/PW.11) and 2 candidates from other medical 4 Spl.C.C. 276/2016 J colleges viz., Dr. Malathi (CW.18/PW13) from BMC Bangalore and Dr. Nirmala (CW.4/PW.2) from Dr. Ambedkar Medical College.
(d) Further, the said all PG students i.e., Dr. Nandini, Dr. Sharmila, Dr. Malathi and Dr. Nirmala have visited the ESIC MC & PGIMSR 2 or 3 of the practical examination in order to see the specimen/cultures available at ESIC MC & PGIMSR, Bengaluru. While seeing the said specimen/cultures available at ESIC MC & PGIMSR, the accused who is the HOD has called them to his chamber, Department of Microbiology and told that all the four PG students have to bear the expenditure towards the purchase of Antisera which is required during the conduct of practical in Microbiology and also the expenditure towards accommodation for external examiners and food to all the examiners and demanded money from the PG students. Accused demanded Rs.50,000/- from Dr. Sharmila (CW.16/PW11) and Rs.25,000/- each from other 3 PG students and initially 5 Spl.C.C. 276/2016 J told the students that the amount is to be handed over to Dr. Mamatha, (CW.13/PW.9) Junior PG student of MD Microbiology of ESIC MC & PGIMSR Bangalore. Dr. Mamatha (CW.13/PW.9) had refused to collect the said amount from the PG students. Accused then called Dr. Ann Mary (CW.12/PW.8), Junior PG student of MD Microbiology of ESIC MC & PGIMSR on 13.10.2015 and told her that PG students appearing for the said practical examination would hand over amount to her and she shall collect the said amount from them and in turn have to hand it over to him. The accused informed Dr. T. Sharmila (CW.16/PW11) to hand over the said amount to Dr. Ann Mary(CW.12/PW.8). However, Dr. Nandini (CW.17/PW.12) had handed over Rs.25,000/- by cash directly to the accused on 14.10.2015. On completion of the examination on 16.10.2015, Dr. Nirmala (CW.4/PW.2) was in hurry to go home and hence she had handed over Rs.25,000/- cash covered in a paper towards her contribution to Dr. Malathi (CW.18/PW.13) to hand over the same to the accused. On 16.10.2015 6 Spl.C.C. 276/2016 J evening on completion of practical/viva-voce examination of MD Microbiology, Dr. Malathi (CW.18/PW.13), went to the chamber of accused, Department of Microbiology situated at the ground floor of ESIC MC & PGIMSR and handed over Rs.50,000/- to the accused which includes the share of Dr. Nirmala (CW.4/PW.2). After receiving the said amount, accused enquired about Dr. Nandini (CW.17/PW.12) with Dr. Malathi (CW.18/PW.13). There after Dr. Malathi came out of the chamber of the accused and took Dr. Nandini (CW.12/PW.8) to the chamber of the accused.
(e) In this regard, based on the source of information that, the accused, Professor & Head of Department, Microbiology, ESIC MC & PGIMSR, Rajajinagar, Bangalore is demanding and accepting illegal gratification other than his legal remuneration from the PG student of Bangalore, a Joint Surprise Check (JSC) headed by Sri K.Y. Guruprasad, (CW.22/PW.17), Deputy Superintendent of Police, CBI ACB Bangalore with the association of Dr. T.M. 7 Spl.C.C. 276/2016 J Lakshmikantha (CW.21/PW.15) Medical Vigilance Officer of ESIC and 2 independent witnesses i.e., Shri B.M. Radhakrishna (CW.8.) Deputy Chief Ticket Inspector, SWR Bangalore and Smt. P. Geetha (CW.7/PW.5) Senior Commercial Assistant, SWR, Bangalore was conducted on 16.10.2015 at ESIC MC & PGIMSR Bangalore.
(f) The above said Joint Surprise Check team hereinafter referred to as JSC team assembled at the premises of ESI Hospital, Rajajinagar, Bangalore on 16.10.2015 at about 16.00 hrs in order to verify an information received to the effect that whether the accused is demanding money and accepting illegal gratification from the PG students of Microbiology. Accordingly, the team members were got introduced themselves and the purpose of JSC was explained to them by K.Y. Guruprasad (CW.22/PW.17) Dy.S.P., CBI, ACB. One DVD which was received from the source about the corrupt practice of the accused was played before JSC team and understood the contents of the same.
8 Spl.C.C. 276/2016 J
(g) Further, the said JSC team on the same day at about 17.00 hours proceeded inside the ESIC Hospital and took position near the office chamber of accused which is in the ground floor of the ESIC hospital building. They kept watching without giving any suspicion. Thereafter at about 17.30 hours i.e., at about 5.30 hours the said team observed that 2 ladies went inside the chamber of the accused and after some time both of them were coming out of the said chamber. The JSC team immediately intercept them and after introducing themselves and made enquiry with them, as to for what purpose they had met the accused.
(h) Out of the said two ladies, one lady disclosed herself as Dr. N. Malathi (CW.18/PW.13) student of in- service PG course in Microbiology and took up the supplementary practical examination at ESIC MC & PGIMSR Bangalore from 14.10.2015 to 16.10.2015. Further, it discloses that the accused Professor & HOD of Microbiology had demanded Rs.25,000/- from the students appearing for PG students. The PG students 9 Spl.C.C. 276/2016 J were not willing to pay the same. But in order to escape from the adverse effect on their examination results the students are paying amount as per the demand of the accused. Further, some of the students have already paid amount to accused. It is revealed that Dr. Malathi (CW.18/PW.13) had come to the chamber of the accused in order to pay the said demanded amount of Rs.25,000/- to him and while coming out she was enquired by the JSC team.
(i) Thereafter the JSC team when enquired with other lady, she disclosed herself as Dr. M.P. Nandini (CW.17/PW.12) from Sri Jayadeva Institute of Medical Sciences, Bangalore and she had also took up the supplementary examination at ESIC MC along with Dr.Malathi. The said JSC team while questioning her, she too had corroborated and confirmed the version of Dr. Malathi with regard to demand made by accused from the PG students and also disclosed that she had already paid the demanded amount of Rs.25,000/- to accused on 14.10.2015 itself. In order to support their 10 Spl.C.C. 276/2016 J versions, the said JSC team had collected their explanation in writing by way of a complaint addressed to the Superintendent of Police, CBI, ACB, Bangalore and treated them as complaint.
(j) After ascertaining the version from two PG students which confirmed the veracity of the facts of the source information, the JSC team entered into the chamber of accused. The team leader disclosed his service identity of the JSC team and made enquiries with accused as to whether accused had received Rs.25,000/- from Dr. Malathi (CW.18/PW.13) student who appeared for the MD Microbiology PG practical examination. The accused become nervous and could not speak for a moment, but later he had confessed to have received Rs.25,000/- from Dr. Malathi. (CW.18/PW.13).
(k) The JSC team on further questioning, the accused had accepted that he had received money from other students for the purpose of meeting the expenses connected to the conduct of PG supplementary examination and he produced Rs.1.45 lakhs. The JSC 11 Spl.C.C. 276/2016 J team observed that the amount of Rs.50,000/- was kept wrapped with copy of examination application form in the name of Dr. T. Sharmila (CW.16/PW.11) and another handwritten sheet of paper and kept in a plastic cover. Further, the team observed that Rs.55,500/- was lying in the table drawer of accused i.e., Rs.40,000/- from left hand side of the table drawer and Rs.15,500/- kept in a plastic folder lying in the right hand side table drawer. Accused had also taken out Rs.39,500/- along with the details of contact numbers and register numbers of PG students from his back side which he has kept inside the pant which he was wearing. Further, when the JSC team had asked accused to produce if any amount is held by him in his wallet and in the shirt/pant pockets, he had produced Rs.1,970/- kept in his left side shirt pocket and Rs.180/- along with 14 Nos. of Dirhams from his purse kept in his pant. Further, the JSC team had also observed that accused concealing a bunch of papers inside his banian which he was wearing and the same was taken into possession by JSC team.
12 Spl.C.C. 276/2016 J
(l) The JSC team had noted all the details of denomination/serial number of the cash and Dirhams and all the cash including Dirhams along with the plastic folder, papers etc recovered from the possession of accused. The source DVD were placed in 2 different covers and sealed in the presence of independent witnesses and Medical Vigilance Officer and duly signed by all of them.
(m) A proceeding was drawn in triplicate bringing the events took place on 16.10.2015 and signed by all the team members including accused, Dr. Malathi (CW.18/PW.13) and Dr. Nandini (CW.17/PW.12) and 2 sealed covers containing the cash and DVD and other documents/papers which was taken in possession during the JSC on 16.10.2015 along with proceedings dt. 16.10.2015,a copy was held with Dr. T.M. Lakshmikantha, (CW.21/PW.15) the Medical Vigilance Officer for safe custody. Another set of the same were handed over to CBI By Dr. T.M. Lakshmikantha for the purpose of investigation.
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(n) Further, it is the case of the prosecution that thereafter the CW-27 S. Ramesh, Inspector of Police took the further investigation of this case. The said Investigating Officer during the process of investigation has collected about 32 documents, and examined 29 witnesses and collected the sealed covers from the JSC team leader K.Y. Guruprasad, Dy.S.P., CBI/ACB, Bengaluru. Thereafter he has sent the said specimen seal, DVD and also CD to the CFSL Delhi for getting expert opinion. During the process of investigation the Investigating Officer has also sought permission of this court u/s 93 of Cr.P.C., for search and seizure of the house of the accused and after getting the search warrant from this court, he has made search of the house of the accused and submitted and seized documents from the residential house of the accused. The Investigating Officer during the process of investigation has obtained sanction order from the CW- 30 Director General of ESIC at New Delhi to prosecute against the accused as required u/s 19 of PC Act as 14 Spl.C.C. 276/2016 J accused is a public servant. Thereafter after collecting the CFSL Report he has filed the charge sheet against the accused.
3. My predecessor in office, on perusal of all the documents and material objects submitted by the Investigating Officer has taken cognizance against the accused for the above said offences and issued summons to the accused. Accused appeared before the court through his counsel. The prosecution papers as required u/s 207 of Cr.P.C., were supplied to the accused.
4. Heard the advocate for the accused before framing charge. The charges were framed against the accused for the offence punishable u/s 7, 11 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988. The said charge was read over to the accused. The accused denied the charges leveled against him, and claims to be tried.
5. The prosecution has examined in all 22 witnesses as PWs.1 to 22 and got exhibited 46 documents as Ex.P.1 15 Spl.C.C. 276/2016 J to Ex.P.46 and M.Os. 1 to 7 were marked and closed its side. During the course of cross-examination Ex.D1 and D2 were marked by the accused. The statement of Accused as required U/s 313 Cr.P.C., was recorded. The accused did not lead any defence evidence.
6. I have heard both the sides.
7. In view of the above controversies, the points that would arise for my consideration are:
1) Whether Accused proves that the sanctioning authority have not properly applied its mind at time of issue of sanction order as per Ex.P.25, as such the sanction as per Ex.P.25 is not in accordance with law and he is entitled for an acquittal?
2) Whether the prosecution proves beyond all reasonable doubt that the Accused being the Professor of the Head of the Department, Micro biology, ESIC MC and PGIMSR, Rajajinagar, Bengaluru while discharging his official duty being one of the internal examiner as per the orders of Rajiv Gandhi University of Health Sciences of Karnataka (RGUHS) for conducting a practical/viva-voce examination of MD, Microbiology from 14.10.2015 to 16.10.2015 as demanded a sum of Rs.50,000/- from Dr. Sharmila (CW.16), PG student and Rs.25,000/-
each from other three PG students viz., 16 Spl.C.C. 276/2016 J Dr. Nandini (CW.17), Dr. Malathi, (CW.18), Dr. Nirmala (CW.4), in the pretext of expenditure towards the conduct of practical examination and by putting them under fear that if they do not pay the amount as demanded, their results would be adversely affected and thereby accused has demanded and accepted gratification other than legal remuneration as a motive for forbearing to show, in the exercise of his official functions, disfavour to them and thereby committed offence punishable u/s 7 of the PC Act, 1988?
3) Whether the prosecution prove beyond reasonable doubt that the accused being the Professor and Head of the Department of Microbiology, ESIC MC and PGIMSR, Rajajinagar, Bengaluru while he was exercising his official duty as internal examiner to conduct practical /viva-voce examination of MD, Microbiology from 14.10.2015 to 16.10.2015 in respect of above said four PG students, obtained money from them without consideration, in the pretext to bear the expenditure towards the conduct of practical examination and to bear expenditure towards accommodation for external examiners, by putting them under fear of adverse result in their internal examination, when a joint surprise check was conducted headed by Dy.S.P., CBI/ACB, Bengaluru with the association of Medical Vigilance Officer of ESIC and two independent witnesses, on the source information, the accused were found in possession of Rs.1,45,000/-
17 Spl.C.C. 276/2016 J which was seized from his possession and thereby committed an offence punishable u/s 11 of Prevention of Corruption Act, 1988?
4) Whether the prosecution prove beyond reasonable doubt that the accused being the Professor and Head of the Department of Microbiology, ESIC MC and PGIMSR, Rajajinagar, Bengaluru, during said period at said place by abusing his position of Professor and head of the department of Microbiology and being an internal examiner to conduct the practical/viva-voce of examination of MD, Microbiology for PG students, obtained a pecuniary advantage for himself by obtaining a sum of Rs.50,000/- from Dr. Sharmila (CW.16/ PW.11) and Rs.25,000/- each from three other PG students and thereby committed an offence of criminal misconduct punishable u/s 13(1)(d)(ii) r/w 13(2) of Prevention of Corruption Act, 1988?
5) What Order?
8. My findings on the above points are as follows:
POINT No.1: In the Negative, POINT No.2: In the Affirmative, POINT No.3: In the Affirmative, POINT No.4: In the Affirmative, POINT No.5: As per final order, for the following 18 Spl.C.C. 276/2016 J REASONS
9. Before going to discuss the facts of this case I would like to reproduce relevant provision of law relating to Prevention of Corruption Act, 1988.
Sec. 7. Public servant taking gratification other than legal remuneration in respect of an official act: - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
Sec.11. Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant: -
Whoever, being a public servant, accepts or 19 Spl.C.C. 276/2016 J obtains or agrees to accept or attempts to obtain for himself, or for any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extent to five years and shall also be liable to fine.
Sec.13. Criminal misconduct by a public servant: - (1) A public servant is said to commit the offence of criminal misconduct: -
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) ...
(c) ....
(d) If he: -
a. by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; b. by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or 20 Spl.C.C. 276/2016 J c. while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.
Sec.20 of Prevention of Corruption Act, 1988:
20. Presumption where public servant accepts gratification other than legal remuneration: -
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause
(b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to 21 Spl.C.C. 276/2016 J be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as it mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
Further, in order to constitute an offence u/s 7 of the PC Act the ingredients of the offences are:
To establish offence under this section, it must be proved that: -
a. The accused was a public servant or expected to be a public servant at the time when the offence was committed. b. The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person. c. For himself or for any other person. d. Such gratification was not a remuneration to which the accused was legally entitled. e. The accused accepted such gratification as a motive or reward for: -
3. doing or forbearing to do an official act, or
4. doing or forbearing to show favour or disfavour to someone in the exercise of his official functions, or 22 Spl.C.C. 276/2016 J
5. rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the Legislature of any State, of with any local authority, Corporation or Government Company referred to in Sec.2 clause (c) or with any public servant, whether named or otherwise.
As per Sec. 4 of the Indian Evidence Act, May presume, Shall presume and Conclusive proof have been defined as under: -
"May presume": - Whenever it is proved by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:
"Shall presume": - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:
"Conclusive proof":- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
Sec. 3 of the Evidence Act defines Proved, Disproved and Not proved as under: -
"Proved": - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or 23 Spl.C.C. 276/2016 J considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved": - A fact is said to be disproved, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
"Not proved": - A fact is said not to be proved when it is neither proved nor disproved.
10. Admittedly as per the above provision of law the act of demand and acceptance of bribe or illegal gratification is an offence. Therefore, now it is to be discussed what is bribe or illegal gratification. What is a bribe or illegal gratification is not defined in the Act. It is some times called by empathetic and ambiguous names as Kushi, Inam, Bakshis, Dasturi, Fees, Mamool or any other code word of local language to be understood by the said set of people. Therefore, even if it may be called by whatever name if the public servants receives an amount other than the legal gratification it is to be termed as a bribe or illegal gratification. Further, at this stage, I would like to enlighten opinion of authorities in respect of 24 Spl.C.C. 276/2016 J illegal gratification or bribe. In this regard, I would like to lay my hands on the ruling reported in AIR 1959 Bombay (DB) 543 in State vs. Pundlik Bhikaji Ahire and another wherein their Lordships have held that:
(b) Penal Code (8160), S. 161 - Gratification -
Meaning of - Includes all satisfaction of desire and appetite - (Prevention of Corruption Act, (1947), S.4) (Words and Phrases -
Gratification) The expression "gratification" is not defined in the Prevention of Corruption Act, and the third paragraph of S.161 of the Penal Code states that the word "gratification" is not restricted to pecuniary gratifications, or to gratification estimable in money. That, strictly speaking, is not a definition of the expression. In its dictionary meaning, the expression "gratifications" is inclusive of all satisfaction of desire or appetite. The expression used in S. 161 I.P.C. in the sense of anything which gives satisfaction to the recipient. Prima facie, therefore, voluntary acceptance of an amount of money or a valuable thing by a public servant will amount to acceptance of gratification.
Further, one more ruling reported in AIR 1968 SC SC Page 1292 in Sailendranath Bose vs. State of Bihar wherein their Lordships held as under:
(C) Prevention of Corruption Act, (1947), S. 4 - Presumption under - Nature of -
Rebuttal - Presumption arises as soon as it is 25 Spl.C.C. 276/2016 J shown that accused had received the stated amount and such amount was not the legal remuneration - Word 'gratification' - Meaning
- It is not necessary that before presumption arises prosecution must prove that money was paid as a bribe.
The presumption under S. 4 arises when it is shown that the accused had received the stated amount and that the said amount was not legal remuneration. The word 'gratification' in S. 4(1) is to be given its literal dictionary meaning of satisfaction of appetite or desire; it cannot be construed to mean money paid by way of a bribe. The burden resting on accused under S. 4(1) is not as light as that placed on him under S. 114 of the Evidence Act and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by him is reasonable and probable. It must further he shown that the explanation is a true one. The words unless the contrary is proved which occur in that provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. The burden resting on the accused will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt. In other words, the nature of the burden placed on him is not the same as that placed on prosecution which must not only prove its case but prove it beyond reasonable doubt.
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11. Further, as per the extracts from R. Sharma Sastry, Kautilya's Arthasastra (Mysore Printing and Publishing House 8th Edition 1967).
"Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up, at least a bit of the king's revenue. Just as fish under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out taking money."
Keeping in view above provision of law and the findings of the courts, I would like to discuss merits of this case.
12. POINT No.1: - It is undisputed fact that the accused has worked in the office of the rank of Professor of HOD of ESI Medical College, Rajajinagar, Bengaluru. Further, it is also undisputed fact that Director General of ESIC of New Delhi is having authority to appoint and remove the said officers. The prosecution has obtained sanction from the PW.20, the Director General of ESIC at New Delhi as required u/s 19 of the PC Act to prosecute against the accused. The said sanction order is at Ex.P.25.
27 Spl.C.C. 276/2016 J
13. The learned advocate for accused argued that PW.20 the sanctioning authority has not applied his mind for issuance of sanction. Further, it is also argued that even after the said joint surprise check and even after the accused was suspended from his service by the said Department he has been given promotion. In this regard, the PW.20 admitted during the cross-examination at page No.4, para-6 as under: -
"It is true to suggest that as per the office order No. 127/16 dt: 30.12.2016, the accused was promoted as Director Professor. It is true that later on the suspension of the accused was revoked but I do not remember the exact date of the revocation of suspension of accused."
Therefore, it can be gathered that if at all the said department is having grievance against the accused for having committed the offence, they would not have given promotion. This itself goes to show that PW.20 the Director General of ESIC has not applied his mind while giving sanction. Further, it is also argued by the learned advocate for accused that PW.20 admitted that he has 28 Spl.C.C. 276/2016 J not at all received any complaint against the accused prior to the said incident. This itself goes to show that the accused is having good behaviour and conduct. Under such circumstances, PW.20 ought not to have issued sanction as per Ex.P25 to prosecute against the accused. Further, it is also argued that PW.20 admitted during the cross-examination that he has not at all visited ESIC Medical College, Bengaluru and he has not made enquiry with any students, staff, faculty members about the said incident against the accused. This also goes to show that PW.20 has not properly assessed and came to the conclusion by applying mind for issue sanction as per Ex.P.25. Further, PW.20 also admitted during the cross-examination that he was not aware how the marks will be allotted in the said PG Practical Examination. Hence, it is argued that PW.20, the sanctioning authority has not applied his mind for issuance of sanction as per Ex.P.25. Further, it is vehemently argued that when the sanctioning authority has not applied its judicial mind to issue sanction order 29 Spl.C.C. 276/2016 J that itself nullify the sanction order. Further, without proper and legal sanction, the prosecution cannot prosecute against the accused. Hence, it is argued that on these grounds alone the accused is entitled for acquittal.
14. In this regard, admittedly PW.20 Deepak Kumar, IAS Officer who worked as Director General of ESIC has issued sanction as per the Ex.P.25. In the examination-in-chief itself, he has admitted in page No.2 in para-3 that "CBI has also sent the list of witnesses, copy of the statement of witnesses, copy of the documents, copy of the transcription of DVD collected by the CBI during the investigation. On verifying all the documents sent by the CBI Officer, I felt there is a prima facie case against the accused for having committed the said offence. Hence, I had decided to accord sanction as prayed by the CBI".
Therefore, on going through the said evidence of PW.20, it goes to show that before issue of sanction as per Ex.P.25, he has verified all the documents supplied by the prosecution including statement of witnesses, copy of 30 Spl.C.C. 276/2016 J the documents, copy of the transcription of DVD collected by the CBI, list of witnesses. Thereafter, he has decided to issue sanction order.
15. Further, it has been repeatedly held that when the sanctioning authority gone through the enclosures sent by the Deputy Superintendent of Police, CBI and they accorded sanction. It was held that though the authority might have been little mechanical in granting the sanction. He had all the necessary materials before him and if we perused all the papers before him, he must be deemed to have been exercised his mind. Therefore, when the sanctioning authority has perused all the documents and came to the conclusion to issue sanction as per Ex.P.25 it is to be presumed that he has applied his judicial mind. Further, merely the fact that PW.20 was not aware of some procedural aspects, such as he is not aware how the marks will be allotted in the PG practical examination, it cannot be taken granted that he is not aware of any of the facts relating to this case. Further, admittedly the accused was promoted even after 31 Spl.C.C. 276/2016 J suspending him from the service by revoking his suspension. In this regard, merely the fact that suspension was revoked it cannot be said the sanction order issued by PW.20 is illegal, because revocation of suspension and giving promotion is a factor to be considered by looking to the qualification and the performance of the accused as an HOD in ESIC Medical College. The sanction order as per Ex.P.25 is issued basing on the papers supplied by the prosecution i.e., list of witnesses, copy of the statement of witnesses, copy of the documents, copy of the transcription of DVD. Therefore, at the time of analysing the said two factors referred above, the same yardstick cannot be applied. In other words, even though the accused was promoted later on by revoking his suspension it cannot be said that the sanction order furnished by the PW.20 is without applying his judicial mind. Further, even though the PW.20 admitted that he has not received any complaints prior to this incident against the accused, it cannot be said that the PW.20 has hurriedly without verifying the 32 Spl.C.C. 276/2016 J documents submitted by the CBI have issued the said sanction order. Admittedly, he has deposed that only after verifying the documents as referred above, he came to the conclusion to issue sanction order as per Ex.P.25. Further, Admittedly the PW.20 has not visited the ESIC Medical College, Bengaluru and not enquired the students, staff, and faculty members before issuing a sanction order. Admittedly, as per the evidence on record PW.20 specifically deposed that he has specifically verified the statement of the four students who are appearing for the PG Practical Examination and proceedings of the ESI Team and thereafter he came to the conclusion for issuing sanction order as per Ex.P.25. Therefore, considering the evidence of PW.20 and Ex.P.25, the sanction order, I am of the considered opinion that PW.20 the Director General of ESIC at New Delhi has applied his judicial mind for issue of sanction to prosecute against the accused as per Ex.P.25. Hence, I am of the considered opinion that there is no any force in the arguments advanced by the learned advocate for 33 Spl.C.C. 276/2016 J accused to the effect that PW.20 has not applied his judicial mind. Hence, the Accused has failed to prove that the accused is entitled for acquittal as PW.20 has issued the sanction without applying his judicial mind as alleged. Accordingly, I answer Point No.1 in the negative.
16. POINT Nos.2 to 4: - Point Nos. 2 to 4 have been taken up together for my consideration and discussion to avoid the repetition of facts and evidence.
17. Keeping in view the above principle of law and precedents, I would like to discuss the merits of this case on facts. It is undisputed fact that accused is the Professor and Head of Department of Micro Biology, ESIC, PGIMSR, Rajajinagar, Bengaluru. Further, it is also undisputed fact that the Micro Biology Practical Viva-voce examination for PG students was held at ESIC Hospital, Rajajinagar, Bengaluru from 14.10.2015 to 16.10.2015. In this regard, the PW.10 Dr. Sachidananda who was Registrar (Evaluation) in RGUHS from July 2007 to July 2010 and again from January 2014 to August 2016 has deposed before this court that he has 34 Spl.C.C. 276/2016 J issued the letter as per Ex.P.1, appointing Dr. Navaneeth,(accused), Dr. Saroj Golia (PW.1) and Dr. Ambika (PW.4), as internal examiners and Dr. Umapathi and (CW.3), Dr. Srinivasareddy (PW.19) as the external examiners to the said practical examination for the said PG students. It is also undisputed fact that Dr. Malathi (PW.13) having registration No. 12MM002, Dr. Nirmala (PW.2) having registration No. 12MM202, Dr. Nandini (PW.12) having registration No. 12MM577, Dr. Sharmila (PW.11) having registration No. 12MM579 were appearing for the said practical and viva voce examination for PG students. It is also undisputed fact that the accused was the HOD and head of the said examiners team.
18. Now I would like to discuss the process and the manner of conducting the said examination, how marks are being allotted to said students, what are nature of expenses is being spent, how the said expenditure is paid, who will allot the said amount.
19. In this regard, I would like to reproduce the evidence of the PW.1 DR. Saroja Golia who is one of the 35 Spl.C.C. 276/2016 J internal examiners to the said practical viva voce examination for PG students.
20. The said witness PW.1 has deposed in her examination -in-chief at para No.2 to 5 as under: -
"2. Likewise I was deputed by RGUHS, Bengaluru as an internal examiner during the year 2015 to conduct practical and Viva-Voce examination of my one PG students who were given ESIC Hospital as Center for their examination for Microbiology between 14.10.2015 to 16.10.2015. Now I see the order issued by Registrar, Evaluation, RGUHS, Bengaluru appointing me as an internal examiner for the above said examination. It is marked at Ex.P.1 (consisting of six sheets). Other two internal examiners and two external examiners are also appointed for conducting the said internal and Viva-Voce examination.
3. Dr. Navneeth (Accused) was the coordinator of the said examination Center. Dr. Navneeth (Accused) being the coordinator of the examination center has to arrange all the necessary requirements for conducting practical and Viva-voce examination. Nine exercise will be given to the student to do the practical at that time, the two internal and two external examiners will ask questions about the procedure for conducting the said practical examination and after completion of said practical examination, a separate viva-voce will be conducted on each practical exercise. The total marks for practical exam is 200 and for Viva-Voce is 100 marks.
36 Spl.C.C. 276/2016 J
4. The student has to score minimum 50% of the marks in practical and Viva-Voce to qualify the test. The RGUHS has fixed conveyance allowance of Rs.375 per day and a remuneration of Rs.1000/- for all three days for internal examiner. I have received the conveyance allowance of Rs.375 per day and remuneration of Rs.1000 after the completion of examination from ESIC College. Apart from that remuneration we will not receive other remuneration from the said Center. I have not received any amount from Dr. Navneeth (Accused).
5. Each examiner will award marks for 200 for practical examination and marks for 100 for Viva-Voce examination. Thereafter, the marks allotted by each of the examiner for practical examination and Viva-Voce examination will be added separately and divided by four to arrive at the marks allotted to the candidate for practical and Viva-Voce examination and the said marks will be uploaded in the computer and sent to the University and the system will feed the said marks and print out of the feed marks will be taken out and it will be signed by all the four examiners and it will be given to the examination section who in turn will send it to the university.
So also PW.4 Dr. R. Ambica who is also one of the internal examiners of the said practical viva voce PG examination has deposed that " .... As a professor, I can be nominated as an examiner for both UG and PG Medical courses.
37 Spl.C.C. 276/2016 J I was nominated as an internal examiner for the PG Microbiology practical and viva-voce examination to be conducted in the month of October 2015 for ESIC Medical College. Now I see Ex.P.1, it is the order passed by Registrar (Evaluation), RGUHS nominating me as internal examiner along with two other internal and two external examiners. Dr. Navneeth (Accused) and Dr. Saroj Golia were the other two internal examiners, Dr. Umapathy and Dr. Srinivasalu Reddy were two external examiners "
Further in para-2 she has deposed that:
"2. The practical examination was for 200 marks and viva-voce for 100 marks. Now I see Ex.P.2, it is consisting of work done cum absentee statement, marks proforma and freezed marks sheet and evaluation sheet. Dr. N. Malathi (CW.18) was student from Bengaluru Medical College in the said examination. The remuneration was Rs.1000 in all for three days and Rs.375 per day as a conveyance allowance. The college will bear expenses of Tea, Biscuits and Lunch. I have not received any amount from Dr. Navneeth. CBI police have enquired me and recorded my statement."
So, also PW.19 Srinivasulu Reddy one of the external examiners to the said Microbiology Practical Viva-Voce Examination to be held for the MD students during October 2015 has deposed that:
38 Spl.C.C. 276/2016 J "3. Dr. Umapathy was also one of the examiners to the said Microbiology PG practical and Viva Voce examination. Accused i.e., Dr. Navneeth was also one of the Microbiology PG practical and Viva-Voce examination and he was the Chairperson of the examination board. Dr. Umapathy hails from Tamilnadu. Out of the four students referred above, one of them from Bangalore Medical College, another one from Dr. B.R. Ambedkar Medical College and the remaining two are from ESI Medical College, Rajajinagar, Bengaluru. In the said examination board, two other examiners also hails from the Dr. B.R. Ambedkar Medical College i.e., (PW.1) and Bangalore Medical College (PW.4) respectively.
It is general practice that if students hails from particular college, there should be at least one examiner from the said college.
4. In the said practical examination to be held for PG Microbiology students, 9 exercises will be conducted and for each exercise, the students have to do practical as a bench work and they have to appear for the Viva concerned to the said exercise. For each exercise, all of us five examiners will go and access the validity of their work. Accordingly, marks will be allotted to the said students looking to their performance. The said examinations were spread over for three days. Every day we used to give one or two exercise to the students. At the end of the 3rd day, we used to give marks to the said students looking to their performance during the said three days. The last day, i.e., 3rd day will be for Viva of the students. The said viva is in respect of the entire syllabus related to the Microbiology subject."
39 Spl.C.C. 276/2016 J Therefore, in view of the evidence of the above said examiners, it is clear that the said practical viva-voce examination for the PG students was held from 14.10.2015 to 16.10.2015. Further, admittedly to meet out the expenses of the said examination the RGUHS has allotted budget as per the Ex.P.17. Ongoing through the said Ex.P.17, it goes to show that an amount of Rs.80,000/- has been allotted and released in favour of the ESIC Medical College, Bengaluru to meet out the expenses like TA bill and other expenses for the practical and viva-voce examination to be held for the Microbiology PG students. Further, as per the Ex.P.21, the details of expenditure to conduct the MD PG Practical examination from 14.10.2015 to 16.10.2015, it goes to show that the honorarium has been paid to all the examiners at the rate of Rs.1000 per examiner and local conveyance of Rs.1125/- has been claimed by the Dr. Saroj Golia and Dr. Ambica.R. So also Dr. Umapathy has claimed TA bill of Rs.10,230/- and DA of Rs.2250/-. Dr. Srinivasulu 40 Spl.C.C. 276/2016 J Reddy has claimed TA bill of Rs.5375/- and DA of Rs.2250/- in addition to the honorarium of Rs.1000/-. Further, as per the Ex.P.38, the details of utilization of funds, expenditure incurred pertaining to the PG Medical Viva-Voce Examination by MD, Microbiology goes to show that the said amount allotted by the RGUHS has made use by the ESIC Hospital. So also ongoing through the Ex.P.38, Dr. Umapathi has claimed in all Rs.12,480/- towards the TA, DA and other miscellaneous expenses, Dr. Srinivasulu Reddy has claimed Rs.5,025/- towards TA, DA and other expenses. As such after making utilization of the said funds, an amount of Rs.27,755/- has spent for the Microbiology Practical and Viva-Voce examination and balance of Rs.52,245/- was refunded to the RGUHS. In this regard, I would like to reproduce evidence of PW.10 Dr. Sachidananda at para-4, he has deposed that:
"4. ESIC is a Govt. college and the said college has to meet the expenses out of the budget allotted by the Govt. The candidate in order to pass has to secure minimum 50% in theory and 50% in practical and viva-voce
41 Spl.C.C. 276/2016 J separately. Now I see the advance bill issued by Finance Officer, RGUHS that a sum of Rs.80,000 was released to ESIC Medical College, Bengaluru for conducting practical examination during the month of October 2015. It is marked at Ex.P.17. The signature of the witness is marked at Ex.P.17(a).
5. Now I see the details of the amount claimed by the college and refund of excess money, which reveal that out of Rs.80,000 amount released to ESIC Medical College, Microbiology Department, a sum of Rs.27,755/- was utilized and remaining amount of Rs.52,245/- was refunded. The said statement is marked at Ex.P.18." Further, PW.19 Dr. P. Srinivasulu Reddy has deposed in his examination-in-chief at para-7 that:
"7. During the said three days of the said examination, I have stayed in the URS Regency, Rajajinagar, Bengaluru. I have also claimed my traveling allowance, daily allowance and remuneration from the Rajeev Gandhi University, Bengaluru. Now I see the attested copy of the bill of TA bill submitted by me to the Rajeev Gandhi University, it amounts to Rs.8025/-. The said attested copy of the TA Bill is marked as Ex.P.24. Witness identify his signature on Ex.P.24. His signature is marked at Ex.P.24(a). I have collected in all Rs.8025/- from the Rajeev Gandhi University. Apart from the said amount, I have not received any other remuneration or amount from accused of ESI Medical College, Rajajinagar, Bengaluru for attending the said three days practical 42 Spl.C.C. 276/2016 J examination for the PG Microbiology students at ESI Medical College, Rajajinagar, Bengaluru."
Therefore, it goes to show that a sufficient amount has been granted by the Rajiv Gandhi University of Health Sciences to the ESIC Hospital, Bengaluru to meet out the said practical examination for Microbiology PG examination. Further, the said examiners referred above have also spoken about the procedure to be followed at the time of the said examination. Further, it is also brought on record with regard to the how marks allotted to each students will be fredzed in the computer at the end of the third day of the examination. Therefore, ongoing through the above evidence of the PW.1, 4 and 19 read with the above said documents, it goes to show that the practical viva-voce for Microbiology PG students will be held as per the directions of the RGUHS and there is a procedure laid down for allotting the marks and how the viva examination to be conducted and the said RGUHS has allotted funds to meet out the expenditure of the said Microbiology PG Practical & Viva-voce 43 Spl.C.C. 276/2016 J examination. The said examiners are well qualified, well experienced, having depth knowledge in the filed of medicine, conducting of examination and even in administration. The RGUHS has provided funds to meet out the expenses of the said examination. Therefore, there is no need to spend any amount out of the pocket either by the examiners or by the students who have appeared for the said Microbiology PG practical and Viva- voce examination or by any outsider. Further there is no need to spend any amount for the purpose other then the conducting of the said examination.
21. Be that as it may be, the CBI have received a source of information that the accused being the Professor and HOD of Microbiology used to receive bribe amount from the PG students who are appeared for the Microbiology practical viva-voce examination. It is the further case of the prosecution that PW.17 K.Y. Guruprasad, Additional Superintendent of Police had received the source information on 15.10.2015 evening 44 Spl.C.C. 276/2016 J hours with regard to the corrupt practice that are going on in the ESI Medical College, Rajajinagar, Bengaluru, more particularly the accused Dr. Navneeth, Professor and HOD of Microbiology, ESIC Hospital, Rajajinagar was demanding and accepting illegal gratification from the students doing PG courses in Microbiology at ESIC Medical College at Rajajinagar, Bengaluru. It was also come to the knowledge that two of the students were going to pay the demanded illegal bribe amount to the accused on 16.10.2015 evening after the completion of their examination. In this regard, on receipt of the said information, the PW.17 K.Y. Guruprasad, Dy.SP of CBI has made enquiry with the branch head Dr. Subramaneswar Rao, SP of CBI/ACB and accordingly decided to conduct surprise check jointly with the Medical Vigilance Officer of ESIC and in the presence of two independent witnesses. Accordingly, on 16.10.2015, at about 16 hours, PW.17 K.Y. Guruprasad, Dy.SP, CBI/ACB, CW.23R.K. Shivanna, Inspector, PW.15.Lakshmikantha, Medial Vigilance Officer, and two 45 Spl.C.C. 276/2016 J independent witnesses i.e., PW.5 Smt. Geetha and CW.8.Radhakrishna from the Railway Department along with two constables i.e., Pradeep Kumar and CW9.Smt. Rajeshwari assembled at the ESIC Hospital premises at Rajajinagar, Bengaluru. After mutual introduction and explaining the purpose of the said assembly, one DVD received from the source was played before the Joint Surprise Check team members. The team members were informed to identify the voice of the accused recorded in the said DVD i.e., M.O.1. Thereafter, they have decided to trap the accused at about 17 hours. The Joint Surprise Check team members entered into the ESIC Hospital premises and took safe positions in the scattered manner near the chamber of accused situated in the ground floor of the said building. At about 17.30 hours, two ladies entered the chamber of the accused and after 10-15 minutes the said ladies came out of the chamber. As soon as they came out of the chamber, they were intercepted and after introduction of their Identity by the CBI officers, they were asked as to why they were 46 Spl.C.C. 276/2016 J gone to the chamber of the accused. At that time, Dr. Malathi told that she is a student of PG Course in Microbiology at ESIC Medical College. The accused had demanded an illegal money of Rs.25,000/- from each of the student on the ground of meeting examination related expenses. None of the students were willing to meet the illegal demand of the accused, but to escape from the adverse effects on their examination results, some of the students have already paid the demanded money to accused as such she has also paid the demand amount of Rs.25,000/- to the accused just before coming out of the chamber of the accused. Thereafter, the Joint Surprise Check Team Members also enquired with another lady Dr. Nandini who is a student of Jayadeva Institute of Medical Science, Bengaluru. She also confirmed the version of Dr. Malathi and Spock that she has already paid Rs.25,000/- to the accused on 14.10.2015 as demanded by him. Further, in this regard, both Dr. Malathi and Dr. Nandini have given a written complaint to the CBI as per Ex.P3 and P4.
47 Spl.C.C. 276/2016 J
22. Further, it is the case of the prosecution that thereafter the said Joint Surprise Check team members went inside the chamber of the accused and introduced themselves to the accused. Accused was shocked for a moment and the team members asked the accused whether he has received Rs.25,000/- just two minutes back from Dr. Malathi, accused confessed that he had received Rs.25,000/- from Dr. Malathi prior to their arrival to the chamber. Thereafter, the accused explained that he has received the said amount from the other PG students also to meet out the examination related expenses. Then he was asked to produce all the amount received from the PG students. The accused produced in all Rs.1,45,000/- to the JST team i.e., Rs.50,000/- were in wrapped paper and kept in plastic cover and another Rs.40,000/- were taken out from the left hand side of the drawer of accused table. Accused also produced Rs.15,500/- kept in plastic cover from the right hand side drawer of the table. Accused also produced Rs.39,500/- from the pelvic region of his pant 48 Spl.C.C. 276/2016 J worn by him. When the JST team members asked to produce any other amount if he has with him. Then the accused produced Rs.1,970/- from his shirt pocket and another Rs.180/- and some foreign currency notes from his purse kept in his pant pocket. In all the accused produced said Rs.1,45,000/-, Rs.1,970/- and Rs.180/- and the foreign currency. The JST team has seized the said amount under seizure mahazar, and drawn proceedings of the said JSC team as per Ex.P6. All the JSC team members signed the Ex.P6. The contents of the said Ex.P6 Joint Surprise Check proceeds was dictated by the K.Y. Guruprasad, PW.17 and the PW.15 Medical Vigilance Officer Lakshmikanth. It was typed by Ramesh, CW.27, Inspector of Police, CBI., in the Laptop brought by the PW.17 Guruprasad Dy.SP, CBI. The contents of the same were taken out in Pen drive and thereafter print out was taken and signatures of all the JSC team members was taken on the said document. The said amount i.e., Rs.50,000/- was seized as per M.O.2(a), Rs.1970/- as per M.O.2(b), Rs.180/- as per 49 Spl.C.C. 276/2016 J M.O.2(c) and foreign currency as per M.O.6, Rs.40,000/- as per M.O.2(d), Rs.15,500/- as per M.O.2(e), Rs.39,500/- as per M.O.2(f).
23. Further, it is the case of the prosecution that the said Joint Surprise Check continued till midnight of that day. During the said joint surprise check it was also noticed that accused was also hiding some document in his Vest (inner garment) worn by him. The said documents were seized which were as per Ex.P2 containing 6 sheets i.e.,
(i) Work done cum absentees statement.
(ii) Freezed marks sheet in 2 sheets.
(iii) Marks Proforma sheets.
(iv) Practical and Viva-Voce Evaluation Sheet and
(v) Circular of ESIC.
Further, the accused was also asked to give his explanation. In this regard, the accused also given his explanation in writing which is as per Ex.P5. Accused has stated that he has received the said amount from the PG students to meet out the examination related expenses. Thereafter, PW.17 K.Y. Guruprasad, Dy.SP, 50 Spl.C.C. 276/2016 J CBI/ACB, Bengaluru along with team members have concluded the said joint surprise check on that day. In this regard, PW.17 K.Y. Guruprasad, Dy.SP, CBI has specifically deposed to that effect. His evidence is supported by the evidence of the independent witnesses i.e., PW.5 P. Geetha, the Senior Commercial Assistant, Bengaluru Division, South Western Railway, Bengaluru and her evidence is also supported by the evidence of PW.15 T.M. Lakshmimahtha, Medical Vigilance Officer of ESI Hospital, Bengaluru. The said evidence also corroborated with the evidence of the complainants i.e., PW.12 Dr. M.P. Nandini and PW.13 Dr. Malathi. Nothing has been elicited during the cross-examination of these witness to disbelieve the fact that the said JST team have made a Joint Surprise Check on 16.10.2015 and recovered the said amount from the custody of the accused. Further, admittedly the accused has not totally denied about the said joint surprise check and also not denied about the recovery of the said amount during the said joint surprise check. Further, in respect of the other 51 Spl.C.C. 276/2016 J defence taken out by the accused, it will be discussed at the later part of this judgment.
24. Further, admittedly it is the specific allegation of the PW.12 Dr. Nandini, PW.13 Dr. Malathi that accused used to make illegally demand from the PG students. In this regard, admittedly from 14.10.2015 to 16.10.2015 four P.G. Students i.e., PW.2 Dr. Nirmala, PW.11 Dr. Sharmila, PW.12 Dr. Nandini, PW.13 Dr. Malathi were appeared for the said PG practical examination of Microbiology. In this regard, PW.2, PW.11, PW.12, PW.15 have specifically deposed in their examination-in-chief itself that 3 days before commencement of the practical examination all the four together went to ESI Medical College and met accused seeking his permission to see the slides and cultures kept in the practical lab. At that time accused told that in order to conduct practical examination, Antisera and re-agents are necessary for practical examination. Further, he told that without Antisera and re-agents, the practical examination cannot be conducted. Therefore, 52 Spl.C.C. 276/2016 J he asked them to pay Rs.25,000/- each to purchase the Antisera and re-agents for conducting practical examination and he has stated that the amount will be repaid after the fund is released from the RGUHS. In this regard, all the witnesses have specifically deposed that they are not willing to pay the said amount, PW.17 asked to pay Rs.50,000/-, as such she paid Rs.50,000/- to the Dr. Ann Mary Alex PW.8 to be paid to the accused on 14.10.2015 itself. In this regard, PW.8 specifically deposed to that effect before this court. Further, PW.12 Dr. Nandini have paid Rs.25,000/- on 14.10.2015 itself directly to the accused, PW.13 Dr. Malathi gave Rs.50,000/- i.e., Rs.25,000/- her contribution and Rs.25,000/- given by Nirmala PW.2 to be paid to the accused. As such, PW.2, PW.11 to PW.13 have specifically deposed before this court that they have paid Rs.25,000/-, Rs.50,000/-, Rs.25,000/- and Rs.25,000/- respectively to the accused as per his demand. Further, all the said witnesses i.e., PW.2, 11, 12 and 13 Microbiology PG practical examination students have 53 Spl.C.C. 276/2016 J specifically deposed in consistent terms before this court that they have paid the said illegal demand amount to the accused even though they are not willing to pay the said amount under the apprehension that the accused may write an adverse remarks against them in respect of the said Microbiology Practical PG examination.
25. Be that as it may be, now I would like to discuss further that it appears that it was the practice of the accused to collect the amount from the Microbiology PG practical examination students to meet out the examination related expenses. In this regard, ongoing through the evidence of the earlier three batches students who appeared for the Microbiology PG Practical Examination. More particularly, earlier batch student PW.3 Dr. B.U. Sumithra who attended for PG Microbiology examination from 12-5-2015 to 14-5-2015 has specifically deposed before this court that 2-3 days before commencement of the practical examination accused called her and other students and told them to take care of expenses of examination for the purpose of 54 Spl.C.C. 276/2016 J purchasing the Antisera and re-agents and as such they each have to pay Rs.50,000/ to the accused. Further, she has also deposed that when she was studying in the 2nd year accused asked her to collect amount from 3rd year PG students by name Dr. Arvind, Dr. Priyanka, Dr. Sangeetha, Dr. Vasudha. Further she has deposed Dr. Priyanka and Dr. Arvind had handed over to her Rs.20,000/- each and Dr. Sangeetha and Dr. Vasudha had handed over Rs.15,000/- each. She has handed over the said amount of Rs.70,000/- to the accused.
26. Further, More particularly another previous batch student PW.6 Dr. Natasha Vaidya who appeared from 12.5.2015 to 14.5.2015 Microbiology Practical Examination, has deposed that the accused had called the said PG students to the chamber and asked to pay Rs.50,000/- each to meet out the expenses of repairing Autoclave, purchase of media and for expenses of examiners towards food, tea, biscuits and accommodation. Further, the accused asked them to pay the said amount in the hands of Dr. Mamatha 2nd year 55 Spl.C.C. 276/2016 J PG student. On the same day, PW.6 Natash Vaidya and Dr. Sunitha and Dr. Nandini have paid Rs.50,000/- each in the hands of Dr. Mamatha in the hostel. The accused has not issued any receipt for having received the said amount. Further, he has deposed that there is no rule for payment of such amount and under fear they have paid the said amount to the accused.
27. So also PW.9 Dr. Mamatha. K.R. has deposed before this court that 2-3 days prior to the practical and viva-voce examination of above said 3rd batch students she was instructed by the accused to collect the amount from the three PG students and handed it over to him. Two days prior to practical examination, Dr. Sunitha and Dr. Natasha handed over Rs.50,000/- each and in turn she had handed over the said amount to the accused on the same day. On the next working day, Dr. Nandini gave Rs.50,000/- and she has handed over the same to the accused on the next day. The accused being the head of the Department had asked them to collect the said amount and hand over to him. Therefore, ongoing 56 Spl.C.C. 276/2016 J through the evidence of PW.2, 11 to 13 Microbiology PG practical examination students who appeared from 14.10.2015 to 16.10.2015 have specifically deposed that accused was demanding the amount to meet out the expenses of the said practical examination and as such they have paid Rs.50,000/-, Rs.25,000/- each to the accused. Their evidence is corroborated by the previous batch Microbiology PG practical examination students PW.3 B.U. Sunitha, PW.6 Dr. Natash Vaidya, and the evidence Dr. Mamatha.
28. Further, PW.7 Dr. C. Mahesh has deposed before this court that he owns Maruthi Swift Car and used to bring the said car to the college occasionally. Accused knows the same. The accused was using the car of the PW.7 for his personal work. PW.7 Dr.Mahesh specifically deposed before the court he used to meet out the fuel expenses of his car which was used by the accused for his personal use. Further, he has also deposed that about 30 to 40 times the accused has made use of the car of PW.7 for his personal work. Further he 57 Spl.C.C. 276/2016 J has specifically deposed that he used to drive the car whenever the accused wanted to visit other places for his personal work.. Further, this witness has specifically deposed during 2014-15, totally three practical and viva voce examination were conducted in ESIC College. The accused has asked him to pick up the examiners from Airport, Railway Stations and other places and drop them back to the Airport, Railway Stations and other places. He used to obey the orders of accused out of the fear that accused may damage his academic career. Therefore, ongoing through the evidence of PW.7, it also goes to show that the accused was threatening and making undue advantage of his authority and power on the students appearing for the Microbiology PG Practical Examination by making undue advantage and collecting the amount from them and getting services without consideration.
29. In this regard, the learned PP argued that ongoing through the evidence of the witnesses supported by the documents produced by the prosecution, it has 58 Spl.C.C. 276/2016 J proved that accused was illegally collecting amount ,and getting services from the students, there by it has proved the guilt of the accused beyond all reasonable doubt. On the contrary, ongoing through the suggestions made by the learned advocate for accused to the witnesses during the trial the accused has varied his defence at each stage, i.e. at the initial stage, the accused has admitted that he used to make demand from the students appearing for PG practical examination for the purpose purchase of Antisera and re-agents for the said practical examination. It is also his defence at the latter stage that it is not the bribe amount. The said ESI Hospital was not having proper infrastructure facilities for conducting PG practical examination. Therefore, For the purpose of meeting out the examination expenses he received the said amount. Thirdly it is also defence made out by the accused at the further stage of the trial that he has totally denied the demand and acceptance of the money from the Microbiology PG practical examination students. Therefore, in all ongoing through the defence 59 Spl.C.C. 276/2016 J taken out by the accused during trial his defence varies at each stage. In this regard I would like to say that once accused admits receiving of money either for meeting out examination related expenses or for any purpose, at latter stage he is precluded from denying the same fact. Therefore, the different defence taken by the accused at different stage of same proceedings is fatal to the accused.
30. In this regard, the learned advocate for accused argued further that there is no demand and acceptance of bribe by the accused. Further, there is no seizure of tainted amount from the custody of the accused. In this regard, learned advocate relied upon the rulings reported in AIR 2014 SC (Supp) 1837 Supreme Court in B. Jayaraj vs. State of Andhra Pradesh wherein it is held that:
(A) Prevention of Corruption Act (49 of 1988), S.17, S.13 - Bribery case - Demand of gratification - Proof - Complainant disowning to have made complaint - No other evidence adduced by prosecution to prove demand -
Demand of gratification cannot be held to be proved only on basis of complaint filed and 60 Spl.C.C. 276/2016 J evidence of panch witness - In absence of proof of demand mere recovery of tainted money from accused - Not sufficient for his conviction.
Another ruling reported in 2015(7) SCC 283 in State of Andhra Pradesh vs. P. Venkateswarulu wherein it is held A. Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988 - S.7, 11, 13 and 20 - Illegal gratification - Mere recovery of tainted amount from accused - Not enough for holding accused guilty under Ss. 7, 11 and 13 -
Demand and acceptance of amount as illegal gratification - Is a sine qua non for constituting offence under PC Act - Same having been established, conviction under Ss. 7 and 13(1)(d) r/w S. 13(2) by trial court, restored.
Further, in the said judgment, it is also held at B. ....... Recovery of tainted money from respondent, not challenged by him -
Presumption mandated under S. 20, raised - Such presumption, not rebutted by respondent by adducing direct or circumstantial evidence, that money was not reward or motive as mentioned under S. 7 - Plea of alibi, not established beyond all doubt - Defence plea of setting up of trap....
61 Spl.C.C. 276/2016 J Another ruling relied upon by the learned advocate for accused that 2011(6) SCC 450 in State of Kerala vs. C.P. Rao wherein it is stated held that:
A. Prevention of Corruption Act, 1988 - Ss.7, 13(2) and 13(1)(d) - Trap case for taking bribe - Standard of proof and corroboration - Reiterated, mere recovery of tainted money, divorced from circumstances under which it is paid, is not sufficient to convict accused - When there is no corroboration of testimony of complainant regarding demand of bribe by accused, it has to be accepted that complainant's version is not corroborated and, therefore, evidence of complainant cannot be relied on.
Hence, the learned advocate for accused relying upon the above said reported judgments argued that as there is no direct demand and acceptance of bribe amount and there is no seizure of tainted amount from the custody of the accused, no signature of the accused was taken on the seizure list. Hence, the prosecution has failed to prove that accused had made illegal demand of bribe and acceptance of illegal gratification from the Microbiology PG Practical Examination students by leading cogent and convincing, corroborative evidence.
62 Spl.C.C. 276/2016 J
31. In this regard, I would like to discuss further. Admittedly as already discussed in the above said paragraphs, accused at the initial stage of this proceedings has not totally denied about the acceptance and demand of the money from the Microbiology PG Practical Examination students to meet out the examination expenses. In this regard, at the cost of repetition I would like to reproduce relevant portion of the evidence of the witnesses.
32. PW.1 Dr. Saroj Golia, one of the examiner of the Microbiology examinations to be held from 14.10.2015 to 16.10.2015, it has been suggested in the cross-examination of the said witness by the advocate for accused in page No.8 at para-12 which I would like to reproduce as under:
"12. I do not know whether the microbiology examination was conducted in a makeshift lab in the 6th floor of ESIC Hospital. Witness volunteers that the examination was conducted in a well arranged laboratory. It is true to suggest that for microbiology practical examination, antisera is needed. It is true to suggest that antisera is quite expensive and it has expiry date of one year. I do not know 63 Spl.C.C. 276/2016 J what expenditure the college incurred for conducting practical examination for each candidate because the college will provide all the facilities.
13. It is true to suggest that accused informed me that some other lab has been converted into a microbiology lab for conducting the practical examination since the ESIC hospital do not have a separate microbiology lab for examination. The accused did not offer any money to me."
PW.11 Dr. T. Sharmila, one of the Microbiology PG Practical Examination student during the cross- examination of at page No.3, para-4 deposed as under: -
"It is not true to suggest that there was lack of infrastructure facility in the Microbiology lab. However, the practical examination and viva-voce was conducted in the physiology lab as the Microbiology lab was not sufficient to accommodate 4 to 5 students for examination purpose."
Further, in page No.4 at para-5 three line above from the bottom of the page it is deposed that:
"It is true to suggest that we the PG students pooled the amount for purchasing Antisera and re-agents for practical examination and kept it in the chamber of HOD for safety."
64 Spl.C.C. 276/2016 J Here accused admits the fact that the said amount collected is being kept in his chamber with his consent and knowledge.
Further, PW.12 Dr. M.P. Nandini, one of the Microbiology PG Practical Examination Student appeared from 14.10.2015 to 16.10.2015 has deposed at page No.5, para-7 of her cross-examination after about 7 lines as under:
"It is true to suggest that there was no proper infrastructure in the ESIC Medical College for conducting examination. It is true to suggest that there is no separate chamber for faculty members except HOD but a common room is provided to the faculty members in the computer room."
Further, she has deposed that:
"It is true to suggest that in order to see that our practical examination are not delayed for want of Antisera and re-agents, we the PG students used to pool the amount as told by HOD."
Therefore, as it is suggested by the learned advocate for accused to pw.11 and 12, the accused directly or indirectly admits that he has instructed the students of Microbiology PG practical examination to collect the 65 Spl.C.C. 276/2016 J amount to meet out the expenses of the said practical examination.
Further, it is also suggested to PW.13 Dr. Malathi who is also one of the student of Microbiology PG Practical Examination appeared from 14.10.2015 to 16.10.2015 in page No.6 of her cross-examination as under: --
"It is not true to suggest that we the PG students have voluntarily pooled the amount for the purpose of meeting out the expenses of practical examinations."
Further, PW.3 Dr. B.U. Sunitha who appeared for the earlier batch of Microbiology PG Practical Examination i.e., from 12.5.2015 to 14.5.2015 has deposed during the cross-examination that:
"It is not true to suggest that if it is presumed to be true that I have collected money at the instance of the accused and handed over to him that would amount to abetment. Witness volunteers since she was a PG student and accused being the head of the department accused asked me to collect the money from the 3rd year student for examination expenses, therefore, I have collected the money."
Further, it has been come in the evidence of PW.16 Dr. Ruby Yadav, who is also one of the student for the 66 Spl.C.C. 276/2016 J Microbiology studying in the first year of PG during the cross-examination of this witness, it was suggested at page No.5, after four lines as under:
"In that meeting, accused told what has happened to him during 2015. It is false to suggest that Dr. Rahil and Dr. Abdul in the said meeting have told about the fact that they were collecting some money from the PG students from conducting practical examination. It is false to suggest that generally the PG students collect money among themselves for conducting PG practical examination. Witness again volunteers for some expenses like getting snacks, tea, transportation charges of the examiners from examination centers to Airport and from Airport to examination centers were to be shared by PG students by collecting money."
Thereby, ongoing through the suggestions made by the advocate for the accused to this witness: it is the case made out by the accused himself that the amount being collected by the PG students or by himself to meet out the practical examination expenses as there was no sufficient amount and the funds being not released by the RGUHS within time to conduct the examination smoothly and in accordance with convenience of the students. Therefore, ongoing through the said 67 Spl.C.C. 276/2016 J suggestions made by learned advocate for accused, accused claims that he has not committed offences as the said amount being collected by himself or by the PG students to meet out the examination expenses. Thereby, it directly or indirectly admitted that he was also one of the part and parcel of the said team for collecting the money to meet out the expenses of PG practical examination. In this regard, at the cost of repetition, I repeat that admittedly four Microbiology PG practical examination students who are appeared on 14.10.2015 to 16.10.2015 that is Dr. A.R. Nirmala PW.2, Dr. T. Sharmila PW.11, Dr. Nandini PW.12, Dr. Malathi PW.13 have specifically deposed before this court that they have given Rs.25,000/- by three and Rs.50,000/- by one of them to the accused as demanded by him to meet out the Microbiology PG Practical Examination. Here, at later stage of the argument of learned advocate for accused argued that the said amount was not forced to be paid by the said students. There was no any threat or adverse being done to the said students to pay the said 68 Spl.C.C. 276/2016 J amount. In this regard, at the cost of repetition, I would like to further discuss the evidence of the witnesses.
33. It is a special type of ride of the CBI. In other words, on the basis of the source information, they have made joint surprise check. Here, there is no any prior complaint by any person to the effect that he or she is giving bribe to the accused. Normally, in case of traps of bribing the accused, generally the complainant who intended to pay the bribe amount unwillingly on the demand made by the accused will lodge the complaint and also the trap team will affix phenolphthalein powder to the said notes (currency) which are to be given to the accused, thereafter after on acceptance or touching of the said tainted notes by the accused by accepting the bribe amount, the trap team will make an attack and seize the said amount. Therefore, under such circumstances, there will be a tainted amount and seizure of the said tainted amount. In the present case on hand, at the cost of repetition, I repeat that there is no prior complaint with regard to giving bribe to the accused, therefore there 69 Spl.C.C. 276/2016 J was no necessary of smearing phenolphthalein powder on the notes that are to be given to the accused as a bribe amount.
34. Admittedly, in the present case on hand, at the time of joint surprise check the PW.11 Dr. Sharmila, PW.12 Dr. Nandini have given complaint in writing after they have paid the amount to the accused in his chamber. Therefore, it cannot be said that the said amount paid by PW.11 and 12 are tainted with the phenolphthalein powder. But immediately thereafter the joint surprise check team have rushed to the chamber of the accused and seized Rs.1,45,000/-. Therefore, the argument of the learned advocate for accused that there is no demand or acceptance and there is no recovery of the tainted amount does not have any force. In order to elicit the fact that there was a demand by the accused, the evidence of the witnesses seems to be ascertained. In this regard, PW.2 in her examination-in-chief at para-3 has deposed that three days prior to the commencement of practical examination, she along with PW.11 Dr. 70 Spl.C.C. 276/2016 J Sharmila, PW.12 Dr. Nandini, PW.13 Dr. Malathi met the accused seeking permission to see the slides and cultures. At that time the accused told them without Antisera and other agents, the practically examination may be delayed and he asked to pay Rs.25,000/- each to purchase Antisera and other agents conducting practical examination. Further PW.11 DR.Sharimla ,PW.12 DR.Nandni, .PW.13 Dr.Malthi have reitrateded the same evidence. This itself can be considered demand made by the accused. Because, as already discussed in the earlier paragraphs when there is a budget being allotted by the RGUHS institution to meet out the expenses of the practical examination, there is no need to pay by anybody to purchase any materials or expenses to meet out the practical examination. Further, the PW.2 in her examination-in-chief itself has specifically deposed that unwillingly she gave Rs.25,000/- in the hands of Dr. Malathi on 16.10.2015. PW.11to PW.13 have also deposed that they have also paid said amount unwillingly. Further, PW.3 Dr. Sharmila who has 71 Spl.C.C. 276/2016 J appeared for the previous batch Microbiology Practical Examination has deposed specifically before the court that the accused was incharge of the said examination 2 or 3 days before commencement of the practical examination, accused has called her, Dr. Nandini and Dr. Natash to his chamber and told them to take care of the expenses of the examination for purchasing Antisera and re-agents and he asked to pay Rs.50,000/- each to the accused. Here also it is a demand made by the accused of Rs.50,000/- to the students who appeared for the Microbiology Practical Examination, even if the said amount is to be paid to meet out the practical examination, there is no rule to pay any amount by the students or anybody to meet out the expenses of practical examination. At the cost of repletion, I repeat that the said expenses will be met out of the funds allotted by the RGUHS. Further, PW.3 has also deposed in her chief at para-3 that even prior to that when she was studying in the 2nd year, the accused has asked her to collect the amount from the 3rd year PG students by 72 Spl.C.C. 276/2016 J name Dr. Aravind, Dr. Priyanka, Dr.Sunitha, Dr. Nandini, Dr. Vasuda. Further, she has specifically deposed that Dr. Priyanka, Dr. Aravind had handed over Rs.20,000/- each and Dr. Sunitha and Dr. Vasudha have handed over Rs.15,000/- each. In turn, she has handed over the said amount of Rs.70,000/- to the accused. This, itself goes to show that the accused was in the habit of collecting money from the students even prior to 16.5.2015 said to be meet out the expenses of practical examination. Further, during the cross-examination PW.3 deposed as under: -
"It is not true to suggest that, if it is presumed to be true that I have collected money at the instance of accused, and handed over to him, that would amount to abetment. Witness volunteers since she was a PG student and the accused being the head of department, asked me to collect the money from the 3rd year student for examination expenses, therefore, I have collected the money."
Therefore, by reading this evidence, it goes to show that as accused being the head of the Department has asked the students to collect the amount to meet out the expenses of practical examination. She even though 73 Spl.C.C. 276/2016 J knows that it is not in accordance with rules as her head of the department has told her to collect the amount she has collected the said amount. Further, PW.6 Dr. Natasha Vaidya who appeared for the final order practical viva examination in the month of May 2015 i.e., 12.5.2015 to 14.5.2015 has also deposed in examination- in-chief itself two days prior to the practical examination, the accused has asked the students appearing for the practical examination i.e., PW.6 Dr. Natasha Vaidya, Dr.Sunitha, Dr. Nandini and asked them to pay Rs.50,000/- to meet the expenses of repairing the autoclave, purchase of media and for expenses of examiners towards food and tea, biscuits and accommodation and accused has asked to pay the said amount in the hands of Dr. Mamatha and accordingly the same day the PW.6 Natasha Vaiudya, Dr.Sunitha, Dr.Nandini have paid Rs.50,000/- each in the hands of Dr. Mamatha in the hostel and accused has not paid any receipt for receiving the said amount. Further, he has specifically stated that there is no rule for payment of 74 Spl.C.C. 276/2016 J such amount under the fear we have paid the said amount. Here also, the PW.6 specifically deposed that even though there is no rule and compulsion to pay Rs.50,000/- each to meet out the expenses of practical examination under the fear of the accused they have paid the said amount. Further, PW.7 Dr. Mahesh who owns Maruthi Swift Car has deposed specifically before the court that accused used to take help of his car for his personal use. This witness has specifically deposed that 30-40 time and accused has taken the service of car of PW.7 Dr. Mahesh. More particularly he has also specifically deposed that he used to drive the car whenever accused wanted to visit other work for his personal work and accused used to ask him to pick examiners to Airport, Railway Station and other places and drop them back to Airport, Railway Station and other places. Further, he has specifically deposed before the court that he used to obey the orders of the accused out of fear that he will damage his academic carrier. Here, PW.7 was not student appearing for any practical 75 Spl.C.C. 276/2016 J examination and the fact that even though this witness has not paid any amount, the accused has taken his service for his personal use. In this regard, at the earliest part of my judgment, I have discussed illegal gratification includes any amount or any objects in any kind or any service or any benefits received by public servant other than legal gratification amounts to illegal gratification. Therefore, if we consider the evidence of PW.7 that his car services are being used by the accused without paying any consideration or amount and more particularly the said PW.7 is giving the service under a fear that accused may damage his carrier, this also amount to illegal gratification by the accused. Further, PW.9 Dr. Mamatha has also deposed in his examination- in-chief itself that she has handed over Rs.50,000/- relating to the contribution of Dr. Sunitha, Dr. Natasha Vaidya to the accused to meet out the expenses of practical examination or the Microbiology P.G. students. PW.11 Dr. Sharmila, PW.12 Dr. Nandini, PW.13 Dr. Malathi who appeared for the Microbiology Practical 76 Spl.C.C. 276/2016 J Examination from 14.10.2015 to 16.10.2015 have specifically deposed that they have paid the amount as per the demand made by the accused unwillingly. Even the PW.12 and 13 have also given in writing as per Ex.P.3 and P4 the complaint against the accused for the illegal demand made by the accused. Further PW.3, PW.11 to PW.13 have given their statement before the Magistrate u/s 164 of Cr,P.C. Therefore, on reading the above said witnesses, it clearly goes to show that there is a demand made by the accused to pay the amount either it may be to meet out the expenses of practical examination or for any other purpose as already stated in the above paragraphs as there is no rule to collect the amount to meet out the expenses of practical examination, it amounts to illegal gratification.
35. Further, the accused has also not seriously disputed about the fact that he used to collect the amount from the students of Microbiology who appeared for practical examination. In this regard, the accused himself admits in Ex.P.5 the voluntary statement given to 77 Spl.C.C. 276/2016 J the CBI, wherein he has specifically stated in respect of the collecting the amount which I would like to reproduce the relevant paras as under: -
"I would like to bring or add one more issue, that remuneration from RGUHS (University) some times also gets delayed. As a precautionary measure, we also get prepared in advance to pay the examiners remuneration before they leave to safeguard the institutional reputation from the common pool of money.
If there is no untoward delay either in receiving requirements of examination or any other expenses including examiners funds from common pool (money found in my chamber) would be distributed back to the contributors. An account will also be maintained by individual contributors to return their contributions. Usually these things will be done after the exams. Unfortunately this time it was brought under vigilance before individual contributions returned as the last day of exams was 16/10/15.
Although the above system of practice is unacceptable, we adopted temporarily in the interest of students, examiners, department and institution till the examination protocol gets established (ours is new college).
We sincerely apologize for whatever happened (which was purely with good intension) and we assure that we would not repeat or adopt this system in future."
36. Further, the accused after the said incident has made communication within higher officers i.e., 78 Spl.C.C. 276/2016 J Dean of ESIC MC PGIMSR, Rajajinagar pleading the said facts. In this regard, the IO has collected the copy of the letter written by the accused to the Dean ESIC MC PGIMSR as per Ex.P.41. On perusal of the said letter written by the accused he has admitted the fact that the CBI have made joint surprise check on 16.10.2015 at evening hours and he also admitted with regard to the seizure of Rs.1,45,000/- from his chamber. Further, he has also admitted that the said amount related to the amount collected from the Microbiology, PG Practical Examination students to meet out the expenses of the said practical examination. Therefore, ongoing through the said letter written by the accused himself to his higher authorities i.e., bringing notice to the vigilance committee on his interrogation goes to show that the accused admitted the joint surprise check conducted by the CBI on 16.10.2015. Further, he admitted with regard to the seizure of Rs.1,45,000/- from his chamber. At this stage, the learned advocate for accused tried to argue that the accused has given his letter as per Ex.P.5 under 79 Spl.C.C. 276/2016 J the fear and threat by the CBI. Therefore, the contents of the said Ex.P.5 cannot be accepted as it is not voluntarily and freely given by the accused. In this regard, the accused is not an ordinary and lay man, he is the Professor and HOD of Microbiology of ESI Hospital. He knows pros and cons of giving any statement, letter of the admissions or contentions in his own hand writing. Therefore, when a person like accused who is a Professor and HOD of Department of ESI., hospital having rich knowledge of medicine of law and have rendered a long service cannot said to be given such a letter involuntarily or letter under pressure. Further, the said accused has already given his reply to the Vigilance Committee on his interrogation as per Ex.P.41. on the following day itself i.e., on 17.10.2015 . Therefore, if it is to be believed that the reply given by the accused as per Ex.P.5 on 16.10.2015 is under fear or under the influence of the CBI, he would not have written letter to the Vigilance Committee as per Ex.P.41 containing the same facts. Further, when the accused consistent statement in 80 Spl.C.C. 276/2016 J Ex.P.5 and the letter written to the Vigilance Committee as per Ex.41 are consistent with each other, I am of the considered opinion that the prosecution has proved that the accused is in the habit of receiving or collecting the amount from the Microbiology PG students in order to meet out the expenses of the practical examination. In the said letter written to the Vigilance Committee, he has specifically stated which I would like to reproduce relevant paras as under: -
"Hence, PGs on voluntary basis contribute a corpus fund as and when required especially during examinations to cope up additional needs that are provided by RGUHS (Like within Rs.750 to have food and accommodation difficult). These funds usually maintained among PGs individually or together depending on their understanding. This time since all the PGs were ladies and 2 were from different colleges, for convenient and safety, the money was left with me till the exams. At the end of the exams whatever additional expenses would be deducted from contribution and the balance would be distributed back to the students. Unfortunately, before we could assemble and settle the account, we were interrogated by the vigilance. During interrogation, even though I have revealed the truth whatever mentioned above, unfortunately, Dr. Malathi and Dr. Nandhini due to pressure or fear from the vigilance have
81 Spl.C.C. 276/2016 J made a statement that I'm demanding money from PGs which is incorrect."
Therefore, on going through the said documents and suggestions made by the learned advocate for accused to the witnesses. As already discussed above, it is the case of the accused that he used to collect the amount from the PG students to meet out the expenses of Microbiology PG practical examination. Therefore, when any amount in cash or kind is being collected by a public servant to meet out any particular object, it is the duty to explain why and for what purpose the said amount is collected and whether he has received any benefit from the same or whether he has received or benefited any kind or cash. In this regard, when the prosecution has proved the fact that accused was collecting the said amount from the PG students, now the onus shift on the accused as per Sec.20 of the PC Act to prove that he is innocent. In other words, the prosecution has already proved by way of documentary evidence, by way of a joint surprise check proceedings and the seizure of the amount from 82 Spl.C.C. 276/2016 J the chamber of the accused that the accused was collecting the amount to meet out the Microbiology PG practical examination. But the accused has not lead any rebuttal evidence to prove that the said amount is not collected for his benefit. Further, even if for the sake of argument and for practical purpose we consider the fact that there is a delay in receipt of the allotted amount by the RGUHS as such in the interest of the students if the accused has collected the said amount to meet out the Microbiology Practical examination. After the receipt of the said funds from the RGUHS itself, it becomes his duty to return the said amount to the persons/students from whom he has received/collected the amount. In this regard, absolutely there is no evidence on behalf of the accused to show that he has refunded any amount to any of the students either previous batch Microbiology PG students or the present students Microbiology students i.e., PW.2, PW.11 to PW.13. Further, even there is no any suggestion by the learned advocate for accused to any of the witnesses to the effect that he intended to 83 Spl.C.C. 276/2016 J refund the said amount to the said students on receipt of the grant from the RGUHS. Further, there is also no any evidence to the effect that the accused has refunded any of the amount to the earlier batch students also. Admittedly all the witnesses of previous batch students deposed before this court that about the payment of the amount to the accused to meet out the PG practical examination expenses. But none of the students have spoken that accused has refunded any portion of the said amount after adjusting the expenses or refunded the entire amount to them. Further, admittedly all the witnesses of previous batches PG Microbiology students or the present students i.e., PW.2, PW.11 to 13 have spoken that they have unwillingly have given the said amount under the pressure and threat that accused may harm their carrier or cause any inconvenience to their examination results. In this regard, the learned advocate for accused tried to argue that there is no chance that accused may cause or manipulate any marks if allotted to the students. In this regard, the said suggestion has 84 Spl.C.C. 276/2016 J been denied by the Investigation Officer. The learned advocate for accused tried to argue and tried to demonstrate before the court that as there were four examiners to the said PG practical examination accused alone cannot manipulate the marks to be allotted to the students. In this regard, the prosecution need not prove beyond all reasonable doubt the fact that the accused has manipulated or having authority to manipulate marks or write in the adverse remarks against the said PG practical examination students. Admittedly the accused is a Professor and HOD of Microbiology normally the students will have the fear and have honour to the HOD. It is not necessary on the part of the students or anybody to prove that their HOD may manipulate marks or manipulate the records. When a person like accused is holding such an influential post normally every student or every staff subordinate to him will obey and comply his orders. Therefore, even if the prosecution has not proved by direct and convincing evidence to the effect that the accused has manipulated the marks of the PG 85 Spl.C.C. 276/2016 J practical examination students. I am of the considered opinion that the prosecution has proved that the PG Practical Examination students have paid the said amount to the accused under the fear and threat that accused may cause any adverse remarks against their academic carrier. Further, it has come in the evidence that during the joint surprise check at the time of searching for the amount in the chamber of the accused, the accused was hiding some papers in his vest inner garments. In this regard, once again at the cost of repetition, I would like to reproduce the evidence of the PW.17 at page No.10, para-15 which reads as under: -
"15. During the Joint Surprise Check, we noticed that the accused was hiding some documents in his Vest (inner garment) worn by him. I have asked him to produce the document kept inside the inner garment. The accused produced the same before me.
16. Now I see the bunch of papers containing copies of
(i) Work done cum absentees statement
(ii) Freezed marks sheet - in 2 sheets
(iii) Marks Proforma Sheets
(iv) Practical and Viva-Voce Evaluation Sheet and
(v) Circular of ESIC."
86 Spl.C.C. 276/2016 J Therefore, on going through the said documents seized from the vest (inner garments) of the accused at the time of joint surprise check more particularly the said documents are relating to the marks allotted to the students of practical and viva examination held on 14.10.2015 to 16.10.2015. Normally such a documents are not necessary to be kept in the inner garments of a HOD, as said documents are important documents i.e. marks statement of the students of practically and viva examination, they will be kept in a safe custody either in the safe place in a locker or in the almirah of the office. Admittedly, at the time of the said joint surprise check PW.12 and 13 were present in the chamber of the accused and admittedly PW.12 Dr. Nandini given Rs.25,000/- to the accused on 14.10.2015 and PW.13 Malathi has given Rs.50,000/- to the accused on 16.10.2015 in his chamber. Therefore, when the said PW.12 and PW.13 were present in the chamber of the accused more particularly the accused was in possession 87 Spl.C.C. 276/2016 J of the said documents that is Ex.P.2 found in the inner garments ,it appears that accused has retained the said document in order to give threat to the said students to show that he can manipulate the marks allotted to them. Therefore, in view of the above discussion, I am of the considered opinion that the prosecution has proved that the accused has given threat and made abuse of his powers misused his position and collected the amount from the PG students of Rs.25,000/- and Rs.50,000/- not only from the PG practical examination students held on 14.10.2015 to 16.10.2015 even prior to that from previous batch students also he had collected the amount under the name of to meet out the PG practical examination. In fact he has not refunded any amount to any of the students. Admittedly as already discussed in the earlier paragraphs of my judgment, the examination expenses will be met out by the RGUHS by way of allotment and admittedly all the examiners have received their TA, DA and other expenses as discussed earlier and the remaining part of the amount, that is unused 88 Spl.C.C. 276/2016 J allotment has been refunded to the RGUHS. Therefore, it is proved by the prosecution that the accused has received the said amount and collected the said amount from the PG Practical Examination Students which amounts to illegal gratification.
37. Further, the learned advocate for accused argued that out of the amount seized by the joint surprise check team of Rs.1,45,000/-, none of the witnesses including the Investigation Officer have identified the exact amount that is Rs.25,000/-, Rs.50,000/- brought by the PW.12 and PW.13 on that day. Therefore, it cannot be said that it is the amount paid by the PW.12 and 13 to the accused on that day. In this regard, admittedly the PW.12 Dr. Nandini and PW.13 Dr. Malathi have specifically deposed and also lodged a complaint as per Ex.P.2 and Ex.P.3 to the effect that they have paid the illegal gratification amount to the accused on his demand. Further, merely the fact that the said amount paid by the PW.12 and 13 has not been separately shown and identified by any of the witnesses 89 Spl.C.C. 276/2016 J more particularly when the accused also not seriously disputed the fact that he was collecting the amount from the PG practical examination students to meet out the examination expenses, even if the said amount has not been identified by any of witnesses, it cannot be said that it is a fatal to the case of the prosecution. On the contrary, as per Sec. 11 of the PC Act referred above accused being a public servant who is in possession of the huge amount not relating to his business or profession, under the circumstances an adverse inference can be drawn as per Sec. 20 of the PC Act, and it is presumed that the said amount is received by the accused towards the illegal gratification unless and until it is proved by the accused that it is not amount of illegal gratification. Further, at one stage, it is also argued by the learned advocate for accused that the chamber of the accused is easily accessible to the staff, students and other public persons. As such there is every possibility that any staff, students or public at large might have implanted the said amount in his chamber to bring bad 90 Spl.C.C. 276/2016 J name to the accused. In this regard, as already discussed in the above said paragraphs the accused has taken different defence at each stage of the trial. At the earliest stage of the trial, accused has not disputed that he used to receive and collect the amount to meet out the expenses of the PG practical examination and further he has also not disputed about the seizure of the said Rs.1,45,000/- by the joint surprise check team. Therefore, at the cost of repetition, I repeat that when it is proved by the prosecution by seizure of the amount and by documentary evidence and also oral evidence of the witnesses, the onus shifted on the accused to prove that how the said amount of Rs.1,45,000/- came into his possession or was found in his chamber, unless and until he leads rebuttal evidence to that effect. Admittedly, the accused has not adduced any rebuttal evidence to disprove the said fact. Further, it has also come in the evidence that the said chamber is exclusively belongs to the accused and the key of the chamber of the said accused will be with him. Further, admittedly the 91 Spl.C.C. 276/2016 J accused is the Professor and HOD of Microbiology. Therefore, obviously the students, staff members and public at large are permitted to meet the accused in connection with the Microbiology subjects or other related matters. Therefore, it cannot be said that the students, staff and the public at large cannot meet the accused in his chamber. But at same time it cannot be said that it is easily accessible and the students and public at large may implant the said amount as claimed by the learned advocate for accused. Therefore, in view of the above discussion in the absence of any rebuttal evidence on the part of the accused, accused has failed to prove, the said fact that the said amount of Rs.1,45,000/- has been planted by any other person in his chamber. In view of the same by reading Sec.20 of the PC Act, a presumption can be drawn against the accused that the said amount found in the chamber of the accused is belonged to the accused and as the accused has not given any explanation how he came in possession of the Rs.1,45,000/- in his possession. In view of the 92 Spl.C.C. 276/2016 J above provision of law i.e., Sec. 20 of the PC Act, it is presumed that the said amount received by the accused as illegal gratification punishable u/s 11 of the PC Act.
38. Whether delay in registering the FIR has been properly explained: The learned advocate for accused argued that even if the joint surprise check was conducted by the CBI officers and its team on 16.10.2015 at about 4 PM and the said proceedings were concluded up to 1 AM of 17.10.2015, but the FIR has been registered on 20.10.2015. There is a delay of 3 days in registering the said FIR which creates doubt with regard to the commission of the offences and it is fatal to the case of the prosecution. In this regard, the learned advocate for accused relied upon a ruling reported in 2014(2) SCC Page No.1 Lalita Kumari vs. Govt., of Uttar Pradesh and others and argued that the FIR has not been registered at the earliest from the receipt of the information. In this regard, the learned PP argued that as per the judgment of the Supreme Court referred by the learned advocate for accused in respect of cases 93 Spl.C.C. 276/2016 J conducted by the CBI, a preliminary enquiry is to be held before registration of the FIR. In this regard, in the same judgment, the Hon'ble Supreme Court of India have also observed that the registration of FIR is mandatory u/s 154 of Cr.P.C., if the information disclosed commission of the material offences, no preliminary enquiry is permissible in such a situation. Further, it has also held by the Hon'ble Supreme Court of India if the information received does not disclose a cognizable offence but indicates the necessity for an enquiry, a preliminary inquiry may be conducted only to ascertain whether cognizance offence is disclosed or not. If the enquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
94 Spl.C.C. 276/2016 J Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. Further, it is held the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Further it is also held that as to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes.
(b)Commercial offences
(c) Medical negligence cases
(d)Corruption cases
(e) Cases where there is abnormal delay/ laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
39. Therefore, in view of the above findings by the Hon'ble Supreme Court of India, admittedly the present case on hand, is in respect of Corruption Case. Therefore, the CBI cannot register the FIR without 95 Spl.C.C. 276/2016 J making preliminary enquiry. In this regard, the learned PP also brought to the notice of this court about the rules that has been described in the Central Bureau of Investigation Manual 2005. Further, the learned PP also brought to the notice of this court that the CBI Officer K.Y. Guruprasad, the DY.SP of CBI on 17.10.2015 submitted his report to the HOB, in turn the HOB has recommended to the Special Director CBI, New Delhi about the said joint surprise check and to register the FIR, the Joint Director incharge of Head of zone ACZ Hyderabad has rectified the said joint surprise check held on 17.10.2015 and permitted to register the case as RC., and permission to conduct search on the residence of the accused Dr. Navaneeth. Further, as 16.10.2015 falls on Friday, as such even though the Joint Director Incharge of Head of Zone of Hyderabad has rectified the said action on 17.10.2015, 18.10.2015 falls on Sunday and as such on 19.10.2015, the Special Director, CBI, New Delhi has rectified the said joint surprise check and as such on 20.10.2015, the said FIR was registered.
96 Spl.C.C. 276/2016 J Further, in this regard, the learned PP has brought to the notice of this court about the correspondence made by the CBI Officer with the Special Director of CBI, New Delhi. Further, it is also requested by the learned PP as the said correspondence between the officers of the CBI i.e., Special Director of CBI are official secret document, the set of the documents or copy of the documents cannot be produced or disclosed to the accused or anybody at all. Further, the learned PP has also argued and brought to the notice of this court that as per Ex.P.37 the documents collected by the Investigation Officer from the Shri. Mathews, Joint Director of Administration, ESIC wherein the details of the service particulars of Dr. B.V. Navaneeth, HOD, Microbiology has been given, as per the said document, the accused has been appointed on the pay scale with the present basic pay - Grade Pay i.e., above bond IV (37,400 - 67,000) with present basic of Rs.51,450/- Grade Pay of Rs.10,000/- + Non-practicing Allowances. As such, the accused is an officer falling under the grade of drawing 97 Spl.C.C. 276/2016 J salary of Rs.10,000/- and above and in this regard as per the CBI Manual in case of the accused drawing salary of Grade Pay of Rs.10,000/- above, the permission to register FIR is to be obtained from the Additional Director of CBI. Therefore, Sri. K.Y. Guruprasad, Inspector of Police has contacted his superior officer and after getting permission from the Additional Director i.e., Special Director of CBI, New Delhi and he has registered the FIR on 20.10.2015. Therefore, even if there is a delay of 3 days in registering the FIR the said delay is not due to the negligence on the part of the prosecution. It is due to the time taken in taking permission from the competent authority to register FIR against the accused. Therefore, it is argued by the learned PP that there is no any delay in registration of the FIR, even this delay is not due to the negligence or inadvertence by the prosecution. Further admittedly the accused has not denied of joint surprise check conducted by the CBI on 16-10-2015. Therefore, no prejudice will be caused to the accused in registering the FIR by the CBI after obtaining necessary permission 98 Spl.C.C. 276/2016 J from the competent authority. Hence I am convinced by the said argument of the learned PP and hold that there is no delay in registering the FIR. Admittedly Joint Surprise Check has been conducted on 16.10.2015, as per the guidelines given in the said judgment of the supreme court in Lilit Kumaris case, CBI after obtaining permission from the competent authority as per the CBI manual from the Special Director of CBI, New Delhi have registered the FIR. Therefore, it cannot be held there is delay in registering the FIR as alleged.
40. Hence, in view of the above discussion, I am of the considered opinion that the prosecution has proved beyond all reasonable doubt by leading cogent, convincing and corroborative evidence that the accused was in the habit of demanding and accepting illegal gratification from the Microbiology P.G Practical Examination students under the guise of taking the said amount to meet out the expenses of the PG practical examination. Further, it is also proved by the prosecution that the accused was found with huge 99 Spl.C.C. 276/2016 J amount in his possession Rs.1,45,000/- which has not been properly explained by the accused. As such, accused has failed to lead rebuttal evidence and failed to prove as to how he came in possession of the said huge amount. Further, as per Sec. 20 of the PC Act, the presumption will be drawn against the accused that accused has received the said amount towards the illegal gratification. Further, as accused was indulged in receipt of illegal gratification by abusing his position of professor and HOD of microbiology and being internal examiner to conduct the practical /viva-voce of examination of MD microbiology for PG students, obtained a pecuniary advantage for himself by obtaining Rs.50000/- from Dr.Sharmila and Rs.25000/- each from three other PG students, as such he is said to be have committed offence of criminal misconduct, as such the prosecution has proved that the accused has committed an offence punishable u/s 7 and 11 r/w 13(2) r/w 13(1)(d) of the PC Act.1988. Accordingly, I answer Point No.2 to 4 in the affirmative.
100 Spl.C.C. 276/2016 J
41. Point No.5: In view of my findings to the above points, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C., Accused is hereby found guilty and convicted for the offence punishable u/s 7, 11 and Sec. 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. Bail bond of accused stands cancelled.
Now the case is posted to hear on sentence, call later.
(Dictated to the Judgment Writer, transcribed by him, revised by me personally and incorporated additional paragraphs directly on computer, corrected and then pronounced by me in the Open Court on this the 25th day of April, 2018) (Sadashiva S. Sultanpuri) XXI Addl. City Civil and Sessions Judge And Prl. Special Judge for CBI Cases, Bengaluru City.
101 Spl.C.C. 276/2016 J ORDER ON SENTENCE Learned advocate for accused submitted that the accused is having old age parents. After death of his first wife, accused got married to his second wife. He has got a small kid from his second wife. There are no any other earning members in the family. Therefore, it is submitted by the learned advocate for accused that a leniency may be shown in awarding the sentence to the accused.
The learned Public Prosecutor submitted that the sentence as required under law may be awarded.
Heard both the sides.
Admittedly, as per the order referred above, accused has been convicted for the offences punishable under Sections 7, 11 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
As per the amendment to the PC Act, up to date, the offence punishable under Sec. 7 of the PC Act prescribes punishment which "shall not less than three years but which may be extended to 7 years and shall also liable to fine."
102 Spl.C.C. 276/2016 J So also as per Sec. 11 of the PC Act, the Act is stood now is punishable with "imprisonment for term which shall not be less than six months and which may be extended to five years, so also liable for fine".
So also Sec. 13(2) r/w 13(1)(d) of the PC act prescribes "punishment with imprisonment for term which shall not be less than four years which may also be extended o ten years and also liable for fine." Therefore in view of the said provision of law. There is a not less than minimum sentence to be ordered under the said provision of law. Considering the facts of this case, admittedly accused was working as HOD and Professor of the Microbiology, ESIC Hospital during the said period. Further, there are no any other allegations by the students during the course of evidence referred above except taking of the said amount for the purpose of expenses relating to conducting of the Microbiology PG Students Practical Examination. Even though his intention may be otherwise but admittedly as discussed in the above said judgment, it is proved by the 103 Spl.C.C. 276/2016 J prosecution that accused has demanded and accepted the said amount from the students as illegal gratification under the disguise of meeting out the expenses of PG Microbiology Practical Examination. Further, admittedly, there is no any evidence on behalf of the accused to the effect that he has repaid the said amount or part of the amount of meeting out the expenses or he has repaid the said amount after receipt of the funds from the RGUHS. Therefore, considering the facts and circumstances of the case, considering the status of the accused, I am of the considered opinion that the accused be punished with minimum sentence. Considering the fact that he is Class-I Officer and HOD drawing a basic pay of more than Rs.51,000/-and gross salary of more than one lakh, as such he is not entitled for any leniency in imposing fine. It should not be a shoe bite in awarding the fine amount. Therefore, I am of the considered opinion that the accused is not entitled for leniency in awarding the fine in respect of the above said offences.
104 Spl.C.C. 276/2016 J It is found none of the documents seized under the search list marked as Ex.P.31 dated 22.10.2015 were marked by the prosecution. Therefore, it appears that the said documents at Sl. No.1 to 13 are not required for any purpose for the prosecution. Further, I found that there are some original sale deeds and FD receipts in the said search list at Ex.P. 31. Therefore, I am of the considered opinion that said documents at Sl. No.1 to 13 seized under the search list at Ex.P.31 dated 23.10.2015 are ordered to be returned to the accused. Accordingly, I proceed to pass the following ORDER The accused is sentenced to undergo Simple Imprisonment for a period of 3 (three) years and to pay a fine of Rs.3,00,000/- (Rs. Three Lakhs only) and in default of payment of fine to undergo Simple Imprisonment for a period of 3 (Three) months for the offence punishable u/s 7 of the PC Act.
Further, accused is sentence to undergo Simple Imprisonment for a period of 6 (six) months and to pay a 105 Spl.C.C. 276/2016 J fine of Rs.2,00,000/- (Rs. Two Lakhs only) and in default of payment of fine to undergo Simple Imprisonment for a period of 2 (Two) months for the offence punishable u/s 11 of the PC Act.
Further, the accused is sentenced to undergo Simple Imprisonment for a period of 4 (Four) years and to pay a fine of Rs.5,00,000/- (Rs. Five Lakhs only) and in default of payment of fine to undergo Simple Imprisonment for a period of 6 (Six) months for an offence punishable u/s 13(2) r/w 13(1)(d) of PC Act,.
The said sentences and default clause shall run concurrently.
Office is hereby directed to supply free copy of judgment and sentence to the accused as prescribed u/s 363 of Cr.P.C.,.
Further, office to intimate the order of conviction and sentence to the District Magistrate, Bengaluru as required u/s 365 of Cr.P.C., .
106 Spl.C.C. 276/2016 J Office to issue conviction warrant against the accused as per the order referred above.
M.O.No.1 DVD containing questioned voice of the accused, M.O.3 CD containing specimen voice of the accused and witnesses, M.O.4 blue colour folder in which M.O.2 is kept, M.O.7 copy of the CD of M.O.1 are ordered to be destroyed as worthless after the appeal period, if appeal is not filled.
M.O.2 cash of Rs.1,47,150/- (as per M.O.2(a) Rs.50,000/-, M.O.2(b) Rs.1,970/-, M.O.2(c) Rs.180/-, M.O.2(d) Rs.40,000/-, M.O.2(e) Rs.15,500/-, M.O.2(f) Rs.39,500/-) is ordered to be confiscated to state after the appeal period, if appeal is not filled.
M.O.5 foreign currency notes are ordered to be confiscated to State. Office is directed to submit the said foreign currency notes to the RBI and got it converted into Indian Currency and thereafter confiscate the said amount in favour of the State after the appeal period, if appeal is not filled.
107 Spl.C.C. 276/2016 J M.O.6 Purse found to be worthless as such it is ordered to be destroyed after the appeal period, if appeal is not filled.
As per the discussion made above, the accused is entitled for return of the documents at Sl. No.1 to 13 seized under the search list Ex.P31 dated 23.10.2015. Accordingly, office to issue intimation to the Investigation Officer of CBI/ACB, Bengaluru to return the documents at Sl. No. 1 to 13 seized under the search list Ex.P.31 dated 23.10.2015 under due acknowledgment. (Dictated to the Judgment Writer directly on computer, corrected and then pronounced by me in the Open Court on this the 25th day of April 2018) (Sadashiva S. Sultanpuri) XXI Addl.City Civil and Sessions Judge And Prl. Special Judge for CBI Cases, Bengaluru City.
108 Spl.C.C. 276/2016 J ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW-1: Dr. Saroj Golia PW-2: Dr. A.R. Nirmala PW-3: Dr. B.U. Sunitha PW-4: Dr. R. Ambica PW-5: Smt. P. Geeta PW-6: Dr. Natasha Vaidya PW-7: Dr. C. Mahesh PW-8: Dr. Ann Mary Alex PW-9: Dr. Mamatha K.R. PW-10: Dr. S. Sacchidananda PW-11: Dr. P. Sharmila PW-12: Dr. M.P. Nandini PW-13: Dr. N. Malathi PW-14: Dr. B. Rajeev Shetty PW-15: T.M. Laxmikantha PW-16: Dr. Ruby Yadav PW-17: K.Y. Guruprasad PW-18: Dr. S. Kodandaram PW-19: Dr. P. Srinivasulu Reddy PW-20: Deepak Kumar PW-21: Amitosh Kumar PW-22: S. Ramesh
LIST OF WITNESS EXAMINED FOR DEFENCE:
Nil LIST OF DOCUMENTS EXHIBITED FOR THE PROSECUTION:
Ex.P1 Order issued by the Registrar (Evaluation), RGUHS Appointing Internal/ External Examiners for practical examinations - October 2015 in respect of PG Students - 6 sheets
109 Spl.C.C. 276/2016 J Ex.P1(a) Signature of PW.10 Ex.P2 One bunch of papers contains copies of 1) Work done cum absentees statement, 2) Freezed marks sheet, 3) Marks Proforma sheets, 4) Practical & viva-voce evaluation sheet and 5) Circular of ESIC - 6 Sheets Ex.P2(a) to Signature of PW.1
(c) Ex.P2(d) Signature of PW.5 Ex.P2(e) to Signatures of PW.17
(j) Ex.P2(k) Signature of PW.19 Ex.P3 Letter dated 16.10.2015 by Dr. Nandini to CBI Ex.P3(a) Signature of PW.5 Ex.P3(b) Signature of PW.12 Ex.P3(c) Signature of PW.15 Ex.P3(d) Signature of PW.17 Ex.P4 Letter dated 16.10.2015 by Dr. Malathi to CBI Ex.P4(a) Signature of PW.5 Ex.P4(b) Signature of PW.13 Ex.P4(c) Signature of PW.15 Ex.P4(d) Signature of PW.17 Ex.P5 Written explanation of Dr. B.V. Navaneeth dt. 16.10.2015 to CBI Ex.P5(a) Signature of PW.5 Ex.P5(b) Signature of PW.15 Ex.P5(c) Signature of PW.17 Ex.P6 Proceedings dt: 16.10.2015 drawn at office chambers of the accused - 5 sheets 110 Spl.C.C. 276/2016 J Ex.P6(a) Signature of PW.5 Ex.P6(b) Signature of PW.12 Ex.P6(c) Signature of PW.13 Ex.P6(d) Signature of PW.15 Ex.P6(e) Signature of PW.17 Ex.P7 One opened sealed cover in which one small cover and DVD were kept Ex.P7(a) Signature of PW.5 Ex.P8 One small opened sealed cover in which DVD was kept and found in Ex.P7 Ex.P8(a) Signature of PW.5 Ex.P8(b) Signature of PW.17 Ex.P9 One cover in which cash of Rs.1,47,150/-
was kept Ex.P9(a) Signature of PW.5 Ex.P9b) Signature of PW.15 Ex.P9c) Signature of PW.17 Ex.P10 List containing details and denomination of currency notes enclosed to Ex.P9 Ex.P10(a) Signature of PW.5 Ex.P10(b) Signature of PW.15 Ex.P10(c) Signature of PW.17 Ex.P11 Proceedings dated 2.3.2016 at the office of CBI/ACB, Bengaluru - 4 sheets.
Ex.P11(a) Signature of PW.5 Ex.P11(b) Signature of PW.22 Ex.P12 One opened sealed cover in which CD was found Ex.P12(a) Signature of PW.5 Ex.P13 Proceedings dated 2.3.2016 at the office of CBI/ACB, Bengaluru - 9 sheets.
Ex.P13(a) Signature of PW.5 111 Spl.C.C. 276/2016 J Ex.P13(b) Signature of PW.22 Ex.P14 Proceedings dated 3.3.2016 at the office of CBI/ACB, Bengaluru - 1 sheet.
Ex.P14(a) Signature of PW.5 Ex.P14(b) Signature of PW.18 Ex.P14(c) Signature of PW.22 Ex.P15 Attested copy of Notification dated 30.3.2004 issued by RGUHS - 1 sheet Ex.P15(a) Signature of PW.10 Ex.P16 Attested copy of Official Memorandum dated 25.8.2015 issued by RGUHS - 1 sheet Ex.P16(a) Signature of PW.10 Ex.P17 Attested copy of Advance Bill dated 13.10.2015 releasing Rs.80,000/- for conducting PG Practical Examination - October 2015 - 1 sheet PW.P17(a) Signature of PW.10 Ex.P18 Attested copy of Statement of ESIC MC showing release of Rs.80,000/-, expenditure of Rs.27,755/- incurred and refund of Rs.52,245/-
Ex.P19 Relevant portion of statement given by Dr. M.P. Nandini in page No.2 given before the Investigating Officer u/s 161 Cr.P.C., Ex.P20 Attested copies of college course wise students' list of PG (MED) for the term May 2013, May 2014, April 2015, October 2015 and one notification - 5 sheets Ex.P21 Statement pertaining to TA, DA paid to five examiners for conducting MD PG practical examination from 14.10.2015 to 16.10.2015 Ex.P22 Receipt Memo dt. 13.11.15 Ex.P22(a) Signature of PW.15 112 Spl.C.C. 276/2016 J Ex.P22(B) Signature of PW.22 Ex.P23 Specimen Brass Seal Impression in 2 sheets Ex.P23(a) Signatures of PW.17 & (b) Ex.P24 Attested copy of TA of PW.19 dt. 16.10.2015 Ex.P24(a) Signatures of PW.19 Ex.P25 Sanction Order Ex.P25(a) Signatures of PW.20 Ex.P26 Opened Seal Cover through which M.O.1 DVD returned to the CBI Ex.P26(a) Signatures of PW.21 Ex.P27 Opened Seal Cover through which M.O.3 CD returned to the CBI Ex.P27(a) Signatures of PW.21 Ex.P28 Forensic Voice Examination Report P28(a) Signatures of PW.21 Ex.P29 Letter dt. 7.3.2016 from CBI to CFSL seeking expert opinion enclosed with nature of crime 4 sheets Ex.P30 FIR Ex.P30(a) Signature of SP Ex.P31 Search List with Inventory dt. 23.10.2015 Ex.P31(a) Signatures of PW.22 Ex.P32 Receipt Memo dt. 17.11.2015 Ex.P32(a) Signature of PW.22 Ex.P33 Schedule of the P.G. Medical Examination at ESIC, Rajajinagar.
Ex.P34 ESIC letter dt. 18.12.2015 to CBI enclosing
copy of unsigned complaint 3 sheets
Ex.P35 Receipt Memo dt. 17.11.2015
Ex.P.35(a) Signature of PW.22
Ex.P36 Letter dt. 11.12.2015 of ESIC to CBI with
details of PG Students belonging to Dept. of Micro Biology.
Ex.P37 Letter dt. 17.12.2015 of ESIC to CBI with 113 Spl.C.C. 276/2016 J service particulars of the accused.
Ex.P38 RGUHS letter dt. 23.12.2015 to CBI along with attested copies pertaining to details of utilization of funds and expenditure incurred 22 sheets Ex.P39 ESIC Letter dt. 26.12.15 along with attested copies of payment of TA, DA etc., paid to 5 Examiners Ex.P40 ESIC Letter dt. 2.1.2016 to CBI along with list of PG Medical Students Ex.P41 ESIC Letter dt. 23.3.16 to CBI enclosed with attested copy of written explanation submitted by the accused etc., in 6 sheets Ex.P42 Statement of Dr. Nirmala A.R. recorded u/s 164 Cr.P.C., Ex.P43 Statement of Dr. Sharmila. T. recorded u/s 164 Cr.P.C., Ex.P44 Statement of Dr. malathi. N. recorded u/s 164 Cr.P.C., Ex.P45 Statement of Dr. Nandini recorded u/s 164 Cr.P.C., Ex.P46 Statement of Bytraju recorded u/s 164 Cr.P.C., LIST OF DOCUMENTS MARKED FOR DEFENCE:
Ex.D1 Relevant portion of the 161 Cr.P.C., statement of PW.2/CW4 given before the Investigating Officer.
114 Spl.C.C. 276/2016 J Ex.D2 Relevant portion of the 161 Cr.P.C., statement of PW.2/CW4 given before the Investigating Officer.
LIST OF MATERAIL OBJECTS MARKED FOR
PROSECUTION: -
M.O.1 DVD contains questioned voice of the accused.
1(a) Initials of PW.15
1(b) Signature of PW.17
M.O.2 Cash of Rs.1,47,150/-
2(a) Cash of Rs.50,000/-
2(b) Cash of Rs.1970/-
2(c) Cash of Rs.180/-
2(d) Cash of Rs.40,000/-
2(e) Cash of Rs.15,500/-
2(f) Cash of Rs.39,500/-
M.O.3 CD contains specimen voice of the accused and
witnesses.
M.O.4 Blue coloured folder in which M.O.2 is kept.
4(a) Signature of PW.15 4(b) Signature of PW.17 M.O.5 Foreign currency M.O.6 Purse M.O.7 One CD i.e., copy of M.O.1 Digitally signed by SADASHIVA SIDDAPPA SULTHANPURI DN: cn=SADASHIVA (Sadashiva S.Sultanpuri) SADASHIVA SIDDAPPA XXI Addl. City Civil and Sessions Judge SIDDAPPA SULTHANPURI, SULTHANPURI ou=HIGH And Prl. Special Judge for CBI Cases, COURT,o=GOVE Bengaluru City.
RNMENT OF KARNATAKA,st= Karnataka,c=IN Date:
2018.04.27 11:46:13 IST