Mr M Samil Shah S/O Mohammed Kunhi vs State By Inspector Of Police
2023 Latest Caselaw 200 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 4 T H DAY OF JANUARY, 2023

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

        CRIMINAL APPEAL NO.377 OF 2011

BETWEEN:

Mr.M.Samil Shah,
S/o Mohammed Kunhi,
Aged about 38 years,
Insp ector Railway Protection Force,
Diesel Loco-Shed , K.R.Puram,
Beng aluru.
R/o. 67/B, Diesel Loco Shed,
Railway Quarters, K.R.Puram,
Beng aluru-560036,
Karnataka.
                                            ...Appellant
(By Sri B.A.Belliappa, Advocate)

AND:

State by Insp ector of Police,
CBI, represented by
Stand ing Counsel for CBI in the
Hon'b le Hig h Court,
Beng aluru.
                                          ...Respondent
(By Sri Mad hav Kashyap , Advocate for
    Sri P.Prasanna Kumar, Advocate)

     This Criminal Appeal is filed under Section 374(2)
Cr.P.C. praying to set aside the order dated
22.03.2011 p assed by the XLVII Additional City Civil
and Sessions Judge and Special Judge for CBI Cases,
Beng aluru in Spl. (Corruption) Case No.264/2010
convicting the ap pellant/accused for the offence p/u/s
                              :: 2 ::


7 and 13(2) read with            13(1)(d)   of   Prevention     of
Corruption Act and etc.

     This    Criminal     Appeal   p ertaining   to    Beng aluru
Bench having been heard & reserved on 02.12.2022,
coming on for       pronouncement this d ay, the Court
sitting at Kalaburag i Bench throug h video conferencing
pronounced the following:


                          JUDGMENT

This appeal is filed by the accused who faced

trial for the offences punishable under sections 7

and 13(2) read with section 13(1)(d) of Prevention

of Corruption Act ('PC Act' for short) in the court

of Additional City Civil and Sessions Judge and

Special Judge for CBI Cases, Bengaluru. The

allegations leveled against him are as follows:

2. PW1-Mujeeb Ahmed made a complaint to

the Superintendent of Police, CBI, Bengaluru on

5.4.2010 that the accused who was working as

Inspector of Railway Protection Force, Diesel Shed,

Krishnarajapuram demanded from him bribe of

Rs.50,000/- for not to implicate him in a theft :: 3 ::

case. When PW1 expressed his inability to arrange

Rs.50,000/-, accused reduced his demand to

Rs.30,000/-. PW1 paid Rs.20,000/- to the accused

in two installments. On 5.4.2010, accused

contacted PW1 over the phone and demanded for

balance of Rs.10,000/-. When PW1 pleaded

difficulty to mobilize Rs.10,000/-, accused reduced

the amount to Rs.7,000/- and asked to call him

next day to ascertain the place where he had to

pay him Rs.7,000/-. After this demand, PW1 went

to the Office of CBI and made complaint as per

Ex.P.1. Pursuant to this complaint, FIR was

registered and trap was laid on 6.4.2010. The

tainted money was recovered from the accused.

Further investigation led to charge sheeting the

accused.

3. The prosecution examined 6 witnesses and

produced 19 documents (Ex.P.1 to P.19) and 8

material objects (M.O.1 to 8). Defence got :: 4 ::

marked 13 documents (Ex.D.1 to D.13). Assessing

the evidence, the trial court found the accused

guilty of both the offences and sentenced him to

rigorous imprisonment for three years and fine of

Rs.10,000/- with default imprisonment for six

months for the offence under section 7 of PC Act,

and rigorous imprisonment for two years and fine

of Rs.5,000/- with default imprisonment for four

months for the offence under section 13(2) read

with 13(1)(d) of PC Act.

4. I heard the arguments of Sri. B.A.

Belliappa, learned counsel for the appellant-

accused and Sri. Madhav Kashyap, learned counsel

appearing on behalf of Sri.P.Prasanna Kumar for

the respondent, CBI.

5. Sri. B.A. Belliappa raised the following

points -

i. FIR was registered in connection with demand for bribe, the conversation in :: 5 ::

that regard was recorded in a CD. Investigation should have been confined to ascertain whether there was a demand for bribe or not. Based on the same FIR, PW4, should not have laid trap for, it was a different incident altogether. For this reason whole trap was vitiated.

ii. The important material evidence was a hose pipe, said to be a railway property alleged to have been stolen. It was not produced before the court.

iii. PW3 was not the sanctioning authority, he lacked inherent competency to accord sanction and therefore the trial court should not have taken cognizance of the offence and the trial was bad in law.

iv. Though tainted money was recovered from the accused, the testimony of PW1 should not have been believed because of want of corroboration from PW2 who deposed that there was no conversation between PW1 and the accused for payment of money. Moreover PW2 has :: 6 ::

stated that money was thrusted into the pocket of the accused.

v. The defence was that complainant was known to the accused. Accused was a strict police officer. There used to take place theft of railway property very frequently. Accused being a strict officer controlled the theft and as a result the dealers in scrap items found it difficult to do their business in scrap. They instigated PW1 who was also a dealer in scrap to give a complaint to the CBI for trapping the accused.

vi. Accused was constructing a house.

      PW.1     was     also       a    timber           merchant.
      Accused        wanted     plywood           for       his   new

house and advanced money to PW1 for buying plywood. But PW1 did not supply it and then accused demanded PW1 to return the advance money. PW1 did not want to return the money and therefore made a false complaint against the accused. Probability in the defence theory can be gathered. The prosecution :: 7 ::

case is rebutted suitably. Therefore the prosecution case should have been rejected by the trial court.

6. Sri Madhav Kashyap argued that there is

no infirmity in the sanction accorded by PW3 for,

his evidence discloses application of mind to the

materials placed before him, and that as on the

date of demand and trap, he being the Chief

Security Commissioner was the removing authority

relating to the post of Inspector which the accused

held. He referred to Schedule III of the Railway

Protection Force Rules, 1957 in support of his

argument.

6.1. With regard to FIR, Sri Madhav Kashyap

argued that it was not necessary to register

another FIR in relation to acceptance of bait

money, because acceptance was preceded by

demand. Demand for bribe and its acceptance

constitute single transaction and therefore only

one FIR can be registered. In this context, he :: 8 ::

placed reliance on the judgment of the Supreme

Court in the case of Amitbhai Anilchandra Shah

vs CBI [(2013) 6 SCC 348].

6.2. His next point of argument was that the

evidence of PW1 discloses demand made by

accused for bribe for not to register FIR against

him in relation to a theft of a hose pipe. The

evidence of PW1 is corroborated by PW2 who has

clearly stated that when he accompanied PW1 as a

shadow witness, he saw accused making a gesture

for money. So there was demand for bribe soon

before trap. The accused does not deny seizure of

bait money from him; but according to him,

money was thrusted into his shirt pocket which

line of defence is found to be false. The evidence

on record shows that the accused received the

money from his hands and then kept into his shirt

pocket. The FSL report also shows detection of

phenolphthalein in the hand washes of the :: 9 ::

accused. The defence theory found in the

explanation given by the accused while recording

his answers under Section 313 Cr.P.C. examination

cannot be believed, as it was nothing but an

afterthought. He also argued that seizure of hose

pipe was not necessary because it was just an

allegation made by the accused against PW1 that

he had stolen a hose pipe which was a railway

property, and moreover when the investigating

officer was cross examined, he was not questioned

as to why he did not seize hose pipe.

6.3. His last point of argument was that the

prosecution was able to discharge its initial burden

of proof, and for this reason presumption as

available under Section 20 of PC Act can be drawn

in favour of prosecution. The defence was not

able to rebut the prosecution evidence. The trial

court has properly appreciated the evidence, hence

the impugned judgment cannot be disturbed.

:: 10 ::

7. Two points raised by learned counsel may

be answered before dealing with evidence as

regards demand by accused for bribe and its

acceptance. In regard to argument of Sri

Belliappa on registration of FIR, it has to be stated

that there was no need for registration of a

separate FIR in relation to acceptance of bribe

money. Demand and acceptance constitute a

single transaction, although acceptance may be

preceded by demand. FIR is to be registered in

relation to a non-cognizable offence which is

reported to have taken place. Putting forth a

demand for bribe constitutes an offence, and if the

police officer is convinced that there was a

demand for illegal gratification or bribe by a public

servant, he can register an FIR. Then acceptance

of bribe is in furtherance to demand, which does

not constitute a separate offence. Acceptance is

an event as a consequence to demand. If in :: 11 ::

respect of acceptance of bribe, another FIR is

registered, it is nothing but a second FIR in

respect of same offence, which is not permitted.

It is in this context, the Supreme Court has held in

the case of Amitbhai Anilchandra Shah that

"58.5. The first information report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.

58.6. In the case on hand, as explained in the earlier paragraphs, in our opinion, the second FIR was nothing but a consequence of the event which had taken place on 25/26.11.2005. We have already concluded that this Court having reposed faith in CBI accepted their contention that Tulsiram Prajapati :: 12 ::

           encounter             is     a    part     of    the     same
           chain            of          events             in      which
           Sohrabuddin                  and         Kausarbi        were

killed and directed the CBI to "take up" the investigation."

(emphasis supplied)

8. As it becomes clear from the above

judgment that FIR is not necessary for a

consequential act or event, the argument of Sri

Belliappa on this point cannot be accepted.

9. About sanction as required under section

19 of the PC Act, there are no reasons to discard

the testimony of PW3. The trial court has rightly

accepted the evidence given by PW3 relating to

order passed as per Ex.P.9. The argument

advanced by Sri Belliappa was that PW3 lacked

inherent competency to accord sanction, his

argument was that according to Schedule III of

The Railway Protection Force Rules, 1987, either

the Director General or Principal Chief Security :: 13 ::

Commissioner is the competent authority to accord

sanction, and PW3 being of the rank of Deputy

Inspect General, could not have granted sanction.

10. Again this argument fails because till

amendment was brought to the Railway Protection

Force Rules with effect from 2.2.2018, Chief

Security Commissioner was the competent

authority to grant sanction. Trap was laid on

06.04.2010, and therefore rules before

amendment were applicable. PW3 was the Chief

Security Commissioner, and he was the competent

authority at that time. Therefore sanction granted

by PW3 was valid and legal.

11. As regards demand for bribe and its

acceptance by the accused, the trial court has held

that the testimonies of PW1 and PW2 have not

been shaken and they have consistently spoken

about demand, acceptance and recovery of money.

Minor variance regarding mode of demand was of :: 14 ::

no consequence. Referring to the evidence given

by the police officers, it is held that there is no

rule of prudence which has crystallized into a rule

of law, and in the facts and circumstances of a

particular case, the court may not show inclination

to act upon the evidence of a police officer without

any corroboration, but in the facts and

circumstances of another case, the court may

unhesitatingly accept the evidence of a police

officer.

12. Though it appears that the trial court has

held that recordings found in CD should have been

proved in accordance with sections 65A and 65B of

the Evidence Act, delving on the defence version,

that money was forcibly put into the pocket of the

accused, it is held that it is too much to think that

a responsible CBI officer would go to the extent of

taking out a cover from the shirt pocket of the

accused, remove the currency notes from the :: 15 ::

cover and then insert the same into the pocket. It

is observed that during cross- examination of

prosecution witnesses, such suggestions were not

put, and therefore explanation given by the

accused in his examination under section 313

Cr.P.C. cannot be accepted.

13. It cannot be said that the trial court has

recorded incorrect findings. The accused does not

deny recovery of bait money from him. His stand

that the currency notes were forcibly put into his

pocket cannot be accepted for, if that were to be

the case, there was no chance of washes of his

both hands answering positive for presence of

phenolphthalein. This circumstance clearly

indicates, as has been deposed by PW1 and PW2

that the accused received the currency notes from

his hands and then kept them in his shirt pocket.

14. The main thrust of defence is about

demand for bribe. The accused seeks to dispute :: 16 ::

the demand for bribe on two limbs, firstly that

PW1 being known to accused for quite a long time,

was asked by the Scrap Traders Association to get

the accused caught as he had taken strict action to

contain the theft of railway property. The second

line of defence is found in explanation given at the

stage of section 313 Cr.P.C. It is that the accused

had advanced money to PW1 to buy plywood for

the house he was constructing, and asked him to

bring a carpenter. When PW1 failed to supply

plywood, accused asked him to return the advance

amount. Then PW1 told that he would meet him

and bring a good carpenter. To this accused said

that he could meet him on 06.04.2010 at the

construction site. Accordingly PW1 came to the

construction site along with PW2 and introduced

PW2 as a carpenter to the accused. Within a

fraction of second, PW1 inserted a cover into the

shirt pocket of accused and called the CBI Officers.

One Suresh Kumar, i.e. PW4 came there, removed :: 17 ::

the cover from the shirt pocket of the accused,

took out the currency notes and then kept them

inside the shirt pocket.

15. The defence theory is difficult to be

accepted. If this was the circumstance, nothing

prevented the accused from examining a witness

to establish the same. Moreover, defence version

as found in the explanation was not suggested to

PW1, PW2 or PW5 during their cross-examination.

There is no use in giving such explanation without

questioning the witnesses on that line.

16. As regards demand, as has been rightly

held by trial court, the evidence of PW1 is

corroborated by PW2. It is stated by PW2 that the

accused demanded for money by giving a gesture.

There is no reason to discard his testimony to that

effect. It is also a type of demand. Therefore

there is ample proof for demand.

:: 18 ::

17. There was no need to seize the hose

pipe. It was just a reason for demanding bribe

from PW1. PW5 has given explanation that seizure

of hose pipe was not necessary.

18. Examined whether sentence imposed on

the accused is adequate, it is found that the trial

court has adequately punished the accused.

Accused was a police officer in RPF. He should not

have indulged in corruption being a police officer.

Therefore I do not want to reduce the sentence.

19. From the foregoing discussion, I come to

conclusion that the appeal is devoid of merits.

Therefore it is dismissed.

SD/-

JUDGE

ckl