Bangalore District Court
State Karnataka Represented By Deputy vs Sri.Shankar S/O Chikkaida Heggade on 4 January, 2020
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Spl.C.C.No.362/2018
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.362/2018
Complainant State Karnataka represented by Deputy
Superintendent of Police, Karnataka
Lokayukta, City Division, Bengaluru..
(By Sri. D. Ramesh Babu, Public
Prosecutor)
V/s
Accused : 1. Sri.Shankar S/o Chikkaida Heggade,
37 years, Real Estate Agent, R/at
No.432, Channamallappa Vattara,
Visweswaraiah Lay Out, Manganahalli
Main Road, Vishwaneedam Post,
Ullalu, Bengaluru 560 056.
2. Devaraja, S.D.A., Documents
Maintenance Section, B.D.A Head
Office, Bengaluru R/at House No.620,
2nd H Cross, H.R.B.R 2nd Stage,
Kalyana Nagara, Bengaluru-43
(By Sri.S.Samarth, Advocate for
accused No.1 and Sri.Raghunath.N
advocate for accused No.2)
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Spl.C.C.No.362/2018
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 Mokharam
complainant
Date of 10.08.2018
commencement of
recording evidence
Date of closing of 15.10.2019
evidence
Offences Section 9 of The Prevention of
complained of Corruption Act, 1988 against
accused No.1 and sections 13(1)
(e) and 13 (1)(d) read with
section 13(2) of Prevention of
Corruption Act against accused
No.2
Opinion of the Accused Nos 1 and 2 are found
Judge not guilty
State represented Sri.D.Ramesh Babu Public
by Prosecutor
Accused defended Sri.S.Samarth, Advocate for
by accused No.1 and
Sri.Raghunath.N advocate for
accused No.2.
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Spl.C.C.No.362/2018
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.362/2018 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 about 5 Spl.C.C.No.362/2018 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.362/2018 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.362/2018 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.362/2018 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.
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.
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 9 Spl.C.C.No.362/2018 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 fourteen witnesses as PWs 1 to 14 and got marked documents at Ex. P1 to P24 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 choose to adduce any defence evidence on their behalf, however Accused submitted their written statements.
7. Now, the following points arise for my consideration:
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1. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 Shankar being private person, a real estate agent found available within the premises of the B.D.A., Head Office, Bengaluru on all the days except Sundays and General Holidays, on 20.06.2014, when the Lokayuktha Police conducted raid of the above said office, accused No.1 was found in possession of Rs.3,00,000/- and several original documents and files pertaining to the B.D.A. office in his car bearing registration number KA 05 ME 5784 at 4.30 pm at the car parking area of the B.D.A. Head Office, Bengaluru, which was obtained by the accused No.1 as a motive or reward for inducing, by exercise of his personal influence any of the officials or staff of the B.D.A. to do their official act and thereby Accused No. 1 has committed offence punishable under section 9 of Prevention of Corruption Act, 1988?11
Spl.C.C.No.362/2018
2. Whether the prosecution proves beyond all reasonable doubt that accused No. 2 being a public servant working as Second Division Assistant, at the Documents Maintenance Section, B.D.A. Head Office, Bengaluru, on 20.06.2014 at about 4.30 P.M, when the Lokayuktha Police raided BDA office, accused No.2 was found in possession of Rs. 54,000/- which was recovered from the side box of his motor cycle bearing Reg. No.KA.03.HR.4509 parked in the car parking area of the B.D.A. Head Office, Bengaluru, for which accused No.2 could not satisfactorily account and accused No.2 had not maintained a cash declaration register in his office nor had declared the possession of such a huge amount in any of the registers maintained in his office and thereby Accused No. 2 has committed the offence defined under sections 13(1)(d), 13(1)(e) and which is punishable under section 13(2) of The Prevention of Corruption Act, 1988?.
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Spl.C.C.No.362/2018
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:In the Negative Point No.3: As per final order, for the following REASONS
9. Points No. 1 to 2: Since the evidences adduced by the witnesses are common to both the points which are interlinked to each other, to avoid repetition, I have taken them for discussion together.
10. The prosecution allegation is that the accused No.1 is a private person and he was found in possession of Rs. 3 lakhs and several original files of the B.D.A. when PW14 B.G.Kumaraswamy, Police 13 Spl.C.C.No.362/2018 Inspector searched the BDA premises on 20.06.2014, the motorbike owned by A2, who was working as Second Division Assistant at the BDA Head Office was parked at the BDA parking area and on search of the said vehicle Rs 54,000/- was found in the side box of the vehicle and A2 who was sitting near the motorbike ran away on the sight of the police.
11. Since accused No.2 is a public servant to prosecute him prosecution sanction order from his competent authority under 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 14 Spl.C.C.No.362/2018 Sri.Rajkumar Khatri, the then Commissioner of B.D.A. and he was examined as PW1 to prove the prosecution sanction order. He 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 place he found that there was prima facie case against the accused and hence issued Ex.P1 order and he further deposes that the B.D.A. Commissioner is the competent authority to remove a public servant of the cadre of Second Division Assistant from his service. From cross examination of PW1 it can be seen that the accused No.2 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 15 Spl.C.C.No.362/2018 did not raise any serious objection in respect of Ex P1 order.
12. 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 the Ex.P1 order itself speaks about the application of mind by PW1 who is the competent authority to remove an officer of the cadre of the SDA from his post and hence, PW1, has issued the sanction order.
13. 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: 16
Spl.C.C.No.362/2018 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 safeguard to a public servant against frivolous and vexatious litigations. Satisfaction of the 17 Spl.C.C.No.362/2018 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 perusal of the materials placed before it.18
Spl.C.C.No.362/2018 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"
14. Here, in this case, the prosecution has produced and marked the Ex. P1 sanction order which 19 Spl.C.C.No.362/2018 clearly shows that all the materials were placed before 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.
15. Now coming to the facts and circumstances of the case, the prosecution allegation is that the accused No.1 who is neither an official nor a staff of BDA was found wandering in the BDA premises on 20.06.2014 and on suspicion PW14 B.G.Kumaraswamy, who was conducting search of the BDA premises inspected the Santro car bearing Reg. No.KA.05.ME 20 Spl.C.C.No.362/2018 5784 belonging to the accused which was parked at the parking area of the BDA and seized currency notes worth Rs.3,00,000/- and several original documents pertaining to the BDA from the car and on investigation it was revealed that accused No.1 used to obtain illegal gratification from the public and by exercising his personal influence induced the public servants working at the BDA to perform their official duty. Out of the 14 witnesses examined by the prosecution, to prove the charges against accused No.1 that he received illegal gratification from public to influence public servants and induce them to perform their public duty, PW2, PW5, PW12, PW13 are examined. PW3 is the registered owner of the Santro Car from which Rs. 3 lakhs and documents were seized. PW4 Mohammed Mukharam is the Police Inspector who conducted preliminary enquiry and submitted report about the illegal activities of B.D.A. staff to the Superintendent of Police 21 Spl.C.C.No.362/2018 on the basis of which FIR came to be registered. PW6 is the Investigating Officer who registered FIR and conducted initial investigation. PW14 is the Police Inspector who conducted search and seizure as per the order of PW6. PW7, Investigating Officer conducted part of investigation, PW9 Investigating Officer who prepared final report and submitted to his superior officer to obtain prosecution sanction order from competent authority of accused No.2 and PW8 is the Investigating Officer who completed investigation, verified records and laid charge sheet before the Court. Out of these above mentioned witnesses, evidences of PW4, 6, 7, 8, 9, 10 and 11 are relied upon by the prosecution to prove the charges against accused No.2.
16. PW 2, PW5, PW12 and PW13 are the key witnesses cited by the prosecution to prove the case against A1. The prosecution case is that accused No.1 22 Spl.C.C.No.362/2018 had received illegal gratification from these witnesses to get their work done at the B.D.A. All these four witnesses turned hostile to prosecution case.
17. PW 2, G.Ramesh Babu's testimony is that he had land at Ullalu village which was acquired by the BDA about 12 years back and he did not get the compensatory site in lieu of acquisition of land and hence, he contacted a BDA agent named Somu through whom he got a site disbursed to his name and later Somu got the said site sold to some other person and gave Rs.15 lakhs and he categorically deposes that he do not know accused No.1. PW5, Lingaraju, in his testimony states that his wife Lalithamba and his sister-in-law Mahalakshmi had sites at Ullalu village and these sites were acquired by BDA and he made the follow up procedures before BDA and got the compensatory sites to them and he categorically 23 Spl.C.C.No.362/2018 deposes that he did not give any person any money for this matter and he did not know accused No.1. He denied the suggestion of Public Prosecutor that he had given Rs. 25,000/- to accused No.1 to get his work done from the B.D.A. PW12, Kiran Kumar deposes that for the last 15 years he is doing real estate business and 3-4 years back he had purchased a site at Banashankari 6th stage from one Shambulingaiah and he also deposes that he do not know accused No.1. PW13, Shambulingaiah deposes that in the year 2004 he was disbursed with a site at Banashankari 6 th stage by the BDA, but he did not have enough money to purchase it, hence, he contacted a real estate businessman one Chandrappa and Chandrappa had informed that to get the site disbursed in his name Rs. 10 lakh has to be expended which he did not have with him, hence, through Chandrappa, PW12 Kiran Kumar had paid money and later when the site was given to 24 Spl.C.C.No.362/2018 him by the BDA, he sold the site to PW12 for Rs. 5,50,000/- and hence he had given all the photocopies of the documents pertaining the said property to PW12. He categorically deposes that he do not know accused No.1 or accused No.2.
18. The learned Public Prosecutor was permitted to cross examine PW2, 5, 12 and 13 as they all turned hostile to the prosecution case and in the course of cross examination the whole of the statements recorded under section 161 of Cr.P.C. made by these witnesses to the Investigating Officer were put to them, but except taking the denial nothing worth has been elicited to prove that accused No.1 had received any illegal gratification from them to influence and induce the BDA officials to perform their public duty. All the suggestions made by the learned Public Prosecutor were denied by these witnesses 25 Spl.C.C.No.362/2018
19. PW 4, 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.P3 report before the Superintendent of Police, Karnataka Lokayuktha, 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 26 Spl.C.C.No.362/2018 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 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 Ex. P4 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.P3 report, he has stated that from the statements of witnesses he found that public servants were 27 Spl.C.C.No.362/2018 obtaining bribe amount, but he do not know who these witnesses are.
20. PW 6, Palakshaiah is the Investigating Officer who registered FIR and conducted initial investigation of this case. He deposes that as per his authorization PW14, Kumaraswamy had conducted the search of the BDA parking area and Rs. 3 lakh cash was seized from a Santro Car bearing Reg. No.KA 05 ME 5784 and Rs.54,000/- was seized from a motorbike bearing No. KA 03 HR 4509. The currency notes and the vehicles were produced before him with a mahazar to that effect after seizure. The mahazar is marked as Ex.P8. 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 6.00 pm and gave instructions 28 Spl.C.C.No.362/2018 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 Kumaraswamy/PW14 and he also did not conduct any inquiry to ascertain whether there was any nexus between accused No.1 and the BDA officials when accused No.1 was arrested and produced before him by PW14. He also admits that there were CCTV cameras installed at the BDA parking area and he did not collect the video footages of the same.
21. PW 7, H.S.Venkatesh took over the investigation from PW6 and he in his testimony 29 Spl.C.C.No.362/2018 deposes the details of the documents collected by him which includes bank statements of accused No.1, cash declaration register of office of accused No.2. He admits in his cross examination that in Ex.P12 bank statements there is no evidence available to prove the guilt of accused No.1.
22. PW9, 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 No.2. He admits that he had not conduct any investigation of this case except verifying the documents collected by the previous officers.
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23. PW 8, Mahadev took over investigation from PW9 and he has laid charge sheet before this Court. PW10 and PW11 are witnesses of Ex. P9 mahazar. PW10 in his testimony says that he was taken to BDA Head office and the Investigating Officer began to enquire each and every person there and the Investigating Officer found a person there standing in a suspicious manner and on enquiry it was found that he is a real estate agent and he came there in a car and on inspection of the said car Rs.3 lakhs cash and 12 documents were found which the Investigating Officer seized. Later on further search, they found a person sitting near a motorbike and when he saw the Investigating Officer and his team the man ran away and on inspection of the said motorbike Rs.54,000/- cash was found there and he further states that he cannot identify the person who ran away from that place. In his cross examination he says that he can 31 Spl.C.C.No.362/2018 specifically speak about the place where the Santro car was parked and he states that he car was parked inside the BDA compound under a tree. He gave the registration number of the car as KA 05 ME 5784, but he says that he do not remember the colour of the car. In his cross examination by the learned counsel for accused No.2 he says that the Investigating Officer did not prepare any separate scene mahazar of the place where the motorbike was parked.
24. PW12, Basavaraj Bandihal another mahazar witness to Ex. P9 mahazar, in his evidence reiterates the version spoken by PW11 with respect to search and seizure of cash and vehicles by PW14 as per Ex.P9 mahazar and in his cross examination he admits that the Santro Car was parked at the parking area outside the BDA compound. He do not remember either the registration number of car or the colour of car and he 32 Spl.C.C.No.362/2018 further says that he is not able to say anything about the 12 documents seized from the said car.
25. The learned Public Prosecutor in his arguments submits that it has become a menace in 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 found wandering within the BDA premises in a suspicious manner and on enquiry and 33 Spl.C.C.No.362/2018 search he was caught red-handed with huge amount of cash and 12 original documents pertaining to the BDA and he was unable to give satisfactory explanation and on investigation with respect to the files seized from his possession it was revealed that he had obtained illegal gratification from PW2, PW5, PW12 and PW13 to influence the BDA officials and induce them to do their public duty and get the work done pertaining to PW,2, 5, 12 and 13.
26. He further submits that as far as A2 is concerned, he is a Government servant working as SDA at the BDA and on search of his motorbike parked inside the BDA premises Rs.54,000/- cash was found and he had not declared the possession of such huge amount of money in the cash declaration register maintained in his office. He further submits that the private individual from whom he had received 34 Spl.C.C.No.362/2018 gratification to influence public servants, turned hostile to prosecution case, but other official witnesses and mahazar witness has spoken in tune with the prosecution case and there is no reason to disbelieve these witnesses and there is no evidence on record to show that these witnesses had any sort of animosity against accused No. 1 and 2 and hence, the prosecution has proved its case and accused No. 1 and 2 are to be punished in accordance with law.
27. Placing reliance on the records before Court and the evidence of witnesses, the learned counsel for accused No.1 has tried to impress upon this Court that the evidence adduced by the prosecution in support of the charges leveled against the accused is only on assumption and presumptions and the prosecution has failed to discharge its initial burden. He further argues that the accused No.1 being a private person is not 35 Spl.C.C.No.362/2018 precluded from possessing Indian Currency notes and his car was parked outside the BDA compound and he being a real estate businessman, obviously will be having documents pertaining to land and since, he had in his possession certain documents pertaining to land deals, which were seized from him and produced before this Court and marked as Ex.P24, that by itself will not attract any criminal offence. He further argues that the Ex.P9 mahazar is silent with regard to the seizure of the Santro Car and the mahazar does not depict the place of occurrence in specific. The evidence of mahazar witness and the searching officer does not corroborate as to exact place where the car was parked. Hence, the inconsistent version of PW14 searching officer, PW10 and PW11 mahazar witnesses cannot be believed to rope accused No.1 into this offence. His further submission is that accused No.1 is a real estate agent and he is having his own source of 36 Spl.C.C.No.362/2018 income and on 20.06.2014 he had parked his car outside the BDA premises and he had gone to BDA to make certain enquiry with respect to his real estate business and the Lokayuktha police enquired him and took him to his car and seized the cash he had kept in his car and made false allegations stating that documents were found in his car, which is a false allegation made only to connect accused No.1 into this office. None of the witnesses supported the prosecution case so that any incriminating evidence showing any nexus of accused No.1 with the charge framed against him and hence, he is entitled to be acquitted.
28. The learned counsel for accused No.2 vehemently argued that accused No.2 was not arrested and he had parked his motorbike at the parking area of the BDA. The Ex.P9 mahazar itself 37 Spl.C.C.No.362/2018 shows that the amount of Rs.54,000/- was recovered from an open place and the side box of the motorbike was found in an open condition. The allegation that accused No.2 had not made any declaration in the cash declaration register maintained at his office cannot be accepted, since, accused No.2 had no knowledge about the money found in the motorbike. Moreover, the Ex.P9 mahazar does not show the seizure of motorbike and on the vague uncorroborated testimony of PW14, accused No.2 is not answerable to the amount alleged to be found in his motorbike parked in a public place which is accessible to everyone present there at the BDA parking area. Hence, the prosecution has failed to prove the charges against accused No.2 and this entitles accused No.2 to an acquittal.
29. I have bestowed my best attention and considerations to the rival claims made by Sri.Ramesh 38 Spl.C.C.No.362/2018 Babu D., the learned Public Prosecutor, Sri.S.Samarth, the learned counsel for accused No.1 and Sri.Raghunath N., the learned counsel for accused No.2 and have perused the documents placed before me. On thorough analysis of the prosecution records, it is clear that the FIR is registered as per Ex.P3 report of PW4 who had conducted preliminary enquiry and on the direction of the Superintendent of Police, Karnataka Lokayuktha, Bengaluru PW6 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 PW4 had conducted preliminary enquiry with regard to the allegations in Ex.P4 petition lodged by one J.P.Hegde against one Premnath, Thippeswamy and Mahadev and on enquiry PW4 found that Chandrashekar, Teja, Shivaji, Manjunath, Vasu, Soori, Ashwath, Dhanyakumar and others were acting as agents and mediators for the 39 Spl.C.C.No.362/2018 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 Ex.P4 petition. He has given the names of those persons in his Ex.P3 report against whom he got information that they were acting as agents and mediators and this Ex.P3 report is the basis for registration of FIR. But, PW6 Palakshaiah's testimony is that he did not make any investigation with regard to the involvement of the persons named in Ex.P3 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 PW7, PW 9, PW8 also did not make any investigation with regard to the Ex.P3 report made by PW4. So, it is clear from these aspects that the Superintendent of Police 40 Spl.C.C.No.362/2018 concerned directed PW4 to conduct preliminary enquiry on Ex.P4 complaint and the allegations leveled against the persons therein, which PW4 did not comply and he made a report which is totally silent with regard to the Ex.P4 complaint and he categorically admitted before this Court that he did not make any enquiry with regard to the person named in the complaint. The Ex.P3 report filed by PW4 was to be investigated by PW6 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. Further, the Ex.P9 mahazar does not show the exact place of occurrence where the Santro car was parked or the motorbike was 41 Spl.C.C.No.362/2018 parked. The mahazar also does not speak with regard to the seizure of the vehicles or description of the vehicle. These aspects gain importance because accused No.1 has strongly disputed the procedure of seizure of money from him. It is his case that he had parked his car outside the BDA compound which is admitted by PW14 searching officer and PW13 mahazar witness. He also strongly disputed that no documents pertaining BDA office or letters of any officer of BDA were seized from him and the mahazar witness also were not able to bring out the descriptions of the documents seized from his possession. The key witnesses PW2, 5, 12 and 13 who were to prove the prosecution case against accused No.1 turned hostile and none of them identified accused No.1 and they all specifically deposed before Court that they did not give any money to any person 42 Spl.C.C.No.362/2018 and they had not entrusted any agents to get their work done at the BDA.
30. With regard to the allegations against accused No.2 that he did not declare the possession of Rs.54,000/- with him in the cash declaration register of his office, the prosecution has to first prove that the money was recovered from the possession of accused No.2. Here, admittedly the money is recovered from the side box of the motorbike and the box was in an open condition when the money was seized. The bike was parked in a public place and accused No.2 was not arrested from the spot. Prosecution allegations is that accused No.2 who was sitting near the motor bike ran away when he saw the police, but both PW12 and PW13, the mahazar witnesses depose that they cannot identify the person who ran away from the place. Since, the motorbike belonged to accused No.2, the 43 Spl.C.C.No.362/2018 Investigating Officer filed charge sheet against him. Here it is pertinent to note that the main complaint received by the Lokayuktha police is that there are many private individuals receiving bribe on behalf of the public servants working at the BDA and when the police started to raid the BDA offices and its premises there is every possibility that to escape the liability someone who had illegal money with him might have kept the money. Admittedly the raiding police party had come across currency notes scattered on the ground near a Xerox machine inside the BDA office also.
31. Here the prosecution has not proved beyond doubt that the money found inside the car of accused No.1 was obtained by him as illegal gratification to influence public servant and thereby induce them to do their public duty and the prosecution has utterly 44 Spl.C.C.No.362/2018 failed to prove that the cash of Rs.54,000/- seized from the side box of the motor bike belonging to accused No.2 was kept there by A2 which is his illegally got money and he could not give satisfactory explanation to that.
32. The investigation conducted by PW6 and PW7 requires mention since, they failed to investigate the allegations made in the Ex.P3 report of PW4 and instead they roped in some persons according to their own whims and fancies. The searching officer PW14 who has drawn Ex.P9 mahazar when he seized the currency notes from car and bike failed to mention the exact place of occurrence. Ex.P9 just says that the "Car parked in the BDA premises". It also does not mention inside the car, where the money was kept and how it was kept, etc. Above all the seizure of car does not find place anywhere in the mahazar, but it is 45 Spl.C.C.No.362/2018 produced before Court as per Ex. P9 seizure mahazar under PF. In case of seizure of the motor bike also there is no mention in the mahazar. These aspects clearly show the defective investigation of this case. 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 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". 46
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33. 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".
34. 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 PW4 failed to conduct proper enquiry on the allegation in Ex.P4 complaint, PW6 failed to conduct the allegation leveled against persons named in Ex.P3 report of PW4, the incomplete mahazar drawn by PW14, and all these aspects 47 Spl.C.C.No.362/2018 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 in the course of cross examination the whole of the statements recorded under section 161 of Cr.P.C. made by these witnesses to the Investigating Officer were put to them by the learned PP, but except taking the denial nothing worth has been elicited to prove that accused No.1 had received any illegal gratification from them to influence and induce the BDA officials to perform their public duty. All the suggestions made by the learned Public Prosecutor were denied by these witnesses. It is trait law that suggestion cannot take the place of proof. A suggestion, unless probabalised by any material in support thereof, cannot dislodge the testimony of a witness and hence, I am of the considered opinion that 48 Spl.C.C.No.362/2018 the prosecution evidence are not sufficient to prove the charge leveled against the accused No.1 and 2, 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 and 2 and they are entitled to be acquitted and accordingly, I answer points taken for consideration in the Negative.
35. Point No 4: In the result, I proceed to pass the following:
ORDER Under section 248(1) Cr.P.C the accused No.1 Shankar is acquitted of the offence punishable under section 9 of Prevention of Corruption Act, 1988.
Under section 248(1) Cr.P.C the accused No.2 Devaraj is acquitted of the offence punishable under section 13(1)(e) and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 .49
Spl.C.C.No.362/2018 The bail bond and surety bond of the accused other than the bonds executed by accused under section 437A of Cr.P.C, stands cancelled.
The cash of Rs 3,00,000/- seized from accused No.1 and deposited in the account of Superintendent of Police Lokayuktha is ordered to be returned to accused No.1 after the appeal period.
The cash of Rs 54,000/- seized from the side box of motorbike belongs to accused No.2 and deposited to the account of Superintendent of Police, Karnataka Lokayuktha is ordered to be confiscated to the Government.
(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/-4.1.2020 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 50 Spl.C.C.No.362/2018 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : Rajkumar Khatri PW.2 : G.Ramesh Babu PW.3 : Vajrappa PW.4 : Mohammed Mukharam PW.5: Lingaraju PW 6 : D.Palakshaiah PW 7 : H.S.Venkatesh PW 8 : T.Mahadeva PW 9 : K.Ravishankar PW 10: B.Shivaramanna PW 11 : Basavaraj Bandihal PW 12: M.G.Kiran Kumar PW 13: M.Shambulingaiah PW 14: Kumaraswamy
List of documents marked on behalf of prosecution:
Ex P 1 : Sanction order Ex P1(a) : Signature of PW 1 Ex P2 : Relevant portion of the statement of PW2 51 Spl.C.C.No.362/2018 Ex P3 : Report of PW 4 dtd 18.6.2014 Ex P3(a) : Signature of PW 4 Ex P4 : Xerox copy of petition No.250/2014 Ex P5 : Search warrant office of Depity Commissioner (Central) Ex P6 : Mahazar Ex P6(a) : Signature of PW 4 Ex P7 : Portion of statement of PW 5 Ex P8 : Order u/s 165 of Cr.PC to Kumaraswamy S.I Ex P9 : Mahazar dtd 20.6.2014 Ex P9(a) : Signature of PW 10 Ex P9(b) : Signature of PW 11 Ex P9(c) : Signature of PW 14 Ex P10 : PF No.53/2014 Ex P 11: (Jumped) Ex P12 : Account details of accused No.1 Shankar S, at SBI Vishweshwaraiah Layout branch Ex P 13 : Attested copy of attendance register Ex P 14 : Attested copy of cash declaration 52 Spl.C.C.No.362/2018 Ex P 15: Work distribution to accused Ex P 16 : Salary details of accused Ex P17 : Account details of accused No.2 at Canara Bank Ex P18 : Xerox copy of the proceedings dtd 10.02.2017 of Superintendent of Police Karnataka Lokayuktha, Bengaluru Ex P19 Xerox copy of the proceedings dtd 20.1.2016 of Superintendent of Police Karnataka Lokayuktha, Bengaluru.
Ex P20 : Portion of the statement of PW 12 Ex P 21: Portion of statement of PW 13 Ex P 22: Explanation of accused No.1 Ex P 23: Report of PW 14 dated 21.06.2014 Ex P23(a): Signature of PW 14 Ex P 24 : Seized documents (Page Nos 1 to 159) List of material objects marked on behalf of the prosecution:
NIL 53 Spl.C.C.No.362/2018 List of witnesses examined on behalf of accused: NIL List of documents marked on behalf of accused: Ex D1. Letter addressed to Joint Director, Women and Child development Department, Bengaluru dated 20.6.2014 Sd/-4.1.2020 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 54 Spl.C.C.No.362/2018