Bangalore District Court
The State Of Karnataka vs Smt. K.T.Shylaja on 14 December, 2016
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 14th DECEMBER 2016.
Spl. C.C.No. 180/2011
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing, Bengaluru.
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: Smt. K.T.Shylaja, Major,
Commercial Tax Inspector,
Professional Tax Office,
3rd Circle, Sheshadripuram,
Bengaluru,
R/a No.614, 13th cross,
M.C.Layout, Vijayanagara,
Bengaluru.
(Rep by Sri P.N.Hegde, Advocate)
*****
2 Spl. C.C. No.180/2011
1. Nature of Offence: Offence punishable under
Sec.7, 13(1)(d)R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 15-02-2011.
of offence:
3. Date of First Information 15-02-2011.
Report:
4. Date of Arrest: 15-02-2011.
5. Date of Commencement 06-06-2013.
Of recording of evidence:
6. Date of Closing of evidence: 09-11-2016.
7. Date of Pronouncement of 14-12-2016.
Judgment.
8. Result of the case: Accused is convicted.
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City, has charge sheeted the above named accused with an allegation that the accused has committed the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988 (In short PC.Act).
2. The case of the prosecution, in brief is as follows:
The Accused, being a public servant, was working as Commercial Tax Inspector in the office of Commercial Tax, Sheshadripuram, Bengaluru. On 15-02-2011, one Smt. Amrutha S. Pai lodged a complaint before the Lokayuktha Police by alleging that 3 Spl. C.C. No.180/2011 accused has demanded the bribe amount of Rs.3,000/- from her for issuing the professional Tax Registration certificate. On the basis of the said complaint, Lokayuktha Police have registered the FIR in Cr.No.13/2011. Lokayuktha Police have secured the witnesses, conducted the pre trap proceedings in their presence and also drawn the pre trap mahazar. On 15-02-2011, at about 4.45 p.m. in her office at Sheshadripuram, Bengaluru, this accused was trapped by the Lokayuktha Police when she was found receiving the illegal gratification of Rs.2,000/- from the complainant. The Lokayuktha Police have conducted the trap proceedings and also drawn the trap mahazar. The accused was arrested and produced before this court. The Investigating Officer has continued the further investigation, recorded the statement of witnesses, secured the documents from the office of accused and also subjected the seized material objects for chemical analysis and received the chemical analysis report. After completion of investigation, Investigating Officer has submitted the final report before the sanctioning authority and after obtaining the sanction, Lokayuktha Police have filed the charge sheet before this court by alleging that the accused has committed the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.4 Spl. C.C. No.180/2011
3. This court took the cognizance and accused produced before this court was enlarged on bail. The accused was provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charges and having found the prima facie materials, framed the charges against the accused for the offence punishable under Sec.7 and 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined 7 witnesses as PW.1 to 7 and got marked Ex.P-1 to P-22 documents and MO.1 to 14 material objects.
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against her. The accused has not chosen to let in any defence evidence on her behalf.
6. I have heard the arguments of both the parties.
7. The points, that arose for my consideration are:
1. Whether there is valid sanction to prosecute the accused?5 Spl. C.C. No.180/2011
2. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Commercial Tax Inspector in the office of Commercial Tax, Sheshadripuram, Bengaluru, demanded the bribe amount of Rs.3,000/- from the complainant for issuing the professional tax certificate and demanded and accepted the illegal gratification of Rs.2,000/- from the complainant on 15-02-2011 at about 4- 55 PM, in her office at Sheshadripuram, Bangalore, so as to render the official favour to him and there by committed the offence punishable under Sec.7 of the Prevention of Corruption Act 1988?
3. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as Commercial Tax Inspector in the office of Commercial Tax, Sheshadripuram, Bengaluru, on 15-02-2011 abused her official position by illegal means and as a public servant demanded and accepted the illegal gratification of Rs.2,000/-
from the complainant against public interest and there by committed criminal misconduct and there by committed the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988?
4. What order?
8. My answers for the above point is in the followings because of my below discussed reasons.
POINT No.1: IN THE AFFIRMATIVE.
POINT No.2: IN THE AFFIRMATIVE.
6 Spl. C.C. No.180/2011
POINT No.3: IN THE AFFIRMATIVE.
POINT No.4: AS PER FINAL ORDER.
REASONS
POINT No.1:
9. This point is relating to the validity of sanction, which was obtained to prosecute this accused. Since the accused is a public servant working as Commercial Tax Inspector in the office of Commercial Tax, Sheshadripuram, Bengaluru and the allegations against her is about she committing the offences under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988, obtaining the valid sanction from the competent authority is the statutory and mandatory requirements to prosecute the accused. Before proceedings to consider the question of validity of sanction, let me first discuss the evidence let in by the prosecution before this court.
10. CW.8-Pradeep Singh Kharola, who examined as PW.1, deposed during the course of his evidence that, while he was working as a Commissioner of Commercial Tax Department in the Government of Karnataka, he received a letter dated 20-04-2011 from ADGP, Lokayuktha seeking sanction to prosecute the accused. PW.1 further deposed that along with the said letter Lokayuktha Police have sent 7 Spl. C.C. No.180/2011 the copy of the complaint, FIR, statements, mahazar, sketch and all other prosecution papers. PW.1 further deposed that by going through the papers, he was convinced that there are grounds to accord the sanction to prosecute the accused and accordingly, he has issued the sanction order as per Ex.P.1 to prosecute the accused for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
11. CW.2 Manoj, who was examined as PW.2, deposed during the course of his evidence that during the year 2010-11 he was working as a Project Coordinator in the financial consulting company owned by Smt. Amrutha Pai at Malleshwaram. PW.2 further deposed that accused was working as a Commercial Tax Inspector at Sheshadripuram and in connection with the Speed Ware Technology, he was sent to get the clearance from the accused during January 2011. PW.2 further deposed that accused has directed him to pay the prescribed fee of Rs.2,500/- and after some time, when his colleague was sent for the very same purpose, accused sent the message by stating that they are supposed to pay the fee of Rs.2,000/- to her. PW.2 further deposed that the matter went on postponing and clearance was not affected and Amrutha S Pai asked him to ascertain why the delay was caused and asked him to get the work done. PW.2 8 Spl. C.C. No.180/2011 further deposed that when he approached the accused, she asked him to pay the additional fee of Rs.2 to 3,000/- other than the Government fee. PW.2 further deposed that Amrutha S Pai asked him to get the work done for Rs.500/- and when he approached the accused to get the work done for Rs.500/-, she said that many applications are pending since one year and their work will be done if she paid Rs.2 to 3,000/- and she communicated the same to Amrutha S Pai.
12. CW.3 S. Munirajappa, who was examined as PW.3, deposed during the course of his evidence that, on 15-02-2011, he and CW.4 appeared before the Lokayuktha Police Inspector Sri. B.Y. Renuka Prasad and CW.1 was found there. PW.3 further deposed that they were told that they have to assist as witnesses in respect of the complaint lodged by CW.1. PW.3 further deposed about pre trap proceedings conducted by the Lokayuktha Police and drawing of the pre trap mahazar as per Ex.P.4 in their presence. PW.3 further deposed that thereafter they went near the office of accused and their vehicle was parked at a distance of about 200-feet away from the office of accused and thereafter he along with CW.14 and staff went near the office of the accused and CW.1 and 4 went inside the office. PW.3 further deposed that about ten minutes later CW.1 came out of 9 Spl. C.C. No.180/2011 the office and wiped her face with kerchief and immediately he along with Lokayuktha Police entered the office of accused. PW.3 further deposed that CW.14 disclosed his identity to the accused and CW.4 pointed out about tainted currency notes, which were kept in the almaraih on a sheet of paper and he took the currency notes and placed before CW.14. PW.3 further deposed that hand wash of the accused was made in the sodium carbonate solution and said solution turned into pink colour and same was seized by the Lokayuktha Police. PW.3 further deposed that the metal seal, which was used to seize the properties, were given to her and she produced the same before this court as M.O.1. PW.3 further deposed that thereafter they came back to the office of CW.14, wherein the accused has placed written explanation as per Ex.P.5. PW.3 further deposed that the trap mahazar was drawn as per Ex.P.6 in his presence.
13. CW.1 Smt. Amrutha S. Pai, who was examined as PW.4, deposed during the course of her evidence that, during the year 2011 she was doing the internal auditing registration and its allied activities at Malleshwaram, Bengaluru. PW.4 further deposed that, their firm had a customer by name Speedway Technologies Private limited, Bengaluru and she has undertaken the task of registration of professional tax of the said customer and accordingly, during January 10 Spl. C.C. No.180/2011 2011, an application was sent to the office of accused through PW.2. PW.4 further deposed that on 14-02-2011, she had been to the office of accused, wherein the accused demanded illegal gratification of Rs.2,000/- from her and she has informed the same to one Madhukar Shetty at Lokayuktha office. PW.4 further deposed that said Madhukar Shetty has handed over the voice recorder to her and again she met the accused and recorded the conversation in the voice recorder and placed the voice recorder before Madhukar Shetty. PW.4 further deposed that on 15-02-2011, she met CW.14 and lodged a complaint as per Ex.P.7. PW.4 further deposed that CW.14 secured CW.3 and 4 as witnesses and conducted the pre trap proceedings and drawn the pre trap mahazar in their presence as per Ex.P4. PW.4 further deposed that thereafter they went near the office of the accused and she and CW.4 walked inside the office and met the accused. PW.4 further deposed that when she asked the accused about the certificate, she demanded Rs.2,000/- and accordingly she handed over the tainted currency notes to the accused and gave the signal to the Lokayuktha Police. PW.4 further deposed that Lokayuktha Police came inside the office of accused and seized the amount which was on the ledger in the left side drawer of table of the accused and thereafter accused brought to the office of CW.14. PW.4 further deposed that hand wash 11 Spl. C.C. No.180/2011 of the accused was conducted and same turned into pink colour and it was seized. PW.4 further deposed that a digital voice recorder was given to her while she approaching the accused and she has returned the same to the Lokayuktha Police.
14. CW.4 Rajeshwari, who was examined as PW.5, deposed during the course of her evidence that she and CW.3 were directed to appear before the Lokayuktha Police and accordingly she appeared before the Lokayuktha Police on 15-02-2011. PW.5 further deposed that complainant by name Amrutha S. Pai was present in the office of Lokayuktha Police and she told that the accused has demanded a sum of Rs.2,000/- from her. PW.5 further deposed about Lokayuktha Police conducting the pre trap proceedings in their presence and drawing the pre trap mahazar as per Ex.P.4. PW.5 further deposed that thereafter they reached the commercial tax office of the accused and she and complainant went inside the office and complainant made conversation with the accused and accused, by way of signal, demanded the amount and complainant gave the amount of Rs.2,000/- to the accused. PW.5 further deposed that after receiving the said amount, accused kept the same in the cup board on her left side and Lokayuktha Police have entered the office, after receiving the signal 12 Spl. C.C. No.180/2011 from the complainant. PW.5 further deposed that complainant shown the accused to the Lokayuktha Police and hand wash proceedings of the accused was conducted and same turned into pink colour. PW.5 further deposed that Lokayuktha Police have enquired the officials in the said office by name Sujatha and numbers of the currency notes were tallied with the numbers of currency notes, which were noted down by the Lokayuktha Police. PW.5 further deposed that recordings in the voice recorder were displayed before the official by name Sujatha and she has identified the voice of the accused. PW.5 further deposed that accused has given the explanation in writing before the Lokayuktha Police. PW.5 further deposed that trap mahazar was drawn as per Ex.P.6. PW.5 further deposed that Lokayuktha Police have made transcription of the recordings in the voice recorder as per Ex.P.3.
15. CW.5 Sujatha M, who was examined as PW.6, deposed during the course of her evidence that when she was working as in- charge Professional Tax Officer at Sheshadripuram, Bengaluru, accused was working as a Commercial Tax Inspector. PW.6 further deposed that on 15-02-2011 Lokayuktha Police have trapped the accused and asked her come to the spot, where the accused was trapped. PW.6 further deposed that in her presence Lokayuktha Police 13 Spl. C.C. No.180/2011 have conducted the pre trap proceedings and file relating to the case was on the table of the accused and same was seized. PW.6 further deposed that accused has to issue the certificate to the applicant and accused has to verify the file before forwarding the same to her for issuance of the certificate. PW.6 further deposed that Ex.P.10 is the file relating to the complainant and after hearing the conversation in the compact disc, it contained too much disturbance and voice heard by her is similar to the voice of the accused and accordingly, she has given the report before the Lokayuktha Police as per Ex.P.11.
16. CW.14 Renuka Prasad, who was examined as PW.7, deposed during the course of his evidence that, on 15-02-2011, CW.1 appeared before him and lodged a complaint as per Ex.P.7, on the basis of which he has registered the FIR as per Ex.P.12. PW.7 further deposed that he secured CW.3 and 4 as witnesses from the office of the Assistant Commissioner, Bengaluru by issuing a letter as per Ex.P.13 and conducted the pre trap proceedings in their presence. PW.7 further deposed about drawing of pre trap mahazar as per Ex.P.4 in the presence of complainant and CW.3 and 4. PW.7 further deposed that he instructed CW.1 to meet the accused and hand over the tainted currency notes to her, when demanded by her and thereafter give the signal to them by wiping her face with hand kerchief. PW.7 further 14 Spl. C.C. No.180/2011 deposed that CW.4 was named as shadow witness and she was instructed to accompany CW.1 while meeting the accused and observe the proceedings between them. PW.7 further deposed that she handed over the digital voice recorder to CW.1 and instructed her to switch on the same while meeting the accused and recorded the conversation between them. PW.7 further deposed that he along with CW.1, 3 and 4 and his staff proceeded to the office of accused at Sheshadripuram Bengaluru and parked their vehicle about 200-meters away from the office and instructed CW.1 and 4 to meet the accused. PW.7 further deposed that, little while later CW.1 and 4 came out of the office and CW.1 flashed the signal by wiping her face with hand kerchief. PW.7 further deposed that thereafter they entered the office of the accused and CW.1 shown the accused to them and told that she has received the bribe amount of Rs.2,000/- from her and issued the professional tax registration certificate. PW.7 further deposed that hand wash of the accused was conducted and when both hands of the accused was washed in the sodium carbonate solution, it turned into pink colour and same was seized. PW.7 further deposed that as per his instruction CW.3 took the currency notes and they were tallied with the numbers mentioned in Ex.P.2. PW.7 further deposed that accused has produced the file relating to the complainant and same was seized. PW.7 further 15 Spl. C.C. No.180/2011 deposed that thereafter they came back to his office and conversation recorded in the voice recorder was displayed in the presence of CW.5 and she has identified the accused and her voice and gave the report. PW.7 further deposed that he has also received the copies of the documents from CW.5 and drawn the trap mahazar as per Ex.P.6. PW.7 further deposed that accused has given her written explanation as per Ex.P.5. PW.7 further deposed about he continuing the investigation and recording the statement of witnesses. PW.7 further deposed that he has sent the seized material objects for the chemical examination and received the chemical examination report. PW.7 further deposed that he has also received the call details of the accused and thereafter obtained the prosecution sanction order as per Ex.P.1 and filed the charge sheet before this court.
17. There is no dispute that the accused is a public servant, working as Commercial Tax Inspector at the Commercial Tax Office Sheshadripuram, Bengaluru. Under Sec.19 of the Prevention of Corruption Act 1988, obtaining the prior sanction to prosecute the accused is an essential requirement, since she is a public servant and charged with the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. 16 Spl. C.C. No.180/2011
18. In order to prove the sanction and validity of sanction, prosecution examined CW.8 Sri Pradeep Singh Kharola as PW.1, who deposed about he receiving the requisition from the ADGP, Lokayuktha, along with the final report and entire case papers, with a request to accord the sanction to prosecute the accused. PW.1 further deposed that he has perused all those papers and convinced about prima facie materials and issued the sanction order as per Ex.P.1.
19. The evidence of PW.1 was not at all challenged by the accused by cross examining him, in disputing the authority of PW.1 to issue sanction and application of his mind by him before issuing the sanction. Barring a suggestion that he has issued the sanction order mechanically, without application of mind, no other questions was asked to PW.1 during the course of his cross-examination. That suggestion was categorically denied by the PW.1. In-fact, there is no serious dispute as such regarding the sanction and validity of sanction accorded to prosecute the accused, as no arguments were canvassed by the learned counsel for the accused in respect of sanction and validity of sanction accorded by PW.1 to prosecute the accused. Rather, Learned counsel for the accused, Sri P.N.Hegde, during the course of his arguments, fairly submitted that accused will not dispute 17 Spl. C.C. No.180/2011 the sanction, validity of sanction, authority of PW.1 to issue sanction and application of mind by PW.1, before according the sanction to prosecute the accused.
20. There is no dispute regarding the authority of CW.8/PW.1 to accord the sanction to prosecute the accused, being the Commissioner of Commercial Tax department in the government of Karnataka. There is also no dispute regarding application of mind by the sanctioning authority before according the sanction to prosecute the accused. In- fact there was prima facie case against the accused to file the charge sheet. Having found the same, this court has taken the cognizance and registered this case. This court, having found the prima facie case, also proceeded to frame the charges against the accused. Under such circumstances, one cannot say that the sanctioning authority has not applied its mind before issuing the sanction. Considering all these aspects, I hold that there is valid sanction to prosecute the accused. Accordingly, I answer the point No.1 in the Affirmative.
POINT No.2 & 3:
21. To avoid the repetition of my discussion on facts, I have taken these two points together for determination. This accused was charged for the offences punishable under Sec.7, 13(1)(d) R/w 18 Spl. C.C. No.180/2011 Sec.13(2) of the Prevention of Corruption Act 1988, with an allegation that the accused, being a public servant, working as a Commercial Tax Inspector, demanded the bribe amount of Rs.3,000/- from the complainant for issuing the Profession Tax registration certificate relating to one M/s Speed Wear Technologies Pvt. Ltd., and accepted the bribe amount of Rs.2,000/- from the complainant on 15-02-2011, in her office at Sheshadripuram, Bangalore and she was trapped by the Lokayuktha Police.
22. In order to bring home the guilt of the accused for the offence under Sec. 7 and 13 of the Prevention of Corruption Act 1988, prosecution has to establish mainly two factors. Firstly, prosecution has to prove that there is demand and acceptance of the bribe amount by the accused. Secondly, prosecution has to establish that, said demand and acceptance of the bribe amount must be in respect of an official act to be performed by the accused. Only if the prosecution able to establish these two factors, accused can be held as guilty of committing the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
23. It is true that the prosecution has got benefit of presumption, as provided under Sec. 20 of the Prevention of 19 Spl. C.C. No.180/2011 Corruption Act 1988, in respect of the commission of offence under Sec. 7 of the said Act. However, benefit of presumption can be extended in favour of the prosecution and onus can be shifted upon the accused, only when the prosecution discharges the initial burden of proving that the accused has demanded and accepted the illegal gratification for doing any official act in favour of the complainant. In this regard, it is necessary to refer a decision of Hon'ble High Court of Karnataka reported in 2010(3) KCCR 1851 (State of Karnataka v/s M. Gopala Krishna and Others). It was held by the Hon'ble High Court of Karnataka in the above decision that, even to draw the presumption under Sec.20 of the Prevention of Corruption Act 1988, prosecution is required to prove that there was demand and acceptance of the illegal gratification. It was further held in the above decision that, if the demand and acceptance for the purpose of doing official favour is proved by the prosecution beyond reasonable doubt, burden may shift on the accused. However, when the initial burden of proving the demand and acceptance is not established, drawing the presumption under Sec.20 of the Prevention of Corruption Act 1988 would not arise.
20 Spl. C.C. No.180/2011
24. Same view was expressed by the Hon'ble Supreme Court in a decision reported in 1997 (1) Crimes 186 (Supreme Court) (Mehaboob Khan Patan V/s State of Maharastra) 2010 (2) SCC (Cri) 385 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede), 2014 AIR SCW 4924 (Satwir Singh V/s State of Delhi) and 2016 (1) KCCR 815 (R.Srinivasan and another V/s State by Lokayuktha Police). So, in view of Sec.20 of the Prevention of Corruption Act 1988 and the ratio laid down in the above referred decisions, it is incumbent on the part of the prosecution to discharge the initial burden of proving the demand and acceptance of the bribe amount by the accused, for doing official act in favour of the complainant, so as to get benefit of presumption in their favour and also to shift the onus on the accused to rebut and displace the presumption.
25. It is the specific case made out by the accused before this court that, no official act, work or duty relating to the complainant was pending before the accused as on the date of filing the complaint or on the date of trap. Therefore, question of accused demanding and accepting the illegal gratification from the complainant would not arise. According to the accused, she is not an authority to put the signature 21 Spl. C.C. No.180/2011 for the certificate, which was applied by the complainant on behalf of her client. Even if it is the duty of accused to issue the certificate, still the certificate was ready on 10-02-2011 and it was received by the complainant on 14-02-2011, by putting her signature on the office copy of the certificate. Therefore, according to the accused, on the date of complaint i.e. on 15-02-2011 and on the date of trap on 15- 02-2011 no official act, work or duty relating to the complainant is pending before her, so as to demand and accept the illegal gratification.
26. In this regard, learned counsel for the accused has relied upon the decision of Hon'ble High Court of Karnataka in Crl.Appeal.No.366 C/W 327/2007 in between R. Malini V/s State of Karnataka and others, dated: 30-01-2012, which was also reported in 2012(1) KCCR 414. It was held in the said decision that when the certificate to be issued to the complainant was kept ready much before lodging the complaint, question of accused demanding the bribe amount for doing any work does not arise, as no work was pending at the time of lodging the complaint.
27. There is no dispute that complainant is the owner of firm called Finance and Accounting Solutions at Bengaluru and they were 22 Spl. C.C. No.180/2011 undertaking the work of filing the income tax returns of the private individuals and firms and also the professional tax matters. It is also an undisputed fact that the complaint filed application before the office, where this accused was serving as the Commercial Tax Inspector, to get the registration certificate of the firm M/s Speed- wear Technologies Pvt. Ltd., Bengaluru. The complainant moved the application on behalf of their client on 18-01-2011, as evident from Ex.P.15. Even though the accused, being the Commercial Tax Inspector, is not authorized official to put the signature on the Certificate sought by the complainant, still the evidence of PW.6, who is the Commercial Tax Officer, in the office of the accused, goes to show that this accused has the duty to verify the file, before forwarding the same to her for issuance of the certificate. Admittedly, it is PW.6, who is the authorized official to put the signature for the certificate, which is sought by the complainant on behalf of their customer M/s Speed-wear Technologies Pvt. Ltd. So far as this accused is concerned, her duty is to verify the application filed by the applicant and forward the same to CW.5/PW.6 for putting the signature on the certificate. PW.6 further said that, after she put the signature on the certificate, she has to again send back the file to accused for issuance of the certificate. So, even though accused is not 23 Spl. C.C. No.180/2011 the authorized official to put the signature for the certificate, she has the duty to verify the file before forwarding the same to CW.5/PW.6 and after CW.5/PW.6 put the signature, it will go back again to the accused for issuance of the certificate and accused has the duty to issue the certificate to the complainant.
27. After the complainant applied for the certificate on behalf of her customer, accused has verified the same and put up the same before CW.5/PW.6. During the course of her cross-examination, CW.5/PW.6 admitted that, she put her signature on the certificate on 10-02-2011. Ex.P.10 is the certificate, which has to be issued to the complainant. Even Ex.P.10 goes to show that PW.6 put her signature for the same on 10-02-2011. So, one thing is certain that as on 10-02-2011, certificate was ready. Thereafter, accused has to issue the said certificate to the complainant. Now the official duty relating to the accused is not completed as and when PW.6 put her signature for the same and it was ready with her. As deposed by PW.6 herself, after she put the signature, she will again send back the file to accused for issuance of the certificate. So, accused has also got the official duty to perform by issuing certificate to the complainant. 24 Spl. C.C. No.180/2011
28. According to the accused, she has handed over the said certificate to the complainant on 14-02-2011 itself. Therefore, on 15- 02-2011, when the complainant was lodged the complaint and trap was laid, no official work relating to the complainant was pending before her. Hence, according to the accused, question of she demanding the bribe amount would not arise. In this regard, accused mainly rely upon the endorsement and signature of the complainant made on Ex.P.10, for having received the certificate on 14-02-2011 and also the admission given by complainant/PW.4, during the course of her cross-examination, where she admitted that she received the certificate on 14-02-2011.
29. On the other hand, it is the case of the prosecution that, though the certificate was ready on 14-02-2011 and even the signatures of the complainant was obtained for its office copy on 14- 02-2011 for having received the same, original certificate was not actually handed over to the complainant. Rather, accused demanded the bribe amount and the authorization certificate of the applicant, to hand over the certificate. Therefore, complainant has approached the Lokayuktha Police on 14-02-2011, who handed a voice recorder to her to record the conversation in demanding the bribe amount and 25 Spl. C.C. No.180/2011 accordingly, complainant has recorded the conversation between her and accused in the voice recorder and thereafter lodged the complaint on 15-02-2011.
30. Now, I have to consider as to whether this theory put forward by the prosecution can be accepted, when Ex.P.10 shows that there is an endorsement on the office copy of the certificate that the complainant has received the certificate on 14-02-2011. So far as putting signature on Ex.P.10, complainant has disclosed the same in page 2 of her complaint. The complaint was marked as per Ex.P.7. In page 1 and 2 of Ex.P.7, complainant has specifically alleged that, on 14-02-2011, she met the accused in her office, along with the digital voice recorder given to her by Lokayuktha Police and deposited the official fee of Rs.2,500/- and obtained the receipts and shown that receipt to the accused and accused has obtained her signature on the office copy of the certificate and thereafter demanded the bribe amount of Rs.2,000/- and she informed the accused that, she will met her on the next day and thereafter, lodged the complaint as per Ex.P.7. So, putting the signature on the office copy of the certificate on 14-02-2011 was disclosed by the complainant, even while lodging the complaint. But, according to the complainant, after obtaining her signature for the office copy, for handing over the certificate, there 26 Spl. C.C. No.180/2011 was demand of bribe amount of Rs.2,000/- by the accused. Therefore, she has come back to Lokayuktha office to lodge the complaint, without receiving the certificate.
31. It is true that, complainant, who was examined before this court as PW.4, during the course of her cross-examination has admitted that she has received the registration certificate from the accused on 14-02-2011 by putting her signature on it. If the complainant got her work done and received the certificate, she would not have approached the Lokayuktha Police to lodge the complaint. Normally, if any work is done in the Government office, either by paying the bribe amount or without paying the bribe amount, after work is completed, no complaint will be made to the Lokayuktha Police. The accused failed to explain any special reason or grounds for the complainant to lodge complaint against her, even after completion of her work and handing over the registration certificate to her. There was no enmity between the complainant and accused to lodge false complaint on 15-02-2011 and trap the accused, if the work of the complainant is completed and she has received the certificate on 14- 02-2011. This is one of the circumstances to say that certificate was not actually handed over to the complainant on 14-02-2011. 27 Spl. C.C. No.180/2011
32. There are other circumstances also, which suggest that though the complainant has put the signature on the office copy of the certificate for having received the same, original certificate was not actually handed over to the complainant on 14-02-2011. One of the circumstances for this court to have such an opinion is about complainant failing to hand over the authorization letter of the applicant by name M/s Speed-wear Technologies Pvt. Ltd to the accused. Even according to the accused, on 14-02-2011, complainant has not handed over the authorization letter of M/s Speed-wear Technologies Pvt. Ltd., to her and on the date of trap, complainant has came to her office and handed over the same to her. This will also goes to show that till 15-02-2011, certificate was not handed over to the complainant. The accused is not supposed to hand over the certificate to the complainant, without production of the authorization letter. The accused failed to explain the circumstances or the reasons which made her to hand over the certificate on 14-02-2011, without the authorization letter being given by the complainant. This will also goes to show that, even though on 14-02-2011, signature of the complainant was obtained on the office copy of the certificate, that certificate was not actually handed over to the complainant, because she has not produced the authorization letter. It may be also because 28 Spl. C.C. No.180/2011 of the complainant not paying the bribe amount to the accused on 14- 02-2011, as demanded by her.
33. This question relating to the actual date, when the certificate was handed over has to be considered, along with the other circumstances and the explanation given by the accused and also the written statement filed by the accused before this court. Immediately after the trap, Lokayuktha Police have sought the explanation from the accused. The accused has given the said explanation as per Ex.P.5. Absolutely there is no dispute about the accused giving her explanation as per Ex.P.5. Even during the course of recording her statement under Sec. 313 Cr.P.C., accused has admitted that she has given the statement as per Ex.P.5. There is no allegation of coercion, threat or misrepresentation by the investigating agency for obtaining the explanation from the accused as per Ex.P.5. While giving the explanation as per Ex.P.5, accused said that complainant has called her over the phone 5-7 times to get the registration certificate relating to M/s Speed-wear Technologies Pvt. Ltd., and offered her to pay the heavy amount of Rs.3,000/-. The complainant also said in Ex.P.5 that there was an instruction to attend the AG audit compliance on day to day basis, because of which, she is unable to attend the work of the complainant. The accused also explained in Ex.P.5 that, complainant 29 Spl. C.C. No.180/2011 has received the certificate on 14-02-2011 and paid the fees and on 15-02-2011, she has come to trap her with grudge after receiving the certificate.
34. This explanation offered by the accused has to be considered along with the cross-examination made to the complainant and the Investigating Officer and also the written statement filed by the accused under Sec. 313 of Cr.P.C. before this court. As per the written statement filed by the accused before this court, on 14-02- 2011, complainant came and collected the registration certificate by acknowledging on the office copy, but she did not produce the authorization letter and informed that she will hand over the same on the next day. According to the accused, on 15-02-2011 complainant came and handed over the authorization letter to her and then passed currency notes to her. The accused further stated that, by thinking that the complainant has not deposited the statutory charges, she instructed the complainant to pay the same in the counter meant for the receipt of the charges and thereafter Lokayuktha Police entered the office and she took the amount from the table and handed over the same to police. So, regarding the complainant coming to her office on 15-02-2011, explanation given by the accused is that she has come 30 Spl. C.C. No.180/2011 to hand over the authorization letter. Regarding handing over the tainted currency notes to her, explanation given by the accused is that, it was kept on her table and she thought that it is the statutory fees. Therefore she asked the complainant to deposit the fees in the counter and the complainant, without depositing the same in the counter, gave the signal to the Lokayuktha Police and Lokayuktha Police have entered her office.
35. Both these explanations offered by the accused appear to be unbelievable and unacceptable. The complainant coming to office of accused on 15-02-2011 to hand over the authorization letter itself goes to show that the certificate was not handed over to the complainant. As I said earlier, accused was not supposed to hand over the certificate to the complainant without the production of authorization letter. The authorization letter was handed over to accused only on 15-02-2011. Therefore, this court cannot believe the contention of the accused that the complainant has received the certificate on 14-02-2011. So, as on 15-02-2011, when the complaint was lodged and trap was laid, original certificate was with the accused and it was not actually handed over to the complainant. As I said earlier, handing over the certificate to the complainant is also the 31 Spl. C.C. No.180/2011 official duty of the accused, which was pending as on 15-02-2011. Under such circumstances, contention of the accused that no official work relating to the complainant was pending before her as on 15-02- 2011 cannot be accepted by this court.
36. So far as the above referred decision relied upon by the accused in Malini V/s State of Karnataka, facts and circumstances of that case stands on entirely different footing than the present case. There were two accused persons in that case and one of the accused has already prepared the certificate and it was ready and same was not collected. It is another accused, who has received the bribe amount, because of which, it was held by the Hon'ble High Court that since the certificate was ready, no official work was pending. With great respect to that decision, ratio laid down in the above decision has no application to the facts and circumstances of this case and it renders no benefit to the accused.
37. The next important question which requires to be considered by this court is regarding the allegation of demand of illegal gratification made by the accused. According to the prosecution, during two stages, there was demand of bribe amount by the accused. First stage is before lodging the complaint, when CW.1 and 2 have 32 Spl. C.C. No.180/2011 approached the accused to get the registration certificate. In order to prove the alleged demand of bribe before lodging the complaint, prosecution relies upon the complaint allegations, evidence of CW.1 and 2, who were examined before this court as PW.4 and 2 respectively and the recordings made in the voice recorder, when CW.1 met the accused before lodging the complaint. The second stage where accused demanded the illegal gratification is after lodging the complaint and pre trap proceedings and at the time of trap, when CW.1 handed over the tainted currency notes to accused. In order to prove the demand on this occasion, prosecution relied upon the evidence of CW.1, who was examined as PW.4, CW.4 shadow witness, who was examined as PW.5.
38. Now let me first consider as to whether the prosecution able to establish the alleged demand of bribe before lodging the complaint. CW.1, who was examined as PW.4, specifically deposed before the court that she moved the application through CW.2 to get the professional tax registration certificate relating to their client M/s Speed-wear Technologies Pvt. Ltd., Bengaluru. PW.1 further said that when she enquired CW.2 about the delay, he told her that accused is demanding the amount in-addition to the requisite fee. PW.2 further 33 Spl. C.C. No.180/2011 said that she met the Lokayuktha Police official on 14-02-2011 and handed over the voice recorder to them and thereafter she along with the voice recorder, met the accused in her office, wherein accused demanded Rs.2,000/- from her and she has recorded the said conversation and appeared before the Lokayuktha Police Inspector on 15-02-2011 and lodged the complaint. The evidence of CW.1/PW.4 in this regard is corroborated by the evidence of CW.2/PW.1.
39. One Manoj, who was examined as CW.2/PW.2, deposed that he was working in the company owned by CW.1 and in connection with M/s Speed-wear Technologies Pvt. Ltd., he was sent to the office of accused to get the clearance certificate. PW.2 further said that after remitting the fee, when he met the accused, accused demanded to pay additional fee of Rs.2 to 3,000/- other than the Government fee. PW.2 further said that he informed the same to CW.1. Except the suggestion that accused did not demand any extra money from him, no such material aspects were brought out from the cross-examination of PW.2 to disbelieve his oral testimony regarding the demand made by the accused.
40. Now, it is relevant to refer the complaint, which is marked as per Ex.P.7. In Ex.P.7, complainant has specifically alleged that she 34 Spl. C.C. No.180/2011 moved the application through CW.2 to get the professional tax registration certificate relating to M/s Speed-wear Technologies Pvt. Ltd., on 18-01-2011. PW.4 further deposed that when she enquired about the progress of the said application, CW.2 told him that the accused is demanding the payment of Rs.5,500/-. It was also alleged in the complaint that she has contacted the accused over phone from Dharwad and came to Bengaluru on 14-02-2011 and called the accused, who told that her certificate is ready. It was also alleged in Ex.P.7 complaint that since she was not ready to pay the bribe amount, she came to Lokayuktha office, met the Police Inspector, who handed over the digital voice recorder to her and thereafter met the accused and paid the requisite fee of Rs.2,500/- and produced the receipt before the accused, who obtained her signature for the office copy of the certificate and demanded Rs.2,000/- for handing over the said professional tax registration certificate. It was also in the complaint that by recording the conversation in the voice recorder, she came back before the Lokayuktha Police and lodged a complaint as per Ex.P.7. So evidence of PW.2 and 4 are consistent enough and they are also in accordance with the complaint allegations regarding alleged demand of bribe amount made by the accused, before lodging the complaint. Though PW.4 was cross-examined in length by the learned 35 Spl. C.C. No.180/2011 counsel for the accused, no materials aspects were brought out from the cross-examination of PW.4 to disbelieve her oral testimony regarding alleged demand of bribe amount made by the accused before lodging the complaint. Therefore, I found no reasons to disbelieve the evidence of PW.1 and PW.2.
41. One more evidence, which the prosecution relied upon to prove the alleged demand of bribe amount, before lodging the complaint, is the recordings made in the voice recorder. The complainant has produced the voice recorder along with the complaint, before the Lokayuktha Police. As per the evidence of Investigating Officer, who was examined as PW.7, said voice recorder was displayed in the presence of CW.3 and 4 and its transcription were made as per Ex.P.3 and thereafter recordings in the voice recorder were transmitted into CD and produced the said CD before this court. The Investigating Officer has not produced the original voice recorder in which the alleged recordings were made. The documents produced before this court in the form of CD and in the form of transcription of the recordings are only the secondary evidence. The primary evidence is the voice recorder, in which recordings were made and same has not been produced before this court.
36 Spl. C.C. No.180/2011
42. Learned counsel for the accused, by relying upon the decision of Hon'ble Supreme Court reported in 2015(1) SCC Crl. 24 (2014(10) SCC 473) (Anwar P. B Vs P.K. Basheer and others) has argued that when the primary evidence of electronic records are not produced before the court, unless the secondary evidence has been accompanied with the certificate under Sec.65B of the Indian Evidence Act, said secondary evidence is not admissible in evidence. Now, it is well established principle of law that in case of any electronic records or evidence, primary evidence has to be produced before the court. If the primary evidence is not produced before the court and only secondary evidence is produced, said secondary evidence should be accompanied by a certificate under Sec. 65B of the Indian Evidence Act in respect of genuineness of the said secondary evidence.
43. In case on hand, though the prosecution has produced the secondary evidence of electronic records like recordings made in the voice recorder, same is not accompanied by any certificate under Sec. 65B of the Indian Evidence Act. According to me, in view of the above referred Three Judges Bench decision of Hon'ble Supreme Court, whatever the electronic evidence produced by the prosecution cannot be accepted by this court.
37 Spl. C.C. No.180/2011
44. The Investigating Officer has also not made any attempt to obtain the specimen voice of the accused, so as to compare the same with the voice recorded in the voice recorder. No reasons are forth coming from the investigating agency for not subjecting the recordings in the voice recorder for the expert examination by comparing the same with the specimen voice of the accused. On this score also, I have to say that the secondary evidence of the electronic records produced by the prosecution cannot be accepted by this court.
45. This reasoning of the court is not only applicable to the recordings of the voice recorder made before lodging the complaint, it will also applicable to the recordings of the voice recorder made during the trap and also applicable to the CD of the video recordings made at the time of pre trap and trap proceedings. As none of those records were accompanied by the certificate under Sec. 65B of the Indian Evidence Act, they cannot be accepted and admitted in evidence.
46. Even though this court has to discard the recordings in the voice recorder and the transcription made in the voice recorder for want of certificate under Sec. 65B of Indian Evidence Act, still to prove the alleged demand of bribe before lodging the complaint, there is evidence of CW.1 and 2, who were examined as PW.4 and PW.2 38 Spl. C.C. No.180/2011 respectively. Their oral testimony is consistent with the complaint allegations regarding alleged demand of bribe amount. Therefore, I hold that the prosecution has proved the alleged demand of bribe amount made by the accused before lodging the complaint.
47. Now, let me consider the next question as to demand of bribe amount at the time of trap. The prosecution relies upon the evidence of CW.1/PW.4, who is the complainant and CW.4/PW.5, who is the shadow witness, to prove the demand made at the time of trap. Apart from that, though the prosecution has also relied upon the recordings in the voice recorder, this court cannot consider the same, for want of production of primary evidence and secondary evidence being not supported with certificate under Sec.65(B) of the Indian Evidence Act.
48. So far as the alleged demand of bribe amount after the complaint and at the time of trap, CW.1/PW.4 deposed during the course of her evidence that, after the trap proceedings they moved towards the office of accused and their vehicle was parked about 100- meters away from the office of accused and she along with CW.4 went inside the office of the accused. PW.4 further said that she met the accused along with CW.4 and asked the accused about the certificate 39 Spl. C.C. No.180/2011 and accused asked her to pay Rs.2,000/- and accordingly she has gave the tainted notes to the accused.
49. The shadow witness, who was examined as PW.5, deposed during the course of her evidence that, after they reached the office of accused, accused was not present in her chamber and about ten minutes later, accused came and CW.1 asked the accused to give the certificate. PW.5 further said that, accused replied that the certificate is ready and she will give the same. PW.5 further said that she was standing by the side of the complainant and there was conversation between the complainant and accused by way of signal, which she could not understand and that conversation and signal may be for the payment of the amount. PW.5 further said that, thereafter complainant gave the amount of Rs.2,000/-, which the accused received and kept in the cub-board of her left side. So, both PW.4 and 5 have specifically deposed regarding the accused demanding the bribe amount at the time, when the trap was laid and accordingly tainted currency notes were handed over to the accused. Again, oral testimony of PW.4 and 5 regarding demand of bribe amount at that time is also consistent and it is also in accordance with the recitals in the trap mahazar. The trap mahazar is marked as per Ex.P.6 and in page No.7 of the Ex.P.6 trap mahazar, it is specifically stated regarding the signal made by the 40 Spl. C.C. No.180/2011 accused to give tainted currency notes and accordingly the complainant handing over the tainted currency notes of Rs.2,000/-. So the evidence of PW.4 and 5 is not only consistent with each other and it is also in accordance with the trap mahazar. Though these witnesses were cross examined, no materials aspects were brought out from their cross-examination to disbelieve their oral testimony. Hence, there was no reason for this court to discard the same or not to accept the same. On the basis of evidence of these two witnesses, prosecution has also proved the demand of bribe amount made by the accused just before the trap and after lodging the complaint and pre trap proceedings.
50. The next question, which has to be considered by this court is the acceptance of the illegal gratification by the accused, in the form of tainted currency notes. Regarding acceptance, prosecution relies upon the pre-tap proceedings conducted by the Investigating Officer, evidence of complainant/CW.4 and shadow witness, who was examined as PW.5. The prosecution has also relied upon the positive phenolphthalein test report, when the hand wash of the accused was conducted. To corroborate these evidences, the prosecution rely upon evidence of another pancha witness, who was examined as PW.3 and 41 Spl. C.C. No.180/2011 Investigating Officer, who was examined as PW.7, in whose presence the trap proceedings were conducted. The prosecution has also relied upon the evidence of PW.6, who is the senior official of the accused, who was secured to the spot immediately after the trap and in whose presence, hand wash proceedings of the accused was conducted, after trapping the accused.
51. Before Lokayuktha Police proceeding to lay the trap, pre trap proceedings were conducted and pre trap mahazar was drawn in the office of Lokayuktha Police, in the presence of complainant, shadow witness and panch witness. The accused has not at all disputed the same. The learned counsel for the accused, Sri. P.N.Hegde submitted during the course of his arguments that, he has no dispute regarding the pre trap proceedings conducted by the Lokayuktha Police and drawing of pre-trap mahazar. The prosecution has independently proved the pre trap proceedings and drawing of pre trap mahazar by examining the CW.1, 3 and 4 and also the Investigating Officer. In respect of conducting of pre trap proceedings and drawing of pre trap mahazar, there is no such cross-examination to these witnesses. So, the prosecution has proved the conducting of 42 Spl. C.C. No.180/2011 pre trap proceedings and pre trap mahazar, before proceeding to lay the trap.
52. Regarding the acceptance of bribe amount by the accused, complainant, who was examined as PW.4, deposed before the court that accused gave her signal to pay the tainted currency notes and she has handed over the amount of Rs.2,000/- to the accused and after receiving the same, accused placed that amount on a ledger and complainant received the certificate and came out of the office and gave the signal to Lokayuktha Police.
53. The shadow witness, who was examined as PW.5, deposed during the course of her evidence that, after she entered the office of accused along with the complainant, complainant asked the accused about the certificate and accused told that it was ready. PW.5 further said that there was some conversation between the complainant and the accused by way of signal, which indicated for payment of amount and thereafter complainant gave amount of Rs.2,000/- and accused after receiving the said amount, kept that amount in the cupboard on her left side. So, this is the version of two eye witnesses regarding receipt and acceptance of the tainted currency notes by the accused. 43 Spl. C.C. No.180/2011
54. Regarding the hand wash proceedings conducted and positive phenolphthalein test, apart from evidence of PW.4 and 5, another panch witness, who was examined as PW.3 and Investigating Officer, who was examined as PW.7, have deposed before the court. All these witnesses said that, hand wash of the accused conducted in their presence and sodium carbonate solution in which the hands of the accused was washed, turned into pink colour and same was seized. The evidence of the witnesses in this regard is consistent and it is also proved with the documentary evidence, as chemical examination report has been produced as per Ex.P.20 relating to the seized sodium carbonate solution.
55. Regarding recovery of the tainted currency notes from the possession of the accused, again complainant/PW.4 deposed during the course of her evidence that, after Lokayuktha Police entered the office of the accused, they have seized that amount, as the currency notes were kept on the ledger on the left side table drawer of the accused. The shadow witness, who was examined as PW.5, deposed that, after Lokayuktha Police entered the office of accused, they enquired the accused about tainted currency notes and accused shown the same and same was seized and numbers of those currency notes 44 Spl. C.C. No.180/2011 were tallied with the denomination and numbers, which were entered at the time of entrustment mahazar. Even PW.3 panch witness and Investigating Officer/PW.7 have deposed about the recovery of the tainted currency notes, which was found in the rack on the left side table of the accused. Though there are some variations in the evidence of these witnesses regarding actual place from which the tainted currency notes were recovered, evidence of these witnesses is consistent that the accused has received that amount and kept that amount, either of her table or on the rack and it was recovered by the Lokayuktha Police.
56. Now, let me consider the explanation offered by the accused regarding finding of tainted currency notes with her, on her table or rack and positive phenolphthalein test . While filing her written statement under Sec. 313 Cr.P.C. regarding tainted currency notes, statement of the accused is that after coming to her chamber at about 5-00 p.m. CW.1 has handed over the authorization letter to her and all of a sudden passed the currency notes. The accused further stated in her written statement that, thinking that CW.1 has not deposited the statutory charges, she instructed CW.1 to pay the same in the counter meant for the receipt of the charges. Regarding positive 45 Spl. C.C. No.180/2011 phenolphthalein test report, explanation offered by the accused in her statement is that, after Lokayuktha Police came, she has handed over the currency notes to them, because of which, there is positive phenolphthalein test report. Now, question before this court as to whether these two explanations offered by the accused, regarding finding of currency notes on her table and positive phenolphthalein test report, can be accepted or not.
57. According to the accused, amount of Rs.2,000/- given to her was relating to the statutory fees for issuance of the certificate and she thought so. The documents produced by prosecution, which was not disputed by the accused, shows that the fee payable for issuance of the certificate was Rs.2,500/- and same was collected from CW.1 on 14-02-2011. Ex.P.15 is the file relating to the complainant, where by she applied for the professional tax registration certificate relating to her client M/s Speed-wear Technologies Pvt. Ltd. In the first page of Ex.P.15, there is reference about payment fee of Rs.2,500/-. There is also reference number in the page 1 of Ex.P.15. The second page is the form filled for getting the registration certificate. Again in that page, there is reference about the payment of fee of Rs.2,500/- on 14- 02-2011. This would clearly go to show that, requisite fee of 46 Spl. C.C. No.180/2011 Rs.2,500/- for issuance of certificate has already been paid by the complainant on 14-02-2011. When the requisite fee of Rs.2,500/- has been paid by the complainant on 14-02-2011, question of she paying the same again, that too Rs.2,000/- would not arise. Therefore, an amount of Rs.2,000/- which was kept on the table of the accused on 15-02-2011 and accepted and received by the accused, cannot be the statutory fee, as thought by the accused or as explained by her.
58. The accused cannot think that the amount of Rs.2,000/- placed before her on 15-02-2011 is the statutory fee, because even according to her she has completed the work and handed over the certificate on 14-02-2011. The accused is not supposed to hand over the certificate on 14-02-2011, without receiving the statutory fees. The accused, even cannot get ready the certificate, without payment of the statutory fees. The accused consistently impressed upon this court that the registration certificate was signed by her superior official on 10-02-2011 and it was ready and handed over to the complainant on 14-02-2011. If that is so, question of complainant paying the fee and accused receiving the said amount as statutory fee on 15-02-2011 would not arise. Moreover, as per the documents, statutory fee payable Rs.2,500/-, where as amount offered to the accused as bribe 47 Spl. C.C. No.180/2011 in the form of tainted currency notes and received by the accused is Rs.2,000/-. Hence, question of receiving Rs.2,000/- by the accused, as statutory fee would not arise. Therefore, I cannot accept this explanation offered by the accused for finding Rs.2000/- on her table. Rather, one can safely say that it is the amount which was demanded by the accused as the bribe and accordingly it was handed over by the complainant to her for handing over the certificate to her.
59. According to the accused, she has handed over the currency notes to the Lokayuktha Police, because of which, there is positive phenolphthalein test report. Again this explanation cannot be accepted by this court. If the amount of Rs.2,000/- was kept towards payment of the statutory charges, there was no reason for the accused to touch the same. Moreover, evidence of all the witnesses and trap mahazar goes to show that hand wash proceedings of the accused was conducted before seizing the tainted currency notes. It is only after the hand wash proceedings of the accused was conducted, tainted currency notes were seized from the rack on the left side of the table of the accused. Evidence of these witnesses and the trap mahazar also goes to show that, it is CW.4, who was examined as PW.3, took out the tainted currency notes from the rack. CW.4/PW.3 specifically 48 Spl. C.C. No.180/2011 deposed that he took out the currency notes, which was kept on the paper in Almirah. Baring a suggestion to deny that statement, nothing was asked to PW.3 to deny and dispute that statement of PW.3. So evidence of the prosecution proves that it is CW.4/PW.3, who took out the currency notes from rack or almirah and it was not handed over by the accused. As the hand wash of the accused was conducted before seizure of currency notes, accused handing over the same before conducting hand wash would not arise. This would indicate that when CW.1 placed the currency notes on her table, accused has received the same and kept in the cupboard, which indicates the acceptance and receipt of that amount. Because of this reason, there is positive phenolphthalein test, when the hand was proceedings of the accused was conducted by immersing her hands with sodium carbonate solution.
60. Now, let me consider some of the other circumstances and grounds, which accused tried to make out during the course of cross- examination of the prosecution witnesses and also in her written statement. According to the accused, after filing the application for getting the professional tax registration certificate, complainant has made several calls to her to issue the certificate immediately. 49 Spl. C.C. No.180/2011 According to the accused, there was audit inspection in their office and there was also some technical snag in the computer server, because of which, she unable to attend the work. According to the accused, she informed the complainant and CW.2 that because of the above reason, she could not issue the certificate immediately. As per the evidence of CW.2/PW.2, accused told him that applications of that nature to issue certificates were pending since one year. According to the accused, in spite of all those impediments, she has made the efforts to get the ready the certificate and issue the certificate on 14-02-2011 and due to vengeance and in order to trap her, a false complaint was filed against her.
61. It was admitted by complaint, CW.6 and 7 that the audit inspection was going on in the office of accused during that time. In- spite of these hurdles, accused has get the certificate ready within few days of complainant filing the application. The office of the accused received the application on 18-01-2011 and signature of Commercial Tax officer (CW.5/PW.6) was obtained for the certificate on 10-02- 2011. So, within the period of 22 days the certificate was ready in spite of those hurdles and hindrances. Even though other applications were pending since one year, application of this complainant is made 50 Spl. C.C. No.180/2011 ready with 18 days of she filing the application. This would also indicates that, by expecting the bribe amount from CW.1, accused has get ready the certificate. This is also an indication that the accused has demanded and accepted the bribe amount. When the complainant has not given that bribe amount, though the certificate was ready, it was not handed over to the complainant on 14-02-2011, though her signature for the office copy of the certificate was obtained. It is only on 15-02-2011, after the complainant handed over the bribe amount of Rs.2,000/- in the form of tainted currency notes, accused has handed over the certificate to the complainant. All these circumstances would also prove that there is demand and acceptance of the same by the accused.
62. Now, let me draw my attention to some of other decisions relied upon by the learned counsel for the accused in support of his arguments. The learned counsel for the accused has relied upon the decision of Hon'ble Supreme Court reported in (2002)5 SCC 86 (Subash Parbat Sonvane V/s Stateof Gujarath). It was held in the above decision that the statutory presumption under Sec.20 of the Prevention of Corruption Act is available only for the offences punishable under Sec.7 or Sec.11 and clause (a) or clause (b) of Sub- 51 Spl. C.C. No.180/2011 Sec. 13(1) and not for clause (d) of sub-section (1) of 13 of the Prevention of Corruption Act. Another decision relied upon by the learned counsel for the accused is the decision of Hon'ble Supreme Court reported in AIR 2013 Supreme Court 3368 (State of Punjab V/s Madan Mohan Lal Verma). As per the above decision, while invoking the provisions of Sec. 20 of the Prevention of Corruption Act, the court is required to consider the explanation offered by the accused if any, only on the touchstone of preponderance of probability and not on the touchstone of rule beyond reasonable doubt. There is no dispute that, in these types of cases registered under the provisions of the Prevention of Corruption Act, evidence let-in by the prosecution has to be considered on the touchstone of proof beyond all reasonable doubt, whereas the explanation offered by the accused or any evidence let-in by the accused has to be considered only on the touchstone of preponderance of probability. This court have applied this rule while appreciating the evidence of prosecution and also considering the explanation offered by the accused. In the above decision, Hon'ble Supreme Court has reiterated the well settled Rule that demand of illegal gratification is sin qua non for constituting the offence under this Act.
52 Spl. C.C. No.180/2011
63. Another decision relied upon by the learned counsel for the accused is 2014 AIR SCW 2080 (B. Jayaraj V/s State of Andhra Pradesh). As per the above referred decision, if the prosecution proves that the gratification was received for doing or for not doing official act, presumption under Sec. 20 of the Prevention of Corruption Act can be raised and proof of acceptance is also essential. It was also held in the above decision that, presumption under Sec. 20 of the Prevention of Corruption Act is limited for the offence punishable Under Sec. 7 of the Prevention of Corruption Act and does not apply to the offences Under Sec.13 of the Prevention of Corruption Act.
64. Another decision relied upon by the accused is reported in AIR 2014 Supreme Court 3798 ( Satvir Singh V/s State of Delhi by CBI). In that decision, again the Hon'ble Supreme Court has reiterated the principle relating to considering the explanation offered by the accused on the touchstone of preponderance of probability and considering the evidence of prosecution by applying the principle of beyond reasonable doubt. Another decision relied upon by the accused is reported in 2014 AIR SCW 5740 (M.R. Purushotham V/s State of Karnataka), wherein it was held that mere possession and recovery of currency notes without proof of demand would not attract 53 Spl. C.C. No.180/2011 offence under Section 13(1)(d) of the Prevention of Corruption Act. In the case of hand, possession and recovery of currency notes from the accused is also coupled with the demand of the bribe amount by the accused in respect of performing the official act, so as to hand over the registration certificate relating to the client of the complainant.
65. One more decision relied upon by the accused is the decision of Hon'ble Supreme Court in Crl. Appeal No.192/2015 dated: 29-01-2015 in between (C. Sukumaran V/s. State of Kerala), which was also reported in 2015 Cri.L.J 1715. In the above decision the Hon'ble Supreme Court has reiterated its principle relating to the demand of bribe as an essential requirement to constitute the offence.
66. Another decision relied upon by the accused is reported in (2012) 13 SCC 552 (Rakesh Kapoor V/s State of Himachal Pradesh), wherein it was held that in the absence of materials evidence to prove the demand of bribe, conviction is not sustainable. In the case on hand, there is evidence to prove the demand. With great respect to all these decisions, I say that the accused has got no benefit from all those decisions in order to get an order of acquittal in her favour.
54 Spl. C.C. No.180/2011
67. The learned counsel for the accused, during the course of his arguments, has pointed some contradictions, which emerged from the evidence let in by the prosecution. The learned counsel for the accused has drawn the attention of this court to the statement of complainant, where she said that, one Madhukar shetty at Lokayuktha police handing over the voice recorder to her, where as Investigation officer Renuka Prasad said that he has handed over the voice recorder to the complainant. This is not a material contradiction to disbelieve the entire prosecution case and evidence let in by them. More over, who has given the voice recorder to the complainant is of no importance now, since the recordings made in the said voice recorder can not considered by this court, for want of certificate under Sec.65(B) of the Indian Evidence Act.
68. By leading all these evidence before this court, prosecution has discharged the initial burden placed upon them to prove that accused has demanded and accepted the illegal gratification of Rs.2,000/- from the complainant. As I said earlier, when the initial burden placed upon the prosecution has been discharged, it has got the benefit of presumption, as provided under Sec.20 of the Prevention 55 Spl. C.C. No.180/2011 of Corruption Act 1988, in respect of the offence punishable under Sec.7 of the Prevention of Corruption Act 1988. By drawing the presumption, this court has to hold that the tainted currency notes received by the accused is to do some official act in favour of the complainant and it is an illegal gratification. Therefore, onus shifts upon the accused to rebut and displace the presumption. In the case on hand, accused has miserably failed to rebut or displace the presumption in favour of the prosecution, either through the cross examination of the prosecution witnesses or by leading independent evidence before this court. The explanation offered by the accused were also not proved either though the cross-examination of prosecution witnesses or by leading independent evidence before this court. Hence, on this score also, accused has to be held as guilty of committing the offences punishable under Sec.7 and 13 of the Prevention of Corruption Act 1988.
69. Under Sec. 21 of the Prevention of Corruption Act 1988, the accused person to be a competent witness in case of trial of offences under the provisions of the Prevention of Corruption Act 1988. It is true that, as per the criminal jurisprudence, accused cannot be compelled to say anything during the course of criminal trial and 56 Spl. C.C. No.180/2011 she cannot be called as a witness, except at her own request. Sec. 21 of the Prevention of Corruption Act 1988 is also not an exception to the said Rule of Criminal Jurisprudence. The proviso to Sec. 21 of the Prevention of Corruption Act specifically provides that the accused shall not be called as a witness, except at his own request. In spite of the same, Sec.21 of the Prevention of Corruption Act provides that the accused person to be a competent witness. The reason behind incorporating the Sec. 21 of the Prevention of Corruption Act is to afford an opportunity to the accused to prove her defence. When Sec.21 of the Prevention of Corruption Act 1988 says that the accused is a competent witness, this court cannot brush aside her evidence by holding that she is an interested witness or her statement on oath is only a self-serving statement. Rather, this court has to accept her evidence, because Sec. 21 of the Prevention of Corruption Act specifically says that accused is a competent witness. Therefore, this provision is for the benefit of the accused. Hence, accused would have used this provision and entered into witness box to substantiate her defence. By entering into the witness box, accused would have explained the circumstances under which the tainted currency notes were found with her. The accused would have also explained the motive or intention of the complainant to register false case against 57 Spl. C.C. No.180/2011 her, if she has actually handed over the certificate on 14-02-2011. But, for the reasons best known to the accused, she has failed to avail the opportunity given to her under Sec.21 of the Prevention of Corruption Act, by entering into witness box. It appears that since the accused has received the illegal gratification, she has hesitated to enter into the witness box and not ready to face the test of cross- examination.
70. It is true that there are some minor variations in the oral evidence of complainant, shadow witnesses, trap witness and the Investigating Officer, if they are compared with each other and compared the complaint, pre-trap and trap mahazar. However, that cannot be a ground to disbelieve their oral testimony. These kinds of variations and inconsistencies in the oral evidence of prosecution witnesses bound to appear in each and every prosecution case and the evidence let in by them. There cannot be any prosecution case, which is free from all these minor variations and inconsistent statements. When any incident is witnessed by more than one person and they were asked to explain that incident, they will explain in their own ways and little bit of variations bound to appear in their explanations. Human beings with different perception would look towards an incident 58 Spl. C.C. No.180/2011 in their own way and explain the same in their own way. These variations also natural because of passage of time, as the human memory is very short and it vary from person to person. In this particular case, these witnesses were called upon to depose before the court in respect of an incident, which has taken place about five years before they giving their oral testimony before the court. Under such circumstances, these minor inconsistent and variations bound to appear in the oral testimony of these witnesses. But, what the court has to consider is as to whether they are major contradictions to disbelieve their oral testimony. I have not found any major contradictions and any such reasons to doubt the oral testimony of these witnesses and also to discard the same.
71. Without accepting and admitting any of the prosecution evidence and allegations, an alternative plea made by the learned counsel for the accused is that bribe amount alleged to have been received by the accused is petty amount of Rs.2,000/-. Therefore, it can not be considered as illegal gratification to convict the accused. In this regard, learned counsel for the accused has drawn the attention of this court to Sec.20(3) of the Prevention of Corruption Act. First of all, Rs.2,000/- can not be considered as petty amount or trivial amount to 59 Spl. C.C. No.180/2011 invoke Sec.20(3) of the Prevention of Corruption Act. The actual fee payable for getting the Professional Tax registration certificate is Rs.2,500/-. Therefore, amount of Rs.2,000/- paid for getting that certificate can not be said as petty amount or trivial amount. More over, Sec.20(3) of the Prevention of Corruption Act does not say that, if the illegal gratification is petty amount or trivial, accused has to be acquitted or let free without punishment. As per Sec.20(3) of the Prevention of Corruption Act, if the illegal gratification is trivial, no presumption can be drawn about receiving the same as corruption. In the case on hand, even without the benefit of presumption, prosecution has independently proved that accused, by corrupt means has received the bribe amount of Rs.2,000/-. Therefore, accused has no benefit of Sec.20(3) of the Prevention of Corruption Act.
72. To summarize my discussion, prosecution proved that there is a valid sanction to prosecute the accused. The prosecution has also proved that an official act relating to the complainant is pending before the accused, as the accused is the Officer, who has to issue the registration certificate and hand over the same to the complainant. Though the said certificate was ready and signature of the complainant was obtained on the office copy of the certificate on 14-02-2011, it not 60 Spl. C.C. No.180/2011 handed over the complainant, because of complainant not producing the authorization letter and also by expecting the bribe amount. The demand of the bribe amount by the accused is also proved by the prosecution, in order to issue the registration certificate. The prosecution has also proved the demand of the bribe amount, made both before filing the complaint and also subsequent to filing of the complaint and while trapping the accused. The prosecution has also proved the acceptance of the bribe amount, while trapping the accused. On the other hand, accused has failed to prove her explanation about finding of tainted currency notes on her rack or almirah and also positive phenolphthalein test of her hand wash. Under all these circumstances, I hold that the prosecution has proved the guilt of the accused for the offences punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. The accused receiving the tainted currency notes in order to render the official favour for the complainant amounts to criminal misconduct. Therefore, accused has to be convicted for the offences punishable under Sec. 7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. Accordingly, I answer points No.2 and 3 in the Affirmative. 61 Spl. C.C. No.180/2011
POINT No.4:
72. In view of my findings on the above points, accused is liable to be convicted. Accordingly, I proceed to pass the following order:
ORDER The accused found guilty.
Acting under Sec.235(2) of Cr.P.C. accused is convicted for the offence punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of Prevention of Corruption Act 1988.
MO.1 is ordered to be returned to the Karnataka Lokayuktha Police after expiry of the appeal period.
MO.2 to 13 are worthless and ordered to be destroyed after expiry of the appeal period.
MO.14 is ordered to be confiscated to the state government after expiry of the appeal period.
Put up for hearing on sentence.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 14th day of December 2016) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78)
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62 Spl. C.C. No.180/2011
ORDERS ON S E N T E N C E.
I have heard the accused, learned counsel for the accused and also the learned Public Prosecutor on sentence to be imposed on this accused.
The accused and learned counsel for the accused submitted that accused is lady aged about 46 years and due to the illness of her mother, she has already resigned and she has to look after her ailing mother. Therefore, prayed to show the leniency on her while imposing the sentence.
On the other hand, learned Public Prosecutor submitted before me that accused, being the public servant, has committed the heinous offence of demanding and accepting the bribe amount. The accused, being a public servant has involved in the corrupt practice. Therefore, prayed for imposing the maximum punishment to the accused.
The accused found guilty of committing the offence punishable under Sec.7, 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988. So far as the Sec.7 of the Prevention of Corruption Act 1988 is concerned, it is punishable with imprisonment, which shall not be less than six months and 63 Spl. C.C. No.180/2011 it may extend up to five years and shall also be liable to fine. So far as Section 13(2) of the Prevention of Corruption Act is concerned, it is punishable with imprisonment, which shall not be less than one year and which may extend up to seven years and shall also be liable to fine. Under Sec.16 of the Prevention of Corruption Act 1988, while imposing the fine, this court shall take into consideration amount or value of the property, which the accused person has obtained while committing the offence.
Even though by way of recent amendment to the Prevention of Corruption Act 1988, minimum and maximum imprisonment provided for the offence punishable under Sec.7 and 13(2) of the Prevention of Corruption Act 1988 is enhanced, those amended provisions are not applicable to this case, because said amendment was introduced recently, whereas in the case on hand, alleged offences were committed during the year 2011. As per the criminal jurisprudence, this court has to impose the sentence to the accused, which is provided for the particular offence, as on the date when the offence is actually committed.
As the minimum punishment is provided for these offences, question of invoking the provisions of Probation of 64 Spl. C.C. No.180/2011 offenders Act and releasing the accused on probation would not arise.
The accused was the Commercial Tax Inspector at the time of commission of alleged offence. The accused is a lady.
The demand and acceptance of the bribe amount by this accused is Rs.2,000/-. AS per the submission of the accused and her counsel, accused has already put her resignation for her job, as she has to look after her old aged mother. Considering all these aspects and also grounds shown by the accused, I feel it is just and proper to impose her minimum imprisonment provided under the Prevention of Corruption Act 1988 and made her liable to pay the fine. Accordingly, I proceed to pass the following order on sentence:
ORDER
The accused is sentenced to under go
simple imprisonment for six months and to pay
the fine of Rs.2,000/- for the offence punishable Sec.7 of the Prevention of Corruption Act 1988.
In default to pay the fine amount, accused shall under go simple imprisonment for one month.
The accused is sentenced to undergo simple imprisonment for one year and to pay the fine of 65 Spl. C.C. No.180/2011 Rs.4,000/- for the offence punishable under Sec.13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act 1988.
In default to pay the fine amount, accused shall under go simple imprisonment for two months.
The substantial sentences of imprisonment shall run concurrently.
The accused is entitled for the benefit of set- off, as provided under Sec.428 of Cr.P.C., for the period for which, he was in judicial custody in respect of this case.
Office to furnish the copy of this judgment to the accused free of cost, forth with.
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Pradeep Singh Kharola PW.2: Manoj PW.3: S.Munirajappa PW.4: Smt. Amrutha S. pai 66 Spl. C.C. No.180/2011 PW.5: Rajeshwari PW.6: Sujatha M PW.7: Renuka Prasad.
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Sanction order Ex.P.1(a): Signature of PW.1 Ex.P.2: Currency notes details sheet Ex.P.2(a): Signature of PW.3 Ex.P.2(b): Signature of PW.5 Ex.P.2(c): Signature of PW.7 Ex.P.3: CD transcription in writing Ex.P.3(a & b): Signatures of PW.3 Ex.P.3(c): Signature of PW.5 Ex.P.3(d): Signatures of PW.7 Ex.P.4: pre trap mahazar Ex.P.4(a to g): Signature of PW.3 Ex.P.4(h): Signature of PW.4 Ex.P.4(i): Signature of PW.5 Ex.P.4(j): Signature of PW.7 Ex.P.5: Explanation of the accused Ex.P.5(a): Signature of PW.3 Ex.P.5(b): Signature of PW.7 Ex.P.6: Trap Mahazar Ex.P.6(a to j): Signatures of PW.3 Ex.P.6(k): Signature of PW.4 Ex.P.6(l): Signature of PW.5 Ex.P.6(m): Signature of PW.7 67 Spl. C.C. No.180/2011 Ex.P.6(n): Signature of accused Ex.P.7: Complaint dt:15-02-2011 Ex.P.7(a): Signature of PW.4 Ex.P.7(b): Signature of PW.7 Ex.P.8: CD Ex.P.8(a): Signature of PW.5 Ex.P.9: Rough sketch Ex.P.9(a): Signature of PW.5 Ex.P.9(b): Signature of PW.7 Ex.P.10: Copy of certificate Ex.P.11: Report of witness Ex.P.11(a): Signature of PW.6 Ex.P.12: FIR Ex.P.12(a): Signature of PW.7 Ex.P.13: Letter to depute officials Ex.P.13(a): Signature of PW.7 Ex.P.14: Letter Ex.P.15: Seized file documents charge sheet page 31 to 62 Ex.16: Attendance register of accused Ex.P.17: Specimen seal acknowledgment Ex.P.18 & 19: Spot sketch Ex.P.20: Chemical examination report Ex.P.21: Call details at page 89 to 115 of charge sheet Ex.P.22: Service particulars of accused (page 72 to 82) LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Metal seal MO.2: Bottle containing the sample solution 68 Spl. C.C. No.180/2011 MO.3: Pink colour solution bottle MO.4: Sealed CD MO.5: Sealed CD MO.6: Sealed CD MO.7: Sample solution bottle MO.8: Sample solution bottle MO.9: Sample solution bottle MO.10: Sample solution bottle MO.11: Sealed cover contain cotton MO.12: Sealed cover contain CD MO.13: Sealed cover contain CD MO.14: Currency notes LIST OF WITNESSES EXAMINED FOR ACCUSED:
-NIL-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
-NIL-
(MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78)