Y.R. Iliger vs State of Karnataka

P.D. Waingankar, J.—1. This appeal by accused No. 2 is directed against the judgment of conviction and order of sentence dated 27.2.2015 in Spl.CBI.CCC. No. 3/14 on the file of III Addl. Sessions Judge (Special Judge for Loka yuktha and CBI Cases at Dharwad) for the offences punishable under Sections 7, 13(1) (d) r/w 13(2) of Prevention of Corruption Act, 1988(for short ''P.C. Act'') and Section 120-B of IPC.

The brief facts which gave rise to this appeal are as under-

"Accused No. 1-T.G. Allure was working as Deputy Commissioner(Central Excise) Bellary, appellant-accused No. 2 was working as Superintendent(Central Excise) Bellary in the same office. The complainant(PW-10) had submitted an online application to accused No. 2 for issuance of Central Sales Tax registration certificate for M/s. MAA Corp Industries Limited in the capacity of its director. On 29.1.2013, PW-10 met accused Nos. 1 and 2 in their office and handed over the hard copy of the online application under an acknowledgment. After updating the information furnished in the application, accused No. 2 asked the complainant to come to the office after two days. When PW-10 complainant went to the office after two days and met accused No. 2, he informed him to comply with some formalities. He took him to the chamber of accused No. 1, where both accused Nos. 1 and 2 demanded a bribe amount of Rs. 1.5 lakhs from the complainant for issuance of registration certificate. However, after negotiation, both the accused came down to Rs. 30,000/-. The complainant was not interested to pay the bribe as demanded by accused Nos. 1 and 2. As such on 26.2.2013, the complainant lodged a complaint before the Lokayukta Police Station, Bellary. He also handed over conversation between him and the accused recorded by him in his mobile. The lokayukta police downloaded the said conversation in three CDs through laptop. A crime came to be registered against both the accused in Bellary Lokayukta police station, Crime No. 4/13 for the offences punishable under Sections 7, 13(1) (d) r/w Section 13(2) of the P.C. Act and forwarded the original complaint and FIR to the Special Judge under a sealed cover. The police Inspector, Lokayukta police station secured the presence of two panchas viz., PW-4- Basavaraj, PW-7-Mohammed Ayub and the complainant in his office. He introduced them to each other and made them aware the purpose for which their presence had been secured. The complainant produced 30 notes of 1,000 denomination to be given as bribe. All the notes were smeared with phenolphthalein powder with the help of his staff. The importance of phenolphthalein test was demonstrated. The number of notes were recorded. The notes were entrusted to the complainant. A detailed entrustment panchanama was drawn as per Ex-P11 in the presence of panchas. PW-4 one of the panchas was asked to follow the complainant to the office of accused Nos. 1 and 2 and observe what transpires between the complainant and the accused. The complainant was instructed to go the office of accused Nos. 1 and 2 and enquire with accused Nos. 1 and 2 about his work. If they still demand the bribe amount, the complainant was asked to hand over the tainted currency notes and if notes are accepted by the accused, to come out from the office of accused Nos. 1 and 2 and give a prearranged signal. The Police Inspector and other staff members were waiting at a little distance from the office. The complainant alongwith PW-4 went to the office of accused Nos. 1 and 2, they met accused No. 2, who inturn enquired with the complainant as to whether he brought the amount demanded by them. Accused No. 2 took the complainant to the chamber of accused No. 1, who in-turn demanded and accepted the bribe amount from the complainant in the presence of PW-4. Immediately thereafter the complainant came out from the chamber of accused No. 1 and gave pre-arranged signal to the police inspector. Immediately the Police Inspector with his staff and another pancha rushed to the chambers of accused No. 1. The complainant and PW-4 pointed out to accused Nos. 1 and 2 as the officers who demanded and accepted the bribe amount. Hand wash of accused No. 1 was taken in sodium carbonate solution. The solution turned into pink colour. The same was collected. The tainted currency notes were recovered from the possession of accused No. 1. The complainant stated before the Police Inspector that when he entered the office and approached accused No. 2, he enquired with him as to whether he brought the bribe amount and thereafter he took him to the chamber of accused No. 1, who in-turn demanded and accepted the bribe amount. On enquiry with PW-4, he corroborated the version given by the complainant. A detailed trap panchanama was conducted as per Ex-P13 in the presence of panchas. Both the accused were arrested and brought to the office of Lokayukta police station, Bellary; they were produced before the Special Judge. The Police Inspector, Lokayukta police station, Bellary came to know that both the officials are Central Government Officials and as such he handed over the case file to CBI. The Police Inspector, CBI, ACB, Bangalore -Sri S. Hariharan registered separate crime in RC.04(A)/2013-CBI/ACB, Bangalore. Upon completion of the investigation, he forwarded all the investigation papers to sanctioning authority and obtained a sanction order as per Ex-P14. After receipt of the sanction order, PW-12-S. Hariharan, Police Inspector, CBI filed a charge-sheet against both the accused for the aforesaid offences in Spl.CBI.CCC No. 3/14 before the Special Judge. Upon hearing, the Special Public Prosecutor and the defence counsel, charges were framed against both the accused for the offences punishable under sections 7, 13(1) (d) r/w 13(2) of P.C. Act and Section 120-B IPC. The accused pleaded not guilty. During pendency of the case, accused No. 1 died and therefore the case against him abated. The trial proceeded as against accused No. 2. The prosecution examined 12 witnesses as PWs-1 to 12, marked Exs-P1 to P40 apart from M.Os.1 to 18. After closure of the prosecution side, accused No. 2 was examined under Section 313 Cr.P.C. The defence of accused No. 2 is that of total denial and false implication. The accused No. 2 did not choose to lead any evidence. Arguments were heard. Upon hearing the arguments and appreciation of evidence, by the impugned judgment and Order, accused No. 2 was convicted for the offences punishable under sections 7, 13(1) (d) r/w 13(2) of P.C. Act and Section 120-B of IPC and has been sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs. 5,000/- and in default to pay fine to undergo simple imprisonment for a period of one month for the offence punishable under section 120-B IPC, to undergo simple imprisonment for a period of six months and to pay fine of Rs. 5,000/- for the offence punishable under Section 7 of the P.C. Act, to undergo simple imprisonment for a period of one year and to pay fine of Rs. 5,000/- and in default to undergo further simple imprisonment for a period of one month for the offence punishable under Sections 13(1) (d) r/w Section 13(2) of P.C. Act."

Questioning the legality and correctness of the judgment of conviction and order of sentence, this appeal is preferred by accused No. 2.

I have heard the arguments addressed by both the learned counsel appearing for the appellant-accused No. 2 and the respondent CBI. Perused the records.

The submission of the learned Senior counsel Sri. Kiran S. Javali appearing for the appellant is that even if the prosecution has placed some evidence to establish demand and acceptance of bribe amount, it is only against accused No. 1 and no material is placed as against appellant-accused No. 2 for he having committed the alleged offences, neither accused No. 2 demanded the bribe amount nor he accepted the bribe amount from the complainant, the accused No. 2 has nothing to do with the bribe amount said to have been recovered from the possession of accused No. 1, nor the accused No. 2 entered into an agreement with accused No. 1 to do any illegal acts or a legal act by illegal means and that though no case has been made out as against accused No. 2, the learned Special Judge without any evidence, much less, legally acceptable evidence, convicted accused No. 2 and hence the learned counsel sought to set-aside the judgment of conviction and order of sentence as against appellant-accused No. 2.

On the other hand, the learned counsel for CBI would submit that by the evidence of the complainant which is corroborated in all respects by the evidence of PW-4 a shadow witness and the other witnesses examined, the prosecution has not only proved beyond reasonable doubt the demand for the bribe, but also acceptance of bribe amount of Rs. 30,000/- by accused No. 1 and recovery of the bribe amount from accused No. 1 in the presence of panchas and thus the prosecution has proved the demand and acceptance and recovery of the bribe amount from the possession of accused No. 1. It is further submitted that it is accused No. 2-the appellant who demanded the bribe amount at the first instance from the complainant, it is he who took him to the chamber of accused No. 1, where again the demand was made and the bribe amount was accepted and thus the prosecution has proved the demand and acceptance of bribe amount from the complainant to do the official favour and the prosecution has established that both accused Nos. 1 and 2 conspired together and committed the offence. The learned Special Judge on proper appreciation of evidence has rightly convicted and sentenced the appellant-accused No. 2 for the alleged offences and there is no scope to interfere in the order passed by the Special Judge and hence the learned counsel has sought for dismissal of the appeal.

Having heard the submissions made by both the learned counsel and on perusal of the entire material on record, the only point that would arise for my consideration is:--

"Whether the conviction and sentence of appellant-accused No. 2 is sustainable in law?"

From the perusal of the entire material on record and upon hearing the submissions of both the learned counsel appearing for the parties, the fact that accused No. 1 was working as Deputy Commissioner of Central Excise and accused No. 2 as Superintendent of Central Excise at Bellary is not in dispute. It appears that when charge-sheet was filed, accused No. 1 was no more and therefore the question of obtaining a sanction sofaras accused No. 1 was concerned did not arise. It has come in the evidence of PW-12-Investigation Officer that after completion of the investigation, he forwarded the records to the sanctioning authority, who in-turn upon going through the entire material placed before him and on application of mind found that there is prima-facie material to proceed against appellant-accused No. 2 for the aforesaid offences. Hence the Sanctioning Authority i.e., the Commissioner(Central Excise) accorded sanction order as per Ex-P40 to prosecute accused No. 2 for the offences punishable under sections 7, 13(1) (d) r/w Section 13(2) of P.C. Act and Section 120-B of IPC. The sanction accorded to prosecute accused No. 2 is not seriously challenged in this appeal. Even otherwise, there is enough material to accord sanction to prosecute accused No. 2 which is a valid sanction.

It is evident from the records that the bribe amount was accepted by accused No. 1. The prosecution by the evidence of the complainant-PW-10 coupled with the evidence of PW-14 Basavaraj- a shadow pancha and the evidence of PW-9-Guranna Shiddappa Hebbal, the Police Inspector, Karnataka Lokayukta, Bellary has proved the demand and acceptance of bribe amount by accused No. 1 to do official favour to the complainant in the matter of issuance of registration certificate. PW-10- the complainant in detail has spoken in his evidence that he had applied for the registration certificate through online in the office of Central Excise, Bellary, the hard copy of the application was given to accused No. 2 who was working as Superintendent, who inturn asked him to come after two days; when he went to the office and approached accused No. 2 after two days, he took him to accused No. 1 in his chamber, who in-turn demanded a sum of Rs. 1.5 lakhs for issuance of registration certificate and after negotiations, both accused Nos. 1 and 2 came down to Rs. 30,000/-. Further his evidence would go to show since he was interested to give the bribe amount, he lodged a complaint before the Lokayukta police station, Bellary; alongwith the complaint he also handed over the mobile conversation between himself and the accused recorded by him through his mobile; crime came to be registered against both the accused on 26.2.2013. Thereafter, entrustment mahazar was drawn by securing two panchas in the office of the Lokayukta police station, a trap was arranged; accused No. 1 was trapped while demanding and accepting bribe from the complainant, the tainted currency notes were recovered from the possession of accused No. 1; the trap panchanama was drawn. Though the complainant has been cross examined, nothing has come out of it so as to disbelieve his version for the reason that he had submitted an application for issuance of registration certificate which is not in dispute. Nothing has been suggested to him regarding the animosity or the reason for the complainant to lodge a complaint against accused Nos. 1 and 2 without any basis. The evidence of PW-9 is fully corroborated by the evidence of shadow witness PW-4 Basavaraj, who was working as Assistant Engineer in the office of Karnataka Urban Water Supply and Drainage Board, Bellary, who was deputed by the Executive Engineer to the office of the Lokayukta. PW-4 has given a detailed account as to how the entrustment mahazar was conducted, the tainted currency notes were entrusted to the complainant and that he alongwith the complainant went to the office of accused Nos. 1 and 2, they first approached accused No. 2, who inturn enquired about the bribe amount and took the complainant to the chamber of accused No. 1, who demanded and accepted the bribe amount from the complainant, the bribe amount was recovered from the possession of accused No. 1 under trap panchanama, he has also spoken about the role played by accused No. 2. Their evidence is further corroborated by the evidence of the Police Inspector, who laid the trap in all respects. Thus the prosecution has placed on record sufficient and satisfactory evidence to speak about the demand and acceptance of bribe amount by accused No. 1, who died during the pendency of the case and therefore case against him stood abated.

We are concerned with the complicity of accused No. 2 in the alleged crime. The complainant has deposed that it all started from accused No. 2, who was working as Superintendent(Central Excise), Bellary. It is deposed that at the first instance, the complainant approached accused No. 2, who was the authority to receive and process the application for registration. He has spoken that a hard copy of the application submitted by him through online was given to accused No. 2, who inturn asked him to come after two days and when he went and approached accused No. 2, he took him to the chamber of accused No. 1, where both of them demanded bribe amount of Rs. 1.5 lakhs to issue registration certificate and upon negotiations, they agreed to receive a sum of Rs. 30,000/- as bribe. It is further deposed that on the date of trap, when the complainant approached accused No. 2, he enquired with him about the bribe amount and thereafter took him to the chamber of accused No. 1 where both of them demanded the bribe amount and accused No. 1 accepted the currency notes from him. But accused No. 2 has categorically denied that he enquired with the complainant as to whether he brought the bribe amount. If the intention of accused No. 2 was to demand and accept the bribe amount, he could have accepted the bribe amount from the complainant directly when he approached him after two days in the office and in- turn handed over the bribe amount to accused No. 1. He would not have taken the complainant to the chamber of accused No. 1 just to hand over the bribe amount directly to accused No. 1. Accused No. 2 being the Subordinate Officer to accused No. 1 would have taken the complainant to the chamber of accused No. 1. That does not mean that accused Nos. 1 and 2 had an agreement to demand and receive the bribe amount. After all, the bribe amount was accepted by accused No. 1 and recovered from accused No. 1. It is not the case of the prosecution that the bribe amount was given to accused No. 1 in the presence of accused No. 2 nor accused No. 2 received the portion of the bribe amount from the complainant. Merely because the accused No. 2 guided the complainant regarding the procedure to be followed in the matter of obtaining Central Sales Tax registration certificate, it cannot be said there was an agreement between accused Nos. 1 and 2 to demand and accept the bribe amount from the complainant to show an official favour or for that matter accused Nos. 1 and 2 hatched conspiracy to demand and accept the bribe amount from the complainant. Of course, the criminal conspiracy can be proved either by direct evidence or by circumstantial evidence or by conduct of parties before the commission of offence, during the commission of offence or after commission of offence. As a Subordinate Officer, accused No. 2 was bound to function and discharge his duties under the directions of accused No. 1. Both of them were working in the same office. After all, the registration certificate was signed and issued by accused No. 1 who is the competent authority. As righty submitted by learned counsel appearing for accused No. 2, the evidence regarding the electronic gadget such as CDS, mobile conversation, voice recorder, call records cannot be relied upon since Section 65-B of the Indian Evidence Act is not complied. The prosecution failed to produce acceptable direct evidence and also failed to establish the circumstances so as to prove criminal conspiracy hatched by accused Nos. 1 and 2 beyond reasonable doubt. The appreciation of evidence and approach sofar as accused No. 2 is concerned should have been different than that of the appreciation of evidence and approach as against accused No. 1. The approach of the court below so far as appreciation of evidence as against accused No. 2 is not proper. Though the prosecution has produced some evidence, it is only as against accused No. 1. But, so far as accused No. 2 is concerned, the evidence is lacking. Definitely, the evidence as against accused No. 2 is not sufficient so as to hold him guilty for the charges levelled against him. Having regard to the fact that he was working with accused No. 1 as subordinate officer, his meeting with accused No. 1 cannot be termed as an agreement to demand and accept the bribe amount from the complainant. Moreover, the bribe amount has been recovered from accused No. 1. All these vital aspects have been ignored and brushed aside by the court below. Thus on my re-appreciation of evidence, I am of the considered view that the evidence on record as against accused No. 2 is not sufficient to hold him guilty of the charges levelled against him. As such the judgment of conviction and sentence of the appellant/accused No. 2 is not sustainable. It is liable to be set-aside. Accordingly, the appeal is allowed. The judgment of conviction and sentence of the appellant accused No. 2 in Spl.CBI.CCC. No. 3/2014 on the file of III Addl. Sessions Judge(Special Judge for Lokayukta and CBI Cases) Dharwad is hereby set-aside. The appellant-accused No. 2 is acquitted of all the charges levelled against him.