Karnataka High Court
V Gopinath Padiyar vs The State By Cbi/Acb on 5 July, 2024
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CRL.A No. 17 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 17 OF 2011 (C)
BETWEEN:
V. GOPINATH PADIYAR
S/O SRI. GANAPATHI PADIYAR
AGED ABOUT 46 YEARS
RESIDING AT NO.39/1-4, "SRI DURGA"
2ND MAIN, TATA SILK FARM
BASAVANAGUDI
BANGALORE - 560 004
...APPELLANT
(BY SRI. S G BHAGAVAN.,ADVOCATE)
AND:
THE STATE BY CBI/ACB
BELLARY ROAD
BANGALORE
Digitally signed ...RESPONDENT
by SHAKAMBARI (BY MS. RAMULA K., ADVOCATE FOR
Location: HIGH SRI. P. PRASANNA KUMAR, ADVOCATE)
COURT OF
KARNATAKA
THIS CRL.A IS FILED U/S 374(2) OF CR.P.C PRAYING TO
SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 23.12.2010, PASSED BY THE XXI-ADDL.
CITY CIVIL AND SESSIONS JUDGE, AND SPECIAL JUDGE FOR
CBI CASES, BANGALORE, IN SPECIAL C.C.NO.129/2007 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 7 AND 13(2) R/W.13(1)(d) OF PREVENTION OF
CORRUPTION ACT, 1988 AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO S.I. FOR TWO YEARS AND SHALL
PAY A FINE OF RS.10,000/- IN DEFAULT OF PAYMENT OF FINE
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CRL.A No. 17 of 2011
HE SHALL UNDERGO S.I. FOR SIX MONTHS, FOR THE OFFENCE
P/U/S 7 OF PREVENTION OF CORRUPTION ACT, 1988.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.06.2024, POSTED FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
The appellant-accused assailed the judgment of his
conviction and sentence passed in Spl.C.C.No.129/2007
dated 23.12.2010 passed by the XXI Additional City Civil
and Sessions Judge and Special Judge for CBI Cases,
Bengaluru.
2. The learned trial Court found the accused guilty
of committing the offences punishable under Section 7 and
13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988
(in short `the Act'). The learned trial Court "sentenced the
accused to undergo simple imprisonment for the offence
punishable under of the Act and also he shall pay a fine of
Rs.10,000/- with default sentence and also sentenced the
accused-appellant for the offence under Section 13(2) r/w
13(1)(d) of the Act and is sentenced to undergo SI for Two
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years and shall also pay a fine of Rs.10,000/-; in default of
payment of fine he shall undergo SI for six months".
3. The parties to this appeal are referred to as per
their rank before the trial Court, for the purpose of
convenience.
The facts leading up to this appeal in brief are
as under:
4. That one Sri V.G. Gopinath Padiyar, the Senior
Social Security Assistant, EPFO, RO, Bengaluru, is accused
in this case against whom the charge sheet was filed by
the Inspector of Police, CBI, ACB, Bengaluru, for the
offences punishable under Section 7 and 13(2) r/w 13(1)
(d) of Act.
5. The material allegations made against the
accused are that, at the relevant time, this accused was
working as a Senior Social Security Assistant, Accounts
Group, Section-8, Employees Provident Fund
Organisations (EPFO), Regional Office, Bengaluru. It is the
case of the complainant Sri S.Suresh Babu that, he was
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working as a Quality Analyst at the relevant time at M/s.
C-Bay Systems Limited, Kodihalli, Airport Road,
Bengaluru. It is his case that, he was possessing EPF
account bearing No. KN/25568/505 at EPFO, Regional
Office, Bengaluru. He was a regular contributor towards
said fund. In the specific case of the complainant that, for
the purpose of performing his marriage, he wanted to
withdraw Rs.50,000/- from his EPF account as an advance
money. To that effect, he submitted an application
12.3.2007 through his office. It is his allegation that, as
there was a delay to sanction the advance amount he
sought, therefore, he approached the accused on
26.03.2007 and requested him to expedite the matter.
But, he had not completed the minimum years of service
i.e., of 7 years of service, therefore, this complainant was
ineligible to seek the advance amount from his EPF
account. At that time, accused also offered to get the
work done if bribe of Rs.2,500/- is paid to him. It is the
allegation of the complainant that, after negotiation,
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accused agreed to accept Rs.1,800/- payable on
27.03.2007.
6. It is the specific allegation of the complainant
that, he was unwilling to pay the bribe, therefore, he
approached the CBI Police by filing a written complaint on
26.03.2007. The crime was registered by the Inspector of
Police Sri Ramesh on 27.03.2007 at his office. It is the
further allegation of the complainant that, after registering
the crime, the trap laying Officer by name Ramesh being
Inspector of CBI on 27.03.2007 laid a trap and accused
was caught red-handed for demanding and accepting the
bribe of Rs.1,800/- from the complainant. At that time,
the complainant Suresh Babu and also independent
witnesses were present. It is stated by the complainant
that, though he submitted an application in the prescribed
Form No.31 and the same was duly processed, it was
ordered that, the applicant i.e., complainant was eligible
for advance of Rs.22,400/-, the accused prepared
worksheet rejecting the application of the complainant,
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later prepared another set of written memo for the
sanction of said Rs.22,400/- with an intention to obtain
bribe from the complainant. It is further specifically
alleged that, thus, the accused demanded illegal
gratification from the complainant other than the legal
remuneration and as a motive or reward for possessing
the application, he received the said amount, thereby
committed the aforesaid offences under the Prevention of
Corruption Act, 1988.
7. After completion of the investigation, the
Investigation Officer filed the charge sheet against the
accused. Before the trial Court the accused pleaded not
guilty and claimed to be tried.
8. To prove the guilt of the accused, the
prosecution in all examined 8 witnesses from PWs.1 to 8
and got marked Exs.P.1 to P.31 with respective signatures
thereon, as well as MOs No.1 to 10 on behalf of the
prosecution.
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9. The learned trial Court, on hearing the
arguments and on evaluation of the evidence placed on
record by the prosecution raised three points for
consideration and answered all the three points in favour
of the prosecution and found the accused guilty for
committing the aforesaid offences and sentenced him as
mentioned above. This is how, now the accused-appellant
is before this Court challenging the said judgment of
conviction and order of sentence.
10. The learned counsel for the appellant with all
force submits that, first of all, the sanction so relied upon
the prosecution is invalid. Without proper sanction, the
charge sheet was filed against the accused-appellant.
According to him, the trap charge sheet also has to be
looked into. When sanction order is issued, the
Sanctioning Authority has to apply the judicious mind.
The Sanctioning Authority is under obligation to satisfy
itself after commission of the crime and then, after
satisfaction and going through all the documents, sanction
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has to be accorded. According to him, there are more
contradictions in the evidence placed on record with
regard to the sanction. There are contradictory
observations made out by the trial Court with regard to
the validity of the sanction. It is his submission that, the
basic foundation of the prosecution is demolished because
of this invalid sanction.
11. As per his submission, there was no demand
made by the accused at any point of time. The evidence
placed on record by the prosecution shows that, it was the
complainant who thrust the said amount into the hands of
the accused, though there was no demand made by the
accused at any point of time. It is his submission that, the
evidence placed on record by the prosecution suffers from
material particulars and such evidence cannot be accepted
as truthful evidence. None of the offences against the
accused are duly proved in accordance with law. Even the
presumption which is available under Section 20 of the Act
is rebutted by the accused appellant by way of directing
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cross-examination to the witnesses so examined by the
prosecution.
12. It is his submission that, the prosecution has
failed to prove the guilt of the accused beyond all
reasonable doubt. The evidence placed on record suffers
from material particulars. In support of his evidence, the
learned Sri S.G.Bhagawan, Senior counsel relied upon
various evidence and placed on record by the prosecution.
He prays to allow the appeal and set aside the impugned
judgment by acquitting the accused.
13. As against this submission, the learned Panel
Counsel Sri Prasanna Kumar, Advocate, with all
vehemence submits that, in view of the evidence spoken
to by the witnesses and also the material documents so
produced by the prosecution, it is proved by the
prosecution that, the accused has committed the aforesaid
offences. There was a clear demand made by the accused
and to that effect, the complainant responded and paid
Rs.1,800/- in the presence of the panchas. Immediately,
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the trap laying Officer laid the trap and caught hold the
accused and accused was found in possession of
Rs.1,800/-. To that effect, panchanama was conducted
and amount was seized. All the procedures as
contemplated under the provisions of the Prevention of
Corruption Act have been complied with the prosecution
by the investigating agency. According to him, the
learned trial Court has given its finding based upon the
evidence placed on record by the prosecution. It was the
accused who manipulated the records in order to mislead
and explore the complaint for the purpose of extracting
bribe amount from the complainant. Therefore, he
submits that there is no substance in the grounds made
out in the appeal and therefore, he prays to dismiss the
appeal and confirm the impugned judgment.
14. Refuting this submission, the learned Sri
S.G.Bhawan Senior Advocate, further submits that, there
is no substance in the submission of the respondent. In
view of the judgments of the Hon'ble Apex Court, the very
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sanction is invalid and the trap is not properly conducted
and there was no demand at all. Therefore, he submits to
discard the submission of the respondent counsel. In
support of his submission, he relied upon the following
judgments.
(i) Mansukhlal Vithaldas Chauhan v. State of
Gujarat, - AIR 1997 SC 3400
(ii) Central Bureau of Investigation v. Ashok
Kumar Aggarwal, - AIR 2014 SC 827
(iii) Ramaiah v. The State by Lokayuktha
Police, Tumkur - ILR 2020 KAR 5603
(iv) R. Srinivasan and Anr. v. State by Police
Inspector, Lokayuktha, Bangalore - 2016
CRI.L.J. 3066
(v) Lalita Kumari v. Govt. of U.P. and Ors, -
AIR 2014 SC 187
(vi) V. Venkata Subbarao v. State Represented
by Inspector of Police, A.P - AIR 2007 SC
15. In addition to submitting the arguments, the
learned Panel Advocate Sri P. Prasanna Kumar also relied
upon the following judgments in support of his submission.
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(i) Vinod Kumar Garg v. State (NCT Delhi) -
(2020) 2 SCC 88
(ii) Shankerbhai Laljibhai Rot v. State of
Gujarat - (2004) 13 SCC 487
(iii) D.Velayutham v. State Represented by
Inspector of Police, Salem Town, Chennai-
(2015) 12 SCC 348
(iv) C.M. Sharma v. State of A.P - (2010) 15
SCC 1
(v) State of Gujarat v. Navinbhai Chandrakant
Joshi & Ors. - (2018) 9 SCC 242
(vi) Vinod Kumar v. State of Punjab - (2015) 3
SCC 220
(vii) N. Ashok Kumar v. CBI - (2011) 2 AIR
Kant R 131
16. I have given my anxious consideration to the
arguments on both the side. Meticulously perused the
records.
17. In view of the rival submissions on both side,
the following points arise for my consideration are:
(1) Whether the findings of the trial Court
with regard to the sanction to prosecute
the accused is incorrect and require
interference by this Court?
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(2) Whether the judgment of conviction and
order of sentence passed by the trial
Court suffers from infirmity, illegality
without application of mind and hence
require interference by this Court?
Point No.1
18. To substantiate with regard to validity of the
sanction, prosecution relies upon evidence of PW.1 i.e.
Raghuram who was working as Regional Provident Fund
Commissioner, Grade-I, Bengaluru in between August
2006 to 26th February 2009. It is his evidence that, during
his tenure as the Regional Provident Fund Commissioner,
he had jurisdiction over the entire Bengaluru City. It is his
further evidence that, accused at the relevant time, was
working under him as Senior Social Security Assistant in
Accounts Group in the Regional Office, Bengaluru in the
month of July 2007 under his control. According to his
evidence, in the capacity of Regional Commissioner, he
was competent to initiate disciplinary proceedings against
the employees working under him and even he was
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competent to remove the accused from service. This fact
of his competency is not denied by the defence.
19. As per the evidence of PW.1, he issued sanction
order to prosecute accused as per sanction order dated
18.07.2007. It is marked as Ex.P2. He identifies his
signature as per Ex.P2(a). As per his evidence, on detailed
examination of the documents and after satisfaction that a
prima facie case is made out to prosecute accused, he
issued sanction order as per Ex.P2.
20. He has been directed with searching cross-
examination by the defence counsel running into several
pages. Throughout the cross-examination, he has
maintained that, the complainant is contributor to his GPF
account and he was contributing the amount towards GPF
account when he was working in Kerala and continued the
same contribution after transfer to Karnataka. As per his
evidence, the complainant furnished his mobile phone no.
on 30.03.2007. It is elicited that, to process the
withdrawal application from the GPF, the contributor has
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to submit his application through proper channel. The clerk
in the office on receipt of the same, has to process the
same and the concerned clerk has to put his initial to
evidence of pursuing and processing the application. It is
his evidence that, it was accused who signed on the work
sheet on 23.3.2007. After the approval by the Head Clerk,
the accused was required to send the approval letter to
the Despatch Section for onward submission to the
claimant. It is his further evidence that, on 27.3.2007, the
work sheet prepared by the accused was approved by the
Section Superintendent and Assistant Accounts Officer.
Thereafter, it was approved by his Higher Officer. After the
approval from the Higher Officer, it would come back to
the accused who would in turn transmit the same to the
Cash Section for preparing the cheque. It is further elicited
that, all this has been done as per the manual of
Accounting Procedure. It is stated by PW.1 that, the
accused calculated the amount payable to the complainant
and to that effect, he made the necessary entry with
regard to the calculation form enclosed to the application.
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21. On reading the entire cross-examination
directed to PW.1, it do suggest that, he being the
competent officer of the accused, on verifying the
necessary documents after consulting the legal section in
the office before drafting sanction order and after
satisfaction with regard to existence of sufficient material
to prosecute the accused, has issued the sanction order
marked at Ex.P2. It is suggested to PW.1 that, he has not
applied his mind while granting sanction. But, the
suggestion is flatly denied by PW.1.
22. The learned counsel for the appellant relied
upon judgment in Mansukhlal Vithaldas Chauhan v. State
of Gujarat, reported in AIR 1997 SC 3400 especially para
19, of the said judgment wherein it is held as under:
"19. Since the validity of "sanction" depends
on the applicability of mind by the sanctioning
authority to the facts of the case as also the
material and evidence collected during
investigation, it necessarily follows that the
sanctioning authority has to apply its own
independent mind for the generation of genuine
satisfaction whether prosecution has to be
sanctioned or not. The mind of the sanctioning
authority should not be under pressure from any
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quarter nor should any external force be acting
upon it to take a decision one way or the other.
Since the discretion to grant or not to grant
sanction vests absolutely in the sanctioning
authority, its discretion should be shown to have
not been affected by any extraneous consideration.
If it is shown that the sanctioning authority was
unable to apply its independent mind for any
reason whatsoever or was under an obligation or
compulsion or constraint to grant the sanction, the
order will be bad for the reason that the discretion
of the authority "not to sanction" was taken away
and it was compelled to act mechanically to
sanction the prosecution."
23. If this analogy is applied to the present facts of
the case, it can be stated that, there is no error both
factual and legal, committed by the sanctioning authority
to grant sanction to prosecute the accused. The
sanctioning authority after assessing the documents
furnished and after getting legal opinion from the legal
section, has granted sanction. Even the draft charge sheet
was also perused by the sanctioning authority and after
conscious scrutiny of the whole record, has granted
sanction. Therefore, there is no justification to believe that
the sanction so issued by the sanctioning authority is bad.
The judgments relied upon the counsel for the appellant-
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accused, in view of conscious application of mind by the
sanctioning authority cannot be justifiably applicable to the
present facts of the case. PW.1 in categorical terms has
stated about application of his mind to all the relevant
material and then after getting legal opinion and after
confirmation of prima case made out against the accused
has issued sanction order. The learned trial Court on
considering all these aspects has given the sound and
acceptable reasons in holding that the sanction so issued
by the competent authority is valid. Therefore, I do not
find any factual or legal error in such a finding which
require interference by this Court. Even by such sanction,
no prejudice or inconvenience is caused to the appellant-
accused. Therefore, point No.1 raised supra is to be
answered in favour of the prosecution and against the
appellant-accused and answered accordingly.
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POINT NO.2:
24. At the outset, the legal position which emerges
regarding appreciation of evidence in a trap case, can be
summarized as under:
i) To succeed in such a case, the
prosecution is obliged to prove the
demand of bribe before and at the time of
trap, its acceptance and the recovery of
tainted money.
ii) The demand can be proved by
testimony of the complainant as well as
from the complaint made by him and
other witnesses if proved, in accordance
with law and if it is corroborated in
material particulars.
iii) The presumption as to the
demand of bribe can also be drawn if the
tainted money i.e. the money tendered as
bribe money is recovered from the
possession of the accused which
presumption of course, is rebuttable under
Section 20 of the Act.
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iv) If the accused give some
defence, that can be scrutinized by the
test of preponderance of probability, while
the prosecution must prove its case
beyond all reasonable doubt.
25. PW.2 is the complainant and the star witness
examined by the prosecution. It is a fact admitted by both
the side that initially worked with M/s.M-Square Techno
Park, Trivandrum and was contributing his contribution
towards his provident fund account. During the year 2006,
as per his evidence, he joined at 'C' Bay Systems India
Private Ltd., Airport, Bengaluru and started working in the
said company. It is also fact stated by PW.1 that, his
marriage was scheduled on 12.03.2007, therefore, to
meet his marriage expenses, he moved an application for
withdrawal of Rs.50,000/- from his EPF Account as per
Ex.P3 along with advance stamped receipt marked at
Ex.P4 and also his marriage invitation card marked at
Ex.P5. It is his evidence that, he was directed to approach
the accused on 26.3.2007 who was dealing with his file
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regarding withdrawal of amount from his PF account.
When he approached the accused, it was accused who
showed a letter rejecting his application as the
complainant had not completed seven years of his service.
The said letter is got marked by the prosecution as per
Ex.P6. These are all the admitted facts even by the
defence also.
26. It is the specific allegation of the prosecution
through this complainant that, for sanctioning the PF
amount to the complainant, the accused demanded
Rs.2,500/-. But, complainant told his inability, therefore,
accused reduced the same to Rs.1,800/-. It is the further
evidence of PW.2 that, accused asked the complainant to
bring the said money on the following day at 10.30 a.m.
and come to the PF office and provided him his mobile no.
It is his evidence that, as complainant was not ready to
give bribe to the accused, therefore, he went to the office
of CBI on 26.3.2007 itself and lodged a complainant in
between 4.30 p.m and 5.00 p.m. On receipt of the
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complaint, the Superintendent of Police, CBI introduced
one Ramesh who instructed the complainant to meet him
on the next day morning at 8.00 a.m. along with cash of
Rs.1,800/-. It is his evidence that, accordingly on the
following day, he went to the office of CBI, met the officers
of CBI so also one Inspector Ramesh and two witnesses.
Accordingly, in the CBI office he met one Ramachandra
and one V.V. Ishwar Bhat from HAL office. He gave the
cash consisting of a one currency note of 500
denomination and 13 currency notes of 100 denomination.
The prosecution has marked them as MO No.1 during the
course of trial.
27. When such currency notes are presented by the
complainant to the Inspector, he conducted the pre-trap
procedure in the presence of PW.3 dipping the hand of
PW.3 after touching the notes and the said solution so
prepared turned into pink colour. It is the evidence of
PW.2 that, the said PW.3 kept the said notes in the left
side back pocket of complainant's pant. The Inspector
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instructed both PWs.2 and 3 by giving a micro recorder to
meet the accused. As per the evidence of PW.2, on
27.3.2007 itself, in between 9.45 a.m. and 10.00 a.m.,
entrustment mahazar was prepared as per Ex.P8 in the
office of CBI. Thereafter, at 10.45 a.m., the complainant
called the accused on his telephone number given by the
CBI which had the recording facility. The complainant was
asked to handover the money to the accused on demand
and accordingly, complainant met the accused in the
canteen who was followed by PW.3 and on demand by the
accused, he handed over money to the accused. It turn
accused received the said money by using his left hand
and kept the same on his left side pant pocket. It is the
further evidence of PW.2 that, as agreed the complainant
gave signal by touching his hands to his face to the CBI
Inspector. On getting such signal, the Inspector rushed to
the spot where the compliant-accused was standing and
PW.3 was also standing there. The Inspector apprehended
the accused and introduced himself as the Officer of CBI
who conducted raid on him. When he enquired, the
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accused confessed with regard to the receipt of bribe
amount. On getting such a confession from the accused,
this Inspector took the accused, complainant and PW.3 to
the Superior Officer of the accused by name Muniyan. In
the presence of the witnesses, accused was asked to dip
his left hand in the carbonate solution which turned into
pink colour. It was PW.3 who recovered the said bribe
amount from the pant pocket of the accused which turned
into pink colour. It is the evidence of PW.2 that, only part
of the audio so recorded was transcribed. The accused was
arrested by the CBI Inspector. Then all of them went to
the office of CBI. It is the evidence of PW.2 that, at the
spot itself, in the presence of Muniyan, the recovery
panchanama was prepared as per Ex.P9.
28. From the evidence of PW.2, as per the
submission of the prosecution, the demand and
acceptance of money is proved. It has come in the
evidence of PW.2 that, when complainant requested
accused to help him, he demanded bribe of Rs.2,500/-
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When he explained his difficulty to spare such amount,
accused negotiated with him and settled for Rs.1,800/-.
Accused promised that, he would get withdrawal amount
sanctioned despite the fact that, the application of the
complainant was once rejected. This evidence of PW.2 is
not specifically denied by the defence in the cross-
examination.
29. It has come in the evidence of PW.2 that, MO
No.1 (currency notes) were handed over to
Mr.N.V.Ishwara Bhat. This demand and acceptance of the
bribe money by the accused is further elicited in the chief
examination by the prosecution in the following terms:
"Accused asked me whether I had
brought money and hand over the money
to him, in case, I had brought the money.
I took out the money (MO NO.1) which I
had kept in the left side back pocket of my
pant and gave it to accused who received
by his left hand and kept in his left side
pant pocket."
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30. Sri P.Prasanna Kumar, learned Special Counsel
appearing for respondent submits that, in view of the
aforesaid evidence spoken to by PW.2, it is very much
clear that there was a demand and acceptance by the
accused. This fact is not denied by the defence. So far as,
receipt of money from PW.2, accused fairly admits, but, it
is his defence that, forcibly, the complainant thrust the
currency notes (MO No.1) in his hands. There was no
demand at all. On reading the further evidence of PW.1,
he states that, accused told him that, he had received
Form-III-A from his employer on the previous day and he
would clear the application. It is his further evidence that,
PW.3 Bhat was watching them and was standing at a short
distance of 2 or 3 yards. When he made signal, the trap
laying officer along with his staff conducted raid on the
accused. He also speaks about the procedure after laying
the trap. He identified Ex.P9.
31. A searching cross-examination is directed to
PW.2 by the defence. Throughout the cross-examination,
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except the denial nothing is elicited in the cross-
examination. It is elicited that, this PW.2 does not know
Kannada language, does not remember his contribution
towards the Provident Fund upto February 2007. He says
that, he was entitled for 50% of his contribution. He also
admits that, no written explanation is given by the
accused regarding his possession of the bribe amount. It
has come in the cross-examination that, when the raid
was conducted, the accused was perplexed and scared. It
is his evidence that, accused was not fluent in English
language. These are all the minor evidence brought in the
cross-examination which will not go to the root of the
prosecution and shake the basic case of the prosecution.
32. No doubt, PW.2, the complainant is a partisan
witness who was party to the complaint. His evidence, as
rightly argued by the counsel for the appellant accused,
requires corroboration. To corroborate the evidence of
PW.2, prosecution examined PW.3 N.B. Eshwar Bhat the
Vigilance Assistant at HAL at the relevant time as Pancha
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witness and also an eye witness with regard to demand
and acceptance of bribe money by the accused.
33. It has come in the evidence of PW.3 that, he is
an independent witness reported to the office of CBI on
request of the CBI officer, along with his colleague
P.V.Ramachandra, gone through the complaint allegations
and agreed act as independent witnesses. He was asked to
handle the notes, dip his right hand in the bowl containing
sodium carbonate solution. When he dipped, it turned into
pink colour. He had made personal search of PW.2. In his
presence, pre-trap mahazar was prepared. He
accompanied PW.2 as instructed. Trap laying officer and
staff along with two panchas accompanied complainant to
the office of the accused. Initially both PW.2 and
complainant went to the canteen and there they met
accused. PW.3 was standing at a distance of 2 to 3 yards
from the complainant-accused and watching their
activities. There was a demand made by the accused and
complainant gave MO No.1 currency notes to the accused
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on demand. When PW.2 gave signal by wiping his face
with both the hands, the trap laying officer came there
and conducted raid. At that time, accused was perplexed.
He confessed about receipt of bribe money on demand
from the complainant. PW.3 also speaks of taking the
accused to the office of Muniyan and there post-trap
proceedings were conducted. Accused was asked to dip his
left hand in the carbonate solution and it turned into pink
colour. The notes were compared and tallied with the
contents of panchanama. This PW.3 identified MO Nos.3 to
10.
34. Thus, evidence of PW.3 is corroborative in
nature with that of evidence PW.2 in material particulars.
Though intensive cross-examination is directed to PW.3,
but, nothing worth is elicited from the mouth of this
witness. He is consistent about his role as a trap witness.
Way back in 1961, the Hon'ble Apex Court in Major E.G.
Barsay v. State of Bombay, reported in AIR 1961 SC
1762, para 40 of the said judgment held that,
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"40. We are definitely of opinion that both the
courts had approached the evidence of Lawrence
from a correct standpoint. Though Lawrence was
not an approver, he was certainly an interested
witness in the sense that he was interested to see
that the trap laid by him succeeded. He could at
least be equated with a partisan witness and it
would not be admissible to rely upon such evidence
without corroboration. It would be equally clear that
his evidence was not a tainted one, but it would
only make a difference in the degree of
corroboration required rather than the necessity for
it".
35. The Hon'ble Apex Court in State of Bihar v.
Basawan Singh, reported in AIR 1958 SC 500 para 15 of
the said judgment held that,
"15. xxxxxx The correct Rule is this : if any of
the witnesses are accomplices who are particeps
criminis in respect of the actual crime charged,
their evidence must be treated as the evidence of
accomplices is treated; if they are not accomplices
but are partisan or interested witnesses, who are
concerned in the success of the trap, their evidence
must be tested in the same way as other interested
evidence is tested by the application of diverse
considerations which must vary from case to case,
and in a proper case, the court may even look for
independent corroboration before convicting the
accused person. If a Magistrate puts himself in the
position of a partisan or interested witness, he
cannot claim any higher status and must be treated
as any other interested witness."
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36. In this case, PW.3 is the independent witness
and has corroborated the testimony of PW.2 in material
particulars, therefore, he cannot be termed as accomplice
but, an independent witness. It is now well settled by
series of judgments of Apex Court that, the corroborative
evidence can even be taken by way of circumstantial
evidence. Therefore, as a rule of law, it cannot be laid
down that, the evidence of every complainant in a bribery
case should be corroborated in all material particulars and
otherwise, it cannot be acted upon. In a case of bribe, it is
quite natural that, the person who pays the bribe and
those who act as intermediaries are the only persons who
can ordinarily be expected to give evidence about the
bribe and it is very difficult to get absolutely independent
evidence about the payment of bribe. Thus, the evidence
of PW.3 is corroborative in nature and he has given
acceptable evidence about payment of bribe amount by
the complainant to the accused on demand. Though it is
argued by the counsel for the accused that there was no
demand and acceptance, but, merely because PW.3 has
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not heard the conversation between the accused and
complainant near the canteen is not a ground to disbelieve
the evidence of PW.3. Admittedly, in the canteen there
were so many customers and PW.3 was standing at a
distance of 2 to 3 yards from accused and complainant
therefore, the question of hearing the conversation of
complainant-accused in a crowded canteen by PW.3 is too
remote. Therefore, such a submission of the appellant-
accused cannot be accepted and the defence of the
accused that PW.3s evidence is to be disbelieved cannot
be accepted.
37. PW.4 one Umesh S/o.K.D.Meerappa, the
Inspector of CBI ACB at the relevant time had come before
the trial Court and deposed about the receipt of complaint
from PW.2 on 26.3.2007 and also speaks about
designation of the accused as clerk in the office of
Provident Fund who was in-charge of processing the
application for withdrawal of the PF amount contributed by
the complainant. He identified Ex.P7 complainant which
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was addressed to the Superintendent of Police. At the
instructions of his superior officer, he verified the
complaint, registered the same in RC 6(a)/2007 ON
27.3.2007 at 8.30 a.m. for the offences punishable under
Section 7 of Prevention of Corruption act, and registered
the FIR as per Ex.P12. He secured two pancha witnesses
from HAL Vigilance i.e. PW.3 and CW.8.
38. As per his evidence, he formed team consisting
of himself, CW.10 K.Madhusudan, the Sub-Inspector then,
Rajashekharan, Head Constable, Jagannath Reddy, the
then Constable, so also PW.2. 3 and CW.8. It was said
Madhusudhan who prepared the solution. At the pre-trap
procedure, PW.3 dipped his hand. Madhusudam smeared
phenolphthalein on MO No.1, PW.3 handled the notes,
dipped the same into solution which turned into pink
colour. It was PW.3 kept the said amount in the left pocket
of pant of PW.2. Thereafter, on instructions, they went
along with micro cassette to the office of the accused. On
calling the accused, he came to the canteen and there was
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a demand made by the accused to the complaint to give
the money. Accordingly, on demand complainant gave the
money to the accused. When complainant made signals,
the trap laying officer along with his team conducted raid
and at that time, accused became nervous and he
confessed about accepting the bribe amount. Thereafter,
accused was taken to his superior Muniyan's office. There
he was asked to dip his left hand in the carbonate solution
which turned into pink colour marked as Mo No.3. under
the Seizure Mahazar, MO NO.1 currency notes, pant worn
by the accused were seized by providing him a lungi.
Seizure mahazar was prepared as per MO No.9.
39. He also speaks with regard to preparation of
MO No.10. He has spoken about the role played by him in
conducting the trap. Though the lengthy cross-
examination is directed to this PW.4 but, nothing worth is
elicited to disbelieve his version given in examination
chief. Merely because signature of the accused was not
obtained on the recovery mahazar, the defence cannot
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nullify the evidence of PW.4. The evidence of PW.4 is
corroborated by evidence of PWs. 3 and 4 in material
particulars. Therefore, to disbelieve the evidence of PW.4,
nothing is brought on record in the cross-examination.
40. PW.5 Padmavathi was an Enforcement Officer
working as Asst Accounts Officer in PF Office at the
relevant time. She was also responsible officer to process
the application for withdrawal of amount from the
provident fund account. Her designation and her
assignment of processing the application for withdrawal of
amount from PF is not denied by the defence. As per her
evidence, complainant PW.2 had a balance of Rs.48,302/-
in his PF Account. He completed 7 years of his service and
was eligible for advance of Rs.22,400/- only. She identified
the application filed by the complainant as well as the
return memo as per Ex.P19 and 20. As per her evidence,
accused has put his initial on Ex.P20 showing its date as
21.3.2007. Even the Section Supervisor concerned by
name Lingappa Gowda has initialled with date as
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22.3.2007 in red ink. Their signatures are marked as
Ex.P20(a) and 20(b) respectively. The reasons so
mentioned in return memo Ex.P6 andP19 signed by
Muniyan including Ex.P20 are one and the same. But,
these Ex.P19 and 20 do not bear the signature of Muniyan.
The reasons are marked by ticking in green ink on Ex.P6,
19 and 20. But, they were never despatched to the
concerned office where complainant was working. That
means Ex.P10 is silent about despatching original Ex.P6 to
PW2. This shows that though there was rejection of
application filed by complainant PW.2 for withdrawal of the
PF amount on the ground that he had not completed 7
years of service but, accused kept the same with him
perhaps expecting contacting of accused with him to seek
favour from the accused to get sanction the withdrawal of
provident fund. The conduct of the accused in not
despatching the said Ex.P6 shows that, he was expecting
something from the complainant so as to favour him. This
possibility cannot be ruled out in the absence of acceptable
evidence from the accused. Even he has not placed the
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subsequent proceedings before the superior officer till the
complainant met him. The work sheets prepared on
23.3.2007 marked at Ex.P21 shows that, only after
meeting the accused, he recommended to advance
withdrawal of Rs.22,400/- to PW.2. Thus, the conduct of
accused plays an important role to infer that, something
was in the mind of the accused to get something from the
complainant thereby, the presumption which was available
to the accused is not rebutted by the accused as
contemplated under Section 20 of the Act.
41. PW.6 Venkatashiva Reddy, the Senior Social
Security Assistant in the office of accused has come before
the trial Court and stated that, at the relevant time, he
was working as a Senior Social Security Assistant in the
Accounts Section No.VIII, PF Office, Bengaluru. As on
20.3.2007, in all there were 34 similar applications
received and he handed over eight applications to the
accused and obtained initials on Ex.P5. Item no.7 in the
said applications, was the application of complainant as
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per Ex.P25. Receipt of the application submitted by the
complainant is not denied by the defence. He is specific in
his evidence about grievance put forth by the complainant
against the accused and complainant spoke to Ushavathi
by putting his grievance against accused. This witness has
heard complainant shouting at the accused. He has not
participated in the trap proceedings. Therefore, evidence
of PW.6 can be accepted to the extent that, he handed
over eight applications including the application of the
complainant to accused for processing. As there was no
permission to withdraw the amount, it was complainant
who shouted at the accused.
42. PW.7 Naganath, the Accounts Officer attached
to the Provident Fund Office, at that time was working as
Supervisor in Inward Section. He received Ex.P3 an
application submitted by PW.2 the complainant on
16.3.2007 and forwarded the same to EDP Cell. He signed
Ex.P.24 showing the allocation of the application to the
accused on 20.3.2007. On receipt of the applications, he
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handed over the same to PW.6. To that extent of evidence
of PW.7 is to be accepted.
43. PW.8 W.Gladys Jayanthi, the Inspector of Police
of CBI in Bengaluru at the relevant time. On taking up the
investigation, conducted the further investigation,
recorded the statement of PW.2, he sent trap materials to
chemical examination, recorded the statement of
witnesses. On receipt of the sanction order, he filed the
charge sheet against the accused. Though he has been
cross-examined at length but, except denial nothing worth
is elicited from the mouth of this witness.
44. Here in this case, on scrutiny of entire evidence
lead by the prosecution, through evidence of PWs.2 and 3,
the requisites of the offences under Section 7, Section 13
(2) and Section 20 of the Act, regarding illegal gratification
i.e. demand and acceptance is established. The
phenolphthalein test is positive against the accused.
Testimony of the witnesses like PW.3 to 8 is trustworthy.
The presumption which was available is not rebutted by
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the accused as contemplated under Section 20 of the PC
Act. PW.5, 6 and 7 being the officials of the provident fund
office have spoken about the role of the accused in
processing the application of the complainant. They have
supported the case of the prosecution in its entirety. Even
PW. 4 and 5 also have spoken about demand and
acceptance. Thus, PWs. 3, 4 and 5 have stood firm and
remained unshaken in the cross-examination and nothing
has been elicited to dislodge their testimony.
45. On reading the testimony, PWs. 2, 3 and 4, it is
evincible that in the examination chief all these witnesses
have supported the prosecution story in its entirety and in
the cross-examination, they have taken the path of pre-
verification. Thus, under the provisions of Act, it is true
that, unless there is a demand and acceptance, the
offence is not complete. It is also true that, mere recovery
of tainted money is not sufficient to record a conviction
unless there is evidence that, bribe was demanded or
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money was paid voluntarily as bribe. However, in the
present case it is not so.
46. Though the learned counsel for the appellant-
accused criticize the conviction judgment and order of
sentence passed by the learned trial Court but, the
evidence spoken to by the witnesses falsifies such a
criticism. The learned trial Court on evaluation and
assessment of the evidence spoken to by the witnesses,
has rightly come to the conclusion that, accused is guilty
of committing the offences so alleged by the prosecution.
47. On reading the evidence of witnesses so
recorded in this case in its entirety, their evidence cannot
be brushed aside. The evidence of PWs.2, 3 and 4 have
got corroboration from the evidence of PW.6, 7 and 8.
That means, in all material particulars as discussed above,
about the recovery of bribe amount from the accused on
demand received by him is proved with necessary
documents pertaining to the test carried with
phenolphthalein powder. The fact remains that, the
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appellants-accused's pant pocket contained
phenolphthalein smeared currency notes when he was
searched was proved. Even accused also admits about the
same, but, denies that on demand he has received the
same. It is his defence that, complainant forcibly thrust
those currency notes in his hands. It can be stated that,
the currency notes as per the case of the prosecution
which were recovered from the left pant pocket were
actually prepared by PW.3 by smearing them with
phenolphthalein powder. The accused was caught red
handed with those currency notes. Though he has
contended in his statement under Section 313 of Cr.P.C
that, he is innocent and falsely implicated by the
complainant, but, no ill will or animosity is established in
between himself and complainant, so also by PW.3.
Therefore, I am not inclined to hold that learned trial
Judge has committed error in passing the judgment of
conviction and order of sentence. The learned trial Court
has rightly concluded that the charges levelled against the
accused have duly been proved by the prosecution.
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48. There are adequate circumstances which
establish the ingredients of offences in respect of which
the accused was charged. In the ultimate analysis, there is
no merit in this appeal and consequentially, the appeal is
liable to be dismissed. Accordingly, the points raised supra
are answered against the appellant and in favour of the
prosecution.
49. So far as sentence is concerned, the learned
trial Court has sentenced the accused to undergo 2 years
imprisonment and shall pay fine of Rs.10,000/- in default
of payment of fine for the offence under section 7 with
default and under 13(2) read with Section 13(1)(d) he
was sentenced to undergo SI for 2 years and fine of
RS.10,000/- with default sentence.
50. This criminal case of the year 2007 and already
17 years have lapsed. By this time, the accused must have
suffered mentally, physically even financially. As per the
appeal memo filed in the year 2011, age of the accused is
shown as 46 years and by this time, he must be nearing
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superannuation. This is the only mitigating circumstance
to show some leniency in imposing the sentence. It is
submitted by the counsel for the appellant-accused that,
he is having wife and children and has to maintain his
family. In view of the background of this case and also the
facts and circumstances of this case, if the sentence so
imposed is reduced to one year simple imprisonment by
maintaining the sentence of fine, it would meet the ends of
justice.
51. Therefore, the appeal filed by appellant-accused
partly succeeds with regard to the modification in the
sentence only.
Resultantly, I pass the following:
ORDER
i) The appeal is allowed in-part.
ii) The judgment of conviction dated
23.12.2010, passed by the XXI Addl.
City Civil and Sessions Judge and
Special Judge for CBI cases,
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Bangalore, in Special
C.C.No.129/2007 remains unaltered.
iii) Appellant-accused is sentenced to
undergo SI for one year instead of
two years as imposed by the trial
Court for both the offences. Both the
sentences shall run concurrently.
The period of custody undergone by
the accused be given set off as
contemplates under Section 428 of
Cr.P.C.
iv) The fine so imposed for both the
offences shall remain undisturbed.
v) As the appellant is on bail, his bail
bonds are cancelled. He is directed
to surrender before the trial Court
forthwith to suffer the sentence.
vi) The Trial Court is directed to get
the custody of the accused forthwith
and commit him to prison.
vii) The operative portion of this
Judgment be sent to the trial Court
forthwith by mail for necessary
action.
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viii) Send back the trial Court
records along with copy of this
judgment forthwith.
Sd/-
JUDGE
SK,PSJ
