Bangalore District Court
The State Of Karnataka Represented vs Mr. Srinivas on 3 January, 2023
KABC010194072017
IN THE COURT OF THE XXIII ADDL.CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE ( P.C. Act) BENGALURU
(C.C.H.No.24)
Dated: This the 31st day of December, 2022
:PRESENT:
LAKSHMINARAYANA BHAT K.
XXIII Additional City Civil and Sessions Judge
and Special Judge ( P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.386/2017
Complainant: The State of Karnataka represented
by the Police Inspector, Karnataka
Lokayukta Police,
(erstwhile Anti Corruption Bureau)
Bengaluru City Police station,
Bengaluru.
(By the Public Prosecutor)
V/s
Accused : 1 Mr. Srinivas,
Assistant Executive Engineer,
Govindarajanagara sub-division,
B.B.M.P., Govindarajanagara,
Bengaluru.
R/at. No.16, 4th Cross, M.M. Road,
Byatarayanapura,
Mysore Road,
Bengaluru-26.
2 Spl.C.C.386/2017
(By Sri C.G.Sundar, Advocate)
2 Mr. Y.V. Somashekaraiah,
Work Inspector,
Office of the Assistant Executive
Engineer,
Govindarajanagara sub division,
B.B.M.P., Govindarajanagara,
Bengaluru.
R/at. No.Nenasu No.71, 7th Cross,
Ramakrishnanagara Extension,
Malagala Main Road,
Bengaluru-91.
(By Sri Harish Kumar R.S., Advocate)
JUDGMENT
The Police Inspector, the then Anti Corruption Bureau, Bengaluru Urban (in short the "ACB") has submitted the charge sheet against the accused No.1 and 2 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988 (in short the "PC Act"). A. The factual matrix of the case :-
2. As per the prosecution case made out in the charge sheet, the accused No.1 was working as the Assistant Executive Engineer (in short 'AEE') and the accused No.2 was working as the Work Inspector in the office of the Assistant Executive Engineer 3 Spl.C.C.386/2017 Govindarajanagar sub-division, Bruhath Bengaluru Mahanagara Palike (in short the 'BBMP'), Bengaluru. It is further stated that Cw.5 Mr.Ravikumar had obtained the tender work in the BBMP and Cw.1 Mr.Manjunath M. had undertaken the said work. Cw.5 had filed an application claiming the tender/bill amount from the concerned office. In this regard when Cw-1 approached the accused No.1 on 13-2-2017, he has demanded Rs.30,000/- as the bribe in order to affix his signature on the bill form and the measurement book. In pursuance, on the same day Cw-1 paid Rs.15,000/- and the accused No.1 had obtained the amount. However the informant Cw.1 was not inclined to make the balance payment, on 18.2.2017 he had lodged the first information statement. The ACB police registered the case, shown to have complied all the pre-trap formalities and thereafter arranged the trap.
When Cw.1 went to the office of the Assistant Executive Engineer, the accused No.1 has demanded the bribe amount and directed the accused No.2 to collect the said amount and hence they fell to the trap. After completion of the investigation and securing sanction for the 4 Spl.C.C.386/2017 prosecution of the accused No.2 the charge sheet has been filed. It is stated that at the time of filing of the charge sheet the accused No.1 was already retired from the service and hence the sanction has not been obtained.
3. After taking cognizance of the offence, presence of the accused were secured, complied the mandatory requirement of Section 207 of the Cr.P.C. After hearing both the sides, charges were framed and the accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, the prosecution has examined Pw.1 to 9 witnesses, produced Ex.P-1 to 61 documents and got identified material objects as M.Os. No. 1 to 12. After completion of evidence of the prosecution side, necessary questions were framed relating to the incriminating circumstances appearing in the evidence and the accused were examined under Section 313 (1)(b) of the Cr.P.C. The accused No.1 during cross-examination of prosecution 5 Spl.C.C.386/2017 witnesses confronted and got marked Ex.D1 to D3 documents in support of his defence. Both the accused did not choose to adduce any oral evidence in their defence.
5. Heard the arguments of both sides. The learned defence advocates have filed memorandum of written arguments.
B. The points for determination:-
6. After adverting careful thought to the rival arguments, analytical scrutiny of the documentary and the oral evidence placed on record, all the facts and circumstances of the case the points that would arise for the determination are :
1. Does the prosecution prove the fact that it has obtained the valid sanction as per Ex.P-1 to prosecute the accused No.2 as required under Section 19(1)(c) of the P.C. Act and secondly since the accused No.1 was retired from the 6 Spl.C.C.386/2017 service, the sanction is not required for his prosecution?
2. Does the prosecution beyond reasonable doubt prove the fact that the accused No.1 being the public servant while working as the Assistant Executive Engineer, BBMP, Govindarajanagar sub-division, Bengaluru, had demanded Rs.30,000/-
and accepted Rs.15,000/- undue advantage from Pw2 - Mr. Manjunath V. on 13-02-2017 and on 18-2-2017 demanded and accepted Rs.15,000/- in his office from Pw.2 through the accused No.2 and thereby committed an offence under Section 7 of the PC Act?
3. Does the prosecution beyond reasonable doubt prove the fact that the accused No.2 being the public servant while working as the Work Inspector in BBMP, Govindarajanagar sub-division, Bengaluru, on 18-2-2017 in between 2.25 and 2.35 p.m. in his office accepted the illegal gratification of Rs.15,000/- from Pw.2 Manjunath for and on behalf of the accused No.1 with
7 Spl.C.C.386/2017 the knowledge that it is the bribe amount and thereby committed an offence under Section 12 of the PC Act?
4. Does the prosecution beyond reasonable doubt prove the fact that the accused No.1 being the public servant by abusing his position as such public servant obtained Rs.30,000/- pecuniary advantage by corrupt means from Pw2 - Manjunath on 13-2-2017 and 18-2-2017 and thereby committed an offence of criminal misconduct under Section 13(1)(d) of the P.C. Act?
5. Does the prosecution beyond reasonable doubt prove the fact that the accused No.2 being the public servant by abusing his position as such public servant obtained Rs.15,000/- pecuniary advantage on behalf of the accused No.1 by corrupt means from Pw2 - Manjunath on 18-2-2017 and thereby committed an offence of criminal misconduct under Section 13(1)(d) of the P.C. Act?
6. What order?
8 Spl.C.C.386/2017
7. The aforesaid points are answered as :
Point No.1 : Does not survive for determination as against the accused No.1 and 2.
Point No.2 : in the affirmative
Point No.3 : in the affirmative
Point No.4 : In the affirmative
Point No.5 : in the affirmative
Point No.6 : as per the final order
for the following
REASONS
C. The requirement of sanction :
Point No.1 :
8.1. The accused No.1 and 2 as on the date of the
offence 18.2.2017 were working as the AEE and the
Work Inspector respectively, in the office of the Assistant Executive Engineer, Govindarajanagar sub-division, BBMP, Bengaluru. In the result they are the public servants within the ambit of Section 2(c) (iii) of the PC Act and they were discharging the public duty as 9 Spl.C.C.386/2017 defined under Section 2(b) of the PC Act. Therefore, it is incumbent upon the prosecution to prove that as required under law valid sanction has been obtained from the competent authority to prosecute the accused.
8.2. In this regard in order to prove the securing of the sanction to prosecute the accused No.2, the prosecution has examined Pw.1 Mr. Manjunath Prasad and produced Ex.P-1 the sanction order. It is the evidence of Pw-1 that as the Commissioner of the BBMP, he was the competent authority empowered to dismiss the officials working as the Work Inspectors in the BBMP. During cross-examination it is the contention of defence that as on the date of retirement of the accused No.2 Ex.P-1 order was passed, no work order was issued in the name of Pw.2, there was no demand for bribe by the accused No.2 and without considering all these aspects Pw.1 has mechanically passed the order by according the sanction. 8.3. The learned counsel appearing on behalf of accused No.1 has vehemently argued that even though 10 Spl.C.C.386/2017 the prosecution has secured the sanction to prosecute the accused No.2, but there is no sanction to prosecute the accused No.1. He submitted that by virtue of amendment to the PC Act, the Prevention of Corruption (Amendment) Act, 2018 came into force on 26.7.2018 and hence the accused No.1 even though is a retired public servant entitled to seek the protection under the amended provisions of the Act. He further argued that the requirement of the sanction as well as its validity can be raised at any stage of the proceeding. Secondly Section 19 of the PC Act provides substantive right to the accused as well as it is procedural law. The said provision was amended with effect from 26.7.2018 by way of substitution and hence its effect dates back to 1988, the date of enactment of the PC Act. Therefore, he submitted that the accused No.1 being the retired public servant is also entitled to avail the protection given under Section 19 of the Act. For these reasons he has prayed an order for discharging the accused No.1 for want of valid sanction and further to direct the prosecution to secure the sanction.
11 Spl.C.C.386/2017 8.4. As rightly pointed out by the learned Counsel after amendment, the protection under Section 19 of the Act has also been extended in favour of the retired public servants. As per Ex.P-16 the accused No.1 retired from the service on 31-3-2017 is not disputed. In this regard the learned counsel has relied upon the judgment of the Hon'ble High Court of Karnataka reported in 2022 Crl.L.J. 1516 in State of Karnataka Vs. V. Chandrashekar. In the said decision the Hon'ble court held that the amendment brought to Section 19 is to be understood as if it came into effect from 09-9-1988 the date of the PC Act given into effect. Therefore a retired public servant also cannot be prosecuted without the sanction.
8.5. In this background in order to ascertain whether the prosecution is required to secure the sanction for the prosecution of the retired public this court finds it necessary to refer the judgment reported in 2022 Live Law (SC) 158 in State of Rajasthan Vs. Thejmal Choudhary. In the said decision the Hon'ble Supreme Court held that it is the cardinal principle that every 12 Spl.C.C.386/2017 statute is prospective unless it is expressly or by necessary implication made to have retrospective operation. The statue dealing the substantive rights is prima-facie prospective. In the said judgment the question arose before the Hon'ble Supreme Court was regarding non compliance of amended Section17A of the PC Act relating to the case registered much prior to the amendment came to effect. The Apex Court specifically held that a careful reading of both Section 17A as also Section 19 do not contain any express provision to show that they are retrospective in nature nor it is so discernible by implication.
8.6. In view of the above settled law laid down by the Apex court the bunch of decisions relied by the accused No1 regarding the effect of amendment by substitution and other aspects regarding sanction referred in the memorandum of written arguments are not applicable to the facts of the case. It is not the case of either of the accused that till their retirement the prosecution has delayed the filing of the charge sheet in order to avoid securing of the sanction. The above referred decision of 13 Spl.C.C.386/2017 the Apex court is aptly applicable to the facts and circumstances of the case on hand and the same is binding upon this Court. Hence there is no need to refer the ratio laid down in the plethora of judgments relied during the argument in this connection by the accused No.1.
8.7. It is necessary to refer the decision reported in (1999) 5 SCC 690 in the State of Kerala Vs. Padmanabh Nair. In the said case the Hon'ble Supreme Court in para- 6 to 8 of the judgment held that the accused facing the prosecution for the offence under the PC Act cannot claim immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the offence. In another judgment reported in (2020) 2 SCC 153 in SHO CBI/ACB Vs. B.A. Srinvasan and another the Apex Court held that the protection under Section 19 of the PC Act is available to a public servant till he is in employment and no sanction is necessary after the public servant demitted his office.
14 Spl.C.C.386/2017 8.8. In the case on hand this Court took cognizance of the offence against the accused as per order dated 4.8.2017. As per Ex.P-16 and 17 the accused No.1 and 2 were retired from the service on 31-3-2017 and 30-6- 2017 respectively. Therefore, as on the date of taking cognizance of the offence both the accused were ceased to be the public servants as they had already retired from the service. Ex.P1 order was passed on 30.6.2017. Therefore the argument of the accused No.2 that whether Ex.P-1 order was passed on 30-6-2017 in the forenoon or afternoon is immaterial. Sections 19 of the PC Act prescribe the mandatory requirement of sanction as on the date of the Court taking cognizance of the offence. In the result the cross-examination of Pw.1 regarding this aspect and arguments addressed by the learned Counsel that on the forenoon of 30.6.2017 after the accused No.2 was retired Ex.P1 order came to be passed by Pw.1 is insignificant.
8.9. Therefore, in the case on hand the prosecution has proved that the accused No.1 and 2 were retired 15 Spl.C.C.386/2017 from service as on the date of this court taking cognizance. From the aforesaid evidence this court arrived to the safe conclusion that the prosecution is not required to obtain sanction for prosecuting the accused No.1 and 2 since they were retired from the service as on the date this Court has taken cognizance of the offence. Hence, point No.1 does not survive for determination and answered accordingly.
Point No.2 to 5 :
The aforesaid points are interconnected and in order to avoid the repetition of the facts, reasons and for brevity, they are taken up together for common discussion.
9.1. The prosecution in order to prove the charge against the accused under Section 7 of the PC Act is required to prove the following ingredients:
(i) The accused must be a public servant when the offence was committed;
(ii) He should accept, or obtain, or agrees to accept or attempts to obtain from any person;
(iii) For himself or for some other person;
16 Spl.C.C.386/2017
(iv) any gratification other than legal remuneration;
(v) as a motive or reward for doing or forbearing to do any official act, or to show any favour or disfavour.
9.2. In order to prove the charge under Section 12 of the PC Act, the prosecution has to prove
i) the accused has instigated any person to do that thing or;
ii) engages with one or more other persons in any conspiracy for the doing of that thing; or
iii) intentionally aids, by any act or illegal omission, in doing of that thing.
9.3 Similarly to establish the guilt of the accused under Section 13(1)(d) of the PC Act, the prosecution is required to prove the following factors.
i) The accused must be a public servant;
ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
iii) by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
iv) while holding office as public servant obtains for any person any valuable thing or pecuniary advantage without any public interest.
17 Spl.C.C.386/2017
10. In order to prove the charge against the accused the prosecution has examined the following witnesses and placed documentary evidence:
Pw.2 Mr. Manjunath is the informant lodged Ex.P2 first information statement, he is the witness to Ex.P5 and Ex.P-6 pre-trap and trap proceedings; Pw.3 Mr. Arjun S. and Pw.4 Mr. Chandra Kumar are the pancha witness to Ex.P5 and P-6 both pre-trap and post trap panchanama;
Pw.5 Ms. Hemamalini is the Manager, BBMP and she deposed regarding the usual procedure of passing of the bill and particularly relating to the bill of Pw.9; Pw.6 Ms.Chandrika is the voice analyst and she has issued Ex.P10 voice analysis report; Pw.7 Mr. Prashanth R. Varni is the Police Inspector deposed regarding the details of further investigation of the case, collection of voice sample etc. ; Pw.8 Mr Shivashankar Reddy, the Dy.S.P. is the trap laying officer, deposed regarding registration of Ex.P26 FIR and the entire trap proceedings;
18 Spl.C.C.386/2017 Pw.9 Mr. Ravikumar has deposed regarding his tender contract work and authorizing of Pw.2 to look after the process for claiming the bill amount from the office of the BBMP.
11.1 The argument of the accused No.1:
No official work of the informant Pw.2 was pending in the office of the BBMP;
The prosecution has failed to prove the demand and acceptance of the bribe. There is no recovery from the accused;
Accused No.1 is not the authority to sign the bill but he is only the recommending officer; The accused No.1 has completed his part of the work on 31.1.2017 much prior to the date of trap; Pw.3 shadow witness was not present with Pw-2 at the time of trap;
Pw-3 had not heard the conversation and witnessed the demand and acceptance of the bribe;
19 Spl.C.C.386/2017 The complainant is a interested witness and there is no corroborative evidence is produced by the prosecution;
As per the agreement entered between Pw-9 and the BBMP there is a condition joint venture/consortium is not permissible.
11.2 The argument of the accused No.2:
There was no demand for the bribe by accused No.2;
His name is not appearing in the FIR and other prosecution documents;
Pw.2 has admitted he was not having acquaintance with the accused No.2 prior to the date of incident;
Pw.3 has not seen the payment of bait money by Pw.2 in favour of accused No.2;
The complainant had no work with the accused No.2;
There is no evidence to prove the recovery of money and the evidence of Pw.2, 3 and 8 is inconsistent;
20 Spl.C.C.386/2017 Work of Pw.9 was pending in the BBMP office and Pw.2 is unconnected person, hence question of entrustment does not arise;
Pw.2 has unauthorizedly done the work of Pw.9 and investigation is unjust unreasonable, and abuse of process of law;
The accused was not concerned with the work of Pw.2 or Pw.9.
12.1. Among the prosecution witnesses examined, Pw.2 Mr. Manjunath is the informant and he had lodged Ex.P2 first information statement on 18.2.2017 against the accused No.1. As per his evidence the accused No.1 has demanded Rs.30,000/- as the bribe in order to affix his signature on the bill form and measurement book. He stated that on 13.2.2017 he has paid Rs.15,000/- and thereafter approached the ACB Police and lodged Ex.P2 statement. He is a witness to the entire pre-trap and post trap proceedings.
12.2. Pw.3 Mr. Arjun S. who is working in the department of Mines and Geology and he was 21 Spl.C.C.386/2017 nominated by the IO as shadow witness in the trap proceeding. Pw.4 Mr. Chandra Kumar working in the same department along with Pw.3 and he is a co-pancha and they are the signatories to Ex.P5 and P6 mahazars. 12.3. Pw.8 Mr. B.Shivashankar Reddy working as the Dy.S.P. ( in short the IO) and in his evidence he deposed that on 18.2.2017 Pw.2 appeared before the ACB police station and has lodged Ex.P-2 first information statement. It is the evidence of Pw.8 that in furtherance of the said information he has registered the case and submitted Ex.P26 FIR to the Court. Thereafter he had secured the presence of Pw.3 and 4 pancha witnesses and introduced them with Pw.2 and informed them regarding Ex.P2 first information statement and registration of the FIR against the accused.
12.4. Pw.2, 3 and 8 in their evidence have deposed that Pw.2 has produced the currency notes of Rs.15,000/-, smearing of phenolphthalein powder, preparation of the transcript of conversation contained in the CD produced by the informant, demonstration of 22 Spl.C.C.386/2017 chemical hand wash test and as directed by the IO Pw-4 kept of the tainted currency notes in the trouser pocket of Pw.2. They have also deposed that during the demonstration Pw-8 had subjected Pw.4 to undergo the chemical hand wash test and collection of the samples for scientific examination. Pw.2 to 4 and 8 have deposed regarding drawing of Ex.P5 pre-trap mahazar and they are the signatories to the said document as witnesses. 12.5. Pw.2, 3 and 8 have further deposed that after completion of the pre-trap formalities along with the trap team they went to the office of the Assistant Executive Engineer, BBMP, Govindarajanagar division, Bengaluru. Pw.3 was nominated by the IO as the shadow witness by giving instruction to accompany with Pw.2 during the trap. As per their evidence on 18.2.2017 at about 2.50 p.m. Pw.2 went inside the office of the AEE and after payment of the bribe amount, he has given the pre-determined signal to the trap team. 12.6. Pw.2, 3 and 8 have further deposed that after receiving the signal from Pw.2, the trap team went inside 23 Spl.C.C.386/2017 the office, the tainted cash was recovered from the trouser pocket of the accused No.2. He was subjected to undergo the chemical hand wash test, the details of the seizure of concerned file/documents relating to pending work of Pw-9 in the said office and drawing of Ex.P6 trap mahazar and arrest of both the accused. 12.7. Pw.5 Ms. Hemamalini in her evidence deposed that she was looking after auditing of the bills pertaining to Ward No.104, 105 and 126. As per her evidence on 31.1.2017 she had given bill No.742 in Ex.D2 contract certificate and on 7.2.2017 the Assistant Engineer Mr. K. Tharanath had asked and secured the said file by stating that the accused No.1 Assistant Executive Engineer had not affixed his signature on the measurement book. 12.8. Pw.6 Ms. Chandrika G. is the senior Scientific Officer, FSL, Bengaluru and in her evidence she deposed regarding issuing of Ex.P10 voice analysis report. As per her evidence, on examination she found article No.1 did not contain any audio conversation and it was blank. It is her evidence that she had subjected the remaining 3 24 Spl.C.C.386/2017 articles for scientific examination of the voice sample and has given opinion that the respective speeches of the accused No.1 and the informant Pw.2 and the sample speeches are similar and belong to the same person.
12.9. Pw.7 Mr. Prashanth R. Varni is the Police Inspector and he has deposed regarding the details of further investigation of the case such as collection of Ex.P14 scientific examination report, sketch of the place of incident as per Ex.P15, service records of the accused as per Ex.P16 and 17. He further deposed regarding collection of the voice samples of the accused No.1 and Pw.2, securing of Ex.P21 and P22 documents, recording of the statement of witnesses and after completion of the investigation filing of the charge sheet. 12.10. Pw.9 Mr. Ravikumar K. is a Civil Contractor and in his evidence he deposed that in the year 2016 he had obtained contract work from the BBMP in ward No.105 and he could not complete the work due to his ill-health. He further deposed that he had authorized Pw.2 to look after the process of the bill submitted to the BBMP 25 Spl.C.C.386/2017 claiming the tender amount and issuing of Ex.P4 the letter of authorization in favour of Pw.2.
D. The demand and acceptance 13.1. The accused No.1 in his defence has submitted that there was no demand and acceptance of the bribe as alleged by the prosecution and therefore the ingredients of the charge under Section 7 and 13(1)(d) of the PC Act are not established. The accused No.2 has also submitted that there was absolutely no demand of any amount on his part from Pw.2 and there is absence of recorded conversation to incriminate him. Therefore, they have submitted that mere recovery of the currency notes is not sufficient to prove the charge. The learned counsel appearing on behalf of the accused No.2 has submitted during cross-examination Pw.2 has specifically admitted that formerly he had no acquaintance with the accused No.2 and his name is not appearing in the FIR. For these reasons both the accused have prayed for an order of acquittal.
26 Spl.C.C.386/2017 13.2. According to the prosecution case and the evidence of P.w2, on 13.2.2017 the accused No.1 has demanded Rs.30,000 as the bribe and obtained Rs.15,000/-. He further stated that after receiving the amount the accused No.1 has affixed his signature to the bill form but did not affix the signature to the measurement book. As per the evidence of Pw.2 on 15.2.2017 he had recorded the conversation in his mobile phone and produced it before Pw-8 IO at the time of drawing the pre-trap mahazar. But as per the evidence of Pw.6 and Ex.P16 report of the Senior Scientific Officer, FSL, Bengaluru MO-2 C.D. did not contain any audio file and it was blank. Hence, Ex.P29 and 30 transcripts of conversation and M.O.2 CD produced by the prosecution are excluded from the evidence.
13.3. Pw.2 in his evidence has specifically alleged that on 13.2.2017, 15.2.2017 and as on the date of trap i.e. 18-02-2017 the accused No.1 has demanded the bribe of Rs.30,000/- and obtained Rs.15,000/- on 13.2.2017 and Rs.15,000/- on 18.2.2017 during the trap.
27 Spl.C.C.386/2017 It is the specific evidence of Pw.2 that during the trap the accused No.1 questioned him whether he has brought the balance amount and after receiving the positive response directed him to make the payment to the accused No.2. Therefore, as per the evidence after the accused No.1 has instructed to make the payment, Pw-2 has paid the tainted currency notes to the accused No.2. Pw.3 the shadow witness in his examination-in-chief has specifically deposed that in order to avoid the accused suspecting any doubt on account of his presence, he did not enter the office/chamber when Pw.2 has proceeded to meet the accused No.1. As per his evidence he was standing near the door. Pw.2 and 3 have deposed that after making the payment Pw.2 came out of the Office and has given the pre-instructed signal to the trap team. After receiving the signal, the trap team entered the Office premises and arrested both the accused and the tainted currency notes were recovered from the trouser pocket of the accused No.2.
13.4. The prosecution has produced Ex.P-14 chemical examination report issued by the Senior chemical 28 Spl.C.C.386/2017 examiner Public Health Department, Bengaluru. As per the contents of the report, the chemical examiner has detected the presence of phenolphthalein in both right hand left hand finger wash and also in the seized trouser pocket of the accused No.2. In the defence, the accused No.2 has not disputed he was subjected to undergo the chemical hand wash test and after the trap the tainted currency notes were recovered from his trouser pocket/possession. Ex.P14 report is admissible in evidence under Section 293 of Cr.P.C. even in the absence of examination of the chemical examiner. Therefore, the aforesaid corroborative piece of evidence is inconsonance with the testimony of Pw.2, 3 and 8. These witnesses in their evidence have specifically deposed that after the trap when the accused No.2 was subjected to undergo the chemical hand wash test, in the said examination the sodium carbonate solution was turned to pink colour. Therefore, the accused No.2 had received the tainted currency notes from Pw.2 and he was keeping the said currency notes in his trouser pocket is made out from the said report.
29 Spl.C.C.386/2017 13.5. As per the evidence of Pw.2 during the trap as directed by the accused No.1, he has paid the amount to the accused No.2. It is his evidence that the accused No.2 has collected the tainted currency notes and as instructed by the accused No.1 he has counted with his both hands and thereafter kept it in his trouser pocket. Therefore, the oral evidence of Pw.2 is in consonance with the contents of Ex.P-14 report and the contents of Ex.P6 trap mahazar. During cross-examination of Pw.2, both the accused have not disputed the recovery of M.O.12 cash from the trouser pocket/ possession of the accused No.2. The accused No.2 has adopted the cross- examination of the accused No.1. He has not challenged the trap proceeding, chemical hand wash test or the recovery of the tainted cash from his possession. There is no satisfactory explanation on the part of the accused No.2 to show how M.O.12 the tainted currency notes were found in his possession. In order to disprove the charge and to probabalise his defence it is the duty of the accused No.2 to forward satisfactory explanation.
30 Spl.C.C.386/2017 13.6. Pw.8 the IO in his evidence has stated that during the trap he has provided a voice recorder to Pw.2 with an instruction to record the conversation between himself and the accused. Accordingly, Pw.2 has recorded the conversation and Ex.P-31 is the transcript and M.O. No.3 is the CD relating to the said recorded conversation. Ex.P31 reads :
ಆರರರರಪ-1 ಈಗ ನಮಮದರರದದದ ಇನರನಷಷದರ ಬಬಬಲರನನನ ಫರಬರದ ಅವತದತ ಹದನರನದದ ಕರರಟಷರದದರನ, ಇನನ ಹದನರನದದ ಐತರ ಆರರರರಪ-1 ಅಲಲಪಪ ರಬರರರರ ಇದದ ಪಪಣಬಬತಮ ನರನ ಮಬಡಸರರರರದದ ಫರಬರದ ನಬವರರ ಸಬರನ ಮಬಡಸರರರರದದ, ಒಳರಳ ಕಥರ ಕರರಸ ತಬರನಬಥನಕರರಳ ಸಬರನ, ಇದನ ಏನನಸಬರನ ನರವನ ಆರರರರಪ-1 (ಆರರರರಪ-2 ರವರನದನ ಉದರದರಶಸ) ಇಲಲ ಕರತದಕರರದಡರಡ ಸಬಕದ, ನಬನದ ರಬರ ರಬರಗರ ಕರರಡಬರರಕದ ಅದತ ಹರರಳತರನ, ಇಸರರಸದಡದ ಇಟರರಸದಡರಪಪ, ಆಯತ ಫರಬರದ ಕರರಡಲ ಈಗರಲ ಆರರರರಪ-1 ಇವನ ಕರನಗರ ಕರರಟಟಡದ ಫರಬರದ ಹದನರನದದ ಐತರ ಸಬರನ, ಅವತನಹದನರನದದ ಕರರಟಷದರದ ಆರರರರಪ-1 (ಆರರರರಪ-2 ರವರನದನ ಉದರದರಶಸ) ಎಣಸರರರ.....ಎಣಸರರರ ನರನದ, ಆಮರಲರ ನನಗರ ಅವನ ಲರಕಸ ಅವರದ ಕರರಟಷಲಲ , ಇವರದ ಕರರಟಷಲಲ ಅನನಬಬದದರ........ಬಲನಫಬರದ ಕರರಡದ ಫರಬರದ ಏನನಸಬರನ ಆರರರರಪ-1 ಬಲನಫಬರದ, ಏ ರಬನದರ ಬಡಬರರಡಪಪ ಒಳಗರ The aforesaid conversation shows that the accused No.1 has directed Pw.2 to make the payment of the balance bribe amount in favour of the accused No.2. The 31 Spl.C.C.386/2017 prosecution has produced Ex.P31 transcript of conversation and M.O. No.3 CD by way of corroborative evidence apart from the oral evidence to show that there was demand for the bribe by the accused No.1 during the trap. It is not the defence of the accused that M.O. No. 13 cash is the legal remuneration which he can legally permitted to accept from Pw-2. 13.7. Pw.6 is the Senior Scientific Officer, FSL, Bengaluru and she has issued Ex.P10 voice analysis report. In her evidence and in the report she has stated that the respective speeches of the accused No.1 recorded in M.O. No.3 and the sample speeches recorded in M.O.4 are similar and are of the same person. During cross-examination Pw.6 has admitted that the name of the suspect and the complainant was not mentioned in article No.1 and 9. The witness further admitted that there was background noise in the examined CD and she did not separate those voices from that of the speakers.
In order to ascertain the voice of the accused No.1 ascertaining the background voices is not necessary 32 Spl.C.C.386/2017 even though it is relevant. The particulars of the speakers in the CD are mentioned in M.O.3(a) and MO No.4 (a) envelops. The witness has specifically denied the suggestion confronted to her that on imagination she had given Ex.P10 report. Pw-6 has further denied the suggestion that without conducting the audio authentication test Ex.P-10 report issued by her is incomplete.
13.8. The contention of the accused during cross examination of Pw-6 is that the IO did not send the certificate issued under Section 65(B) of the Indian Evidence Act, at the time of seeking Ex.P-10 opinion. However the requirement of the certificate under Section 65(B) of Indian Evidence Act arise only at the time of admission of the document in evidence. The other contention of the accused is that in the absence of the certificate under Section 65(B) of Indian Evidence Act the report is inadmissible in evidence. In the judgment reported in(2017) 8 SCC 570 in the case of Sonu @ Amar Vs. State of Haryana, the Hon'ble Supreme Court held 33 Spl.C.C.386/2017 that the objection relating to the mode or method of proof has to be raised at the time of marking document at trial and not later. The crucial test is whether defect could have been cured at the stage of marking the document. But the requirement of certificate under Section 65(B) is a procedural aspect and it was not taken at the earliest stage and if such objections are raised at the later stage, they are not tenable under law. In the case on hand the accused have failed to raise their objection regarding the admissibility of M.O.3 CD at the time of marking the document in evidence. In the event the accused had raised such an objection, the prosecution had the opportunity to rectify the curable defect. The marking of M.O.3 CD without production of the certificate under Section 65(B) of the Indian Evidence Act is only a procedural irregularity and not illegality.
13.9. The prosecution has examined Pw.5 Ms. Hemamalini and as per her evidence on 31.1.2017 she had given bill No.742 as per Ex.D2 (c) entry and thereafter on 7.2.2017 the Assistant Engineer had 34 Spl.C.C.386/2017 collected the said file. As per the evidence of Pw.5 in order to approve the bill affixing signature of the AEE i.e. the accused No.1 on the bill form and the measurement book is necessary. It is the evidence of Pw.5 that Mr. K. Tharanath the assistant engineer had secured Ex.P-61 file by stating that the accused No.1 did not affix his signature. The witness further stated that the assistant engineer Mr. Tharantah had collected the file along with measurement book. During cross- examination Pw.5 has admitted that Ex.D2 document contains the signature of the accused No.1. 13.10. During the trap Ex.P-61 file relating to the tender work of Pw-9 including the bill form and the measurement book were found on the table of the accused No.1. Pw.8 the IO in his evidence has specifically reiterated this fact. In the event as argued on behalf of the accused No.1 that he had completed his part of work on 31.1.2017, there was no necessity for him to retain the said file on his custody till 18.2.2017. During the cross-examination of Pw.8 the seizure of 35 Spl.C.C.386/2017 Ex.P61 file from the custody of the accused No.1 has not been disputed. Therefore, the accused No.1 had retained the file in his custody in expectation of the bribe from Pw.2 is also one of the strong circumstance appearing against him.
13.11. During the trial the specific defence of both the accused is that Pw.2 was not the applicant in Ex.P-61 file pending for sanction of the bill amount and hence his work was not pending before the office of the AEE i.e. accused No.1. Pw.2 in Ex.P2 first information statement and even in his evidence has specifically stated that the amount was due from the department relating to Pw-9. As per the definite case of the prosecution the tender work was allotted to Pw.9 and Pw-2 had conducted the said work. In this regard Pw.9 had requested Pw-2 to expedite the matter for sanctioning the bill amount in the concerned office. Pw.2 in Ex.P2 first information statement itself has specifically admitted this fact. There is no legal bar as such preventing Pw.2 from going to the office of AEE for ascertaining the progress of the pending 36 Spl.C.C.386/2017 application of Pw-9 claiming the tender amount. It is the specific evidence of Pw.2 that on behalf of Pw.9 he had conducted the tender work and in this regard Pw.9 was required to pay the said amount to him. 13.12. The above argument of the defence could have been appreciated in the event Pw.2 had requested the accused No.1 to make the payment of the amount in his favour which is due to Pw.9. In the event Pw.9 was not legally entitled to do the contract work of providing silt and tractor in Ward No.105, through Pw-2 there was every opportunity for the accused No.1 to recommend for the cancellation of the tender or to withhold the payment. There is no dispute that the work order was issued in favour of Pw-9. As per the tender agreement Pw-9 was not authorized to conduct the work in joint work/consortium. The dictionary meaning of the word consortium is a combination of several companies, bank etc. for common purpose. The defence has failed to make out from any of the documents produced by the 37 Spl.C.C.386/2017 prosecution that since Pw.2 and 9 had conducted the contract tender work through joint venture or consortium in violation of the terms and conditions of the agreement, hence Pw.9 is not eligible for claiming the bill amount.
13.13. The accused in order to show that on account of Pw-9 had undertook the tender work in joint venture/consortium through Pw-2, his claim is rejected, they have failed to produce any documents. Therefore, they have failed to substantiate their defence raised during the course of the trial. Moreover, Pw-9 examined on behalf of the prosecution has deposed that he had authorized Pw.2 to attend the office work and expedite the matter regarding the process of sanctioning of the bill amount. Therefore, the argument of the accused that Pw.2 was not authorized to attend the office in connection with Ex.P61 bill relating to Pw.9 is untenable. During the cross-examination of Pw.2 it is suggested to the witness that the department has issued notice to Pw.9 to deposit the bill amount for violating the terms 38 Spl.C.C.386/2017 and conditions of the agreement/contract. In support, the accused has failed to place on record any documentary evidence. During the cross-examination of Pw.9 the accused has failed to raise the said contention. Pw.9 in his evidence has specifically admitted that he had done the tender work and in this connection a sum of Rs.6,96,537/- as shown in Ex.D1 has been credited to his bank account from the department. 13.14. Pw.8 the IO after the trap has given an opportunity to the accused to submit their explanation regarding the trap incident. In furtherance, the accused have submitted their explanation marked as per Ex.P33 and P34. In Ex.P-33 the accused No.1 has denied he had demanded or accepted the money from Pw.2. He submitted that on account of the dispute between the corporator, her husband the criminal cases were registered in Vijayanagara and Kamakshipalya Police station and for these reasons he has been falsely implicated in the present case. However, during cross- examination Pw.2 in para-15 has denied these facts. As 39 Spl.C.C.386/2017 per evidence of Pw.2 he was not having acquaintance with the said corporator or her husband Mr.Sridhar. In order to substantiate the contention the accused No.1 has not produced any documents 13.15. Ex.P-34 is the explanation of the accused No.2 and in his statement he has stated that as per the instruction of the accused No.1 he had collected Rs.15,000/- amount from Pw-2 and was keeping it in his trouser pocket. He further submitted that there was no connection between him and the amount seized by the police. It is suggested to Pw-8 during his cross- examination that Ex.P33 and P34 documents were created for the purpose of the case but the witness has specifically denied the said contention. The explanation statement of the accused No.2 as per Ex.P-34 is in consonance with the testimony of Pw-2 that as per the instruction of the accused No.1, he has paid the tainted currency notes to the accused No.2.
13.16. As per the admitted case of the accused No.1 in connection with Ex.P-61 file he is only the 40 Spl.C.C.386/2017 recommending authority and the Executive Engineer is the authority empowered to pass the bill relating to Pw.9. Therefore, work of Pw.2 and 9 was pending before the accused No.1 is proved from Ex.P-61 document. The accused have failed to make out that Pw.2 had the enmity to implicate them in a false prosecution. Moreover, Pw.2 in his evidence has specifically admitted that he had no acquaintance with the accused No.2 before the date of trap.
13.17. Among the documents produced by the prosecution and marked during cross-examination by the accused Ex.D1 is the completion report dtd.31.1.2017. The accused No.1 in his capacity as the AEE had affixed his signature on the said document. According to the evidence of Pw.2 in order to affix the signature on the bill form and the measurement book, the accused No.1 had demanded Rs.30,000/- and after payment of Rs.15,000/- on 13.2.2017, he had affixed his signature only on the bill form. Pw.2 further stated that the accused No.1 had agreed to affix his signature on the measurement book after payment of Rs.15,000/- balance bribe amount.
41 Spl.C.C.386/2017 However during cross-examination of Pw.2, 5 and 8 contrary to the contents of the document, the accused No.1 has contended that he had affixed his signature on the measurement book. It is true the signature of accused No.1 is appearing in Ex.D.2 contract certificate. 13.18. In Ex.D2 contract certificate the assistant engineer Mr.Tharanath has made an endorsement as "Certified that the measurements were taken on 31.1.2017 and recorded of pages 313554 to 313557 measurement book No.3136/14-15 and that the work is satisfactorily executed." The said document contains the signature of Pw.9 as well as the Assistant Engineer. The accused No.1 as the AEE has affixed his signature in Ex.D2 and issued certificate that the contractor has done the work satisfactorily, he has removed the debris from work site and there is no department material issued to the contractor. In view of the aforesaid certificate issued by the accused No.1 in Ex.D-2, all the inconsistent and contradicting defences taken during the cross-examination and suggestions tendered to Pw.2, 7 and 9 falls to ground.
42 Spl.C.C.386/2017 13.19. During cross-examination of Pw.2 the accused got marked Ex.D-3 copy of the measurement book in evidence. Ex.D3 page-31554 to 31557 (page-256 to
262) is the part and parcel of Ex.P61 the copy of the measurement book secured by the IO during investigation (in evidence due to typographical error page number is wrongly shown as 256 to 252 instead of 256 to 262.) In Ex.D3 measurement book as an Assistant Engineer Mr. K.Thranath had affixed his signature. But it is important to note that the signature of the accused No.1 does not finds place in the measurement book relevant pages 256 to 262 pertaining to the tender work done by Pw.9. Therefore, the averments made in Ex.P2 first information statement and evidence of Pw.2 that the accused No.1 had deliberately not affixed his signature in the measurement book is proved from the evidence. According to the evidence of Pw.2 the accused No.1 had informed that unless the balance bribe amount of Rs.15,000/- is paid, he is not going to affix his signature on the measurement book. As per the evidence of Pw-5 43 Spl.C.C.386/2017 for approval of Ex.D1 and D2 bill, the signature of the accused No.1 is very much relevant.
13.20. As per the evidence of Pw.2 on 13.2.2017 the accused No.1 had demanded Rs.30,000/- as the bribe and on the same day he had obtained Rs.15,000/- and thereafter he has affixed his signature on the completion report. In consonance of his evidence, the signature of the accused No.1 is appearing in Ex.D1 and D2 documents. It is the evidence of Pw.2 that again on 15.2.2017 the accused No.1 had demanded Rs.15,000/- in order to affix his signature in the measurement book. 13.21. During the cross-examination of Pw.2, 5 or 7 the accused No.1 has failed to make out that no work of Pw.2 or 9 was pending before him. Therefore, the argument of the accused No.1 that he had completed his part of work on 31.1.2017 is apparently false. The accused No.1 is the recommending authority and the executive engineer is the authority competent to approve the bill and sanction the amount is not denied in defence.
44 Spl.C.C.386/2017 13.22. Pw.8 the IO has seized Ex.P61 document relating to the contract work of Pw.9 and the said document includes Ex.D1 to D3 marked by the accused during cross-examination of Pw.2. In order to ascertain whether the measurement book requires the signature of the AEE, on verification of the document this court noticed that in Ex.P-61 page-178 to 181, 208, 216 to 219, 232, 249 to 253 the accused No.1 as the AEE had affixed his signature in the document. This is also one of the strong circumstances appearing against the defence of accused No.1. It is necessary to clarify that the above referred signatures of the accused No.1 appearing in the measurement book are not related to the pending application of the tender amount of Pw-9. 13.23. The learned advocate appearing on behalf of the accused has relied upon the judgments reported in (2015) 10 SCC 152 in the case of P. Satyanarayana Murthy Vs. the State and (2011) 6 SCC 450 in the case of State of Kerala Vs. C.P. Rao. As per the facts of both these decisions the complainant was not examined 45 Spl.C.C.386/2017 during the trial. Similarly, in C.P. Rao case previous animosity with the accused is made out and the accused has shouted regarding thrusting of the bribe money. In the decision reported in (2014) AIR SCW 5740 M.R.Purushotham Vs. State of Karnataka and C.Sukumaran Vs State of Kerala reported 2015 AIR SCW 951 the complainant turned hostile and have not supported the prosecution case. In (2000) 5 SCC 21 Meena Vs. State of Maharashtra the defence version was that the currency note was attempted to be thrust into the hands of the accused, one shadow witness was not examined and the witness examined was treated as hostile. In (2014) AIR SCW 2080 B.Jayaraj Vs. State of A.P., the complainant disowned making of the complaint and there was no other evidence to prove the demand and acceptance of the bribe. In 2021 Crl.L.J. 1353 in N.Vijayakumar Vs. State of Tamil Nadu the Apex Court noticed substantive evidence adduced by theprosecution was not reliable. In (2011) 12 SCC 294 P. Parusharami Reddy Vs State the complainant was driven out of room when he approached the accused, the treated currency 46 Spl.C.C.386/2017 notes were thrown by the accused was not recovered and hence the Hon'ble Supreme Court held that convicting the accused on the sole ground of sodium carbonate turned to pink colour is not sufficient. In the all the above referred decisions the demand by the accused is not proved by the prosecution and hence the Hon'ble court held that mere recovery without proof of demand would not attract the offence and mere recovery of tainted money is not sufficient to convict the accused. The decisions relied has no bearing on the facts and circumstances of the case. In the case on hand the twin requirements of demand and acceptance are proved by direct evidence.
13.24. In the judgment relied by the accused No.1 reported in (2016) 1 KCCR 815 R. Srinivasan Vs. State, the Hon'ble Karnataka High Court on re-appreciation of the entire evidence noticed that the prosecution has failed to prove the demand and acceptance of the bribe, there was procedural illegalities in the trap and it was conducted in violation of Article-20 (3) of the 47 Spl.C.C.386/2017 Constitution. In the judgment relied by the accused No.2 reported in 2022 (3) AKR 417 in State of Karnataka Vs. Anand Shivappa Nayak the complainant and shadow witness have not supported the prosecution case. In the judgment reported in AIR 2018 SC 4720 in Dashrath Singh Chauhan Vs. CBI, as per the facts the demand and acceptance twin requirements were not proved. In AIR 2017 SC 3382 Mukhtiar Singh Vs. State of Punjab, the evidence of the complainant and shadow witness was contradicting and the Hon'ble Court noticed the amount was placed casually in card board box on the table was found unusual. In C.M. Girish Babu Vs. CBI reported in (2009) 3 SCC 779 the accused was able to prove his defence that the amount in question was for repayment of the loan. In Gulam Mahmood A. Malek Vs. State of Gujarat reported in 1980 (Supp.) SCC 684 the conviction based solely on testimony of panch witness found is not proper and held that the evidence of the complainant is in the nature of an accomplice. The facts of the aforesaid judgments relied by the accused and the facts and circumstances of the case on hand are totally 48 Spl.C.C.386/2017 different and hence the ratio laid down is not applicable. Secondly, in the case on hand, P.W2. the informant and Pw.3 the shadow witness have fully supported the prosecution case and there are corroborative evidence of Pw.5 Ms. Hemamalini Pw.6 the voice analyst and Pw.8 the investigating officer.
13.25. The accused No.2 is charged for the offence under Section 12 of the PC Act. Section 107 of the Indian Penal Code defines what the abetment is and according to the said definition there are 3 clauses and if an act of a person falls within the purview of any one, then it amounts to abetment and thus punishable for the said offence either under Section 107 of IPC or under Section 12 of the PC Act. In the case on hand in order to prove the above said charge, the prosecution is required to prove that the accused No.2 at the time of the trap in order to facilitate the accused No.1 has accepted the tainted currency notes from Pw.2. As per Section 12 of the PC Act, whoever abets any offence punishable under Section 7 or 11 whether or not the 49 Spl.C.C.386/2017 offence is committed in consequence of that abetment he will be found guilty.
13.26. In the case on hand, the charge against the accused No.1 is that he had demanded and accepted the illegal gratification from Pw.2. The accused No.2 as on the date of the trap without ascertaining anything either from the accusedNo.1 or from Pw-2 has accepted M.O.12 tainted cash of Rs.15,000/-. During trial also the accused No.2 failed to come forward with satisfactory explanation regarding the charges framed against him. In the event the accused was not aware of the fact that the amount accepted was not the bribe, it is for him to explain the circumstances why he had collected the amount and kept it in his trouser pocket. As per Section 106 of Indian Evidence Act those facts are exclusively within the knowledge of the accused No.2. In the absence the inference to be drawn is that the accused No.2 having knowledge of the fact that it is the bribe amount, he has collected the currency notes from Pw. 2 in order to facilitate the accused No.1 to commit the offence under Section 7 of the PC Act. In the result the ingredients of 50 Spl.C.C.386/2017 the offence under Section 12 of the P.C. Act are attracted against the accused No.2.
E. The Presumption 14.1 As per Section 20 of the PC Act, there is a presumption wherein it is proved that a public servant accused of an offence has accepted, obtained for himself or for any other person any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained that undue advantage, as a motive or reward for performing or to cause performance of a public duty, improperly or dishonestly either by himself or by any other public servant.
14.2. In the case on hand, the prosecution from the foundational facts and evidence of PW-2, 3 and 8 has proved that the accused No.1 has demanded Rs.30,000/- and obtained Rs.15,000/- each on 13.2.2017 and 18.2.2017, as the bribe from PW-2. The accused No.2 in his Ex.P-34 explanation has not denied the factum of acceptance of MO -12 currency notes 51 Spl.C.C.386/2017 from Pw-2 as per the instruction of the accused No.1. Moreover, the procedure of recovery of the tainted cash from the possession of the accused No.2 is proved from the oral and documentary evidence, such as chemical hand wash test conducted during the post trap formalities. The accused No.2 in his defence has not disputed the recovery of the tainted amount from his possession.
14.3. In the judgment reported in (1995) 3 SCC 567 M.W. Mouhiuddin vs State of Maharastra the Apex Court held that once the complainant parted with the tainted money and the same comes under the control and possession of the accused, the requirement is satisfied. Then the only inference to be drawn is that he accepted the same and thus obtained the pecuniary advantage. In the absence of any explanation from the accused regarding the currency notes obtained by him the irresistible inference must follow that the accused has voluntarily accepted the amount. It is not necessary that the passing of money should be proved by direct evidence and it may also be proved by circumstantial 52 Spl.C.C.386/2017 evidence and under Section 114 of the Evidence Act, the Court may also draw an inference.
14.4. In the recent constitutional bench judgment in the case of Mr. Neeraj Dutta Vs. State, the Hon'ble Supreme Court in para-50 held that the presumption under Section 114 of Evidence Act is discretionary whereas the presumption under Section20 is mandatory. In any case if the prosecution proves the fact that the illegal gratification has been received by an accused, the Court shall draw the presumption that he received it as a motive or reward. It is open to the accused to show that the gratification was legally due to him or he had received it under a transaction or an arrangement which is lawful. The burden resting on the accused in such case would not be as light where a presumption is raised under Section 114 of Evidence Act. He cannot be held discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It is the burden of the accused to show that the explanation is true. The presumption has to be rebutted by proof and not by a bare explanation which is 53 Spl.C.C.386/2017 merely plausible. The Court has to arrive conclusion that the explanation of the accused is so probable that a prudent man would act on the supposition that it exist. In the case on hand on application of the aforesaid ratio, the accused either during the trial or from Ex.D- 1 to Ex.D3 documents or even during their examination under Section 313 of the Cr.P.C. have failed to prove their defence by satisfactory and probable explanation.
14.5. In the judgment reported in (1995)3 SCC 351 M.O.Shamsuddin vs State of Kerala the Hon'ble Supreme Court held that the corroborating evidence required can be by circumstantial evidence. The requirement of corroboration, its nature and extent depends upon the facts and circumstances of each case. In case of bribe the person who pays the amount and the person who acts as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. In the case on hand also it is true as rightly pointed out by the defence 54 Spl.C.C.386/2017 Pw-3 was not present inside the office of the accused No.1 at the time of trap. However his presence in the immediate vicinity outside the office of the accused No.1 is not disputed by the accused. It is the evidence of Pw-3 that in order to avoid the accused get suspected by his presence, he did not enter the chamber of the accused No.1 with Pw-2. Moreover Ex.P-31 the recorded conversation shows that the accused No.1 has given instruction not to allow anybody to enter his office when the accused No.2 has accepted and counting the currency notes. This fact shows that he has taken every precautions while obtaining the bribe from Pw-2. 14.6. The accused has relied the judgment reported in 2010 (3) KCCR 1851 State Vs. M.Gopalakrishnaiah the Hon'ble High Court held in the absence of proof of demand and acceptance, the question of drawing presumption under Section 20 does not arise. But as per the facts of the said case, the Court noticed that the shadow witness is a professional witness. Similarly, in the case of State of Gujarat Vs. Kumudchandra Pranjivan 55 Spl.C.C.386/2017 Shah reported in 1997 SCC (Cri) 750 found pancha witness participated in number of cases and there was absence of corroboration.
14.7. It is the argument addressed on behalf of both the accused that the evidence of Pw-2 cannot be relied as he is an accomplice. But in the judgment reported in (2010) 15 SCC 1 in C.M. Sharma Vs. State of A.P the Hon'ble Supreme Court held that a person concerned in the commission of crime, a partner and associate in guilt is a accomplice. However a witness who is forced to pay on promise of doing an official act by a public servant is not a partner in crime and associate in guilt and hence he cannot be labeled as an accomplice. In the result evidence of Pw-2 is admissible and can be relied to arrive conclusion to decide the guilt of the accused.
14.8. The learned Public Prosecutor has relied upon the judgments in the case of Vinod Kumar Vs. State of Punjab and Madhukar Bhaskarrao Joshi. In those cases the Hon'ble Supreme Court held that once the 56 Spl.C.C.386/2017 prosecution has established that the gratification has been paid or accepted by the public servant, the court is under legal compulsion to presume that the said gratification was paid or accepted as a motive or reward to do any official act referred under Section 7 of the P.C. Act.
14.9. In the judgment reported in (2018)9 SCC 242 in the case of State of Gujarat vs Navinbhai chandrakant Joshi case the accused No.1 had demanded the money and it was accepted by the accused No.2 at the behest of the accused No.1 and both of them were convicted. The facts of the said judgment and the facts of the case on hand are almost similar. The presumption under Section 20 of the Act is obligatory and it is a presumption of law and cast an obligation on the court to apply in every case under Section 7 of the Act. In the present case, the accused No.2 has not denied he had accepted MO.12 cash from Pw-2 but there is no proper and satisfactory explanation in this regard by him.
57 Spl.C.C.386/2017 During the trial, it is not the defence of the accused No.2 that Pw-2 had forcibly thrust the cash into his pocket. 14.10. Therefore on application of the above ratio to the facts of the case on hand, from the proved facts, this Court can legitimately draw a presumption that the accused No.1 has demanded and obtained Rs.30,000/- illegal gratification and the accused No.2 at the time of the trap has accepted Rs.15,000/- the tainted currency notes for and on behalf of the accused No.1. But both the accused could not rebut the presumption either during the cross-examination of the prosecution witnesses or from the documents admitted in their defence. When the accused have failed to rebut the presumption, it can be held that the prosecution has proved that the accused have obtained the said amount. In the case on hand the accused have miserably failed to rebut the presumption appearing against them under Section 20 of the PC Act.
14.11. From the evidence of Pws.2 to 4 and 8 this Court arrived to the definite conclusion to draw the legal presumption against the accused No.1 and 2 that they 58 Spl.C.C.386/2017 have received M.O.12 tainted currency notes from Pw-2 as gratification for doing the public duty. Therefore, once it is proved that the money was recovered from the possession of the accused No.2, the burden of rebutting the presumption as contemplated under Section 20 of the PC Act shifts. In the present case, the efforts made by the accused in their defence during cross- examination of the prosecution witnesses to rebut the presumption resulted in vain. Hence, this Court arrived to the definite conclusion that the accused have miserably failed to rebut the presumption under Section 20 of the PC Act. Accordingly, the presumption as prescribed under law is drawn against the accused. F. The Conclusion:
15. The evidence placed on record by the prosecution is consistent with the guilt of the accused and inconsistent with their innocence. The minor discrepancies and contradictions appearing in the evidence which do not affect the merits of the case should be ignored. A criminal trial is meant for doing 59 Spl.C.C.386/2017 justice to all, the accused, the society, and a fair chance to prove to the prosecution. Then alone can law and order be maintained. As held by the Hon'ble Supreme court, the courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge.
16. On appreciation of the entire prosecution evidence, it is cogent, corroborative, believable and trustworthy. The evidence clearly show that the accused No.1 has demanded Rs.30,000/-and accepted the undue advantage of Rs.15,000/- from Pw-2 on 13-2-2017 and on 18-02-2017 the accused No.2 as per the instruction of the accused No.1 has accepted Rs.15,000/- knowing it to be the bribe amount. To attract the offence under section 13(1)(d) of PC Act, the public servant should obtain for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as such public servant. In the instant case there is evidence to the effect that 60 Spl.C.C.386/2017 the accused have obtained the pecuniary advantage by corrupt and illegal means and by abusing their position as such public servants. The ingredients to bring home the act of accused within the ambit of Section 7, 12 and 13(1)(d) of the PC Act are fulfilled.
17. It is to be noted that every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the PC Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the PC Act. The act alleged against the accused No.1 of demanding and obtaining the illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. The accused No.2 has abetted the accused No.1 in committing the offence and hence he is found guilty of the offence under Section 12 and 13 (1)(d) of the P.C. Act. After considering the aforesaid evidence and defence of the accused, this court arrived to the conclusion that the prosecution has proved the charges 61 Spl.C.C.386/2017 framed against the accused No.1 and 2 under Section 7, 12, and Section 13(1)(d) of the PC Act. In the result, point Nos.2 to 5 are answered in the affirmative.
18. Point No.6 :- In view of the above findings on point No.2 to 5, the accused No.1 and 2 are liable to be convicted of the offence under sections 7, 12 and 13(1)
(d) of the PC Act. Accordingly this court proceed to pass the following:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused No.1 is convicted of the offence under Sections 7 and 13(1)(d) read with Section 13(2) and the accused No.2 is convicted of the offence under Sections 12 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bonds and surety bonds executed by the offenders and their surety are hereby stand discharged.
62 Spl.C.C.386/2017 M.O. No.12 cash of Rs.15,000/- (Rupees fifteen thousand) is confiscated to the State after expiry of the appeal period.
Office is directed to return M.O. No.1. metal seal to the Karnataka Lokayukta Police. Office is directed to destroy M.O. No. 6 to 10 sodium carbonate solution bottle, and MO
-11 trouser after completion of the appeal period as the same are worthless.
Office is directed to keep MO No. 2 to 5 CDs with cover along with the case file.
(Dictated to the judgment writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open Court on this the 31 st December, 2022.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
63 Spl.C.C.386/2017 03.01.2023 The judgment is pronounced by finding that the offender No.1 is guilty of the offence under Sections 7 and 13(1)(d) and the offender No.2 is guilty of the offence under Sections 12 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
2. Heard the learned Sri. C.G. Sundar and Sri. K.M. advocates appearing for the defence on the point of the quantum of sentence to be imposed on the offenders. The learned Sri. Sundar advocate has submitted that by virtue of 2018 amendment, the offence under Section 13(1)(d) is deleted from the statute book and the said offence is incorporated in Section 7 of the P C Act. As per the above said provisions before the amendment, the punishment prescribed under Section 7 was imprisonment for 7 years and minimum sentence of not less than three years. Similarly for the offence under Section 13(1)(d) the punishment prescribed was imprisonment for 10 years and minimum punishment not less than four years. On considering these factors, 64 Spl.C.C.386/2017 he prayed for an order to invoke the benefit of the amendment to the offenders and to impose only minimum punishment of imprisonment of three years as prescribed under Section 7 of the amended P C Act.
3. The learned Sri. C. G. Sundar advocate in support of his argument has relied upon the judgment in State vs Parthiban reported in 2006 Crl.L.J. 4772. In the said case the Hon'ble Supreme Court held that demanding and accepting the illegal gratification constitutes an offence both under Section 7 and 13(1)
(d) of the PC Act and the offence being single transaction but falling under two different sections, as per Section 71 of the Indian Penal Code the offender cannot be liable for double penalty.
4. After considering the above submissions now the quantum of sentence to be imposed upon the offenders has to be determined. In the decision reported in AIR 2015 SC 2678 in the case of Shanthilal Meena vs State of NCT Delhi, the Hon'ble Supreme Court held that the punishment for the offences under the PC Act, 65 Spl.C.C.386/2017 there is no scope for reforming of the convicted public servant. In the above referred Parthiban case the Hon'ble Supreme Court held that the benefit of Probation of Offenders Act cannot be extended for the offenders under the PC Act.
5. As per the facts of the case, the offence was committed on 13-2-2017 and 18-02-2017. Thus, as per Amended Act No.1 of 2014, which came into effect from 16-01-2014, the offence under section 7 of the PC Act was punishable with imprisonment for seven years with the minimum sentence of not less than three years. Similarly the offence under Section 13 (2) of the PC Act was punishable with imprisonment for ten years with the minimum punishment of not less than four years.
6. In the light of the above facts and circumstances of the case with particular reference to the nature, designation and conduct of the offenders in committing the offence, the quantum of sentence to be imposed has to be determined. The offenders by committing the 66 Spl.C.C.386/2017 offence under the provisions of the PC Act have invited the risk to themselves, and now they cannot plead for leniency in the sentence to be imposed against them. The facts and circumstances of the case show that the offender No.1 has demanded and accepted the illegal gratification of Rs. 30,000/- from Pw-2 and the offender No.2 has abetted the offender No.1 by collecting Rs.15,000/- illegal gratification during the trap for and on behalf of the offender No.1 Hence they should be punished by apposite sentence of imprisonment, after taking into consideration the submission of the learned defence counsel.
7. In the judgment reported in (2006) 8 SCC 693 State of M.P. Vs. Shambhu Dayal Nagar, the Hon'ble Supreme Court expressed its concern against passing of lenient sentence on conviction of public servants under the P.C Act. In AIR 2013 SC 1682 Niranjan Hemchandra Sashittal case the Apex court held that the gravity of the offence under PC Act is not judged on the measure of 67 Spl.C.C.386/2017 quantum of bribe, as corruption is not to be justified in degree.
8. The PC Act has been amended as per Prevention of Corruption (amendment) Act 2018 with effect from 26-7-2018. By virtue of the said amendment the offence under Section 13(1)(d) has been deleted. Therefore, after amendment the demand and acceptance of the bribe by the public servant is an offence punishable only under Section 7 of the amended PC Act. The minimum punishment prescribed for the said offence is imprisonment for 3 years and the maximum punishment is for 7 years. The offence under Section 12 of the PC Act is punishable with imprisonment of not less than three years but which may extend to seven years.
9. In this regard, in order to ascertain whether the accused are entitled to avail the benefit of the aforesaid amendment it is apposite to refer the judgment reported in (2020) 10 SCC 763 in the case of Trilokchand Vs. State 68 Spl.C.C.386/2017 of Himachal Pradesh. In the said decision the Hon'ble Supreme Court held that if the amendment is beneficial to the accused it could be applied with respect to earlier cases as well as which are pending in the Court. If the amendment of the act reduces the punishment for an offence, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigor of law. The aforesaid ratio laid down by the Hon'ble Supreme Court is applicable to the facts of the case on hand. The judgments relied by the offender No.1 reported in 2011 Supreme (KAR) 614 in the case of the Commissioner of Income Tax Vs.M/s. Ranka and Ranka and (2018) 13 SCC 239 in the case of Director of Income Tax Vs. S.R.M.B. Dairy farming Pvt.Ltd. are also applicable to the facts of the case on hand.
10. The offender No.1 has produced documents to show that he had undergone surgery for coronary artery double vessel disease in Sakra Hospital Bengaluru in the 69 Spl.C.C.386/2017 year 2018. As per the document, he is also suffering from diabetes mellitus-II, hypertension, and further diagnosed for stricture urethra. After considering the above aspects this Court finds that it is just and proper to strike balance between the maximum and minimum punishment prescribed under Section 7 of the PC Act. Since, offender No.2 has abetted the commission of offence, he is equally liable for the punishment imposed on offender No.1. Accordingly, the offenders No.1 and 2 are liable to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.25,000/- each for the offence under Section 7 of the PC Act. In view of extending the benefit of the 2018 amendment of the PC Act, the offenders are not separately sentenced for the offence punishable under Section 13(1)(d) read with 13(2) of the PC Act. Accordingly, proceed to pass the following:
ORDER The offender No.1 and 2 are sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.25,000/- (Rupees twenty five thousand) each for the
70 Spl.C.C.386/2017 offence under Section 7 and 12 of the PC Act and in default of payment of fine, they shall undergo simple imprisonment for further period two months.
Acting under section 428 of the Cr.P.C the period of detention undergone by the offenders during investigation from 18.2.2017 to 22.2.2017 shall be set off against the sentence of imprisonment.
Free copy of the judgment be furnished to the offenders forthwith.
(Dictated to the judgment-writer directly on computer, typed by him, corrected, signed and then pronounced by me in the open Court on this the 3 rd day of January, 2023.) (LAKSHMINARAYANA BHAT K) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : N. Manjunath Prasad
PW 2 : Manjunath
PW 3 : Arjun S.
71 Spl.C.C.386/2017
PW 4 : Chandrakumar
PW 5 : Hemamalini N.
PW 6 : Smt.Chandrika G.
PW 7 : Prashanth R. Varni
PW 8 : B. Shivashankara Reddy
PW 9 : Ravi Kumar K.
List of documents marked on behalf of prosecution:
Ex P1 : Sanction order Ex P1(a) : Signature of PW 1 Ex P2 : Complaint Ex P2(a) : Signature of PW 2 Ex P 3 : Copy of work order dtd.29.7.2016 Ex P 4 : Authorization letter of Ravikumar dtd.2.1.2017 Ex P5 : Pre-trap mahazar Ex P5(a) : Signature of PW 1 Ex P5(b) : Signature of PW 3 Ex P5(c) : Signature of PW 4 Ex P5(d) : Signature of PW 8 Ex P6 : Trap Mahazar Ex P6(a) : Signature of PW 3 Ex P6(b) : Signature of PW 2 Ex P6(c) : Signature of PW 4 Ex P6(d) : Signature of PW 8 Ex P7 : 164 Cr.P.C. Statement of P.w.2 Ex P7(a) : Signature of PW 2 Ex P8 : Seal acknowledgment 72 Spl.C.C.386/2017 Ex P9 : Voice Sample Mahazar Ex P9(a) : Signature of PW 4 Ex P9(b) : Signature of PW 7 Ex P10 : FSL CD report Ex P10(a) : Signature of PW 6 Ex P11 : Sample seal slip Ex P12 : CEPSTRAL sheets ( 6 sheets ) Ex P13 : Orders u/Section 165 of Cr.P.C. Ex P14 : FSL report Ex P15 : Letters with sketch Ex P16 : Service particulars of accused No.1 Ex P17 : Service particulars of accused No.2 Ex P18 : Voice sample mahazar Ex P18(a) : Signature of PW 7 Ex P19 : Voice sample conversation/accused Ex P19(a) : Signature of PW 7 Ex P20 : Certificate u/S.65-B of Indian Evidence Act given by Pw.7 Ex P21 : Covers letter with documents Ex P22 : Letter with work distribution of AEE Ex P23 : Voice sample or conversation of complainant Ex P24 : 'n' Seal acknowledgment Ex P25 : Certificate u/S.65-B of Indian Evidence Act given by Pw.7 73 Spl.C.C.386/2017 Ex P26 : FIR Ex P27 : Letter of TLO to depute two pancha witnesses dt.18.2.2017 Ex P28 : CD Transcription of conversation dt.18.2.2017 Ex P29 : CD Transcription of conversation dt.18.2.2017 Ex P30 : Sheet containing currency note numbers Ex P31 : Transcription of conversation dt.18.2.2017 between accused No.1 and the complainant Ex P32 : Attested copy of attendance register Ex P33 : Written explanation of accused No.1 Ex P34 : Written explanation of accused No.2 Ex P35 :Metal seal receipt acknowledgment dt.18.2.2021 Ex P36 : Sample seal Ex.P37 : Photographs to Ex.P60 Ex.P61 : Letter dt.23.2.2017 with copies of documents List of material objects marked on behalf of the prosecution:
MO 1 : Metal seal 'n' MO 2 : CD Article-1 (recording of demand made by the accused ) MO 2(a) : Cover
74 Spl.C.C.386/2017 MO 3 : CD Article-9 Conversation of accused No.1 MO 3(a) : Cover MO 4 : CD containing sample voice of A-1 MO 4(a) : Cover MO 5 : CD containing voice sample of complainant MO 5(a) : Cover MO 6: Bottle containing clear sodium carbonate solution (Article-2) MO 7: Bottle containing pink coloured sodium carbonate solution (Article-3) MO 8: Bottle containing clear sodium carbonate solution (Article-4) MO9: Bottle containing right hand wash of accused No.2 (Article-5) MO10:Bottle containing left hand wash of accused No.2 (Article-6) MO 11 : Pant MO 11 (a) Cover containing pant MO 12 : Cash of Rs.20,000/-
MO 12 (a) Cover List of witnesses examined on behalf of defence side:
NIL List of document marked on behalf of defence side Ex D1 : Work completion report Ex D2 : Contract Certificate (Part bill) Ex D2(a) : Entry of inward/outward number Ex D2(b) : Entry of M.B. number
75 Spl.C.C.386/2017 Ex D2(c) : "Sl. No.742"
Ex D3 : Attested copies of measurement book Ex D4 : Copy of office order dt.10.7.2013 of AEE, BBMP, Govindaraja Nagar sub-division XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
76 Spl.C.C.386/2017 Judgment pronounced in the open Court vide separate Judgment. The operative portion of the Judgment reads as under:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973 the accused No.1 is convicted of the offence under Sections 7 and 13(1)(d) read with Section 13(2) and the accused No.2 is convicted of the offence under Sections 12 and 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988.
The bail bonds and surety bonds executed by the offenders and their surety are hereby stand discharged.
M.O. No.12 cash of Rs.15,000/- (Rupees fifteen thousand) is
confiscated to the State after expiry of the appeal period.
Office is directed to return M.O.
No.1. metal seal to the Karnataka
Lokayukta Police.
Office is directed to destroy M.O. No. 6 to 10 sodium carbonate solution bottle, and MO -11 trouser after
77 Spl.C.C.386/2017 completion of the appeal period as the same are worthless.
Office is directed to keep MO No. 2 to 5 CDs with cover along with the case file.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
Order on sentence pronounced in the open Court vide separate order.
The operative portion of the order reads as under:
ORDER The offender No.1 and 2 are sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.25,000/- (Rupees twenty five thousand) each for the offence under Section 7 and 12 of the PC Act and in default of payment of fine, they shall undergo simple imprisonment for further period two months.
Acting under section 428 of the
Cr.P.C the period of detention
undergone by the offenders during
investigation from 18.2.2017 to
78 Spl.C.C.386/2017
22.2.2017 shall be set off against the sentence of imprisonment.
Free copy of the judgment be furnished to the offenders forthwith. XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.