Bangalore District Court
State Karnataka Represented By vs B.K.Hirannayya S/O Kumarappa on 4 January, 2020
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Spl.C.C.No.363 of 2018
IN THE COURT OF THE XXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU
URBAN DISTRICT, BENGALURU CITY (CCH-24)
Dated this the 04th day of JANUARY,2020
PRESENT
SMT.MANJULA ITTY, B.A.L., LL.B.,
XXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND
SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU
Special C.C.No.363/2018
Complainant: State Karnataka represented by
Deputy Superintendent of Police,
Karnataka Lokayuktha, City Division,
Bengaluru..
(By Sri. D. Ramesh Babu, Public
Prosecutor)
V/s
Accused : 1. B.K.Hirannayya S/o Kumarappa,
aged about 53 years, Junior
Engineer, Town Planning Division,
B.D.A Head Office, Bengaluru.
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Spl.C.C.No.363 of 2018
Residing at No.606, B-4, Krishna
Block, National Games Village,
Koramangala, Bengaluru 560 042,
Native of Bettadahalli village,
Somavarapete Taluk, Kodagu
District.
2. D.N.Subramanya Kumar S/o
Nagaraja T.S, aged about 42 years,
employee in private company
Salarpuriya properties Nos 3, 4th
floor, Halasuru Road, Bengaluru
560 043, Residing at No.13, 3rd
Cross, Puttenahalli, J.P.Nagara, 7th
Stage, Bengaluru 72.
3. G.M.Deepak S/o Mallesh G.M.,
aged about 25 years employee in
private company Salarpuriya
th
properties Nos 3, 4 floor, Halasuru
Road, Bengaluru 560 043, Native
of House No.529, 10th Cross,
Gandhinagara, Mandya 571 401
(By Sri.I.S.Pramod Chandra,
Advocate for accused No.1
and Sri.S.Samarth, Advocate for
accused No.2 and 3)
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Spl.C.C.No.363 of 2018
Date of offence 21.06.2014
Date of report of 21.06.2014
offence
Date of arrest of 21.06.2014
the accused
Date of release on 25.06.2014
bail
Total period of Four days
custody
Name of the Sri. Mohammed Mukharam
complainant
Date of 10.08.2018
commencement of
recording evidence
Date of closing of 15.10.2019
evidence
Offences Section 7 and 13(1) (d) read with
complained of section 13(2) of Prevention of
Corruption Act against accused
No.1 and Section 12 of
Prevention of Corruption Act
against accused No.2 and3.
Opinion of the Accused No. 1 to 3 are found not
Judge guilty
State represented Sri.D.Ramesh Babu Public
by Prosecutor
Accused defended Sri.I.S.Pramod Chandra,
by Advocate for accused No.1 and
Sri.S.Samarth, Advocate for
accused No.2 and 3.
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Spl.C.C.No.363 of 2018
JUDGMENT
The Police Inspector, City Division, Karnataka Lokayuktha, Bengaluru has submitted the charge sheet against 7 accused persons for the offence punishable under sections 7, 8, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988.
2. The prosecution case in brief is that the Lokayuktha police, Bengaluru received several complaints from the public alleging that the public cannot not get any of their works done from the officials/staff di- rectly at the Head Office of Bangalore Development Authority as the officials and the staff of Head Office of BDA would discharge their official duty only when they are bribed through agents and mediators. Almost all the officials working in the Head office of BDA are indulged in receiving illegal gratification for discharging their official duties through agents and 5 Spl.C.C.No.363 of 2018 the officials and staff are dispersing government property to undeserving persons by receiving illegal gratifications from mediators depriving the rights of the deserving persons and thereby causing loss of crores of rupees to the State Exchequer. Hence, a case came to be registered in crime No. 26/2014 and after obtaining search warrant, simultaneous search was conducted on 20-06-2014 at several offices and the car parking area of the BDA Central Office premises by the Investigating Officer and his team. During search, an amount of Rs. 1,69,000/- was seized from the hand bag possessed by A1 from her office which she could not properly ac- count for and she had not maintained a cash decla- ration register in her office nor she had declared the possession of such a huge amount in any of the reg- isters maintained in her office. An amount of Rs.50,000/- was recovered from A2 from his office 6 Spl.C.C.No.363 of 2018 table rack and he made a bare denial of that he had no knowledge about such an amount being kept in his office table. An amount of Rs. 50,000/- was re- covered from the possession of A3 while he was sit- ting in his car at the parking area of the BDA with A4 and A7 along with some documents. An amount of Rs. 3,00,000/- and several files connecting the office of the BDA was recovered from the posses- sion of A5 from his car from the parking area of the BDA and an amount of Rs. 54,000/- was recovered from the side box of the motorcycle belonging to A8. The Investigating Officer arrested the accused persons and produced them before the home office of my predecessor on 21.06.2014 and they were re- leased on bail on 25.06.2014. After investigation the Investigating Officer filed Charge Sheet against the above mentioned accused for alleged commission of above said offences. During search the Investi- 7
Spl.C.C.No.363 of 2018 gating Officer had seized and recovered an amount of Rs. 1,33,000/- from possession of one Srinivas, who is arrayed as A6 in this case, from his car and during investigation he provided sufficient explana- tion and clarification for the possession of the said amount and hence, his name was deleted from the Final Report and the investigating officer has laid charge sheet appending 200 documents with it in 7 volumes which altogether runs to more than 1600 pages citing 77 witnesses to prove the prosecution case.
3. Accused were secured through summons and all the accused had filed applications u/s 239 of the Code of Criminal Procedure claiming discharge from the offence alleged against them and this court after hearing all the accused and the learned Public Prosecutor vide order dated 22.05.2018 found that 8 Spl.C.C.No.363 of 2018 even though, there is prima facie materials found in the charge sheet to frame charges against all the 7 accused and to proceed further against them, there is no proximity between each of the accused in any way. The offences alleged to be committed by each one of them stand on their own footing except that of the offences alleged to be committed by accused Nos. 3, 4 and 7 and hence this Court ordered for bifurcating the Charge sheet filed in this case and removed the accused No. 2 to 5, 7 and 8 from the said charge sheet and the said case is tried against the accused No.1 alone. Further, this Court directed the office to register three separate cases as i. Special CC No.364/2018 against the accused No.2 of the charge sheet for the offence punishable under sections, 7, 13(1)(d), 13(1)
(e) read with section 13(2) of The Prevention of Corruption Act 1988, 9 Spl.C.C.No.363 of 2018 ii. Special CC No.363/2018 against the accused Nos. 3, 4 and 7 of the charge sheet for the offence punishable under sections, 7, 12, 13(1)(d) read with section 13(2) of The Prevention of Corruption Act 1988, iii. Special CC No.362/2018 against the accused No.5 of the charge sheet for the offence punishable under sections 9 and against accused No.8 for the offence punishable under sections 13(1)(d), 13(1)
(e) r/w 13(2) of The Prevention of Corruption Act 1988.
4. This Court further directed the Investigating officer to produce sufficient copies of the charge sheet to be appended with the newly registered Special Criminal Cases.
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Spl.C.C.No.363 of 2018
5. On 21.06.2018 charges were framed against Accused No.5 and 8 of the Spl.CC.No.268/2017, who were arrayed as A1 and A2, in this case for the offence punishable under section 9 of the PC Act against A1 and for the offence punishable under section 13(1)(d) r/w section 13(2) of the PC Act, read over and explained to them to which they pleaded not guilty and claimed to be tried.
6. In order to prove the prosecution case, the prosecution has examined in all thirteen witnesses as PWs 1 to 13 and got marked documents Ex. P1 to P23 and Ex. D1 was marked from the side of the defence. After closure of the prosecution evidence, statements of accused persons under section 313 Cr.P.C. were recorded. They denied all the incriminating circumstances appearing against them in the prosecution evidence and they did not 11 Spl.C.C.No.363 of 2018 choose to adduce any defence evidence on their behalf, however they submitted their written statements.
7. Now, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 B.K.Hirannaiah being public servant working as Junior Engineer, Town Planning Division, B.D.A Head Office, Bengaluru, on 20.06.2014, when the Lokayuktha Police raided the office, he was found sitting in his car bearing registration No. KA 05 MA 8194 parked at the car parking area of the B.D.A. Head Office premises along with accused No.2 and 3 who are employees of Salarpuriya Properties Private Limited, and A1 received Rs.50,000/- illegal gratification from A2 through A3 for giving consent for approval of building plan of the proposed constructions of building by the 12 Spl.C.C.No.363 of 2018 Salarpuriya builders and he abused his position of a public servant and thereby accused No.1 has committed the offence under section 7 and 13(1)(d) r/w 13(2) of The Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond all reasonable doubt that accused No. 2 and 3 being employees of Salarpuriya Properties Private Limited on 20.06.2014 at 4.30 pm, when the Lokayuktha Police raided the B.D.A. Head Office, Bengaluru, were found sitting in the car of Accused No. 1 bearing registration No. KA 05 MA 8194 at the parking area of the B.D.A. and A2 paid illegal gratification of Rs.50,000/- to A1 through A3 for giving consent to approval of building plan of proposed construction of building by the Salarpuriya Builders and thereby Accused No.2 and 3 abetted Accused No. 1 to obtain illegal gratification to do the official favour and thereby accused No. 2 and 3 have committed the offence punishable 13 Spl.C.C.No.363 of 2018 under section 12 of Prevention of Corruption Act, 1988 ?
3. What order?
8. Having heard the arguments on both sides and taking into consideration of evidence on record, my findings on the above points are as:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per final order, for the following REASONS
9. Point Nos. 1 and 2: Since these two points are interlinked to each other and to avoid repetition I have taken them for discussion together.
10. It is not in dispute that the accused No.1 is a public servant and hence to prosecute him prosecution sanction order from his competent authority under 14 Spl.C.C.No.363 of 2018 section 19 of The Prevention of Corruption Act, 1988 is essential since, grant of proper sanction by the competent authority is sine qua non for taking cognizance of the offence. Two components have to be established before accepting a sanction order. First one is competency of the sanctioning authority and the other one is the application of mind by the sanctioning authority. Ex.P1 is the prosecution sanction order issued by the Under Secretary, Public Works Department and PW1, M.S.Surendran is examined to prove the Ex.P1 prosecution sanction order and he deposes that on 07.09.2016 the Secretary, P.W.D. received a request letter along with copies of FIR, Mahazar, Complaint, Statement of witnesses, explanation of accused No.1 from A.D.G.P., Karnataka Lokayuktha, seeking prosecution sanction order against the accused and case worker sent the file to PW1 and he after thoroughly reading the materials 15 Spl.C.C.No.363 of 2018 placed before him, he made his file noting and the file was sent to Joint Secretary and the Joint Secretary in turn submitted the file to the Secretary and the Secretary after perusing the file sent it to the PWD Minister. The Minister approved the prosecution sanction and sent the file to the Secretary, from there to the Joint Secretary and to PW1. He further deposed that he signed the Ex.P1 prosecution sanction order in the name of Governor of Karnataka under the provisions of Transaction of Business Rules. From the cross examination of PW1 it can be seen that the accused No.1 has not disputed competency of PW1 but challenged that PW1 had not applied his mind into the facts and circumstances of the case. Still he did not raise any serious objection in respect of Ex.P1 order.
11. The learned Public Prosecutor submits that the contention of the learned counsel for the accused 16 Spl.C.C.No.363 of 2018 person will not sustain as the sanction order is valid and the Ex.P1 order itself speaks about the application of mind by the competent authority and after approval of the Minister concerned who is the competent authority to remove an officer of the cadre of the accused from his post and hence, PW1 after obtaining the approval from the Government has issued the sanction order.
12. Before going to the validity of the Ex. P1 sanction order I am persuaded to look into some of the decisions of the Hon'ble Supreme Court in this regard relied by the learned Public Prosecutor. He drew my attention to the following case laws:
i. Hon'ble Supreme Court in C S Krishnamurthy Vs. State of Karnataka reported in (2005)4 SCC 81 has held that 17 Spl.C.C.No.363 of 2018 "the sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order".
ii. In State of Maharashtra through C.B.I V/s Mahesh G.Jain reported in (2013) 8 S.C.C. Page 119, the Hon'ble Supreme Court has held that "Grant of sanction is irrefragably a sacrosanct act and is entitled to provide safeguard to a public servant against frivolous and vexatious litigations. Satisfaction of the sanctioning authority is essential to validate an order granting sanction". The Hon'ble Court has culled out certain principles with respect to the sanction order which are as under:18
Spl.C.C.No.363 of 2018
1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
2. The sanction order may expressly show that the sanctioning authority has perused the materials placed before it and, after consideration of the circumstances has granted sanction for prosecution;
3. The prosecution may prove by adducing the evidence that the materials were placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the materials placed before it.
iii. In Manzoor Ali Khan Vs. Union of India and others reported in (2015)2 SCC 33 Hon'ble Supreme Court of India held that "a fine balance has to be maintained between need to protect a public servant 19 Spl.C.C.No.363 of 2018 against mala fide prosecutions on the one hand and the object of upholding the probity in public life in prosecuting the public servant against whom prima facie material in support of allegation of corruption exists on the other hand."
iv. In P V Narasimha Rao Vs. State (CBI/SPE) 12 reported in (1998) 4 SCC 626 the Hon'ble Apex Court observed that "requirement of sanction u/s 19 (1) of PC Act is a matter relating to procedure and the absence of sanction does not go to the root of the jurisdiction of the Court"
13. Here, in this case, the prosecution has produced and marked the Ex.P1 sanction order which clearly shows that all the materials were placed before the Government and after scrutiny of those materials and after approval of the Minister of PWD, the sanction order has been issued. From the light of the above discussed decisions and the from the prosecution 20 Spl.C.C.No.363 of 2018 evidence adduced in this case, it can be safely concluded that there was sufficient material before the sanctioning authority and the Ex.P1 prosecution sanction order is issued by the Competent Authority of the accused after applying his mind and hence it is not possible to agree that the Ex.P1 prosecution sanctioning order is in any way vitiated.
14. Now coming to the facts and circumstances of the case, the specific case of the prosecution is that on 20.06.2014 when PW10 conducted search of the B.D.A. car parking area, as per the authorization of PW9, the Investigating Officer, A1 was found sitting in his car bearing Reg. No.KA 05 MA 8194 which was parked in the BDA car parking area along with A2 and A3 and when A1 was searched by PW10, Rs.50,000/- cash and a relinquishment deed pertaining to Sy.No.11, 12/1 of Bandapura village was found in his possession and on enquiry accused No.1 gave explanation that accused 21 Spl.C.C.No.363 of 2018 No.3 had given the money to him in connection with some pending office work on instruction of accused No.2 and since, the explanation given was not satisfactory, PW10 arrested accused No.1 to 3 and produced them before PW9 and Ex.P2 mahazar was drawn with regard to the seizure. On investigation, it was revealed that accused No.1 had received bribe of Rs.50,000/- from accused No.3 on instructions of accused No.2 for giving consent for approval of constructions of a building proposed to be constructed at Sy.No.48/4D and 48/4E, Hongasandra, Bengaluru and the building was being constructed by Salarpuriya Properties Private Limited where accused No.2 is working as Liaison officer and accused No.5 is Assistant Liaison.
15. PW2 and PW4 are Mahazar witness of Ex.P2 mahazar and they are examined to prove the seizure 22 Spl.C.C.No.363 of 2018 of currency notes and documents from accused No.1 and to prove the presence of accused No.2 and 3 with accused No.1. PW3, Mohammed Mukharam conducted preliminary enquiry of the case and filed Ex.P4 report before the Superintendent of Police, Karnataka Lokayuktha and on the basis of which FIR is registered by PW9 and initial investigation is conducted by him. PW5 and PW8 are staffs working at the BDA were examined to prove that accused No.1 used to take the files pertaining to approval of plan from the BDA office, PW6 is examined to prove that accused No.1 used to meet builders and promise them to get their work done after obtaining illegal gratification from them. PW 7 is examined to prove the employment details of accused No.2 and 3. PW11, PW12 and PW13 are the Investigating Officers who conducted investigation and laid charge sheet. The evidences adduced by these witnesses have to be examined one by one. 23
Spl.C.C.No.363 of 2018
16. Searching Officer H.P.Puttaswamy, Police Inspector was examined as PW10 and his testimony before this Court is that on 20.06.2014, Dy.S.P., Palakshaiah gave authorization for him under section 165 of Cr.P.C. to conduct search of the B.D.A. parking area and the vehicles therein and hence, he searched the place in presence of two witnesses who were sent by the Investigating Officer Palakshaiah to him. On search, he found that three persons were sitting in a car bearing Reg. No.KA.05.MA 8194 which was parked in the parking area and on search of accused No.1, Rs.50,000/- cash was found in the pocket of accused No.1 and he was also found with relinquishment deed with respect to property situated in Sy.No.11 and Sy.No.12/1 of Bandapura village and on enquiry of accused No.1 he did not give any plausible explanation and hence, he enquired accused No.3 and after enquiry he brought accused No. 1 to 3 and the amount seized 24 Spl.C.C.No.363 of 2018 from accused No.1 along with the documents to Investigating Officer after drawing a mahazar to this effect which is marked as Ex.P2. He also deposed that he obtained statements of Sannappaiah, Subramanya, Srinivas and Hirannaiah.
17. PWs2 and 4 are the witnesses of Ex.P2 mahazar and PW2 completely turned hostile to the contents of the mahazar and his evidence is that he had witnessed the search conducted with respect to a person who was standing in a suspicious manner within the B.D.A. premises and from his Santro car Rs.3 lakh cash and certain documents pertaining to BDA were recovered and he also witnessed a search of a motor bike from which cash of Rs.50,000/- was recovered from its side box. Other than these two searches he has not witnessed any other search. He also deposes before the Court that he had never seen 25 Spl.C.C.No.363 of 2018 the accused persons standing before the Court earlier but he recognized his signature in Ex.P mahazar. He was declared hostile to the prosecution case and was cross examined by the learned Public Prosecutor but nothing fruitful to the prosecution case could be elicited from his cross examination other than bare denial of the suggestions made by the learned Public Prosecutor.
18. PW4, Basavaraj Bandihal another mahazar witness deposes before the Court that he witnessed search conducted by Police Inspector B.G.Kumaraswamy, and after the search of a Santro Car and the motorbike parked in the BDA premises and after drawing mahazar to that effect, PW10, Police Inspector Puttaswamy H.P. conducted search of the BDA premises for which also he and his colleague Shivaramanna co-operated as witnesses as per the 26 Spl.C.C.No.363 of 2018 request made by the Investigating Officer. On search it was found that car was parked in the BDA premises in which accused No. 1 to 3 were sitting and on personal search of accused No.1 Rs.50,000/- cash was found with him along with a relinquishment deed and on enquiry accused No.1 gave explanation that the said amount was given to him by accused No.3 on instructions of accused No.2 with respect to the work to be done by him. Hence, PW10 seized the currency notes and the documents, arrested accused No.1 to 3 and produced them before the Investigating Officer. On cross examination he admits that he joined the team of PW10 after 9.00 pm and search of the vehicles was conducted after 9.00 pm. He also admits that he is unable to say exactly where the car was parked within the BDA premises and he also did not remember registration number or the colour of the car. He further deposes in his cross examination that PW10 asked 27 Spl.C.C.No.363 of 2018 accused No.1 to 3 to come out of the car and accused No.1 was taken to a side and then his personal search was made and he did not remember whether any amount was found with accused No.2 and 3. With respect to Ex.P2 mahazar, he deposes that there were no alternations made in the mahazar at the time when he afixed his signature in it.
19. PW3, Mohammed Mukharam, has deposed that he received a complaint through Superintendent of Police, Lokayuktha and he conducted secret preliminary enquiry to find out the veracity of the allegation in the said complaint and it was revealed that the officials and staff of the BDA would not perform any of their public duty unless they are bribed through the agents and mediators and hence, after enquiry he submitted Ex.P4 report before the Superintendent of Police, Karnataka Lokayuktha, 28 Spl.C.C.No.363 of 2018 Bengaluru City Division. On the basis of the said report, FIR in this case came to be registered. He further testifies that Smt.Rajamma Chowda Reddy who was trapped and was facing investigation in Crime No.16/2014 had obtained bribe from a broker and the BDA officials had appointed their own agents at their office to receive bribe from the public and the situation at the BDA office was that no person would get their work done without bribing the officials through these agents and hence, there was crores of rupees loss incurred to the BDA and the Government properties were being alienated to strangers. He further testifies that the Investigating Officer Sri.Palakshaiah obtained search warrant and handed over to him and he searched the office of one D.C.Chandrashekaraiah. In his cross examination he admits that he did not conduct any enquiry with respect to the persons named in the complaint and also admits that they are 29 Spl.C.C.No.363 of 2018 not accused in this case either. He further admits in his cross examination that he took up preliminary enquiry of this case on the basis of complaint of one Sri.J.P.Hegde against Premnath, Thippeswamy and Mahadev, but he did not conduct any enquiry with respect to these persons. He also admits that in his Ex.P4 report, he has stated that from the statements of witnesses he found that public servants were obtaining bribe amount, but he do not know who these witnesses are.
20. PW9, D.Palakshaiah who registered the FIR on the basis of the report given by PW3 and his evidence is that he conducted initial investigation of this case. He deposes that as per his authorization PW10, H.P.Puttaswamy had conducted the search of the BDA parking area and Rs.50,000/- cash was seized from a car and the car, currency notes and A1 to A3 were produced before him with a mahazar to that effect 30 Spl.C.C.No.363 of 2018 after seizure. The mahazar is marked as Ex.2. He admits in his cross examination by the learned counsel for accused No.1 that the FIR was registered at 3.00 pm and the search warrants were obtained from the Court at 3.45 pm and secured witnesses to his office from 4.00 pm to 6.00pm and gave instructions to the Police Inspectors concerned to conduct searches. He deposes that he had no knowledge of the fact that Police Inspector Anilkumar had given requisition to Women and Children Welfare Department for securing witnesses from that Department on 20.06.2014 at 3.10 pm. He further admits in his cross examination that he did not peruse the documents which were seized by Police Inspector and he also did not conduct any inquiry to ascertain whether there was any nexus between accused No.1 and accused Nos 2 and 3, when accused No.1 to 3 were arrested and produced before him by PW10. He also admits that there were CCTV 31 Spl.C.C.No.363 of 2018 cameras installed at the BDA parking area and he did not collect the video footages of the same.
21. PW.5, B.S.Byrareddy who is the First Division Assistant working at B.D.A. office has completely turned hostile to the case of the prosecution and he deposes that accused No.1 has never taken any file from him and he has not given statement before the police and hence he was treated as hostile and cross examined by the learned Public Prosecutor and he denied all the suggestions made by the learned Public Prosecutor. PW8, K.Ramachandraiah is also staff working at B.D.A. and in his evidence he states that he has never met accused No.1 and he has not given any files with respect to B.D.A. to accused No.1 and hence, he was also treated as hostile, but nothing could be brought in his cross examination.
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Spl.C.C.No.363 of 2018
22. PW6, Chrislin Cardoza was examined to prove that accused No.1 used to obtain bribe from builders and he in his evidence states that he had met accused No.1 once, but he did not know the designation of accused No.1. In his cross examination he states that he has not given any statement before the police that he personally knew accused No.1.
23. PW7, Rajath Chaturvedi in his evidence has deposed that he gave the service particulars of accused No. 2 and 3 to the Investigating Officer. The appointment letters issued to accused No.2 and 3 are marked as Ex.P7. In his cross examination he states that his employees are strictly required to work as per the duties and responsibilities assigned to them and his employees are not allowed to carry out any pecuniary obligations on behalf of his company for any official reasons. If any amount is to be paid through 33 Spl.C.C.No.363 of 2018 the company has to be approved by the Accounts and Finance Department of the Company and all the amounts paid on behalf of the company will be paid through cheque or demand drafts and no cash transactions are authorized on behalf of the company by the employees.
24. PW11, H.S.Venkatesh is the Investigating Officer who took over the investigation from PW9. He has conducted investigation by collecting documents from various departments, statement of accounts of accused, etc. He in his cross examination has stated that he has not conducted any investigation with respect to the bank statements of Salarpuria Developers Pvt. Limited. He also admits that he has not taken the bank statement of either accused No.1, accused No.2 or accused No.3. It is also brought out in the cross examination that other than the statements 34 Spl.C.C.No.363 of 2018 of accused No.2 and 3, no other documents were collected by him to show that accused No.2 had given money to accused No.1. He also admits that neither the accused No.2 nor accused No.3 had given any statement before him. He further admits that he did not conduct any investigation to ascertain who is the person authorized to give consent and approval of the construction of buildings with respect to the properties situated at Hongasandra where Salarpuria Builders are making construction of a building. He further admits that he has not done any investigation with respect to the Salarpuria Developers and constructions. He in his cross examination further admits that in his investigation Rs.50,000/- cash was seized from the car and the cash was kept in a bag inside the car.
25. PW12, K.Ravishankar has stated before this Court that he took further investigation as per the 35 Spl.C.C.No.363 of 2018 orders of the Superintendent of Police and he verified the documents collected by his predecessor-in-office and after preparing final report against accused persons submitted same to his superior officers for obtaining prosecution sanction order. He in his cross examination admits that he has not collected any documents as a part of investigation and he has not recorded statement of any witnesses.
26. PW13, T.Mahadeva is the Investigating Officer who laid the charge sheet. He states that he had perused the documents collected by his predecessor in office and laid charge sheet before this Court. He also states that he has not recorded any statement of any witnesses nor he recorded the statement of accused persons.
27. The learned Public Prosecutor in his arguments submits that it has become a menace in 36 Spl.C.C.No.363 of 2018 the society that no officer or staff working at the BDA office would perform their public duty without being bribed and the bribe amounts were not received by the officials directly and all officers had appointed private persons as their own agents and mediators and hence, public had no access to the BDA office and hence, on complaints received from several quarters of the society the Karnataka Lokayuktha conducted raid simultaneously in several offices situated at the BDA Head Office including the car parking area of the BDA and found out rampant corruption and accused No.1 of this case was caught red handed with the bribe amount he had received from accused No. 2 and 3 and he could not give proper explanation for possession of the money with him and also he was found with documents connecting the Salarpuria Builders in which accused No.2 and 3 were working and on investigation it is revealed that accused No.2 and 3 had bribed 37 Spl.C.C.No.363 of 2018 accused No.1 to got approval of construction of building which was to be constructed by the Salarpuria Properties Private Limited and the documents seized from the accused and the documents produced by the prosecution before this Court reveal that the accused persons have committed the offences charged against them. He further submits that even though PWs 2, 5, 6 and 8 turned hostile to the prosecution case, the evidence of PW10 remains unchallenged with respect to the seizure of currency notes from the possession of accused No.1 and his evidence is corroborated by the evidence of PW4, one of the mahazar witnesses. The prosecution has further proved beyond doubt that the accused No.1 had approved a project which was to be carryout by Salarpuria Properties which shows the nexus between the accused No.1 with accused No.2 and 3 and hence, on cumulative reading of the evidence and documents produced by the prosecution 38 Spl.C.C.No.363 of 2018 the accused are liable to be punished in accordance with law.
28. Per contra, the learned counsel for accused No.1 seriously objected the arguments addressed by the learned Public Prosecutor and he argues that there is no investigation done or documents has been proved to show that accused No.1 had done any work with respect to Sy.No.48/4D of Salarpuria Properties Private Limited and in connection with that transaction accused No.1 has received bribe of Rs.50,000/- from accused No.2 through accused No.3. Documents seized from accused No.1 have no connection either to accused No.2 or accused No.3 of Salarpuria Properties Private Limited. Ex.P21 is the document projected by the prosecution to prove the accusation against the accused No.1 that he had given consent for approval of the building plan of the proposed construction of the building to be constructed by the Salarpuria Properties 39 Spl.C.C.No.363 of 2018 Private Limited and page 3 of the said document shows that the order with respect to approval was given on 15.04.2014 i.e., two months prior to the incident. Hence Ex.P21 does not depict that accused had received bribe of Rs.50,000/- to give consent to the building construction proposed to be constructed by Salarpuria Properties Private Limited. Moreover, neither the Investigating Officer nor any person in the investigating team had received information that accused No.1 is receiving bribe from someone and hence, he was searched at the BDA premises. He further argues that Ex.2 mahazar is silent with respect to the place where the currency notes were recovered. It is the case of the prosecution that the accused No.1 to 3 were sitting inside the car. Currency notes were recovered from accused No.1 but no denomination of the notes or from where notes were seized are forthcoming from the contents of the mahazar. It is 40 Spl.C.C.No.363 of 2018 also stated that the car in which accused No.1 to 3 were sitting is also seized and produced before this Court. But the mahazar is totally silent with respect to the seizure of car. The accused No.1 had given written explanation immediately when he was intercepted by PW10 and in his statement he has stated that no money was recovered from him. He has also stated that he had gone to a meeting with the Deputy Director Sannappaiah. But the said Sannappaiah is not examined either by the Investigating Officer or by PW10, the searching officer. The prosecution has no case that any person has witnessed the exchange of money between the accused No.1 and accused No.2 and 3. The prosecution records no way proves that accused No.1 had demanded any bribe from anybody or any past event with respect to the receipt of bribe by accused No.1 has been proved by the prosecution. The approval or grant of sanction for building is to be 41 Spl.C.C.No.363 of 2018 given by the B.D.A. commissioner and accused No.1 has no role in granting of sanction to any building. It is not the case of the prosecution that accused No.1 had received bribe to facilitate the Commissioner of BDA to grant of sanction. The evidence of the prosecution witnesses do not corroborate with each other. Hence, no materials have been placed before this Court to connect accused No.1 for which these accused persons are entitled to be acquitted.
29. The learned counsel for accused No.2 and 3 adopting the arguments addressed by the learned counsel for accused No.1, further argues that the investigating agency has laid charge sheet against accused No.2 and 3 on mere presumptions and assumptions and prosecution has failed to discharge its initial burden that accused No.2 instructed accused No.3 to give bribe amount of Rs.50,000/- to accused 42 Spl.C.C.No.363 of 2018 No.1 to get the consent for approval of a building which is to be constructed by Salarpuria Properties Private Limited. He further argues that the documents said to be seized from the possession of the accused has no connection with accused No.2 and 3 or Salarpuria Properties Private Limited and the mahazar drawn by PW10 does not depict the exact place of occurrence or exact time of occurrence. Statement of the mahazar witnesses do not corroborate with each other. Above all, PW2 one of the mahazar witnesses completely turned hostile to the prosecution case and he categorically deposed that he had never witnessed any mahazar proceedings other than the search of a Santro car and a motorbike at the BDA premises. He also deposes that he had never seen accused No.2 and 3 before. He further points out that FIR is registered at 3.30 pm on 20.06.2014 and witnesses are summoned at 3.10 pm much earlier to the registration of this 43 Spl.C.C.No.363 of 2018 case. It is his further arguments that PW3 was directed by the Superintendent of Police concerned to make a preliminary enquiry with respect to a complaint which shows the name of three persons and hence, PW 3 conducted enquiry and he filed Ex.P4 report which shows that some other persons are indulged in criminal activities and on the basis of this Ex.P4 report, FIR is registered and no investigation has been carried out with respect to the accused persons named in the Ex.P4 report. This shows that there are irregularities or procedural lapses at each stage of preliminary enquiry, registration of FIR, investigation of this case and filing of charge sheet before this Court. He also pointed out that Ex.P2 mahazar shows over- writings and alternations and the mahazar witness PW4 has stated that when he signed the mahazar there were no alterations or over writing in that mahazar which also proves that there are procedural 44 Spl.C.C.No.363 of 2018 lapses in drawing the mahazar also as it was altered subsequently. From the entire prosecution records nothing to prove the proximity of accused No.2 and accused No.3 is forthcoming. The statements of the witnesses are fluctuating which also shows that accused No.2 and 3 are not involved in this case. None of the independent witnesses have supported the case of the prosecution and at any stretch of imagination accused No.2 and 3 cannot be held guilty and hence, prays to acquit them.
30. I have given my best attention to the rival submissions made by Sri.Ramesh Babu D., the learned Public Prosecutor and Sri.I.S.Pramod Chandra, the learned counsel for accused No.1 and Sri.S.Samarth, learned counsel for accused No.2 and 3. On thorough analysis of the prosecution records, it is clear that the FIR is registered as per Ex.P4 report of PW3, 45 Spl.C.C.No.363 of 2018 Sri.Mohammed Mukharam who had conducted the preliminary enquiry as per the directions of Superintendent of Police, Karnataka Lokayuktha and PW9 registered the case and after obtaining search warrants from this Court, raided the BDA Head Office and its adjoining premises. It is to be noted that PW3 had conducted preliminary enquiry with regard to the allegations in a complaint lodged by one J.P.Hegde against Premnath, Thippeswamy and Mahadev and on enquiry PW3 found that Chandrashekar, Teja, Shivaji, Manjunath, Vasu, Soori, Ashwath, Dhanyakumar and others were acting as agents and mediators for the Government servants working at the BDA and he admits in his evidence before Court that he did not make any enquiry with respect to the allegations made against the persons named in the said complaint. He has given the names of those persons in his Ex.P4 report against whom he got information that they were 46 Spl.C.C.No.363 of 2018 acting as agents and mediators and this Ex.P4 report is the basis for registration of FIR. But, PW9 Palakshaiah's testimony is that he did not make any investigation with regard to the involvement of the persons named in Ex.P4 report, instead he arrested all those persons who were in possession of cash which they could not satisfactorily explain for the possession thereof and he continued investigation upon those seized cash and persons and his successors Investigating Officers PW10, 11, 12 and 13 also did not make any investigation with regard to the Ex.P4 report made by PW3. So, it is clear from these aspects that the Superintendent of Police concerned directed PW3 to conduct preliminary enquiry on a complaint and the allegations leveled against the persons therein, which PW3 did not comply and he made a report which is totally silent with regard to the complaint and he categorically admitted before this Court that he did not 47 Spl.C.C.No.363 of 2018 make any enquiry with regard to the person named in the complaint. The Ex.P4 report filed by PW3 was to be investigated by PW9 as per the direction of the Superintendent of Police Karnataka Lokayuktha, but in turn after registering the FIR, he also did not conduct any investigation with regard to the involvement of persons named in the report. He and his successors Investigating Officers confined their investigation within those persons who did not give explanations to the cash found in their possession at the BDA. Further, the Ex.P2 mahazar does not show the exact place of occurrence where the car was parked. The mahazar also does not speak with regard to the seizure of the vehicle or description of the vehicle. These aspects gain importance because accused No.1 has strongly disputed the seizure of money from him. He also strongly disputed that no documents pertaining BDA office or any money were seized from him and the 48 Spl.C.C.No.363 of 2018 mahazar witness also were not able to support the prosecution case. The key witnesses PW2, 5 and 8 who were to prove the prosecution case against accused No.1 turned hostile and none of them supported the case of the prosecution.
31. The initial burden which is on the prosecution to prove in this case is that the amount seized from the possession of accused No.1 was the bribe amount since, section 7 of the Prevention of Corruption Act, 1988 is charged against accused No.1 and the allegation is that this bribe amount was given by accused No.2 and 3 to accused No.1 thereby abetting accused No.1 to commit the offence under section 7 of the Prevention of Corruption Act, 1988 which attracts offence under section 12 of P.C.Act against accused No.2 and 3. From the close scrutiny of the evidence of PW10, it can be seen that he had drawn Ex.P2 49 Spl.C.C.No.363 of 2018 mahazar with respect to seizure of the bribe amount from accused No.1 and the mahazar, as rightly pointed out by learned counsel for accused No.2 and 3 does not show from where the amount was seized. The mahazar just says that three persons were found sitting in the car and on inspection of accused No.1, a relinquishment deed and Rs.50,000/- was found and on enquiry, accused No.1 confessed that the amount was given to him by accused No.3 on instructions of accused No.2 for the work to be done by him. In his evidence he states that he found three persons sitting in the car and on inspection of accused No.1, a relinquishment deed with respect to the property in Sy.No.11 and 12/1 of Bandapura village, Bidarahalli Hobli was found and other documents were also found and on personal search of accused No.1 Rs.50,000/- was found in his pants' pocket and accused No.1 did not given any explanation with respect to the money 50 Spl.C.C.No.363 of 2018 found in his possession. These two statements are not corroborating since, in the mahazar he has stated that accused No.1 had given explanation that money was given to him by accused No.3 on the instruction of accused No.2. But, in his evidence before the court he states that accused No.1 did not give any explanation with respect to the money found in his possession. The evidence of PW2, one of the mahazar witnesses does not help the case of the prosecution since, he turned hostile to the prosecution case. Evidence of PW4, another mahazar witness shows that during search they found three persons sitting in the car and on personal search of accused No.1 Rs.50,000/- and relinquishment deed was found in his possession and on enquiry accused No.1 stated that accused No.3 had given money to him on instructions of accused No.2 with respect to some work to be done by accused No.1. Hence, PW10 arrested accused No.1 to 3 and 51 Spl.C.C.No.363 of 2018 seized money recovered from the possession of accused No.1. He has categorically deposed that at the time when he signed the mahazar, there were no alterations or over writing in the mahazar, but page No.2 of Ex.P2 mahazar shows that there is an over writing with respect to the time and there is alterations with respect to the recovery of money in the mahazar. It is stated in the mahazar that another car bearing Reg. No.KA.01.MJ 9126 was inspected and a person named Srinivas was found in the car and he had Rs. 1,33,000/- with him and on enquiry, it is revealed that the money was brought by him to give it to accused No.1 and hence, he is taking accused No.1 into custody for further proceedings. But there is an alterations in the mahazar stating that accused No.1 is being taken into possession along with the money which has not been explained properly by PW10 in his evidence before the Court.
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32. Ex.P21 is the document which has been produced by the prosecution to prove that accused No.1 was dealing the case with respect to the Salarpuria Properties Private Limited and he had given consent for approval of a building to be constructed by the Salarpuria Properties Private Limited for which he has received Rs.50,000/- from accused No.2 and 3 and Ex.P21 is a file which is seized from the B.D.A. office consisting of 285 pages. This is produced to prove the motive of accused No.1 to receive bribe of Rs.50,000/- from accused No.2 and 3, but the prosecution has failed to show that how this file is connected with accused No.1. It is the duty of the prosecution to prove precisely that accused No.1 had connection with respect to Ex.P21 file. PW11 has obtained Ex.P21 from BDA Town Planning Member on 04.12.2014 and this document is pertaining to the residential complex which was to be developed by Salarpuria Properties 53 Spl.C.C.No.363 of 2018 Private Limited at Hongasandra village and PW11 in his evidence has stated that accused No.1 had given approval for the sketch of the housing complex to be developed by the Salarpuria Properties Private Limited. But before this court a file with 255 pages of papers has been produced and nothing has been precisely proved before this Court to show that the sketch was approved by accused No.1 and accused No.1 had any connection with any of the 285 papers found in the file. Hence, I am of the opinion that Ex.P21 document will not help the prosecution to connect accused No.1 with Salarpuria Properties Private Limited or with the other two accused persons.
33. The learned counsel for accused No.1 had pointed out that page 3 of Ex.P21 wherein Annexure 5 is enclosed shows that Assistant Director of Town Planning (South) of B.D.A. had on 15.04.2014 54 Spl.C.C.No.363 of 2018 approved the sketch with respect to the development project which is to be carried out by Salarpuria Properties Private Limited which again shows that there was no motive as alleged by the prosecution for accused No.1 to receive bribe from the accused No.2 and 3. On thorough analysis of the other prosecution records, it is clear that none of the Investigating Officers have conducted investigation with respect to this case in a proper manner. PW3 was directed to conduct preliminary enquiry on a complaint filed by one Hegde against Premanath, Thippeswamy and Mahadeva, but instead he conducted preliminary enquiry and brought out Ex.P4 report which shows that Chandrashekara, Teja, Shivaji, Manjunath, Aswath, Vasu, Soori, Dhanyakumar and others are involved in receiving bribes on behalf of Government servants working at BDA and these persons are acting as mediators and he has stated before this Court that he 55 Spl.C.C.No.363 of 2018 did not conduct any investigation with respect to the involvement of the persons named in the complaint made by Hegde. PW9 who registered case on the basis of Ex P4 report straightway went to BDA premises along with his team and policemen and conducted simultaneous search on the several offices functioning in the BDA premises. He and his team found that many officials, staff and private persons were indulging in receiving illegal gratification and hence, 8 persons were arrested from the BDA premises along with unaccounted money and documents pertaining to BDA and he carried out the investigation against these 8 persons i.e., Harishilpa, Devarajaiah, Gangadhar, Shankar, B.K.Hirannaiah, D.N.Subramanya Kumar, G.M.Deepak and one Srinivas. Later, on investigation, he found that Srinivas had not committed any offence. Hence he was deleted from the accused array and investigation only with respect 56 Spl.C.C.No.363 of 2018 to other persons was continued. But he did not care to conduct any investigation with respect to the persons named in Ex.P4 report wherein names of 8 persons were given and he has categorically admitted this fact before this court in his evidence that he did not conduct any investigation with respect to these aspects. His successors also did not conduct any investigation with respect to those persons named in Ex.P4 report. This shows the investigation lapses from the side of all the Investigating Officers and they were keen enough to file charge sheet by collecting whatever papers came across them during investigation not even looking into the papers they collected, they produced those papers before the Court along with the charge sheet. None of the Investigating Officers cared to look into the matter how these documents are connecting with the offence or with the accused persons. Two BDA staff were 57 Spl.C.C.No.363 of 2018 examined as PW5 and 8 to prove that accused No.1 used to take the files from the BDA office and these two persons turned hostile to the case and one of them i.e., PW8 categorically stated that he did not know accused No.1 at all. The drawing of mahazar by PW10 also shows the casual manner in which he has done his duty which were entrusted by PW9 and PW9 also did not care to look into the contents of the mahazar. Nowhere in the mahazar or in any of the prosecution records, it can be seen that the car in which accused No. 1 to 3 were sitting was seized but the said car was produced before this Court as per PF which was taken to interim custody under section 451 of Cr.PC. by one of the relatives of accused No.1. Investigation lapses can be seen in each every stage of investigation.
34. The Hon'ble Supreme Court in M.N.Rishbund V/s State of Delhi reported in AIR 58 Spl.C.C.No.363 of 2018 1955 SC 196 held that "defect or illegality in investigation, however serious has no direct bearing on the competence of the procedure relating to cognizance or trial". This was followed in Manohar Lal Sharma V/s Principal Secretary reported in (2014)2 SCC page 532 by the Hon'ble Apex Court and further held that "any such defect in investigation will affect the trial only if it could be shown that the accused has been prejudiced on account of such defect and the accused can be said to have been prejudiced only if it can be shown that because of their defect he did not get a fair trial".
35. Recently in 2018, the Hon'ble Apex Court commenting on lack of disciplined investigation in Suresh and Another V/s State of Haryana in Criminal Appeal No.1445-1446/2012 held that "although Courts cannot give benefit of doubt to the 59 Spl.C.C.No.363 of 2018 accused for small errors committed during investigation, we cannot however, blind eye towards the investigation and deficiencies which goes to the root of the matter".
36. Here, in the case on hand the investigative defects stand in a protruded form in each and every stage of investigation right from the beginning of the preliminary enquiry where PW3 failed to conduct proper enquiry on the allegation in complaint, PW9 failed to conduct the allegation leveled against persons named in Ex.P4 report of P 3, the incomplete mahazar drawn by PW10, and all these aspects touches the very root of the prosecution case. Above all, none of the independent witnesses have supported the prosecution case and the key witnesses who were to prove prosecution allegations completely turned hostile and hence, I am of the considered opinion that 60 Spl.C.C.No.363 of 2018 the prosecution evidence are not sufficient to prove the charge leveled against the accused No.1 to 3, thereby the prosecution failed to prove its case beyond reasonable doubt by adducing cogent, convincing and corroborative evidence and thereby the benefit of doubt goes in favour of accused No.1 to 3 and they are entitled to be acquitted and accordingly, I answer points taken for consideration in the Negative.
37. Point No 3: In the result, I proceed to pass the following:
ORDER Under section 248(1) Cr.P.C the accused No.1 Hirannaiah is acquitted of the offence punishable under section 7 read with section 13(2) of the Prevention of Corruption Act, 1988.
Under section 248(1) Cr.P.C the accused No.1 Hirannaiah is acquitted of the offence punishable under section 13(1)(d) 61 Spl.C.C.No.363 of 2018 read with section 13(2) of the Prevention of Corruption Act, 1988 .
Under section 248(1) Cr.P.C the
accused No.2 Subramanya Kumar and
accused No.3 Deepak are acquitted of the offence punishable under section 9 of the Prevention of Corruption Act, 1988.
The bail bond and surety bond of the accused No.1 to 3 other than the bonds executed by accused under section 437A of Cr.P.C., stands cancelled.
The cash of Rs.50,000/- seized from accused No.1 and deposited in the account of Superintendent of Police Lokayuktha is ordered to be confiscated to the State after the lapse of the appeal period.
(Typed on my dictation by the Judgment Writer directly on computer, printed copy taken over, corrected, signed and then pronounced by me in open Court on this the 04th day of January, 2020) Sd/-04.01.2020 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 62 Spl.C.C.No.363 of 2018 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : M.S.Surendra PW.2 : B.Shivaramanna PW.3 : Mohammed Mukharam PW.4: Basawaraj Bandihal PW 5: B.S.Byhrareddy PW 6 : Chrislin Cardoza PW 7 : Rajath Chaturvedi PW 8 : Ramachandraiah PW 9 : D.Palakshaiah PW 10 : H.P.Puttaswamy PW 11 : H.S.Venkatesh PW 12 : K.Ravishankar PW 13 : T.Mahadeva
List of documents marked on behalf of prosecution:
Ex P 1 : Sanction order Ex P1(a) : Signature of PW 1 Ex P2 : Search Mahazar dated 20.06.2014 63 Spl.C.C.No.363 of 2018 Ex P2(a) : Signature of PW 2 Ex P2(b) : Signature of PW 4 Ex P2(c) : Signature of PW 10 Ex P3 : Portion of statement of PW 5 Ex P4 : Report of Investigating Officer Ex P 5 : Search warrant Ex P6 : Search warrant Ex P7: Covering letter of SATTVA dtd 16.10.14 Ex P8: Portion of the statement of PW 8 Ex P9 : Certified copy of the Authorisation letter Ex P10 : Relinquishment deed Ex P 11: Letter of BDA dtd 29.12.06 and 3.1.2007 Ex P 12: Search warrant Ex P13 : PF No.52/2014 Ex P 14: Unofficial note sheet Ex P15 : Attested copy of cash declaration sheets Ex P16 : Attendance register extract Ex P17 : Copy of work distribution/ notification Ex P18: Salary details of accused No.1 64 Spl.C.C.No.363 of 2018 ExP19 : Account details of accused at canara bank Ex P20 : Report of seized record pertaining to Sy.No.11 and 12.
Ex P21 : Letter of BDA dtd 28.11.14 Ex P 22: Xerox copy of proceedings issued by Superintendent of Police Karnataka Lokayuktha dtd 20.1.2016 Ex P23 : Xerox copy of proceedings dtd 10.2.2017 of Superintendent of Police Karnataka Lokayuktha, Bengaluru.
List of material objects marked on behalf of the prosecution:
NIL List of witnesses examined on behalf of accused: NIL 65 Spl.C.C.No.363 of 2018 List of documents marked on behalf of accused: Ex D1. Portion of statement of PW 6 Sd/-04.01.2020 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 66 Spl.C.C.No.363 of 2018