Bangalore District Court
Lokayukta Police Inspector vs B.S.Sriram on 9 August, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY
CIVIL & SESSIONS JUDGE & SPECIAL JUDGE
(PCA), BENGALURU (CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Bengaluru.
Dated this the 9th day of August 2018.
Spl.C.C. No.312/2014
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: B.S.Sriram,
S/o Late B.S. Suresh,
Aged 41 years,
(Age as on 07.05.2015)
Revenue Inspector,
Lakshmidevinagara,
Ward No.38, RR Nagara Range,
B.B.M.P., Bengaluru-58.
(By Sri. B.A.Belliayappa - Advocate.)
2 Spl.C.No.312/2014
Date of commission of
offence 03-10-2013
Date of report of occurrence 07-10-2013
Date of arrest of accused: 07-10-2013
[
Date of release of accused on 10-10-2013
bail:
Date of commencement of 27-10-2016
evidence
Date of closing of evidence 28-05-2018
Name of the complainant K.R.Lakshminarayana
Offences complained of
U/s 7, 13(1)(d) r/w
13(2) of PC Act, 1988.
Opinion of the Judge Convicted
Date of Judgment: 09-08-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru has filed this charge sheet against accused for offences under Sections 7, 13(1)(d) r/w Sec. 13(2) of Prevention of Corruption Act 1988 (In short PC Act).
2. Brief facts of the prosecution case is as under:-
3 Spl.C.No.312/2014Accused-B.S. Sriram is working as Revenue Inspector in BBMP and is a public servant. Complainant-K.R. Lakshminarayana and his friend Dolphy D Cunha had purchased Industrial Shed No.C- 276 from Ramesh Ghada on 17.09.2012 and they had applied for transfer of khatha before Assistant Revenue Officer, Lakshmidevi Nagara sub-division, B.B.M.P. on 05.09.2013 and said file came to accused, who was working as Revenue Inspector for submitting Report. For long time, work was not done and on 03.10.2013 at
3 p.m. complainant and Dolfy.Cunha came to office of accused to meet him, but he was not there and when contacted by phone, accused informed that he will come to their office in the evening. At 6.45 p.m. accused came to office of Alfa Engineers belonging to Dolfy D.Cunha and talked to them and informed that there is arrears of tax and penalty to be paid to the extent of Rs.6 lakhs, though there was no such arrears and later asked them to pay Rs.2 lakhs to him for transfer of khata in their name. This conversation was recorded in spy camera. As complainant was not interested to pay bribe, complaint was given against accused on 07.10.2013. Recording in spy camera was transmitted to DVD and produced with complaint. On receiving complaint, Lokayukta Police Inspector 4 Spl.C.No.312/2014 registered the case in Cr.No.57/2013 and submitted F.I.R. to the Court. Lokayukta Police Inspector secured panchas and made all arrangements to trap accused and on the same day between 6.45 to 6.55 p.m. in Industrial Shed No.C-276 of C.W.2 in Peenya Industrial Estate, 1st stage, 7th cross, when accused received tainted notes of Rs.20,000/- as 10% of agreed bribe amount as advance from complainant, accused was caught. Tainted notes received by accused and then kept on chair were seized and trap procedure was followed and accused was arrested and produced before the court. Investigating Officer continued investigation and after completion of investigation and after securing prosecution sanction order, filed charge sheet against accused.
3. Cognizance of offences is taken by this court. Accused appeared and is enlarged on bail. Copies of charge sheet and its enclosures are furnished to accused. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against accused and read over to him. Accused has pleaded not guilty and claimed to be tried.
5 Spl.C.No.312/20144. In support of prosecution case PWs 1 to 10 are examined. Documents as per Exs.P.1 to P.20 are marked and MOs 1 to 13 are also marked for the prosecution.
5. After completion of prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and accused has denied incriminating evidence appearing against him. Accused gave evidence as D.W.1. In the cross-examination of P.W.1, a document is marked as Ex.D.1 for accused.
6. Heard both counsels and perused records.
7. Now, the points that arise for my consideration are:-
POINTS
1) Whether the prosecution proves that there is valid sanction to prosecute accused ?
2) Whether the prosecution proves beyond all reasonable doubt that accused being public servant working as Revenue Inspector in Office of Assistant Revenue officer, Lakshmidevi Nagara sub-division, Goraguntepalya, B.B.M.P. Bengaluru, has, when C.W.1 K.Lakshminarayana and C.W.2 approached him on 03.10.2013 at 6.45 p.m., with regard to transfer of khata in respect of Industrial Shed No.C-276, demanded illegal gratification of Rs.2 lakhs and on 07.10.2013 6 Spl.C.No.312/2014 between 6.45 p.m. to 6.55 p.m., in the office of Alfa Engineers in Shed No. C-275 of Peenya Industrial Estate, 1st stage, 7th cross, Bengaluru, accused appeared and re-iterated his demand for Rs.2 lakhs bribe and has accepted Rs.20,000/- tainted notes as 10% of total demanded bribe amount as advance from C.W.1, as a motive or reward to do official act or to do official favour to C.W.1 and C.W.2 and thereby committed an offence punishable u/s 7 of Prevention of Corruption Act?
3) Whether the prosecution further proves beyond all reasonable doubt that accused being public servant working as Revenue Inspector in Office of Assistant Revenue officer, Lakshmidevi Nagara sub-division, Goraguntepalya, B.B.M.P. Bengaluru, has on 07.10.2013 between 6.45 p.m. to 6.55 p.m. in the office of Alfa Engineers in Shed No. C-
275 of Peenya Industrial Estate, 1 st stage, 7th cross, Bengaluru, has by corrupt or illegal means or by abusing his position as public servant, has obtained pecuniary advantage of Rs.20,000/- as advance bribe amount without public interest from complainant and thereby committed offence of criminal misconduct which is an offence u/s 13(1)(d) of Prevention of Corruption Act, punishable u/s 13 (2) of Prevention of Corruption Act?
4) What order?
8. My findings on the above points are :-
Point No.1 : In the Affirmative.7 Spl.C.No.312/2014
Point No.2 : In the Affirmative Point No.3 : In the Affirmative Point No.4 : As per final order, for following:
REASONS
9. Point No.1: This point is relating to validity of sanction to prosecute accused. Accused is working as Revenue Inspector in B.B.M.P. and is a public servant. He is charged for the offences under Sections 7, 13(1)
(d) r/w/s 13(2) of Prevention of Corruption Act. As per Section 19 of Prevention of Corruption Act, previous sanction to prosecute accused, who is public servant, is mandatory. To prove sanction given to prosecute accused and its validity, prosecution has examined P.W.4 M.Lakshminarayana, who was working as Commissioner in B.B.M.P. during relevant period. In his evidence, he has stated that, he received requisition from ADGP, Karnataka Lokayukta along with copies of investigation records and he has gone through the same and applied his mind and found prima-facie materials to accord sanction to prosecute accused and accordingly he has accorded sanction as per Ex.P6. In his cross-examination, he has denied that, though there was no case made out, he has accorded sanction without applying his mind properly. Prosecution sanction order is produced as Ex.P.6.
8 Spl.C.No.312/201410. On looking to Ex.P6 and evidence of P.W.4 there is no dispute that P.W.4 was competent sanctioning authority to accused, working as Revenue Inspector in B.B.M.P. It is clear that, along with requisition, material records were placed before P.W.4 and he has gone through the same and having been satisfied that there is case to accord sanction, he has accorded sanction. There is no such materials before the court showing that sanction accorded by P.W.4 as per Ex.P.6 is not valid. Moreover, it is on the basis of same documents which had been produced before sanctioning authority, this court found prima-facie case and took cognizance and registered the case and has framed charge. Therefore, prosecution sanction order issued by P.W.4 as per Ex.P.6 is valid. Accordingly, point No.1 is answered in the affirmative.
11. Point Nos. 2 & 3 : Since both these points are interlinked with each other, they are taken up together for discussion to avoid repetition.
12. To prove the charge against accused for offences under Sections 7, 13(1)(d) r/w/s 13(2) of Prevention of Corruption Act, prosecution has examined 9 Spl.C.No.312/2014 10 witnesses as P.Ws.1 to 10. P.W.1-K.R. Lakshminarayana is complainant and P.W.6-Dolpy D Cunha is friend of complainant and in his office accused was trapped. P.W.2 D.Venkatesh is Shadow witness. P.W.3-M.V.Krishna is another panch witness. P.W.4 - M.Lakshminarayana is prosecution sanctioning officer. P.W.5-Basavalingaiah is Higher Officer of accused who is said to have furnished file in the course of investigation and also identified voice of accused and visuals. P.W.7-Dr. Anil Kumar P.G. and P.W.10- Shivakumar N.G. are Police Inspectors, Karnataka Lokayukta who were present at the time of trap and assisted the Investigating Officer at the time of trap. P.W.8 Yogesh S.T. is Lokayukta Police Inspector and Investigating Officer in this case. P.W.9 H.P.Puttaswamy, Lokayukta Police Inspector is also Investigating Officer, who has sent final report for obtaining prosecution sanction order .
13. On behalf of prosecution, documents at Exs.P.1 to P.20 are marked. Ex.P.1 is complaint and FIR is marked as Ex.P.8. Sheet on which number of currency notes were noted down is marked as Ex.P.2. Ex.P.3 is Pre-trap mahazar and Ex.P.4 is trap mahazar. Transcription of video and audio recordings produced in 10 Spl.C.No.312/2014 a DVD by complainant while giving complaint is marked as Ex.P5. Prosecution Sanction order is marked as Ex.P.6. Ex.P7 is report submitted by P.W.5 regarding voice identification. Spot sketch is marked as Ex.P.9. Explanation given by accused is marked as Ex.P.10. Sample seal & acknowledgment given by P.W.3 regarding metal seal are marked as Exs.P.11 and 12. File pertaining to work of PWs 1 and 6 are marked as Ex.P.13. The file Seizure mahazar is marked as Ex.P.14. Information furnished by B.B.M.P. regarding work of complainant is marked as Ex.P.15 and service particulars of accused is marked as Ex.P.18 . Ex.P.16 is chemical examination report and Ex.P.17 is sketch prepared by engineer. Ex.P.19 is copy of B register extract of motor cycle of accused and Ex.P.20 is call details. M.Os.-1 to M.O.13 material objects are also marked for prosecution. M.O.1 is tainted notes of Rs.20,000/- seized in this case. The metal seal is marked as M.O.-2. The solution seized in bottles at different stages of proceedings are marked as M.Os.3 to M.O.9. The DVD and C.Ds seized in this case are marked as M.Os.10 to M.O.13.
14. For the defence, Accused himself has given evidence as D.W.1. In the cross-examination of P.W.1, 11 Spl.C.No.312/2014 copy of evidence of P.W.1 given in departmental enquiry is confronted and marked as Ex.D.1.
15. The prosecution case stems from complaint given by P.W.1 to Lokayukta police, stating that himself and P.W.6 had purchased shed No.C-276 and had given application for change of khata in their name, but work was not done for long time and on enquiry, they came to know that File has come to accused, who was working as Revenue Inspector and then they went to his office on 3.10.2013 and as accused was not found, they contacted him by phone and accused informed that he will come and meet them in office of P.W.6 in shed No.C-
275. At about 6.45 p.m. accused came and stated that they have to pay around Rs.6 lakhs towards tax arrears and penalty and then asked them to pay him Rs.2 lakhs and he will see that work is done. This conversation in which accused demanded bribe was recorded by P.W.1 in his spy camera and then transmitted to DVD. Thereafter, on 07.10.2013 complainant gave Ex.P.1 complaint along with DVD. After registration of case, P.W.8 secured two panch witnesses P.Ws 2 and 3 in his office and DVD produced by complainant was played before them and contents were transcribed as per Ex.P.5. Complainant produced Rs.20,000/- in 12 Spl.C.No.312/2014 denomination of Rs.1000X15 and 500X10 as amount brought by him to give as advance 10% bribe out of Rs.2 lakhs demanded by accused. Phenolphthalein powder was smeared on notes and number of currency notes were noted down on Ex.P.2 and P.W.3 has verified the notes again and then kept it in left side shirt pocket of P.W.1 and thereafter sodium carbonate solution was prepared and hands of P.W.3 were washed in the solution and solution which turned to pink colour was seized in bottle. Complainant was given instructions by P.W.8 to meet accused and then to give tainted notes in case of demand and after giving amount to give signal to trap team by removing and re-wearing his spectacles. Button camera was also given to complainant with instructions to switch on the same while meeting accused. P.W.2 D.Venkatesh, was asked to act as shadow witness and to observe the happenings and to report later. The entire pre-trap proceedings was video-graphed and pre-trap mahazar as per Ex.P.3 was prepared and signatures were taken.
16. After pre-trap mahazar the trap team consisting of complainant, P.Ws.2, 3 and two other Police Inspectors PWs 7 and 10 and Investigating Officer P.W.8 and his staff proceeded towards office of P.W.6, where accused was to come as fixed earlier. Trap team 13 Spl.C.No.312/2014 went to office of Alfa Engineers of P.W.6 in shed No.C- 275 in Peenya Industrial Estate, 1st stage, 7th cross at about 5 p.m. P.W.1 took all members of trap team to office of P.W.6 in first floor and introduced P.W.6 to them. P.W.6 made phone call to accused and talked to him by switching on loud speaker. Accused informed that he will come within half-an-hour. Thereafter, P.W.8 reminded the instructions given to PWs 1 and 2 earlier and gave spy camera to P.W.6 and gave digital voice recorder to complainant and asked them to switch on the same when accused comes there and instructed P.W.2 to wait in the office of P.W.6 by hiding himself and asked to observe the happenings. Lokayukta Police Inspectors Pws.7 and 10 were hiding themselves in that office in other rooms and were waiting for signal. P.W.8 and others were waiting outside. When they were waiting for accused, he made a call to P.W.3 and informed that he will come within 5 minutes. At about 6.45 p.m. accused came in his two wheeler Pulsar vehicle bearing No.KA.04.EG.9900 and entered shed No.C-275 of P.W.6, in which P.W.6 and P.W.1 were sitting and he also sat on a chair and on the side of him there was another empty chair. Accused talked to P.W.1 and 6 and stated that as there are holidays, within end of month their work will be done and demanded bribe 14 Spl.C.No.312/2014 amount and then P.W.1 gave tainted notes of Rs.20,000/- stating that it is 10% advance out of agreed amount of Rs.2 lakhs and accused asked them to arrange minimum Rs.50,000/- and then they informed that they will give on the next day and then accused received amount and started counting. At that time P.W.6 gave signal to Lokayukta Police Inspectors who were hiding themselves in that office and immediately PWs7, 10 and P.W.2 came towards chamber of P.W.6 and on seeing them, accused tried to give back amount to P.W.1 and when he has not taken, he kept the amount on empty chair. P.W.2 came out immediately and informed P.W.8 that accused has already received amount and then he also came along with other members of trap team. When P.W.8 entered the chamber of P.W.6, P.W.7 and 10 had surrounded accused, P.Ws 1 and 6. P.W.8 introduced himself and ascertained details of accused and thereafter hand wash of accused was made in sodium carbonate solution and solution turned to light pink colour and was seized in bottles. On instructions of P.W.8, P.W.2 took out tainted notes which were lying on the empty chair on the side of accused and number of notes were tallied with Ex.P.2 and amount was seized. Spy camera and digital voice recorder given to P.Ws.6 and 1 were 15 Spl.C.No.312/2014 played and recordings were transcribed and recordings were transmitted to DVD. P.W.5, Higher officer of accused was secured and DVD containing recordings in spy camera and voice recorder and also another DVD produced by P.W.1 while giving complaint, were played before him and he has identified the voice and also visuals of accused and gave report as per Ex.P.7. On questioning accused gave written explanation as per Ex.P.10 which was found to be not acceptable. Thereafter accused was arrested by following procedure and trap mahazar was also prepared as per Ex.P.4 and signature of the witnesses were taken and copy was also furnished to accused. Thereafter, Investigating Officer continued further investigation and copy of File pertaining to work of complainant was seized on 8.10.2013 by drawing Mahazar as per Ex.P.13. Major investigation was done by P.W.6. Thereafter, P.W.9 continued investigation and submitted final report for prosecution sanction order and after obtaining prosecution sanction order as per Ex.P.6 charge sheet has been filed.
17. P.W.1-Complainant has stated the prosecution case in his chief evidence. Except minor deviation here and there, entire prosecution case has been re-iterated 16 Spl.C.No.312/2014 by this witness. He has stated about demand of bribe by accused in the office of P.W.6 and also stated the trap proceedings as seen in prosecution case. He has stated that, at the time of trap, after seeing Lokayukta Police Inspectors, accused tried to give back tainted notes to him and when he has not received, he kept it on the table. Whereas, prosecution case is that accused kept the tainted notes on empty chair on his side. Except this minor contradiction, P.W.1 has re- iterated prosecution case in his chief evidence. In his cross-examination, evidence given by him in departmental enquiry against accused is confronted and marked as Ex.D.1. He has stated that, as it was Ayudha pooja time and he was busy in paying bonus to his employees, he could not give complaint immediately after 03.10.2013 and he gave complaint on 07.10.2013. He has stated that, accused asked him to pay tax from 2008 with penalty and it comes to Rs.6 lakhs and when he told that he cannot pay that much amount, accused asked them to pay Rs.2 lakhs and told that he will adjust with higher officials. He has stated that, he had carried Rs.20,000/- with him while giving complaint on 07.10.2013. He has stated that, himself and C.W.2 had together purchased shed No.C-276 and bifurcation khata application was pending before 17 Spl.C.No.312/2014 B.B.M.P. He has denied that, after they calling accused for spot inspection on 07.10.2013, accused came to the shed for spot inspection. He has denied that, on 07.10.2013 when P.W.6 made a phone call, accused was nearby and accused came to spot for the purpose of spot inspection and then forcibly he kept the amount in the hands of accused.
18. P.W.6-Dolfy D' Cunha is friend of P.W.1 and is also purchaser of portion of shed. He has also supported the prosecution case and has stated about the trap of accused in his chamber. He has also stated that, on 03.10.2013 accused came to his office and demanded amount. He has stated about trap that took place in his office, in which accused received Rs.20,000/- as advance and has stated that accused has even asked for Rs.50,000/-. In his cross- examination, P.W.6 has stated that, before 03.10.2013 he had not seen accused. He has stated that on 07.10.2013 complainant had asked him to come to his office in the evening as he had made arrangement for trap of accused.
19. P.W.2 - D.Venkatesh, shadow witness has also supported the prosecution case and he has stated 18 Spl.C.No.312/2014 about his presence in the room in front of chamber of P.W.6 wherein accused met P.Ws.1 and 6 and received tainted notes. He has stated that, he has seen accused counting notes and has also stated that by seeing them accused kept the amount on empty chair by his side. He has stated that tainted notes were kept in cover and then cover was kept in shirt pocket of complainant. This is contrary to case of Prosecution. In all other aspects, P.W.2 has totally supported prosecution case. In his cross-examination he has stated that, after complainant giving signal, himself and Lokayukta police together went inside the chamber and thereafter Lokayukta Police Inspector and his staff came and at the time of seizing amount, it was on table and accused kept the amount on table in their presence. P.W.3, another panch witness, has stated about his participation in pre-trap and trap proceedings.
20. P.W.7 - Dr. Anil Kumar P.G. Lokayukta Police Inspector and P.W.10 Shivashankar N.G. another Lokayukta Police Inspector who had also accompanied the trap team and assisted in trap proceedings have stated that, at the time of trap , they were watching the happenings by hiding themselves in other rooms in first floor office of P.W.6. They have stated that after 19 Spl.C.No.312/2014 getting signal from P.W.1 they immediately came to chamber and by seeing them, accused who was counting tainted notes has tried to give it back to complainant and when complainant has not received it, accused kept notes on chair. In the cross-examination of P.W.7, he has stated that he could see the chamber of P.W.6 and also persons entering said chamber from place in which he was standing. He has stated that till P.W.1 giving signal by removing his spectacles he did not see the happenings inside the chamber. P.W.10, in his cross-examination has denied that he has not gone to the spot with trap team and has denied that there were only two rooms in first floor office of P.W.6.
21. P.W.5, higher officer of accused, has stated that he came to factory shed No.C-276 wherein audio and photo clippings were played before him and he has identified visuals of accused and also voice of accused and gave report as per Ex.P.7. In his cross-examination he has denied that on 18.09.2013 itself, accused had passed order for khata bifurcation and has stated that file came to him only on 07.10.2013.
22. P.W.8 - Yogesh S.T. Lokayukta Police Inspector, Investigating Officer has stated about investigation 20 Spl.C.No.312/2014 done by him in this case. In his cross-examination, he has stated that, before registering the case, he has played CD produced by complainant and verified and then registered the case and has stated that there was demand of Rs.2 lakhs in the said conversation. He has stated that when he entered the office of complainant tainted notes were on chair. P.W.9-Puttaswamy.H.P. is subsequent Investigating Officer, who has stated about preparing final report and sending the same for obtaining sanction order.
23. Accused has examined himself as D.W.1 as defence witness. D.W.1 has stated that, application of complainant for bifurcation of Katha was received in the Office on 13-08-2013 and on 15-08-2013, Ramanjineya has handed over the file to him and asked him to make spot inspection and to prepare the report and thereafter, to take A.R.O. for spot inspection. He has stated that, he has made spot inspection on 25-08-2013 and he was having 45 days time to submit report regarding bifurcation of Katha and after collecting documents, he has prepared the report on 18-09-2013 and submitted to office. He has stated that, after submission of report, he has no role to play with regard to bifurcation of katha. In his cross-
21 Spl.C.No.312/2014examination he has denied that, on 07-10-2013 at 6.45 p.m. he had gone to shop No.C-275, Alpha Engineering Works. D.W.1 has stated that, when he was coming back after his work, Raghu called him and asked him to come near the Counselor's Office, Peenya 1st Stage and when he went there in his two wheeler, P.W.6 and Raghu came there along with Lokayuktha official and he was taken to Lokayuktha Office. He has denied the alleged demand on 03-10-2013. he has also denied receipt of amount on 07-10-2013 and also denied his hand wash in the solution.
24. In order to bring home the guilt of accused for the offence under section 7, 13(1) (d) r/w/s 13(2) of Prevention of Corruption Act, prosecution has to prove that accused being a public servant demanded and accepted illegal gratification. Prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to complainant. Under Section 20 of Prevention of Corruption Act, there is a presumption available in respect of offence under section 7. The benefit of presumption can be extended in favour of prosecution and onus can be shifted upon accused only when prosecution discharges initial burden of proving 22 Spl.C.No.312/2014 that accused has demanded and accepted illegal gratification. Under Section 13(1)(d), accused receiving pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant or receiving any pecuniary advantage without any public interest would constitute the offence.
25. According to prosecution, work of change or bifurcation of khata in the name of PWs 1 and 6 was pending before B.B.M.P. and this file was to be attended by accused. Ex.P.13 contain copy of records submitted by PWs1 and 6 for bifurcation of khata in respect of respective portion of Industrial shed No.C-276 purchased by P.W.1 and 6 from Ramesh Ghada. Ex.P.13 also show that on 13.08.2013, Assistant Revenue Officer had sent this file to accused Revenue Inspector for conducting spot inspection and to submit report. Ex.P.13 also show that accused has written the note sheets in Ex.P.13 and has recommended for bifurcation of khata in the name of PWs 1 & 6 and has signed the same on 18.09.2013 and thereafter there is signature of Assistant Revenue Officer on 07.10.2013 i.e. date of complaint and the date of trap. Ex.P.13 clearly show that work of complainant and P.W.6 was pending in B.B.M.P. for bifurcation of khata. Though Ex.P.13 show 23 Spl.C.No.312/2014 that on 18.09.2013 itself accused had written note sheets, subsequent signature of Assistant Revenue Officer show that it is received on 07.10.2013. Accused has given evidence as D.W.-1, wherein he has stated that he has prepared report as found in page Nos.1 to 4 of Ex.P.13 on 18.09.2013 itself and thereafter there was no work of complainant pending before him to be attended. Though Ex.P.13 show that on 18.09.2013 accused has written report, as per evidence of P.W.5- Assistant Revenue Officer, he has received the file only on 07.10.2013 i.e date of complaint. There is no evidence placed by accused to show that before registration of complaint on 07.10.2013 and before date of demand on 3.10.2013, accused had done his part of work and had already forwarded the report to Assistant Revenue Officer or to concerned section. As per section 7 of Prevention of Corruption Act, demanding illegal gratification as reward for doing any official act would also be an offence and demanding illegal gratification as reward for official work done by accused is also covered under Section.7. Therefore, accused cannot contend that there was no work of P.W.1 and 6 pending with him as on the date of alleged date of demand on 3.10.2013 and complaint on 7.10.2013. Even if, accused contends that he had already done the 24 Spl.C.No.312/2014 work, still accused cannot escape, if demand and acceptance of illegal gratification is proved, as receiving illegal gratification and demanding illegal gratification as a reward for work would also be offence under Sec.7.
26. According to prosecution, before giving complaint, accused had made demand for illegal gratification of Rs.2 lakhs on 03.10.2013. It is also the prosecution case that after giving complaint, when trap team went to office of P.W.6, accused came to chamber of P.W.6 and again demanded bribe and received illegal gratification amount of Rs.20,000/- as advance out of total demand of Rs.2 lakhs. Therefore, before giving complaint & after giving complaint, at the time of trap, accused is said to have demanded illegal gratification.
27. To prove the alleged demand of bribe, prosecution is relying on recordings made by P.W.1 in spy camera on 03.10.2013 and then transmitted to DVD and produced before P.W.8, who got audio and visuals identified through P.W.5 and got it transcribed on paper as per Ex.P.5. DVD is marked as M.O.-10. At the time of trap on 07.10.2013 also, recording is said to have been made in spy camera and voice recorder which were given to PWs 1 and 6. These recordings are said to have been transmitted to CD as per M.O.12 and it was 25 Spl.C.No.312/2014 also transcribed on paper and the transcription is also noted in the trap mahazar Ex.P.4. The recordings in CD is stated to have been played before P.W.5 and he has identified the voice. As admitted by P.W.5, he is not expert in voice identification. Moreover, in respect of transcription at Ex.P.5 and CD's at M.O.Nos.10 and 12, no certificate under Section 65-B of Indian Evidence Act are produced. Call details are also secured by P.W.8 as per Ex.P.20 in the course of investigation. In respect of these call details also, certificate under Section 65-B of Indian Evidence Act is not produced.
28. Learned counsel for accused has relied on the decision reported in 2014 AIR SCW 5695 = (2014) 10 SCC 473 (Anvar P.V -Vs- P.K.Basheer and others). In this decision, Hon'ble Supreme Court has clearly held that when secondary evidence of the electronic records are produced before the Court, they cannot be admitted in evidence, unless the secondary evidence is accompanied by certificate under Section 65B of Indian Evidence Act.
29. In respect of call details Ex.P.20, in a decision of Hon'ble Supreme Court in Crl. Appeal No.2539/2014 26 Spl.C.No.312/2014 between Harpal singh Vs- State of Punjab dated 21.11.2016, in para No.11, it is held as under:
"...As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65(2) had been complied with, in absence of certificate under Section 65B (4) , the same has to be held inadmissible in evidence."
30. In view of these two decisions, the call details at Ex.P.20, transcription at Ex.P.5 and CD's at M.O.-10 and 12 are not admissible in evidence. Prosecution cannot rely on these DVD, CD and transcription to prove alleged demand of bribe amount by accused before giving complaint or at the time of trap and even call details cannot be relied to prove that P.W.6 had made phone call to accused on 03.10.2013 or on 07.10.2013 or accused had made a phone call just before the trap on 07.10.2013. However, D.W.-1 in his cross- examination has stated his mobile number and has also stated that P.W.6 had once made a phone call to his mobile number. Therefore though these call details are not admissible in evidence, evidence of D.W.1 show that P.W.6 had made a phone call to accused.
27 Spl.C.No.312/201431. PWs 1 and 6, who had applied for bifurcation of khata as seen in Ex.P.13 have stated that their work was pending before accused and they tried to contact accused and P.W.6 made a phone call to accused on 03.10.2013 and accused told that he will be coming to Alfa Engineers, the office of P.W.6 in the evening. They have stated that on 03.10.2013 at 6.45 p.m. accused came and he has told that there is arrears of tax and penalty amounting to Rs.6 lakhs and when they denied, accused asked them to pay Rs.2 lakhs to him and he will get the work done. PWs 1 and 6 have clearly stated about demand of Rs. 2 lakhs by accused on 03.10.2013. In their cross examnation also, they have reiterated the demand made by Accused. Since PWs 1 and 6 and accused were only present at the time of this meeting in the evening of 03.10.2013 and both PWs 1 and 6 have stated about demand of Rs.2 lakhs by accused and accused, who has given evidence as D.W.1 has not given any explanation regarding his meeting with P.W.1 and 6 on 3.10.2013, accused meeting P.W.1 and 6 on 3.10.2013 and demanding Rs.2 lakhs is clearly established. In cross examination of P.W.6, it is suggested that they requested accused to collect tax for two years and to change khata and that earlier owner Ramesh Ghada had not paid tax. These 28 Spl.C.No.312/2014 suggestions would also prove that on 03.10.2013 accused had met them in shed No.C-275 of P.W.6. If amount of Rs.2 lakhs demanded by accused was towards legal remuneration or legal fees, accused would have given explanation and would have produced documents to substantiate. Therefore, demand made by accused for Rs.2 lakhs in the office of P.W.6 on 03.10.2013 as stated by PWs 1 and 6 is clearly a demand for illegal gratification other than legal remuneration or fee. This demand of bribe by accused was either as motive to do work of P.W.1 and 6 or as Reward for doing the work. Therefore, by evidence of PWs1 and 6 and also by attending circumstances, prosecution has proved the demand of bribe amount by accused on 03.10.2013.
32. According to prosecution, even at the time of trap on 07.10.2013 accused has demanded bribe and then received. This is again stated in the evidence of Pws.1 & 6. They have stated that, they have informed accused that they are giving Rs.20,000/- as 10% of total demand of Rs.2 lakhs. P.W.6 has even stated that accused was not ready to receive less amount and told that he has to pay to others and he will get only Rs.50,000/-. Their evidence is not shaken in their cross-
29 Spl.C.No.312/2014examination for accused. Though, shadow witness P.W.2 has stated that he could not hear the conversation between P.W.1, accused and P.W.6 at the time of trap in the chamber of P.W.6, he has clearly stated that they were talking for some time and then he has seen accused counting tainted notes. The presence of accused in the office of P.W.6 at odd hours of 6.45 p.m. is an additional circumstance which show that accused had come to that office in furtherance of his motive of demanding and receiving bribe amount from complainant and P.W.6. Accused, D.W.1 in his chief evidence has surprisingly not clearly denied his presence in the evening of 03.10.2013 and 07.10.2013 in the office of P.W.6. He has only stated in his cross- examination that on 7.10.2013, after completing his work he was on his way to his house and at that time one Raghu made a phone call to him and asked him to come near Councilors office in Peenya 1st stage which is near Industrial shed and accordingly he went there in his vehicle No.KA.04.EG-9900 and P.W.6 was also there with Raghu and one Lokayukta official was also there and they took him to Lokayukta office. This evidence of D.W.1 is unbelievable. It is no where stated by D.W.1 that from his office to his house, office of P.W.6 is on the way. Who is Raghu and why he called him is not stated.
30 Spl.C.No.312/2014Apart from this, in the cross-examination of P.W.1 in page No.7 & 8 it is suggested that P.Ws 1 and 6 called accused on 07.10.2013 and he went to Shed for spot inspection and at that time they have thrust tainted notes of Rs.20,000/- to him. These suggestions makes it clear that accused had come to office of P.W.6. on 7.10.2013. If accused had already attended the work on 18.09.2013 as stated by him in his evidence, this suggestion put to P.W.6 that after making phone call on 07.10.2013 accused came to shed for spot inspection would be false. Though accused can prove his defence by preponderance of probability, in this case, defence of accused is not definite, accurate, probable and acceptable. For all these reasons, demand of illegal gratification by accused at the time of trap on 07.10.2013 is also proved.
33. Coming to the acceptance of tainted notes by accused, evidence of P.W.s 1, 6, 2, 7 and P.W.10 states that, when they were waiting in office of P.W.6 in the first floor in shed No.C-275, P.W.7 and 10 were hiding themselves in other rooms in the same floor and P.W.2 shadow witness was infront of the chamber of P.W.6 and at that time at about 6.45p.m. accused came to 31 Spl.C.No.312/2014 chamber of P.W.6 and talked with P.Ws 1 and 6 and then received tainted notes of Rs.20,000/- and started counting and at that time P.W.1 gave signal by removing his spectacles and then P.W.2, 7 and 10 came and on looking them accused tried to give back the amount to P.W.1, but he has not taken. No doubt there are little contradictions in the evidence of P.Ws.1, 2, 6, 7 and 10 with regard to place in which accused kept the amount. As per prosecution case, on looking to P.Ws.7 and 10 accused kept the notes on empty chair on his side. P.Ws 7 and 10 have also stated the same. P.W.1 has stated that accused kept the amount on table. P.W.2 in his chief evidence has stated that accused kept the tainted notes on empty chair by his side, but in his cross-examination he has stated that accused kept the amount on table. P.W.3 who came along with Inspector has stated that when he entered the chamber amount was on chair. P.W.6 has stated that when accused was counting the notes, person who was watching from the next cabin gave signal to police and they all came inside and apprehended accused and caught hold of both of his hands. These minor contradictions with regard to the place at which amount was found are natural and does not go to the root of the case. Similarly say of P.W.2 that amount was kept in a cover 32 Spl.C.No.312/2014 and cover was kept in shirt pocket of P.W.1 also does not affect prosecution case, as other witnesses have stated that tainted notes were kept in shirt pocket of complainant and then he gave it at the time of trap to accused. Evidence of all these witnesses makes it very clear that accused has accepted the amount and then started counting and on seeing P.Ws.2, 7 and 10 he has kept the amount on empty chair and according to P.W.1 on the table. Acceptance of tainted notes by accused is sufficiently proved by the evidence of all these witnesses. The tainted notes which were kept by accused on empty chair was recovered and seized. Even hand wash of accused has turned to pink colour. Though accused has given defence evidence as D.W.1, he has not denied his presence on 07.10.2013 in the office of P.W.6. The trap took place in the office of P.W.6 and not in the office of accused. Therefore, heavy burden is on accused to explain the reason for his presence in the office of P.W.6 after office hours. The explanation given by accused that he received phone call from Raghu to come near Councilors office and suggestion put to prosecution witnesses that complainant had called him and he came to office of P.W.6 for spot inspection are not acceptable and are improbable. Looking to all these aspects, prosecution 33 Spl.C.No.312/2014 has proved the acceptance and recovery of tainted notes from accused.
34. Learned counsel for accused has relied on a decision reported in (2015) 10 SCC 152 -
P.Sathyanarayana Murthy Vs District Inspector of Police, State of Andhra Pradesh and another. In this decision, wherein complainant was not examined as he had expired earlier before the trial, Hon'ble Supreme Court in para No.21 and 22 has held as under :-
"21. The proof of demand of illegal gratification, thus, is the gravemen of the offence under Sections 7 and 13(1)(d)(1) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. "
"22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction there under".34 Spl.C.No.312/2014
35. In another decision in (2015) 10 SCC 2013
-(Selvaraj Vs State of Karnataka), The Hon'ble Supreme Court has held that demand has to be proved by adducing clinching evidence and recovery of tainted money is not sufficient to convict the accused - There has to be corroboration of testimony of complainant regarding demand of bribe and when the complainant is not available for examination during trial, court has to be cautious while relying on other witnesses. In that case, P.W.2 had stated that 10-12 other officials were sitting in same room in which bribe was paid and Hon'ble Supreme Court has held that taking of bribe in the presence of 10-12 other officials is quite improbable and the amount was not recovered from the possession of accused, but amount was found on the table and accused was standing behind the table.
36. On going through these decisions, they do no help the accused in the present case. In this case, complainant P.W.1 and his friend P.W.6 are not only examined for the prosecution, they are sheet anchors to the case and other witnesses have also totally supported prosecution case. Evidence of P.W.1 is 35 Spl.C.No.312/2014 corroborated by evidence of P.W.6 and evidence of PWs 1 and 6 regarding acceptance of bribe amount by accused is corroborated by evidence of shadow witness P.W.2 and Lokayukta Police Inspectors P.W.7 and 10 who were hiding in office of P.W.6 and watched the happenings. Therefore, not only the demand but also acceptance and recovery of tainted notes are all proved in the present case. Under Section 20 of PC Act, when accused is proved to have accepted any gratification other than legal remuneration from any person it shall be presumed that he accepted the same as a motive or reward as mentioned in Sec.7. Therefore on proof of demand and acceptance, presumption would also arise to the effect that such demand and acceptance is as a motive or reward to do an official act or to do any official favour. As demand and acceptance are proved by prosecution, even benefit of presumption under Sec.20 is available to the prosecution. Though accused can rebut the presumption by preponderance of probability, accused in this case has failed to explain the reasons for his presence in office of P.W.6 on 03.10.2013, when demand is said to have been made and on 07.10.2013, when accused demanded and received tainted notes. The contention of accused that he had attended the work on 18.09.2013 itself is not 36 Spl.C.No.312/2014 acceptable as it was suggested to prosecution witnesses that accused had come to office of P.W.6 for doing spot inspection on 07.10.2013. Therefore, accused has failed to rebut the presumption under Sec.20 of PC Act. On considering all these aspects, prosecution has proved the demand of bribe amount by accused and also proved the acceptance of illegal gratification by accused.
37. For all these reasons, prosecution has proved the guilt of accused for the offence under Sec.7 of PC Act beyond reasonable doubt. Accused by abusing his position as public servant, by corrupt means has obtained pecuniary advantage from complainant without having any public interest and thereby committed criminal mis-conduct as per section 13(1)(d) of the Prevention of Corruption Act. Therefore, commission of offence by accused under Section 7 and section 13(1)(d) of the PC Act are proved beyond reasonable doubt. Therefore, accused is to be convicted for the offences alleged against him. Accordingly, point Nos.2 and 3 are answered in the Affirmative.
37 Spl.C.No.312/201438. Point No. 4:- For the discussion and findings on Point Nos. 1 to 3, accused is to be convicted. Hence, following order is passed:
ORDER Accused is found guilty for the offences under Sec.7 and 13(1)(d) of the Prevention of Corruption Act, 1988.
Acting u/s 235(2) of Cr.P.C. accused is convicted for the offences punishable under Sections 7, 13(1)(d) r/w Sec. 13(2) of the Prevention of Corruption Act, 1988.
M.O.1 cash of Rs.20,000/- is ordered
to be confiscated to the State
Government after expiry of appeal
period.
M.O.2 metal seal is ordered to be
returned to Karnataka Lokayukta
police after expiry of appeal period.38 Spl.C.No.312/2014
M.O.3 to 13 are worthless and are ordered to be destroyed after expiry of appeal period.
Put up for hearing on sentence.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed by me and then pronounced in the open court on this the 9th day of August 2018) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru *** 39 Spl.C.No.312/2014 ORDER ON SENTENCE Heard the accused, Learned counsel for accused and Learned Public Prosecutor on sentence to be imposed on accused.
Accused and learned counsel for accused have submitted that accused is having wife, two minor children and mother aged 80 years and have to look after his family and is of middle age and is having huge responsibilities and therefore, lenient view may be taken in sentencing him.
On the other hand, Learned Public Prosecutor has submitted that accused being a public servant has committed heinous offence of taking bribe and he is involved in corrupt practice and therefore maximum punishment is to be imposed.
Commission of offence by accused under Sec.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act is proved in this case and accused is found guilty for said offences. Offence under Sec.7 of Prevention of Corruption Act is punishable with minimum imprisonment of 6 months and maximum of 5 years and also with fine. Offence under Sec.13 (1)(d) which is punishable under Sec.13 (2) of Prevention of Corruption Act, is punishable with minimum imprisonment of 1 year and maximum of 7 years and also with fine. As per Sec.16 of Prevention of Corruption Act, 40 Spl.C.No.312/2014 where sentence of fine is imposed under Sec.13 (2) of Prevention of Corruption Act, the court in fixing amount of fine shall take into consideration amount which accused has obtained by committing the offence. Even though by way of recent amendment, minimum and maximum imprisonment provided for the offence punishable under section 7 and 13(2) of Prevention of Corruption Act are enhanced, those amended provisions are not applicable to this case, as offences alleged against accused were committed prior to coming into force of amendment.
Accused was Revenue Inspector in BBMP at the time of commission of alleged offence and was aged about 39-40 years. The demand of illegal gratification was for Rs.2,00,000/- and at the time trap, he received Rs.20,000/- as advance 10% out of Rs.2,00,000/-. Though amount received by accused is Rs.20,000/- only, total bribe demanded was big amount of Rs.2,00,000/- to attend the work of bifurcation of Khata. On looking to the nature of duties and position of accused as Revenue Inspector in BBMP, effect of corrupt act of accused on the society is grave and serious. While imposing sentence in this type of corruption cases, Society's cry for justice should also be kept in mind. When officers tasked with Revenue matters do not act with integrity, the whole society will suffer. Corruption deserves no sympathy and leniency. There are no such mitigating circumstances to show any leniency in 41 Spl.C.No.312/2014 imposing sentence on this accused. On the other hand, act of accused in visiting office of P.W.6 after office hours to demand and receive bribe would show deliberate and well planned action of accused to commit offence. This circumstance increases the severity or culpability of criminal act of accused and supports stiffer penalty..
On considering all these aspects and looking to the facts and circumstances of the case and gravity of the offence and its consequences on the society, accused can be sentenced to undergo simple imprisonment for four years and to pay fine of Rs.1,00,000/- for the offence under Sec.7 of Prevention of Corruption Act and can be sentenced to undergo simple imprisonment for four years and to pay fine of Rs.2,00,000/- for the offence under Sec.13 (1)(d), punishable under Sec.13 (2) of Prevention of Corruption Act. Accordingly, following order is passed.
ORDER Accused is sentenced to undergo simple imprisonment for four years and to pay fine of Rs.1,00,000/- ( Rupees one lakh only) for the offence punishable under Sec.7 of Prevention of Corruption Act, and in default of payment of fine, to undergo further Simple imprisonment for 6 months.42 Spl.C.No.312/2014
Accused is sentenced to undergo simple imprisonment for four years and to pay fine of Rs.2,00,000/- (Rupees two lakh only) for the offence under Sec.13(1)(d), punishable under Sec.13 (2) of Prevention of Corruption Act, and in default of payment of fine, to undergo further Simple imprisonment for 6 months.
Both Substantial sentences of imprisonment shall run concurrently.
Accused is entitle for the benefit of set-off under Sec.428 of Cr.P.C. for the period for which he was in Judicial custody in this case.
Copy of judgment be furnished to accused forthwith.
(Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru 43 Spl.C.No.312/2014 ANNEXURE List of witnesses examined for the prosecution:
PW1 K.R. Lakshminarayana P.W.2 D.Venkatesh. P.W.3 M.V.Krishna PW.4 M.Lakshminarayana P.W.5 K.Basavalingaiah P.W.6 Dolfy D Cunha P.W.7 Anil Kumar PG P.W.8 S.T. Yogesh P.W.9 H.P.Puttaswamy P.W.10 Shivashankar N.G.
List of documents exhibited for the prosecution:
Ex.P.1 Complaint
P.1 (a) Signature of P.W.1
P.1 (b) Signature of P.W.8
Ex.P.2 Sheet containing serial numbers of
currency notes
P.2 (a) Signature of P.W.1
P.2 (b) & (c) Signature of P.W.2
P.2 (d) & (e) Signature of P.W.3
P.2 (f) & (g) Signature of P.W.8
Ex.P.3 Pre-trap mahazar
P.3(a) Signature of P.W.1
P.3(b) Signature of P.W.2
P.3(c) Signature of P.W.3
P.3(d) Signature of P.W.3
Ex.P.4 Trap mahazar
P.4(a) Signature of P.W.1
P.4(b) Signature of P.W.2
P.4(c) Signature of P.W.3
P.4(d) Signature of P.W.8
44 Spl.C.No.312/2014
Ex.P.5 Video and audio recording of
conversations
P.5(a) Signature of P.W.3
P.5(b) Signature of P.W.8
Ex.P.6 Prosecution sanction order
P.6(a) Signature of P.W.4
Ex.P.7 Report of PW5
P.7(a) Signature of P.W.5
P.7(b) Signature of P.W.8
Ex.P.8 FIR
P.8(a) Signature of P.W.8
Ex.P.9 Sketch
P.9(a) Signature of P.W.8
Ex.P.10 Written explanation of accused
P.10(a) Signature of P.W.1
Ex.P.11 Sample seal
Ex.P.11(a) Signature of P.W.8
Ex.P.12 Acknowledgement
Ex.P.13 Attested copies of charge sheet
Ex.P.14 Mahazar
Ex.P.14(a) Signature of P.W.8
Ex.P.15 Report
P.15(a) Signature of P.W.8
Ex.P.16 Chemical examination report
P.16 (a) Signature of P.W.8
Ex.P.17 Sketch
Ex.P.18 Service particulars of accused
Ex.P.18(a) Signature of P.W.8
Ex.P.19 B register extract
Ex.P.20 Call details
Evidence adduced on behalf of the defence :
D.W.-1: Sriram B.S. 45 Spl.C.No.312/2014 Documents marked on behalf of the defence: Ex.D.1 : Copy of evidence in departmental enquiry Material Objects marked by Prosecution :
M.O.-1 Cash of Rs.20,000/-
M.O.-2 Metal seal
M.O.-3 Article No.1 bottle
M.O.-4 Article No.2 bottle
M.O.-5 Article No.5 bottle
M.O.-6 Article No.6 bottle
M.O.-7 Article No.6A bottle
M.O.-8 Article No.7 bottle
M.O.-9 Article No.7A bottle
M.O.-10 CD Article No.3
M.O.-11 CD Article No.4
M.O.-12 CD Article No.9
M.O.-13 CD Article No.10
M.O.-10(a)to 13(a) CD covers.
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Bengaluru.
***
46 Spl.C.No.312/2014