Bangalore District Court
State Karnataka Represented By vs M.M.Gangadhara S/O Late on 4 January, 2020
1
Spl.C.C.No.364/2018
IN THE COURT OF THE XXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU
URBAN DISTRICT, BENGALURU CITY (CCH-24)
Dated this 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.364/2018
Complainant: State Karnataka represented by
Deputy Superintendent of Police,
Karnataka Lokayukta, City Division,
Bengaluru..
(By Sri. D. Ramesh Babu, Public
Prosecutor)
V/s
Accused : M.M.Gangadhara S/o Late
Muddegowda, aged about 27
years, Surveyor, Re-allotment and
re-grant sanction, B.D.A. Head
Office, Bengaluru, Residing at
No.359, 4th Cross, 3rd Main,
Mahaganapathi Nagara, West of
Chord Road, Bengaluru-79. Native
of Manikyana Halli, Melukote Hobli,
Pandavapura Taluk, Mandya
District.
(By Sri.Venkataramana Naik
Advocate for accused)
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Spl.C.C.No.364/2018
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 13(1)(e) and 13(1) (d)
complained of read with section 13(2) of
Prevention of Corruption Act
against accused.
Opinion of the Accused is found not guilty
Judge
State represented Sri.D.Ramesh Babu Public
by Prosecutor
Accused defended Sri. Venkataramana Naik,
by Advocate for accused.
3
Spl.C.C.No.364/2018
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 com- plaints from the public alleging that the public cannot not get any of their works done from the officials/staff directly 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 in- dulged in receiving illegal gratification for discharging their official duties through agents and the officials and 4 Spl.C.C.No.364/2018 staff are dispersing government property to undeserv- ing persons by receiving illegal gratifications from me- diators 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 war- rant, 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 Offi- cer 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 declara- tion register in her office nor she had declared the pos- session of such a huge amount in any of the registers maintained in her office. An amount of Rs. 50,000/- was recovered from A2 from his office table rack and he made a bare denial of that he had no knowledge 5 Spl.C.C.No.364/2018 about such an amount being kept in his office table. An amount of Rs. 50,000/- was recovered from the posses- sion of A3 while he was sitting in his car at the parking area of the BDA with A4 and A7 along with some docu- ments. An amount of Rs. 3,00,000/- and several files connecting the office of the BDA was recovered from the possession of A5 from his car from the parking area of the BDA and an amount of Rs. 54,000/- was recov- ered from the side box of the motorcycle belonging to A8. The Investigating Officer arrested the accused per- sons and produced them before the home office of my predecessor on 21.06.2014 and they were released on bail on 25.06.2014. After investigation the Investigat- ing Officer filed Charge Sheet against the above men- tioned accused for alleged commission of above said offences. During search the Investigating Officer had seized and recovered an amount of Rs. 1,33,000/- from possession of one Srinivas, who is arrayed as A6 in this 6 Spl.C.C.No.364/2018 case, from his car and during investigation he provided sufficient explanation and clarification for the posses- sion of the said amount and hence his name was deleted from the Final Report and the investigating offi- cer 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 prosecu- tion 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 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. 7
Spl.C.C.No.364/2018 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, 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, 8 Spl.C.C.No.364/2018 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.
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.
4. On 21.06.2018 charges were framed against Accused No.2, who is the sole accused in this case for the offence punishable under sections 13(1)(e) and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988, read over and explained to him to which he pleaded not guilty and claimed to be tried. 9
Spl.C.C.No.364/2018
5. In order to prove the prosecution case, the prosecution has examined in all nine witnesses as PWs 1 to 9 and got marked documents Ex. P1 to P14. After closure of the prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded. The accused denied all the incriminating circumstances appearing against him in the prosecution evidence and he did not choose to adduce any defence evidence on his behalf.
6. Now, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that the accused being public servant working as Surveyor, Re-allotment and re-grant section, B.D.A. Head Office, Bengaluru, on 20.06.2014, the accused was found in possession of Rs.50,000/- in the table rack of his office for which he could not satisfactorily 10 Spl.C.C.No.364/2018 account and had not declared the possession of such a huge amount in any of the registers maintained in his office and thereby, has committed the offence defined under section 13(1)(e) and which is punishable under section 13(2) of The Prevention of Corruption Act, 1988.
2. Whether the prosecution proves beyond all reasonable doubt that the accused abused his position as public servant and obtained by corrupt or illegal means Rs.
50,000/- and kept it in the table rack of his office and thereby accused has committed criminal misconduct within the ambit of section 13(1)(d) of The Prevention of Corruption Act, 1988 which is punishable under section 13(2) of The Prevention of Corruption Act, 1988?
3. What order?
7. Having heard the arguments on both sides and taking into consideration of evidence on record, my findings on the above points are as: 11
Spl.C.C.No.364/2018 Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per final order, for the following REASONS
8. Points No. 1 and 2 : Since these two points are interlinked to each other and to avoid repetition I have taken them for discussion together.
9. It is not in dispute that the accused is a public servant holding the post of Surveyor, Re-allotment and Re- grant section at the B.D.A. Head Office, Bengaluru. Hence, to prosecute accused prosecution sanction order from the competent authority of the accused under section 19 of the PC Act 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 12 Spl.C.C.No.364/2018 sanctioning authority and the other one is the application of mind by the sanctioning authority. Ex. P1 is the sanction order issued by the Commissioner of Survey, Revenue settlement and Land Records Department, Bengaluru. Here in this case, PW1, Sri. V.P. Ikkeri, is examined to prove the prosecution sanction order issued by him to prosecute accused. PW1 in his evidence testifies that he received a letter from A.D.G.P., Karnataka Lokayuktha, seeking prosecution sanction order against the accused and along with the letter they had sent copies of Final Report and other connected records pertaining to Crime No.26/2014 and after going through the material placed he found that there was prima facie case against the accused and hence, he issued Ex.P1 order and he further deposes that he being the Commissioner of the Survey, Revenue Settlement and Land Records, is the competent authority to remove a 13 Spl.C.C.No.364/2018 public servant of the cadre of Surveyor from his service. From cross examination of PW1 it can be seen that the accused 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 Prosecution Sanction Order.
10. The learned Public Prosecutor submits that the contention of the learned counsel for the accused 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.
11. 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 14 Spl.C.C.No.364/2018 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 "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 15 Spl.C.C.No.364/2018 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:
a) 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.
b) 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;
c) The prosecution may prove by adducing the evidence that the materials were placed before the sanctioning authority and its satisfaction was arrived at upon 16 Spl.C.C.No.364/2018 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 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" 17
Spl.C.C.No.364/2018
12. 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 PW1 and after close scrutiny of those materials the sanction order has been issued. From the light of the above discussed decisions and the from the prosecution 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.
13. Now coming to the facts and circumstances of this case, the specific case of the prosecution is that on 20.06.2014 when PW6 conducted the search of the office chamber of the accused situated at the BDA 18 Spl.C.C.No.364/2018 Head Office Rs.50,000/- cash was found in the table draw of the accused and on his personal search Rs.1,000/- was found in his wallet and since, the accused did not give any satisfactory explanation for the same and as he did not declare the possession of these amount in the Cash Declaration Register of his office with respect to the possession of the money with him, the amount was seized and he was arrested and during investigation the Investigating Officer collected bank statement of the accused which shows that the accused had not withdrawn any amount from his bank, hence, he was committed the offence charged against him. To prove the seizure of the currency notes from the table draw of the accused the prosecution has examined PW6, the searching officer, PW9, the mahazar witness and PW3, one of the staff of the BDA. Apart from these witnesses the prosecution examined PW2, Mohammad Mukharam, who conducted 19 Spl.C.C.No.364/2018 preliminary enquiry with respect to the allegation that the BDA officials would do their public duty only if they are bribed through agents and mediators and PW4, 5, 7 and 8 are the Investigating Officers of this case.
14. Now it is apposite to examine the evidence of these witnesses one by one to ascertain whether the prosecution has proved its case beyond reasonable doubt. PW2, Mohammad 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.P2 report before the Superintendent of Police, Karnataka Lokayuktha, 20 Spl.C.C.No.364/2018 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 21 Spl.C.C.No.364/2018 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 a complaint made by 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. P2 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.
15. M.S.Srinivas, the officer who searched and seized the currency notes from the accused is examined as PW6 and his testimony in brief is that on 20.06.2014 he conducted the search of the offices situated at the 2nd floor of the BDA Head Office as per the search warrant issued by this court and on instruction of PW4, the Investigating Officer of this 22 Spl.C.C.No.364/2018 case and he secured 2 witnesses for the search. While conducting search of several offices they reached the office of the accused and the accused was present there in his chamber and on search of his office Rs.50,000/- cash was found in the table draw and on his personal search Rs.1,000/- cash was found in the wallet. The amount found in his wallet was returned to the accused and Rs.50,000/- was seized and a mahazar to that effect was drawn in the presence of the panch witnesses. The mahazar is marked as Ex.P6. He further deposed that several files were also seized from the office of the accused. After the seizure of currency notes and the files explanation of the accused was sought which the accused gave in writing and the same is marked as Ex.D1. His further testimony is that he produced the accused, the currency notes, the documents and the explanation given by the accused before PW4, the Investigating 23 Spl.C.C.No.364/2018 Officer. In his cross examination he admits that the chamber of the accused was separated by cabins and in each cabin there was seating arrangements for two employees and there was no name plates or designation plates of any of the employees displayed in that office. He further admits that the table draw from which the currency notes were seized did not have any lock and key and he did not make any enquiry with respect to the other staff members who shared the cabin with the accused, but he admits that there was another staff by name N.Gangadhar sharing the cabin with the accused and that employee got retired from service prior to the date of raid. He further admits that he did not seize the Cash Declaration Register or the Movement Register kept in the office of the accused and he denies the suggestion made by the learned counsel for accused that at the time of search and seizure, accused was not present in his 24 Spl.C.C.No.364/2018 office and his presence was secured to the office by calling him through phone. He admits that he did not obtain the signature of the accused in the mahazar.
16. PW9, Ramdas, is the Ex.P6 mahazar witness and his testimony with respect to the search and seizure is that he had accompanied PW6 in the search procedure with his colleague, the other panch witness Halappa. They searched the office of the surveyor Gangadhar, the accused herein and in his table draw Rs.50,000/- cash was found which was seized by the Investigating Officer. Then accused came to the office and he was searched by the Investigating Officer and an amount of Rs.1,000/- was with him which was also seized by the Investigating Officer and a mahazar was prepared to this effect. In his cross examination he admits that the office of the accused had facilities to accommodate many employees and all these were 25 Spl.C.C.No.364/2018 open chambers and when the raiding party entered the office for search there were 2-3 employees working in the office. He further admits that presence of the accused into the office was secured by the Investigating Officer by calling up him through phone and when the Investigating Officer enquired about the money found in the table draw, accused submitted that he had no connection with the money. He also admits that there was no lock provided to the table draw from where the money was recovered. He further deposed that the Investigating Officer enquired about the money with the other staff members who were present there in the office, but they all said that the money recovered does not belong to them. He further deposes that at the time of drawing the mahazar the accused was present at the spot.
17. PW3, P.Nagaraju, is the attender working at the ACR and R section of the BDA and he turned 26 Spl.C.C.No.364/2018 hostile to the prosecution case and he in his evidence states that no search was conducted in his presence but he admits when the learned PP cross examined him after he was declared hostile to the prosecution case, that on 20.06.2014 at 5.30pm the Lokayuktha police had conducted search of the office where he was working and on search Rs.50,000/- was recovered from the table draw of the accused and since, the accused did not give satisfactory explanation he was arrested and the money was seized. In his cross examination by the learned counsel for the accused, he admits that there was no lock and key provided to the said table draw.
18. Remaining witnesses i.e., PW4, 5, 7 and 8 are the Investigating Officers of this case. PW4, Palakshaiah had conducted initial investigation of this case after registering the FIR based on the Ex.P3 27 Spl.C.C.No.364/2018 report of PW2. He deposes that as per his direction and as per the search warrant PW2 had conducted search of the office of the accused and recovered Rs.50,000/- found in the table drawer used by the accused and several documents were also seized and PW2 produced before him the documents and accused along with the amount seized after drawing a mahazar. He admits in his cross examination that he had thoroughly read the Ex.P2 report submitted by PW2 based on which FIR is registered and he further admits that he did not mention the names of the persons named in the report in the accused column of the FIR. His testimony is that PW2 had conducted preliminary enquiry on a complaint lodged by one J.P.Hegde and the complaint had stated names of three persons as accused and the Ex.P2 report based on the said complaint gives out names of 8 other persons as accused. He admits that in the FIR accused column he 28 Spl.C.C.No.364/2018 did not mention the names of any of these persons and he further admits that the name of accused is not mentioned in either the complaint filed by J.P.Hegde or in the Ex.P2 report filed by PW2. He further admits in his cross examination that he did not conduct any enquiry with respect to the currency notes found scattered on the floor near the Xerox machine of the office of Deputy Secretary Smt. Suma and he also admits that the money seized were not recovered from the person of the accused. He also say that he did not conduct any investigation to ascertain that the table from where money was seized was provided with lock and key facility or not and also admits that he did not conduct any investigation with respect to the fact whether the table where the money was found was used by accused or not. He denied to the suggestion made by the learned counsel for accused that during 29 Spl.C.C.No.364/2018 search of the office of accused, accused was not present in his chamber.
19. PW5, H.S.Venkatesh in his evidence states that he collected several documents from the office of accused, statement of account of the accused from the bank where the accused had maintained account. He admits in his cross examination that accused was working as Surveyor and he was a field worker and he do not know whether on the date of raid of office of accused, accused was in a field visit to a site situated at Banashankari 1st block or not and he admits that he did not verify the movement register maintained in the office of the accused and he did not produce the same before the Court. He categorically states that in his investigation it was revealed that accused was not present in his office at the time of search and seizure of currency notes. He also admits that he did not make any investigation to find out whether there was any 30 Spl.C.C.No.364/2018 lock and key facility provided to the table draw from where the currency notes were recovered. He also states that accused had given an immediate explanation in writing stating that he had no nexus with the money seized from the table draw and the explanation is marked as Ex.D1.
20. PW7, K.Ravishankar took over investigation and his evidence is that he verified the documents collected by his predecessor Investigating Officers and after preparing Final Report, he submitted the report before his superior officers to obtain prosecution sanction order against accused. He admits that he had not conducted any investigation of this case except verifying the documents collected by previous officer. PW8, Mahadev took over investigation from PW7 and he has laid charge sheet before this Court.
21. PW9 is witness of Ex.P6 mahazar and he in his testimony says that he was taken to BDA Head office 31 Spl.C.C.No.364/2018 and the Investigating Officer searched the table draw of the accused and found Rs.50,000/- which the Investigating Officer seized. Later, the accused came inside the office and the Investigating Officer searched the accused and found Rs.1000/- in his wallet and the same was seized by the Investigating Officer. In his cross examination he says that there is no lock facility provided to the table draw of the accused.
22. The learned Public Prosecutor in his arguments submits that it has become a menace in the society that no officers or staff working at the B.D.A. offices would perform their public duty without being bribed and the bribe amounts were not received by the officials directly but 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 32 Spl.C.C.No.364/2018 society the Karnataka Lokayuktha conducted raid simultaneously in several offices situated at the BDA, Head Office and found out rampant corruptions and in this case Rs.50,000/- was found in the table draw used by the accused at his office and he was unable to give satisfactory explanation for the same except a vague denial. It is further revealed in the investigation that the accused had not declared the amount of cash he had kept in his table draw and he had not withdrawn any amount from his account on the day of raid or any previous days. The prosecution has proved beyond doubt through PW2 and PW9 with respect to the seizure of the currency notes from table draw used by the accused in his office and the Ex.P6 mahazar drawn to that effect also clinchingly establishes the recovery of the money. Now the onus shifts on the accused to prove that either the table was not used by him or that the money found in the table does not belong to him. 33
Spl.C.C.No.364/2018 As the accused had not made any effort to prove that the money does not belong to him, the evidence of prosecution witnesses and the documents clearly establishes the prosecution case and hence, the accused is liable to be punished in accordance with law.
23. Per contra, the learned counsel for accused seriously objected the arguments addressed by the learned Public Prosecutor and he argues that FIR is registered on the basis of Ex.P2 report of Muhammad Mukharam in which there are allegations against several named persons such as Chandrashekar, Teja, Shivaji, Manjunath, Vasu, Soori, Ashwath and Dhanyakumar and no investigation is done with respect to the involvement these persons nor there is any whisper in the Final Report with respect to these persons. Neither Ex.P2 report nor FIR discloses the name of accused Gangadhara. He further argues that 34 Spl.C.C.No.364/2018 when PW6 raided his office and searched the table draw and found cash in the table drawer he gave immediate and spontaneous explanation with respect to the amount found in the table draw. None of the offices situated at the BDA, Head Office were maintaining the cash declaration register. He further raised a crucial question of law that the accused is charged for commission of offence under section 13(1)
(e) read with section 13(2) of The Prevention of Corruption Act, 1988 and the Section 17 of The Prevention of Corruption Act, 1988 mandates that authorization from the officer of rank of Superintendent of Police is to be obtained by an Investigating Officer to investigate offence under section 13(1)(e) which is not forthcoming in this case and on that ground also the investigation conducted by PW 4, PW 5, PW 6, PW 7 and PW 8 would be non-est. He concluded his arguments by submitting that all these above grounds, 35 Spl.C.C.No.364/2018 PW3 who is the only witness the prosecution had cited to prove that cash is illegally got amount of accused, completely turned hostile to prosecution case. The definite case of the defence is that when the accused returned to his office after a field visit, he found that the amount was scattered near table draw and in these circumstances the accused is entitled to be acquitted. He relied upon the following authorities of the Hon'ble Apex Court in support of his arguments.
i) AIR 2017 Supreme Court page 3173 (Venkatrao Guhe V/s State of Madhya Pradesh)
ii) (2009)6 Supreme Court Cases page 587 (A.Subair V/s State of Kerala)
24. This Court paid its anxious consideration and best attention to the rival submissions made by Sri.Ramesh Babu D., the learned Public Prosecutor and Sri.Venkataraman Naik, advocate for accused and also 36 Spl.C.C.No.364/2018 perused the documents and decisions relied on by the learned counsel for accused. On thorough analysis of prosecution records, it is clear that FIR is registered as per the Ex.P2 report of PW2 who had conducted preliminary enquiry and Ex.P14 is the direction of Superintendent of Police Karnataka Lokayuktha, Bengaluru city to PW4 to register a case and to conduct investigation. FIR discloses that case is registered for offence under section 7, 8, 9, 10 and 13(1)(d) read with section 13(2) of The Prevention of Corruption Act, 1988. Hence, PW4 registered FIR and began the investigation of the case. 2 nd proviso to Section 17 of The Prevention of Corruption Act, 1988 mandates that an offence under section 13(1)(e) shall not be investigated without an order of a police officer not below the rank of a Superintendent of Police and in this case FIR is registered for offences under section 7,8, 9, 10 and 13(1)(d) and 13(2) of The Prevention of 37 Spl.C.C.No.364/2018 Corruption Act, 1988 hence, for conducting investigation of this case by PW4, authorization under section 17 of The Prevention of Corruption Act, 1988 is not necessary as argued by the learned counsel for accused. But PW8 has laid the charge sheet against the accused alleging commission of offence under section 7, 8, 12, 13(1)(d), 13(1)(e) read with section 13(2) of The Prevention of Corruption Act, 1988 and none of the prosecution records depicts that at which stage of investigation the Investigating Officer has added Section 13(1)(e) and continued the investigation. There is not even a single piece of paper submitted before this Court by the Investigating agency with respect to addition of Section 13(1)(e) of The Prevention of Corruption Act, 1988. Hence, it is not forthcoming from the records that at which stage of investigation this section was included in the FIR and amongst PW4 to PW9 who added this section also 38 Spl.C.C.No.364/2018 cannot be ascertained. Admittedly, the Superintendents of Police of Lokayuktha who all authorised PW5, PW7 and PW8 have not authorized them to conduct investigation of an offence under section 13(1)(e) of The Prevention of Corruption Act, 1988. If it is presumed that PW8 who had laid the charge sheet had added this offence, just before filing Final Report before this Court, that will also not cure the technical defect which has to be mandatorily followed by the investigating agency before conducting any investigation of offence under section 13(1)(e) of the Act.
25. Coming to the other aspects of this case, it is the initial burden cast upon the prosecution to prove its case beyond reasonable doubt, only after discharge of this burden the onus shifts on to accused to prove his defence and the accused is not required to prove his defence with the standard of absolute proof, 39 Spl.C.C.No.364/2018 nonetheless he is required to produce acceptable, reliable evidence to probabalise his defense. From close analysis of the evidence of key witnesses PW6 searching officer and PW9 the mahazar witness it can be seen that their version with respect to the presence of accused at the time of search is contrasting with each other's evidence. PW6 searching officer deposes that accused was present at the office at the time of search but PW9 says that after search and seizure of money presence of accused was secured by PW2 who was not present at the office during search. It is pertinent to note here that this was spoken by PW9 during his examination in chief itself and this was categorically reiterated by him during his cross examination. The evidence of PW5, the Investigating Officer, also supports the version spoken up by the mahazar witnesses and he also states that in his investigation it is revealed that the accused was not 40 Spl.C.C.No.364/2018 present in his office when the currency notes were recovered by PW6. The specific defence of the accused is that he was on field duty on that particular day and when he was returning to his office he received a call from PW6 asking him to immediately reach the office and hence, he went to his office, then PW6 arrested him alleging that Rs.50,000/- was found in the table draw. It is not in dispute that the said table draw was not in locked condition when the raiding party searched the office. It is not the case of the prosecution that the amount recovered was from the table which was in a closed place. It is admitted by all the witnesses that the office of accused had several employees working there and at the time of search there were several employees sitting in the office and the chambers from which the amount is seized does not exclusively belong to the accused. It is also not in dispute that the table which accused was using had 41 Spl.C.C.No.364/2018 access to all employees working there. The Ex.P6 mahazar does not give out the exact place inside the office where the table was placed. PW3 Raju, one of the employees of the BDA who was cited to prove the fact of seizure of notes from the possession of accused turned hostile and he has categorically stated that the search and seizure was not conducted in his presence. The evidence of the Investigating Officers also do not help the prosecution in proving its case beyond doubt as they all clearly admit that the place from where the money is recovered is an open place and the table draw had no lock and key facility. The contention of the learned Public Prosecutor that the seizure of money from the table is proved and hence, it is the accused to prove that the money does not belong to him cannot be accepted. Since, the prosecution has not established its case that the table which contained the currency notes was used by accused, and the currency 42 Spl.C.C.No.364/2018 notes were kept in the table by the accused. Here the only aspect proved through Ex.P6 mahazar and the testimony of PW6, PW9 and PW3 is that an amount of Rs.50,000/- has been recovered from a table which was in one of the chambers of the office of Assistant Commissioner, Re-allotment and re-grant section of the BDA. Prosecution has to prove that the chamber is used by accused, and since, there are other employees also sharing the same chamber, the prosecution has to prove that the table was exclusively used by the accused, then it has to be proved that the money found inside the table draw was kept by the accused or was kept with the knowledge of the accused. Here the prosecution has not even proved the presence of the accused in his office at the time of search and no evidence is forthcoming either oral or documentary to show that the table was used by accused, the place where the table was found was the chamber used by 43 Spl.C.C.No.364/2018 accused. Rs.50,000/- is recovered from an unlocked table draw situated in an office used by several BDA employees and seeking explanation from a person whose presence in the office is also not established through any evidence is not acceptable. Neither the searching officer PW6 nor the Investigating Officers of this case have conducted proper investigation with respect tothe allegations on which they were asked to investigate.
26. The Hon'ble Supreme Court in M.N.Rishbund V/s State of Delhi reported in AIR 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 44 Spl.C.C.No.364/2018 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".
27. 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 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".
28. 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 45 Spl.C.C.No.364/2018 preliminary enquiry where PW2 failed to conduct proper enquiry on the allegation in complaint, PW4 failed to conduct the allegation leveled against persons named in Ex.P2 report of PW2, the incomplete mahazar drawn by PW6, 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 the prosecution evidence are not sufficient to prove the charge leveled against the accused, thereby the prosecution failed to prove its case beyond reasonable by adducing cogent and convincing evidence and thereby the benefit of doubt goes in favour of accused and he is entitled to be acquitted and accordingly, I answer points taken for consideration in the negative. 46
Spl.C.C.No.364/2018
29. Point No 3: In the result, I proceed to pass the following:
ORDER Under section 248(1) Cr.P.C the accused M.M. Gangadhar is acquitted of the offence punishable under section 13(1)
(e) read with section 13(2) of the Prevention of Corruption Act, 1988.
Under section 248(1) Cr.P.C the accused M.M.Gangadhar is acquitted of the offence punishable under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 .
The bail bond and surety bond of the accused other than the bond executed by accused under section 437A of Cr.P.C, stands cancelled.
The cash of Rs 50,000/- seized from accused and deposited in the account of Superintendent of Police Lokayuktha is 47 Spl.C.C.No.364/2018 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 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : V.P.Ikkeri
PW.2 : Mohammed Mukharam
PW.3: P.Nagaraju
PW 4: D.Palakshaiah
PW 5 : H.S.Venkatesh
PW 6 : M.S.Srinivas
PW 7 : K.Ravishankar
PW 8 : T.Mahadeva
PW 9 : B.Ramadas
48
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List of documents marked on behalf of prosecution:
Ex P 1 : Sanction order
Ex P1(a) : Signature of PW 1
Ex P2 : Certified copy of report of the Investigating
Officer
Ex P3 : Certified copy of search warrant Ex P 4: Certified copy of search mahazar Ex P 5 : Certified copy of order u/s 165 Cr.P.C Ex P6 : Mahazar dtd 20.6.2014 Ex P6(a) : Signature of PW 6 Ex P6(b) : Signature of PW 9 Ex P7 : PF No.51/2014 Ex P8 : Work distribution order Ex P9 : Attested copy of attendance register Ex P10 : Salary details of accused Ex P 11 : Account details of accused at Canara Bank Ex P 12 : Requisition letter for securing witnesses Ex P 13 : Attested copy of muddam book 49 Spl.C.C.No.364/2018 Ex P 14 : 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 List of documents marked on behalf of accused: Ex D1. Explanation of accused.
Sd/-4.1.2020 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 50 Spl.C.C.No.364/2018