Bangalore District Court
Anti Corruption Bureau, Bengaluru vs A1 Ullas B Ganganahalli on 30 November, 2024
KABC010148502022
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 30th day of November, 2024
:PRESENT:
K.M. RADHAKRISHNA B.A.LL.B.,
XXIII Additional City Civil and Sessions Judge
and Special Judge (P.C. Act),
Bengaluru Urban District, Bengaluru City.
Special C.C.No.1057/2022
Complainant : The State of Karnataka, represented
by the Police Inspector, Anti
Corruption Bureau, Bengaluru.
Now the Karnataka Lokayukta,
Bengaluru Urban Police Station,
Bengaluru.
(By the Public Prosecutor)
-Versus-
Accused : Sri. Ullas B. Ganganahally,
S/o. Basavaraju,
aged 46 years,
Food Safety Officer, Health and
Family Welfare Department,
K.R. Circle, Bengaluru.
On OOD working as
Food Safety Officer,
2 Spl. C.C.1057/2022
Food Safety and Quality
Department, BBMP South zone,
Bengaluru.
(By Sri. C.G. Sundar, Advocate)
Date of offence 18.12.2018
Date of report of
offence 18.12.2018
Date of arrest of
the accused 18.12.2018
Date of release
on bail 24.12.2018
Total period of
custody 07 days
Name of the
complainant Sri. Mahesh B.V.
Date of
commencement
of recording 1.2.2023
evidence
Date of closing
22.10.2024
of evidence
Offences Under Section 7(a) of the Prevention of
complained of Corruption Act
Opinion of the
As per the order
Judge
Sd/- 30/11/24
(K.M. RADHAKRISHNA),
XXIII Addl.City Civil & Sessions Judge
& Special Judge (PCA), Bengaluru.
3 Spl. C.C.1057/2022
JUDGMENT
The Police Inspector from the then Anti Corruption Bureau, (for short the 'ACB') Bengaluru City has charge sheeted the accused for the offence punishable under Section 7(a) of the Prevention of Corruption Act 1988 (for short the 'PC Act') in Crime No.34/2018.
2. Allegations in brief are that, the accused is a Food Safety Officer in the Health and Family Welfare department. In the year 2018 he was working in the south division of BBMP on OOD basis. On 11.12.2018 Cw.1 Sri Mahesh B.V. (for short the informant) has made an on line application bearing No.20181211100816490 in the office of the accused (FSSAI) for license to run the business of manufacturing the spices powder. On the same day, the informant has made a call by his mobile bearing No.9964750123 to the mobile of the accused bearing No. 9448230195 to enquire on the application. The accused has secured the informant near Gangothri Circle of BTM layout at about 3.30 p.m. By the time when the informant has given the copy of his application to the accused with a request for issuance of license at the earliest, the accused has demanded the illegal gratification of Rs.10,000/- by showing his ten fingers of hands. However, scaled down for Rs.5,000/- with the 4 Spl. C.C.1057/2022 gesture of his 5 fingers. The informant has recorded the conversation in his mobile. On 18.11.2018 the informant has lodged the complaint before the ACB Police against the accused. On the same day, they have laid the trap and arrested the accused after he had received the illegal gratification of Rs.5,000/- from the informant.
3. The accused was represented through his counsel and got enlarged on bail at the pre-cognizance stage. After compliance of the statutory requirement as contemplated under Section 190(1)(b) of Cr.P.C., this court has got registered the case and ordered the process to the accused. After his appearance before the court with the assistance of his counsel, the copies of charge sheet were supplied to him under Section 207 and 208 of Cr.P.C. The charge in respect of the offence punishable under Section 7(a) of the PC Act has been framed, read over and explained the same to the accused in the language known to him. As he pleaded not guilty and claims to be tried, the trial of the case has been fixed.
4. To prove its allegations, the prosecution has examined 13 witnesses as Pw.1 to 13 and got marked documents as per Ex.P-1 to P-47 apart the incriminating articles vide M.O.1 to 5. After closure of the prosecution evidence and getting compliance of Section 437(A), the accused has been examined under Section 313 of Cr.P.C.
5 Spl. C.C.1057/2022 He has not adduced any evidence. His defence is the total denial of prosecution allegations to be false.
5. Heard arguments from both side.
6. Points for consideration are :
1. Does the prosecution prove beyond all reasonable doubt that, the work of the informant was pending before the accused as on 18.12.2018?
2. Does the prosecution prove beyond all reasonable doubt that, the accused has demanded and accepted the illegal gratification of Rs.5,000/- from the informant to issue the license for running of the business?
3. Does the prosecution prove beyond all reasonable doubt that, on 18.12.2018 the accused has accepted the illegal gratification of Rs.5,000/- from the informant and thereby committed an offence punishable under Section 7(a) of the PC Act?
7. Findings on the above points are:
Point No.1 In the affirmative Point No.2 In the affirmative Point No.3 In the affirmative REASONS
8. Point No.1 to 3 :- It's a case got registered by Pw.11 Sri. K.C. Lakshminarayana the Dy.S.P. vide the F.I.R. at Ex.P47 on the strength of the complaint at Ex.P20 6 Spl. C.C.1057/2022 dtd.18.12.2018 lodged by the informant. Allegations therein are that, the accused has demanded the illegal gratification from him for issuance of the license to run a small scale industry of manufacturing of spices powder.
9. The further responsibility of laying the trap is deposed to have taken up by Pw.8 Sri. A.N. Venkatesh Murthy the police inspector (for short the TLO). On 18.12.2018 he has formed the trap team consisting of himself, his officials, 2 panchas namely Pw.1 Sri. S. Muniyappa (for short the shadow witness) and Pw.3 Sri. N. Muniraju (for short the pancha-2) from the Karnataka Industrial Area Development Board and the informant. The evidence of all these witnesses reveals that, on the same day, the TLO has conducted the pre-trap formalities under the mahazar at Ex.P3 particularly, briefing the complaint allegations to panchas, the demonstration of chemical reaction test, an application of phenolphthalein powder to the currency notes of Rs.5,000/- with the denomination of Rs.500 x 10 marked at M.O.5 produced by the informant as per the description in the list at Ex.P2, the transcription of the alleged mobile conversation of the accused deposed to have recorded by the informant in a mobile containing in the CD at Ex.P24, the hand wash of pancha-2 with the sodium carbonate solution etc. as seen in the photographs at Ex.P8, 9, 12 and 13. These formalities are not in specific dispute.
7 Spl. C.C.1057/2022
10. The TLO states that, on 18.12.2018 the trap was laid at the car parking area in the premises of the Health and Family Welfare department's office near Ananda Rao circle, Bengaluru under the panchanama at Ex.P14. Recovered, seized the tainted money marked at M.O.5 and performed the formalities as per the photographs at Ex.P6, 7, 10 and 11 (the related certificate under Section 65(B) is at Ex.P36) apart arresting the accused. The TLO asserts that he has concluded the major portion of the investigation. Pw.10 Sri. Veeranna Maggi the police inspector deposed that, he has laid the charge-sheet after concluding the remaining part of the investigation. Allegations therein are as narrated in detail at para-2 above for the ready reference. Hence, the re-iteration is avoided here. Whereas, the accused denies the allegations as false with the contention that, he is an innocent and has not committed any offence. According to him, he has been falsely implicated in the case at the instance of his own colleagues.
11. Admittedly, the accused being a Food Safety Officer in the Health department is a public servant as defined under Section 2(c) of the PC Act. Pw.2 Dr. G.A. Srinivas, the Deputy director / the designated officer in the department of Food safety and standards from the BBMP has been examined in this case. In his cross-examination the learned defence counsel himself has got admitted that, the Food safety officer comes under Group-C category 8 Spl. C.C.1057/2022 against his own contention that, the accused is Group-B officer. Pw.4 Sri. Shivashankar was the Under Secretary of the Health and Family Welfare department. He states that, he has issued the prosecution sanction order against the accused vide Ex.P19 with the approval of the then Minister of the concerned department. The contention of the learned defence counsel in this context is that, the prosecution sanction order at Ex.P19 issued by an incompetent authority under Section 19(1)(c) instead of 19(1)(b) of the PC Act is without proper application of the mind. He has relied on the verdict of the Hon'ble High Court of Karnataka in Writ Petition No.736/2018 (GM- RES) in the case of Lakshmanrao Peshve Vs. Lokayukta police and the Authority in the case of B.Shivashankar Vs. State by Lokayukta police reported as 2022 (3) Kar.L.J. 575 in support of his contention. His second contention is that, the prosecution sanction order should have been issued with the approval of the cabinet and hence it is not valid.
12. While dealing with the validity of the sanction order in both the Authorities referred above, the Hon'ble High Court of Karnataka has made it clear with reference to the Transaction of Business Rules 1977 that, the government alone is competent to issue the prosecution sanction order in respect of Group-A and B officers with the approval of the cabinet. Here, the competency of Pw.4 to issue the prosecution sanction order with the approval of the cabinet 9 Spl. C.C.1057/2022 minister is not disputed by the defence counsel as he himself admitted in the cross-examination by way of suggestion at para-5 that, ಆಗಿನ ಆರೋಗ್ಯ ಸಚಿವರಾಗಿದ್ದ ಶ್ರೀ ಸುಧಾಕರ್ ರವರು ಅನುಮೋದಿಸಿದೆ ಎಂದು ಬರೆದು ಸಹಿ ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. Admittedly, he was a cabinet minister at the relevant time as rightly noticed by the learned prosecutor.
13. It is true that, Section 19(1)(c) of the PC Act is reflected in the order at Ex.P19. Its recitals corroborates the undisputed evidence of Pw.4 at para-6 that, ಅಂತಿಮ ವರದಿ ಮತ್ತು ಅದಕ್ಕೆ ಲಗತ್ತಾಗಿದ್ದ ಎಲ್ಲ ಸಂಬಂಧಪಟ್ಟ ದಾಖಲೆಗಳನ್ನು ಪರಿಶೀಲಿಸಿದ್ದೇನೆ. Therefore and even if the accused admitted to be a Group- B officer, the mere crepting of clause (c) in stead of (b) under Section 19 of the PC Act in the order cannot be a ground to uphold the defence contention that, it is issued without proper application of the mind. That apart, the approval of the cabinet minister for issuance of the prosecution sanction order has to construe to be the approval of the cabinet i.e. the government. In view of the same, the proposition of law in the afore-stated Authorities having laid down under different circumstances would not sustain the defence of the learned counsel. Therefore I am of the considered opinion that, the order at Ex.P19 is valid one.
14. The work pendency, the demand for the illegal gratification and it's acceptance by a public servant are the foundational facts to establish an offence punishable under 10 Spl. C.C.1057/2022 Section 7(a) of the PC Act particularly in cases of trap. The accused in the instant case is facing all these allegation. Needless to say that, it is for the prosecution to prove these foundationals beyond all reasonable doubt. So far as the pendency of the work is concerned, the accused is not disputing the on line application dtd.11.12.2018 at Ex.P22 made by the informant under the head "Application for license/Renewal of license." The related receipt is at Ex.P21. Wherein the category of license sought for is shown as New License. Admittedly the application at Ex.P22 was pending as on the date of the complaint and the trap.
15. Whereas, the learned defence counsel denies the work pendency before the accused as alleged. Mainly, he relies on the application related on line challan at Ex.P23 to that extent. In this context, he has referred the Authority of the Hon'ble Apex Court in the case of Rakesh Kapoor Vs. State of Himachal Pradesh reported as 2013 1 Crimes (SC) 92. Wherein the law laid down is that, "Order for issuance of which the demand of bribe alleged already in the hands of complainant before making the complaint and therefore the conviction is not maintainable." According to the learned defence counsel, if the business turnover is more than Rs.12 lakh per annum, the license has to obtain and if less than that amount, the Registration of the business is sufficient. This fact also admits by the informant at para-33 of his cross-examination that, Rs.12 11 Spl. C.C.1057/2022 ಲಕ್ಷ ದೊಳಗಿನ ವ್ಯ ವಹಾರವನ್ನು ನೋಂದಣಿ ಮಾಡಿಸಬೇಕಾಗುತ್ತದೆ. His further admission at para-22 that ನಾನು ಒಂದು ವರ್ಷ ಅವಧಿಯಲ್ಲಿ ವ್ಯ ವಹಾರ ಮಾಡಿದಾಗ ನನ್ನ ತಿಂಗಳ ವಹಿವಾಟು ಸರಾಸರಿ ರೂ.500 ಇತ್ತು has become the basis for the defence counsel to reiterate his contention that, the application of the informant was for the registration only. Hence according to him, there was no role for the accused nor he was a designated officer to issue the license.
16. Here, the admission to the extent of Rs.500/- turnover per month is obviously stray in nature by its reading as rightly pointed out by the learned Public Prosecutor. Now a days and prior to the year 2018, the income of Rs.500/- per month i.e. hardly Rs.16.70 paise per day for a business man is unbelievable. Such a business is (unheard) even requires no Registration. The contents of the application at Ex.P22 and the receipt at Ex.P21 corroborates the evidence of the informant that, he sought for new license to commence his business i.e. small scale industry of manufacturing the spices powder. Interesting is that, Ex.P15 is the immediate written explanation admittedly given by the accused at the time of trap. Wherein, he clearly admits the pendency of the application (Ex.P22) filed by the informant for license. The reasons given therefor by him is that, documents submitted by him were not as per rules. Thus, the contention of the defence counsel that the accused had no role to play in the matter of issuing the license is without 12 Spl. C.C.1057/2022 any basis. In this context, the ratio of law in Rakesh Kapoor's case or in the case of R. Srinivasan reported as 2016 (1) KCCR 815 cannot be made applicable herein. In the light of the above observations, no more discussion demands to discard the defence.
17. The allegation of Demand is concerned, the ocular evidence of the informant re-iterates the complaint allegation in replica. According to him, on 11.12.2018 after he filed the application for license, took the mobile number of the accused from his office and made a call to him to enquire about the license. The accused in turn secured him near Gangothri circle at BTM layout at 3.30 p.m. on the same day. When he requested for issuance of the license at the earliest, the accused has demanded for the bribe of Rs.10,000/- by showing his fingers. When he disclosed his inability, the accused has scaled down and demanded Rs.5,000/- by showing his five fingers. The informant claims to have recorded the conversation of the accused in his mobile. This testimony of the informant has been subjected to the cross-examination by the learned defence counsel at length. But not disputed the above portion of the evidence.
18. His contention is that, normally the complainant would be an interested person in getting the accused trapped. Therefore according to him, such an evidence cannot be relied upon nor it be trusted in the absence of 13 Spl. C.C.1057/2022 corroboration and other material particulars. He relied on the following Authorities in support of the same.
1 2016 (1) KCCR 815 - R. Srinivasan and another Vs. State by Karnataka Lokayukta police 2 2006 (3) KCCR 1422 - Manjunath Basappa Basavamurthy Vs. State of Karnataka 3 (1972) 3 SCC 652 - Ram Prakash Arora Vs. State of Punjab 4 1980 (Supp) SCC SCC 684 - Gulam Mahmood A. Malek Vs. State of Gujarat
19. In the matter of corroboration, the learned Public Prosecutor has relied on the electronic evidence. As per the undisputed Customer application forms at Ex.P44 and 41, the mobile sims bearing No.9448230195 and 9964750123 are belongs to the accused and the informant respectively. Pw.12 Smt. Rizwana Patan the Nodal Officer of BSNL claims to have issued the CDR pertaining to the mobile of the accused vide Ex.P43 with the certificate under Section 65(B) of the Evidence Act vide Ex.P45. Similarly, Pw.13 Sri. Santhosh Kumar the Nodal Officer of Bharathi Airtel confirms the issuance of CDR at Ex.P40 with the certificate under Section 65(B) vide Ex.P42 by his predecessor in office by name Mr. Stanley in respect of the sim belongs to the informant. This portion of the evidence is not denied by the accused though cross-examined the witnesses with the formal suggestion as if they have deposed the falsehood as per the requirement of the police.
14 Spl. C.C.1057/2022 But there appears no reasons for them to depose the falsehood as rightly contended by the learned Public Prosecutor.
20. The noteworthy is that, the undisputed mobile calls made by the informant found in the CDR at Ex.P40 and 43 on 11.12.2018 at about 1.25.41 p.m. and by the accused at 3.12:44 p.m. 3.14:37 p.m. to the informant. These phone calls corroborates the evidence of the informant as discussed at para-17 above. The TLO, the shadow witness, pancha-2 and the informant says that, they have left the ACB office at about 2.30 p.m. after the pre-trap formalities on 18.12.2018 and proceeding towards the office of the accused to lay the trap. By the time, the informant made the mobile call to the accused for confirmation of his presence in the office. The accused having informed to make a call after 10 minutes, failed to call. Again the informant asserts to have made a call at 3.30 p.m. to him. By the time, the accused has allegedly asked to meet him in the office of the Health department near the Anada Rao circle. The documentary evidence i.e. CDRs. supported by the certificate under Section 65(B) of Evidence Act are not disputing by the accused. In fact, no explanations are forthcoming from the accused as to the necessity of keeping in touch with the informant on 11.12.2018 and 18.12.2018 to accept his defence contention. This is another situation to corroborate the evidence of the informant relating to the demand.
15 Spl. C.C.1057/2022
21. The informant deposed to have recorded the audio conversation of the accused dtd.11.12.2018 in a mobile and transferred the same to a CD marked at Ex.P24. He asserts to have issued the related certificate under Section 65(B) vide Ex.P30 to the police. The TLO admits the receipt of the CD along with the complaint on 18.12.2018 from the informant. He states to have got transcripted the audio conversation therein vide Ex.P1 at the time of pre-trap mahazar. The relevant portion of the transcription is reproduced as hereunder for the ready reference.
ಆರೋಪಿ ಈಗೇನಾದ್ರು ಇದ್ರೆ ಕೊಟ್ರೆ ಇನಿಷಿಯಲ್ಲು , ನಾನ್ಮಾಡಿರ್ತೀನಿ. ಫಿರ್ಯಾದಿ ಇವಾಗ ಏನೂ ಇಲ್ಲ , ಕವ್ಮಿುನೇ ಇರೋದು. ನಾನ್ ಒಟ್ಟಿಗೆ ಕೊಡ್ತೀನಿ ಸಾರ್ ಆರೋಪಿ ಈಗೊಂದ್ ಐದ್ ಕೊಟ್ಟಿರಿ , ಆಮೇಲೆ.......... ಫಿರ್ಯಾದಿ ನಾನು ನಾಳೆ ನಾಳಿದ್ಕೊಡ್ತೀನಿ ಆರೋಪಿ ನೀವ್ಇವತ್ ಕೊಟ್ರೆ, ನಾಳೆ ನಾಳಿದ್ಆಗುತ್ತೆ
22. Ex.P27 is the CD said to contain the conversational speeches of the accused (related certificate under Section 65B of the Evidence Act is at Ex.P35) deposed to have recorded in a digital voice recorder after reaching the accused at the 3rd floor building of the office belongs to the Health department near Anada Rao circle. The TLO asserts to have taken back the voice recorder from the informant after the accused was trapped. According to him, he has transcripted the conversation as per Ex.P4 16 Spl. C.C.1057/2022 and then got transferred it to the CD Ex.P27 under the panchanama at Ex.P14. The informant, shadow witness and the pancha-2 admits the transcription and supported the version of the TLO which remains undisturbed in the cross-examination. The reflection of demand related relevant portion of the transcription at Ex.P4 as hereunder would be helpful and beneficial to understand the reality.
ಆರೋಪಿ ನಾವು ಎಲ್ಲ ನಮ್ಮ ನೆಗೆ ನಾಲ್ಕು ಜನ ಎಂ.ಎಲ್.ಎ., ಮೊನ್ನೆ ಆನಂದ್
ನ್ಯಾಮಗೌಡ ಎಲ್ಲ ನಮ್ಮ ಮಾವನ ಮಗನೇ
ಫಿರ್ಯಾದಿ ಹೌದಾ ಸರ್
ಆರೋಪಿ ನೆನಪಿರಲಿ
ಫಿರ್ಯಾದಿ ಓಕೆ
ಆರೋಪಿ ಹೂಂ ಅಂಗಾ ಆಗಿ ನಮ್ಗೆ ಏನೂ ಲೆಕ್ಕ ಪ್ರಾಬ್ಲಂ ಇಲ್ಲ
ಫಿರ್ಯಾದಿ ಓಕೆ
ಆರೋಪಿ ಎಷ್ಟು ತಗೋ ಬಂದಿದ್ದಿರಿ
ಫಿರ್ಯಾದಿ ಇವಾಗ ಐದ್ಸಾವ್ರ ರೂಪಾಯ್ತಂದಿದ್ದೀನಿ ಸರ್
ಫಿರ್ಯಾದಿ ಸರ್ ಇನ್ನ ಮಿಕ್ಕಿ ದ್ದೂ ಕೊಡ್ತೀನಿ, ಕೊಡಲಾ ಇಲ್ಲೆ
ಆರೋಪಿ ಮಿಕ್ಕಿ ದ್ದು ಎಷ್ಟೂ
23. Here no doubt, the learned defence counsel contends as if the evidence of the informant at para-10 that, ನಾನು ಆರೋಪಿಯನ್ನು ಭೇಟಿಯಾದಾಗ (At the time just before the trap) ಲಂಚದ ಹಣ ತಂದಿದ್ದೀಯಾ ಎಂದು ಕೇಳಿದಾಗ ನಾನು ಹೌದು ಎಂದು ತಿಳಿಸಿದೆನು. At Para-11 that, ಆರೋಪಿ ನನ್ನ ಬಳಿ ಲಂಚದ ಹಣವನ್ನು ಕೇಳಿ ಆ ಕಾರಿನ ಹಿಂದಿನ ಆಸನದಲ್ಲಿ ಇದ್ದ ಫ್ಲಾಟ್ ಫೈಲ್ನೊಳಗಡೆ ಇಡಲು ತಿಳಿಸಿದ್ದ etc. does not find place in the statement of the informant. No doubt, this fact also admits by the TLO. However, the transcription reproduced at para-21 above reveals the 17 Spl. C.C.1057/2022 demand for the gratification in different form other than the wordings used by the informant at para-10 and 11. It is true as rightly argued by the learned Public Prosecutor that, the wordings in the language are bound to vary with the lapse of time since the human being cannot be a computer to store in mind the exact words in replica. Therefore, such variations would not assume any importance nor it falsifies the truth.
24. It is not in specific dispute that, the CDs. at Ex.P28 and 29 contains the sample voice of the accused and the informant respectively deposed to have recorded by the TLO in a voice recorder during the trap process. Pw.6 Smt. Srividya is the voice analyst from the FSL centre, Bengaluru. She admits the receipt of the trap and pre-trap conversations in the CDs. at Ex.P24 and 27 with the sample speeches at Ex.P28 and 29 from the TLO in sealed packs for the opinion. According to her, all the sealed packs and seals affixed thereupon were found intact and were tallying with the sample seal marked at M.O.1. She appraises the manner in which the articles were subjected to the analysis by adopting the auditory and feature extraction method apart issuing the report at Ex.P31 with the opinion as hereunder:
(a) The conversational speeches said to be of the accused with the informant at Ex.P24 and 27 and his sample speech at Ex.P28 are similar.
(b) The conversational speeches said to be of the 18 Spl. C.C.1057/2022 informant at Ex.P24 and 27 and his sample speech at Ex.P29 are similar.
25. Pw.6 also clarified that, the audio recordings were found to be not edited. Interesting is that, the accused is not disputing his conversations with the informant containing in the CDs. at Ex.P24 and 27 so also the opinion. But while noticing the admission of Pw.6 in the cross-examination that "No hash value is identified", the counsel has relied on the authority of the Hon'ble High Court of Karnataka in the case of Umesh Vs. State by the Lokayukta police reported as 2023 (2) Kar.L.J. 397 to contend that, the opinion of Pw.6 does not assume the evidentiary value. Therefore according to him, the expert opinion cannot be relied upon. The learned Public Prosecutor counters it with the stand that, when the conversational speeches of the accused with the informant is not in dispute, the opinion of Pw.6 cannot be said to have lost its value only on the ground that hash value is not identified.
26. Here it is made clear that, the opinion of an expert is not an ultimatum or conclusive in nature to decide the issue. To the maximum extent, it can be considered as a piece of corroboration in the given situation that too if necessarily demands as observed by the Hon'ble High Court of Karnataka that, "A hash value being an alphanumeric string that serves to identify an 19 Spl. C.C.1057/2022 individual digital file (a kind of digital finger print) could be considered as important aid". Also guided therein as to how an electronic evidence needs to be appreciated. Therefore I am of the opinion that, the defence contention would gets no support from the law laid down in Umesh's case. Even otherwise to the exclusion of the expert opinion, the other material on record consistently corroborates the evidence of the informant amidst minor discrepancies and exposes the manner in which the demand for the illegal gratification is being made by the accused. In this context, the ratio law in the authorities referred at para-18 of this judgment supports the prosecution stand rather than the accused. In a nutshell, I am to hold that the allegation of demand stands proved with no scope for any suspicion.
27. The acceptance of an illegal gratification is another serious question before this court. The presence of the trap team in the premises of the Health and Family Welfare department office near Ananda Rao circle on the day of trap is not in dispute. The evidence of the TLO makes clear that, initially he sent the informant with the digital voice recorder and the tainted amount to the accused by re-iterating the pre-trap instructions. The shadow witness has followed the informant for observation. Both the informant and the shadow witness confirms it. According to the informant, he met the accused at the 3 rd 20 Spl. C.C.1057/2022 floor of the office and appraised stating at para-10 and 11 of his evidence that:
ನಾನು ಆರೋಪಿಯನ್ನು ಭೇಟಿ ಆದಾಗ ಲಂಚದ ಹಣ ತಂದಿದ್ದೀರಾ ಎಂದು ಕೇಳಿದಾಗ ನಾನು ಹೌದು ಎಂದು ತಿಳಿಸಿದೆನು. ನಾನು, ಆರೋಪಿ ಹಾಗೂ ಪ್ರಾಸಾ-1 ಮತ್ತು 3 lift ಮೂಲಕ ಕಟ್ಟ ಡದ ನೆಲಮಹಡಿಗೆ ಬಂದಿದ್ದೆವು. ಆ ಕಚೇರಿಯ ಆವರಣದ ವಾಹನ ನಿಲುಗಡೆ ಸ್ಥ ಳದಲ್ಲಿ ಆರೋಪಿಗೆ ಸಂಬಂದಪಟ್ಟ Breezza car ನಿಂತಿದ್ದು , ನಾವು ವಾಹನದ ಸಮೀಪ ಹೋಗಿದ್ದೆವು.
ಆರೋಪಿ ಅವರ ವಾಹನದ ಬಾಗಿಲನ್ನು ತೆಗೆದು ಚಾಲಕನ ಆಸನದಲ್ಲಿ ಕುಳಿತುಕೊಂಡರು. ನಾನು ಪಕ್ಕ ದಲ್ಲಿ ನಿಂತುಕೊಂಡಿದ್ದೆನು. ಆರೋಪಿ ನನ್ನ ಬಳಿ ಲಂಚದ ಹಣವನ್ನು ಕೇಳಿ, ಆ ಹಣವನ್ನು ಕಾರಿನ ಹಿಂದಿನ ಆಸನದಲ್ಲಿ ಇದ್ದ flat file ನ ಒಳಗಡೆ ಇಡುವಂತೆ ತಿಳಿಸಿದರು. ನಾನು ಪುನಃ ಹಣವನ್ನು ಎಲ್ಲಿ ಇಡಬೇಕು ಎಂದು ಕೇಳಿದಾಗ ಅವರು ಹಿಂದಿನ ಆಸನದ ಮೇಲೆ ಇರುವ ಫೈಲಿನ ಒಳಗಡೆ ಇಡುವಂತೆ ತಿಳಿಸಿದರು. ನಾನು ಕಾರಿನ ಹಿಂದಿನ ಆಸನದ ಮೇಲೆ ಇದ್ದ ಆರೋಪಿಯ ಹೆಸರು ಬರೆದಿದ್ದ ಪುಸ್ತಕದ ಒಳಗೆ ಇಟ್ಟೆನು.
28. The shadow witness states that, he was observing the entry of the informant inside the office from a little distance and then his movement with the accused from the 3rd floor to the car parking area. That apart, this witness confirms the pre-determined signal given by the informant subsequent thereof. The TLO acknowledges the receipt of pre-determined signal and states at para-9 of his evidence that, ಸೂಚನೆಯನ್ನು ಸ್ವೀಕರಿಸಿದ ನಾನು ಹಾಗೂ ತಂಡದ ಇತರೆ ಸದಸ್ಯ ರು ತಕ್ಷಣ ಕೆಎ-04-ಎಂಯು-8796 ನಂಬರಿನ ಕಾರಿನ ಬಳಿ ಹೋದೆವು.
ದೂರುದಾರರನ್ನು ವಿಚಾರಿಸಿದಾಗ ಕಾರಿನ ಚಾಲಕನ ಸೀಟಿನಲ್ಲಿ ಕುಳಿತಿದ್ದ ಆ ವ್ಯ ಕ್ತಿಯನ್ನು ತೋರಿಸಿ ಇವರೇ ಫುಡ್ ಆಫೀಸರ್ ಉಲ್ಲಾ ಸ್ ಎಂದು ತಿಳಿಸಿ ಲಂಚದ ಹಣ ತಂದಿದ್ದೀರಾ ಎಂದು ಖಚಿತಪಡಿಸಿಕೊಂಡು ಅದನ್ನು ಕಾರಿನ ಹಿಂಭಾಗದ ಸೀಟಿನಲ್ಲಿ ಇದ್ದ ಒಂದು ಪುಸ್ತಕದಲ್ಲಿ ಇಡುವಂತೆ ಸೂಚಿಸಿದ ಪ್ರಕಾರ ನಾನು ಲಂಚದ ಹಣವನ್ನು ಆ ಪುಸ್ತಕದಲ್ಲಿ ಇಟ್ಟಿದ್ದೇನೆ ಎಂದು ದೂರುದಾರರು ತಿಳಿಸಿದರು. Further 21 Spl. C.C.1057/2022 evidence at para-10 reveals as if both the informant and the shadow witness appraised the manner in which the incident happened. The pancha-2 also admits his presence and corroborates the afore-reflected evidence with its re-iteration at para-10 and 12.
29. Here, the fact to appreciate amidst the cross- examination did by the learned defence counsel is that, the accused has not disputed his presence with the informant from the movement they came down from the 3 rd floor of the office till he sat inside his car at the parking area. The admission of the accused in his immediate explanations in english language at Ex.P15 given after the trap that, "when I sat inside my car, Mr. Mahesh (informant) kept Rs.5,000/- in back of my car seat in a note book." is evident to prove what the informant, the shadow witness, the pancha-2 and the TLO have stated. The recovery of the tainted amount (M.O.5) by the TLO under the panchanama at Ex.P14 as can be viewed from the photographs at Ex.P6, 7, 10 and 11 is corroborated by them and its contents cannot be denied by the accused being one of the signatory thereto. In view of the same, the minor discrepancies in their evidence relating to the description of the note book in different names like flat files, diary etc. and as to whether pancha-2 or shadow witness have counted M.O.5 after its removal from the note book etc. becomes immaterial. That apart, such a 22 Spl. C.C.1057/2022 discrepancies assumes no importance since the accused himself admit it as note book and recovery of M.O.5.
30. It is not in dispute that, the undeclared amount of Rs.90,510/- found in the possession of the accused and its seizure along side the tainted amount of Rs.5,000/- by the TLO. The defence of the accused so far as tainted amount is concerned is that, he was not knowing about keeping it in a note book by the informant. In this context, the question which naturally comes out is as to how it was possible for the informant to keep the amount in a note book on the back seat unless the accused opens the back door of his car and permits to keep it? This fact bears no explanation. Therefore, my consciousness is not permitting to accept his defence as such.
31. In the situation of this nature, the evidence of the informant that, he kept the amount in a note book as instructed by the accused stands corroborated by the trap conversational transcriptions at Ex.P4 particularly that:
ಫಿರ್ಯಾದಿ ಏನೋ ಮಾಡಿ ಸಾರ್ , ನಾವೂ ರೆಗ್ಯೂ ಲರ್ ನಿಮ್ಗೆ ಏನ್ಸರ್ ನೀವೂ ಆರೋಪಿ ಆಯ್ತು ಅಲ್ಲಿ ಹಿಂದೆ ಹಾಕ್ರಿ (ಕಾರಿನ ಬಾಗಿಲನ್ನು ಅನ್ಲಾಕ್ಮಾಡಿದ ರೀತಿಯ ಶಬ್ಧ ಕೇಳಿಸಿರುತ್ತದೆ) ಫಿರ್ಯಾದಿ ಎಲ್ಲಿ ಹಾಕ್ಲಿ ಸರ್ ಆರೋಪಿ ಹಿಂದುಗಡೆ ಅಲ್ಲೆ ಹಿಂದೆ ಹಾಕಿ ಅಲ್ಲೆ ಹಿಂದೆ 23 Spl. C.C.1057/2022 ಫಿರ್ಯಾದಿ ಎಲ್ಲಿ ಹಾಕ್ಲಿ ಸರ್ ಆರೋಪಿ ಹಿಂದೆ ಫೈಲಲ್ಲಿ Therefore needless to say that, the accused has not physically touched and accepted the tainted amount from the informant. But obvious that, he got kept the amount consciously inside his car knowing it to be the bribe.
Hence, the acts of the TLO in not getting the hand wash of the accused for colour test gets justified.
32. However, the TLO deposed to have sent and Pw.7 Dr. Prashanth the chemical examiner admits the receipt of tainted amount at M.O.5 and other articles in sealed covers for the opinion. According to him, the seals upon the covers were found intact and tallying with the sample seal marked at M.O.1. This witness states that, after subjecting the articles for the chemical analysis has issued the report vide Ex.P32 with the opinion that, the tainted amount at M.O.5 and its related cover were found with the phenolphthalein. This amount proved to have got kept by the accused inside his car through the informant. Here, unambiguously the pendency of the work, demand for the illegal gratification and its acceptance by the accused consistently stands proved beyond all reasonable doubt.
33. Therefore and in view of the circumstances emanating from the overall discussion herein before, the 24 Spl. C.C.1057/2022 contention of the learned defence counsel that, mere possession and recovery of the money from the accused is not sufficient to establish the corruption charges etc. bears no meaning nor it be sustained on the strength of the law laid down in the authorities 1) 2012 (1) KCCR 414 - R. Malini Vs. State, 2) (2011) 2 SCC (Cri) 1010- State of Kerala Vs. C.P. Rao and 3) 1981 SCC (Cri) 586 in the case of Gulam Mohammad A Malik Vs. State of Gujarat. In a nutshell, I am of the opinion without there being any hesitation that, the evidence on record constitutes the necessary ingredients of the offence punishable under Section 7(a) of the PC Act. No scope for 2 opinions. In other words, the prosecution has become successful to bring home the guilt of the accused in respect of the alleged offence without any ambiguity. Accordingly, point No.1 to 3 are answered in the affirmative. In the result, I pass the following:
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973, the accused by name Sri. Ullas B. Ganganalli is convicted for offence punishable under Section 7(a) of The Prevention of (Amended Act) Corruption Act, 1988.
His bail bonds shall stand cancelled forthwith.
The tainted amount of Rs.5,000/- marked at M.O.5 shall be confiscated to the State, the note
25 Spl. C.C.1057/2022 book at M.O.4 shall be returned to the concerned, the metal seal at M.O.1 shall be returned to the jurisdictional Lokayukta police, M.O.2, 3, 4(a) and 5(a) being worthless materials shall be destroyed after the appeal period is over.
(Dictated to the Steno Gr.1 directly on computer, computerized by him, corrected, signed and then pronounced by me in the open Court on this the 30th day of November, 2024) (K.M. RADHAKRISHNA) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
30.11.2024 The defence counsel and the PP are present. Heard the accused on the sentence to be imposed in respect of offence punishable under Sections 7(a) of the PC Act. The accused submits that, he is an innocent and has not committed any offence. He is the only earning member in the family consisting of his wife who is suffering from unhealthy condition and 2 children and responsible to maintain them. The accused has sought for the benefit of set off. It is seen that, the accused was in judicial custody for a period of 7 days from 18.12.2018 to 24.12.2018. Therefore his entitlement therefor cannot be denied. For reasons discussed in the judgment, the accused cannot claim to be an innocent. The offence proved was 26 Spl. C.C.1057/2022 committed by the accused on 18.12.2018 i.e. after the amendment brought out to Section 7 of the PC Act, 1988 in the year 2018 which is applicable to decide the quantum of sentence. No benefit of P.O. Act be extended since the offence committed by the accused is under the special enactment.
2. Now a days, the corruption has become universal from bottom to top in the system. The public servants like the accused herein have converted their position as a licence and dare enough to involve in corrupt activities as of right shamelessly. Their mind sets does not bear any fear of law, right or wrong, humanity or morality. The pathetic condition facing by the common people particularly the middle class people who are fighting for their livelihood exposes the inability of the system and the law enforcing agencies to control this kind of pandemic. This is most unfortunate particularly in the atmosphere where we are living by calling ourselves as members of the welfare and modernized society. If this pandemic is permitted to go on, it will become more dangerous than the external terrorism to the democratic set up of the system. In the light of these observations I am declined to extend any leniency in the matter of imposing the sentence as sought for by the accused. Accordingly, I pass the following:
27 Spl. C.C.1057/2022 ORDER The offender Sri. Ullas B. Ganganally is sentenced to undergo the rigorous imprisonment for a period of three years and to pay fine of Rs.1,50,000/- (Rupees one lakh fifty thousand) for the offence punishable under Section 7(a) of the PC Act. In default to pay the fine, he shall undergo the simple imprisonment for further period of seven months. The default sentence shall run separately.
The accused is given the benefit of set off as contemplated under section 428 of Cr.P.C for a period of 7 days as observed above.
Free copy of the judgment be furnished to the offender forthwith.
(Dictated to the Steno Gr.1 directly on computer, computerized by him, corrected, signed and then pronounced by me in the open Court on this the 30 th day of November, 2024).
Sd/- 30/11/24 (K.M. RADHAKRISHNA) XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
28 Spl. C.C.1057/2022 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : S. Muniyappa PW 2 : Dr. G.A. Srinivas PW 3 : M. Muniraju PW 4 : Shivashankar PW 5 : Mahesh B.V. PW 6 : Smt. C. Srividya PW 7 : Dr. B. Prashanth PW 8 : A.V. Venkatesh Murthy PW 9 : M.J. Lokesha PW 10 : Veeranna S. Maggi PW 11 : K.C. Lakshminarayana PW 12 : Smt. Rizwan Pattan PW 13 : Santhosh Kumar
List of documents marked on behalf of prosecution:
Ex P1 : Sheet containing transcription of conversation available at Article-1 Ex P2 : Sheet containing currency note numbers ExP3 : Pre-trap mahazar dt.18.12.2018 Ex P3(a) : Signature of PW.1 Ex P3(b) : Signature of PW.3 Ex P3(c) : Signature of PW.5 Ex P3(d) : Signature of PW.8 Ex P4 : Sheet containing transcription of conversation between accused and Cw.1 found in voice recorder at trap time Ex P5 : Attested copies of file pertaining to Pw.1 Ex.P6 to : Photographs
29 Spl. C.C.1057/2022 Ex.P13 Ex.P14 : Trap Mahazar dtd.18.12.2018 Ex P14(a) : Signature of PW.1 Ex P14(b) : Signature of PW.3 Ex P14(c) : Signature of PW.5 Ex P14(d) : Signature of PW.8 Ex P15 : Written explanation of the accused dtd.18.12.2023 Ex P16 : Copy of the letter dtd.1.1.2019 to the Commissioner, Health and Family Welfare department and copies of documents relating to service details of the accused Ex P17 : Memorandum dtd.18.12.2018 deputing 2 officials as witnesses Ex P18 : Metal seal acknowledgment dtd.18.12.2018 ExP19 : Sanction order dtd.26.3.2021 issued against the accused Ex P19(a) : Signature of Pw.4 Ex P20 : Complaint dt.18.12.2018 given by Pw.5 Ex P20(a) : Signature of PW.5 Ex P20(b) : Signature of PW.11 Ex P21 : Receipt Ex P22 : Form-B Ex P23 : K-2 Challan 30 Spl. C.C.1057/2022 Ex P24 : CD containing conversation between Pw.5 and accused Ex P24(a) : Cover Ex P25 : File pertaining to the complainant (Double marking on Ex.P25, originally Ex.P5) Ex P26 : Attested copy of the extract of attendance register Ex P27 : One C.D. containing conversation between the complainant and accused Ex P27(a) : Cover Ex P28 : One C.D. containing sample voice of the accused Ex P28(a) : Cover Ex P29 : One C.D. containing sample voice of the complainant Ex P29(a) : Cover Ex P30 : Certificate under Section 65-B of Evidence Act given by Pw.5 Ex P31 : F.S.L. report dtd.7.7.2020 of Pw.6 with enclosures Ex P31(a) : Signature of PW.6 Ex P32 : Chemical examiner's report dtd.2.1.2019 Ex P32(a) : Signature of PW.7 Ex P33 : Sketch given by Cw.7 31 Spl. C.C.1057/2022 Ex P34 : Certificate under Section 65-B of Evidence Act given by Sri. Ismail Shariff Ex P34(a) : Signature of Pw.8 Ex P35 : Certificate under Section 65-B of Evidence Act given by Pw.8 Ex P35(a) : Signature of Pw.8 Ex P36 : Certificate under Section 65-B of Evidence Act given by Cw.16 Ex P36(a) : Signature of Pw.8 Ex P37 : Certificate under Section 65-B of Evidence Act given by Cw.18 Ex P37(a) : Signature of Pw.8 Ex P38 : Covering letter dtd.3.1.2019 along with details regarding pendency of work with the accused Ex P38(a) : Signature of Pw.8 Ex P39 : Copy of the suspension order dtd.23.1.2019 in respect of accused Ex P40 : C.D.R. in respect of Mobile No.9964750123 issued by the Nodal officer, Airtel pertaining to the complainant.
Ex P41 : Copy of the C.A.F. in respect of Mobile No.9964750123 issued by the Airtel pertaining to the complainant.
Ex P42 : Certificate under Section 65-B of Evidence Act issued by the Nodal Officer of Airtel Ex P43 : C.D.R. in respect of Mobile No.9448230195 issued by the Nodal 32 Spl. C.C.1057/2022 officer, BSNL pertaining to the accused Ex P44 : C.A.F. in respect of Mobile No. 9448230195 issued by the BSNL pertaining to the accused Ex P45 : Certificate under Section 65-B of Evidence Act given by the Nodal Officer of BSNL Ex P45(a) : Signature of Pw.12 Ex P46 : Letter dtd.26.3.2019 contains service particulars of the accused Ex P47 : F.I.R. dtd.18.12.2018 Ex P47(a) : Signature of Pw.11 List of material objects marked on behalf of the prosecution:
M.O. 1 Metal seal 'N' produced by Pw.3 on 27.2.2023 M.O. 2 Bottle containing clear sodium carbonate solution M.O. 3 Bottle containing hand wash of Pw.3/witness-
2
M.O. 4 Book in which tainted currency notes found
M.O. 4(a) Cover
M.O. 5 Cash of Rs.5,000/-
M.O. 5(a) Cover
List of witnesses examined on behalf of defence side:
- Nil -
33 Spl. C.C.1057/2022 List of document marked on behalf of defence side
- Nil -
Sd/- 30/11/24 XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
34 Spl. C.C.1057/2022 The separate judgment is pronounced in the open court. The
operative portion of the judgment is as hereunder.
ORDER Acting under Section 248(2) of the Code of Criminal Procedure 1973, the accused by name Sri. Ullas B. Ganganalli is convicted for offence punishable under Section 7(a) of The Prevention of (Amended Act) Corruption Act, 1988.
His bail bonds shall stand cancelled forthwith.
The tainted amount of Rs.5,000/-
marked at M.O.5 shall be confiscated to the State, the note book at M.O.4 shall be returned to the concerned, the metal seal at M.O.1 shall be returned to the jurisdictional Lokayukta police, M.O.2, 3, 4(a) and 5(a) being worthless materials shall be destroyed after the appeal period is over.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
35 Spl. C.C.1057/2022 Orders on sentence pronounced in the open court. The operative portion of the sentence is as hereunder.
ORDER The offender Sri. Ullas B. Ganganally is sentenced to undergo the rigorous imprisonment for a period of three years and to pay fine of Rs.1,50,000/- (Rupees one lakh fifty thousand) for the offence punishable under Section 7(a) of the PC Act. In default to pay the fine, he shall undergo the simple imprisonment for further period of seven months. The default sentence shall run separately.
The accused is given the benefit of set off as contemplated under section 428 of Cr.P.C for a period of 7 days as observed above.
Free copy of the judgment be furnished to the offender forthwith.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.