V Gopinath Padiyar Vs. The State By Cbi/acb - Court Judgment

Excerpt:

.....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 - 8 - nc:2024. khc:25652 crl.a no.17 of 2011 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.....

Judgment:

- 1 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE5H DAY OF JULY, 2024 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL No.17 OF2011(C) BETWEEN: V. GOPINATH PADIYAR S/O SRI. GANAPATHI PADIYAR AGED ABOUT46YEARS RESIDING AT NO.39/1-4, "SRI DURGA"

2. D MAIN, TATA SILK FARM BASAVANAGUDI BANGALORE - 560 004 …APPELLANT (BY SRI. S G BHAGAVAN.,ADVOCATE) AND: THE STATE BY CBI/ACB BELLARY ROAD BANGALORE …RESPONDENT (BY MS. RAMULA K., ADVOCATE FOR SRI. P. PRASANNA KUMAR, ADVOCATE) THIS CRL.A IS FILED U/S3742) OF CR.P.C PRAYING TO SET-ASIDE THE

JUDGMENT

AND

ORDER

OF CONVICTION AND SENTENCE DATED2312.2010, 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/S7AND132) 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 - 2 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 HE SHALL UNDERGO S.I. FOR SIX MONTHS, FOR THE OFFENCE P/U/S7OF PREVENTION OF CORRUPTION ACT, 1988. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT

ON1406.2024, 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 - 3 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 4 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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, - 5 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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, - 6 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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.-. 7 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 8 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 9 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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, - 10 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 11 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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, - AIR1997SC3400(ii) Central Bureau of Investigation v. Ashok Kumar Aggarwal, - AIR2014SC827(iii) Ramaiah v. The State by Lokayuktha Police, Tumkur - ILR2020KAR5603(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, - AIR2014SC187(vi) V. Venkata Subbarao v. State Represented by Inspector of Police, A.P - AIR2007SC48915. 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.-. 12 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 (i) Vinod Kumar Garg v. State (NCT Delhi) - (2020) 2 SCC88(ii) Shankerbhai Laljibhai Rot v. State of Gujarat - (2004) 13 SCC487(iii) D.Velayutham v. State Represented by Inspector of Police, Salem Town, Chennai- (2015) 12 SCC348(iv) C.M. Sharma v. State of A.P - (2010) 15 SCC1(v) State of Gujarat v. Navinbhai Chandrakant Joshi & Ors.-. (2018) 9 SCC242(vi) Vinod Kumar v. State of Punjab - (2015) 3 SCC220(vii) N. Ashok Kumar v. CBI - (2011) 2 AIR Kant R13116. 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?. - 13 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 (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 - 14 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 15 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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.-. 16 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 AIR1997SC3400especially 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 - 17 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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- - 18 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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.-. 19 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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.-. 20 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 21 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 22 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 23 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 24 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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/- - 25 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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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2024. KHC:25652 CRL.A No.17 of 2011 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, - 27 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 28 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 29 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 AIR1961SC1762 para 40 of the said judgment held that, - 30 - NC:

2024. KHC:25652 CRL.A No.17 of 2011

"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 AIR1958SC500para 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."

- 31 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 32 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 33 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 was addressed to the Superintendent of Police. At the instructions of his superior officer, he verified the complaint, registered the same in RC6a)/2007 ON273.2007 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 - 34 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 35 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 36 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 37 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 38 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 39 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 40 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 41 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 42 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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.-. 43 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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 - 44 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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, - 45 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 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.-. 46 - NC:

2024. KHC:25652 CRL.A No.17 of 2011 viii) Send back the trial Court records along with copy of this judgment forthwith. Sd/- JUDGE SK,PSJ List No.:

1. Sl No.: 1