IN 11* HIGH COt’RI OF KARNkT%J{A CIRCI IT BENt I-i ‘A L)HAR.I) D’iIFD HI1H[’ 14’ DAY )TMA1tCh hi BrFnRE ‘H HON’BI F. MR Ij%’II(Ii\ J( NNAIHAN CRLA NO.2b, 2004 BETWFEN K VFNKTESHU S/O BAZARAPPA. SECTION ENGINFER PERMkNENT WAI. SOUTH Cb’ITRAI RAILWAYS. RAILWAY QITARTFR NO 172/B. t V NAGAR. QUNTAKAL. (A P.) PN• 315 801 PPEL ANI (BY ‘RI ‘ R flE4I. ADV AND STATE B\ CFNIR R’A C I VU ri A I ACB. BAN6 \LORI RESP flU’C’ V QTW. 1 1 ‘ t ‘I’ RM ‘ I”11 ) V V 3 — CR r b\ Pb tJVfl( \FE. FOR IkE APPELLW .j-”’P ‘IF :1 t )’’fl ‘:‘ ••) - ‘:. P,% ‘_T I I I V ‘ 14 (‘ ( •.j I j.IJ I: 1 I ‘ .( ‘Nt. j4 Lxii I) • P.., £ :‘ •“I , fl—; ‘ I.i?FI’ T’i. ic 1 T L)k I \( ; JUDGE’ MENT 1 ti’ tpicl1ari ehal1enge his eonieti’ n in Irspes’t f tfn. .tft ii pjirn’,l’ b1t unrlt r , 9 and I 3j1)(d) and a a icr cec’inn 13( ol ‘he Prevention . C orrt’pflo’i 1Q88 and has been centenced to undergo R.I. for t’o years and to pa i tine of o.OOU. - imposed in respect 01 each one of the ofienees in thc.. trial Court 2. 1 he eat,’ ot the prosc’c’uuon in short a that the complainant Sh’ifi Khazi was working at South Central Railwtns ind dunzt 1991 tic ‘as posted at Hutagi Station arc €tit.i ‘ a C cm n lubli n a r.emporan measurt and °r in 1 1 1 C)Q$ one more ransfer 0) ekhf ‘vas issued tray s’eir. Z 1 i’il’ I “jin Sc uih t’°nt- I Ratv If AbI ti Ii P £ tr i1.ifws’ii c.h9ikedslipc r.t ri •t.•ylainait {‘ 1 ituic s) S’IS r r r.c ‘ Iii. a’IcW ‘It’ r” Ac.d ‘r ap’eiia-i c’ .i U “ e” • ;‘‘ — • •i. , id “1 1 n.’ 1. ii S.”TL I..’I’ I pe I ia ‘,. k (r ‘. ‘ I — _,,J’, .4— t —‘‘..• — •‘ r .r : •i ‘ ‘ ‘ ‘ r 3 4 persons willing to work at Hubli by paying money and if the complainant wants to stay at Hubli, he should pay the accused ?3,000/- and then the accused would inform the Senior Divisional Engineer that the services of the complainant are indispensable and the complainant may be retained at Hubli for some more time. The complainant then requested by saying that his stay at Hubli is very necessary, as his wife needs medical care, which is available at Hubli. But the accused angrily told the complainant to keep quiet and thereafterwords everyday the accused was demanding bribe amount of ?3,000/- by threatening the complainant that, if the amount is not paid, the complainant would be relieved at any moment. 3. The complainant was also having with him a digital diary, which was presented to him by his father-in- law. The accused also demanded the said diary along with ?3,000/- bribe. As the complainant was unable to meet the demand of the accused, the complainant managed to mobilize 3,00O/ - and then took one day leave on 02.12. 1998 and went. to Bangalore. 3?, ‘4 . 4 4. Thereafterwords, the complainant met the CBI Inspector, Paneer Selvam (P.W.4) and informed about the demand made by the accused and thereafterwords the complainant gave written complaint as per Ex.P4 and thereafterwords, P.W.4 after getting information of the accused, contacted vigilance department of the Corporation Bank at Bangalore then made arrangements for two officers and vehicle at Hubli and after registering the case on 02.12. 1998 at about 6.00 p.m. in RC No.33(A)/98 by FIR as per Ex.P16, Ex.P4 and Ex.P16 were sent to the Sessions Judge at Dharwad. 5. On 03.12.1998, P.W.4 reached Hubli and thereafterwords P.W.2 i.e., complainant came to the place where the CBI Inspector was staying at Ajanta Hotel and the shadow witnesses of P.W. 1 was also present and inquest mahazar was drawn as per Ex.P1 and it took time up to 11.00 a.m. Thereafterwords the complainant as per the advise of the CBI Inspector went to office of the accused and the complainant also told the accused that the application for requesting to retain him at Hubli is also with the 3--- 5 .4 complainant and gave the same to the accused to keep it in his pocket and thereafterwords the accused told P.W.2 that, number of people are watching and both accused and complainant went out of the office and from 100 ft from the office at that place, accused asked the amount to be given early and then P.W.2 took the amount which was applied with Phenolphthalein powder and gave it to the accused. Accused took his right hand and counted the said amount with his both hands and kept the amount in his shirt pocket. The accused also accepted the digital diary and opened it and sought for the guidance from the complainant about its operation and accordingly, P.W.2 also told him how to operate. At that point of time, i.e., at 11.30 a.m. P.W.2 after having given the amount and digital diary, gave pie- arranged signal and P.W.4 accompanied by the other officers came to the spot and the accused was caught. The accused was then taken to the nearby DRM office in an auto- rickshaw. In the chamber of the Divisional Engineer, Sodium Carbonate solution was prepared in two clear bowls. The right hand fingers of the accused were washed in one of 6 the bowls containing Sodium Carbonate solution and the colour of the solution turned to pink. The CBI Inspector asked the accused about the money received by him from the complainant and the accused told the CBI Inspector that, he had received the amount of ?3,000/- as hand loan from the complainant. Thereafterwords accused produced M.O.2 currency notes and M.O.8 diary from his shirt pocket and they were seized under Ex.P9. 6. After the completion of the investigation, the charge sheet was submitted against the accused. Accused denied the charge levelled against him and the prosecution therefore lead evidence by examining P.W.l to 5 and Exs. P1 to P19 were marked apart from M.O.1 to M.O.8. Accused statement was recorded who denied the prosecution case in toto and did not lead any defence evidence except marking ExDl and D1(a). 7. Learned trial Judge after appreciating the evidence on record and in the light of the arguments, finally came to the conclusion that, the prosecution has brought home (he guilt of tlw atcused bv,ond all reasonable doubt. I he tirC used ‘a’ tom icwd in n spc C t o’ Lii.’ oftences punishabli under Settins • ‘ dfld liii )(d und uiidti Sreiion 132j ot the PI’vcntinn “ii tn:nipt1tn ‘t. Piss and has been sentenced as mentioned earlier. 8. 1 have heard the %uhmlssion made In the learned counsel for the appellant -md also Sri MJ3.Kanavi. (‘GSC tor thr CBI and also perused the entire records of this case. Cl. Learned counsel Si S R Desai for the appellant t he outset submitted that the n secuti ‘i case suffers f 0 1 anc’us infirm e ard r dl ate kits ‘ire the I C C filL o r1d ‘‘‘rituiid the tina 1R i c’ i Ci ‘iSt “ his Lcd C 1’ tst ib1 1 s P f’ oiid’ — • n• r n’ ‘ ‘1 pr’ . cs •t. 1 :flr .c t’ . • •g I 8 and theretbre, even assuming that there was an amount of 3000/ in possession of the accused according to the resnondent. mere being ro demano it will not bring the case wjtnln the ambit of the charge levelled against the accused. On thjs score. the judgement of the trial Court is lab1e to he set aside and the accused has to he acquitted. The fourth point is that. there are number of contradictions and varatons ln the evidence of prosecution wItnesses tnerebv 1ing an indication that all was not well with the entire invcstigation and in the face of such nconsistencv in the evidence, the conviction of the.. accused therefore e.annet he upheld under law. 10. Elaborating the above contentions, learned counsel for the appellant argued that, the mandatory provisions of Section 154 and 157(1) of the Cr.RC. in respect of registering the FIR and sending the FIR to the Magistrate was not complied. At. what time the complainant xvent to the office of ths (DBI Inspe:etor at Bangalore and what time e;omoiaint was given is n..ot clear as PW 2 has mdc inconsistent. siatrioieiDt this ream in 9 4 Ex.P4, no endorsement is made as to the date and time of receipt. P.W. 1 the shadow witness gives different version and says that the complaint was shown at Hubli on 03.12.1998 by the complainant and learned trial Judge has made an endorsement on the FIR itself that, it was received at 1.00 p.m. on 03.12.1998 by which time, the entire trap proceedings were at the verge of completion. The abnormal delay in sending the FIR to the Court has not been properly explained and therefore it gives rise to the doubt and possibility of the manipulation by the prosecution agency. 11. Having regard to the discrepancies in the evidence with regard to the FIR, learned counsel then pointed out that, the sanction order Ex.P14 also suffers from various defects. In the sanction order it is stated that, the accused was supervisory officer and this is not a fact and the sanctioning authority passed the order mechanically without applying the mind. Therefore, the sanction order itself is illegal and cannot be sustained in the light of the Apex Court ruling laid down in this regard. k 10 t 12. Coming to the aspect of no demand made by the accused, the submission made by the learned counsel for the appellant is that, except P.W.2 the complainant, no other witnesses have stated about the accused having demanded the bribe amount and P.W. 1 shadow witness does not speak about the demand made by the accused and therefore this critical aspect is lost sight of by the learned trial Judge. Once the evidence is lacking with regard to the demand made by the accused, the question of the case having been proved by the prosecution does not arise. 13. As far as the previous dates prior to the alleged trap, accused having made the demand for bribe from P.W.2, there is no material and as such, the prosecution has failed to establish the demand made by the accused and mere possession of the amount by the accused will not show that the accused demanded the bribe amount and accepted the same. 14. The last contention put forward is that there are number of contradictions and variations in the evidence of P.W. 1 and 2 and complaint as per Ex.P4 and the other II C defects are that the complainant was having the digital diary with him and the question of recovery of diary from accused does not arise. P.W. 1 could not have overheard the conversation between P.W.2 and accused. The time at which P.W.2 was present at Ajanta Hotel, makes it difficult to believe the possibility of accused having demanded the money from the complainant and further P.W.2 has also deposed in his evidence that, he does not remember as to on what date he received transfer order as per Ex.P6. 15. One other defect referred to by the learned counsel for the appellant is that, two of the currency notes did not match with the numbers mentioned in the mahazar as per Ex.Pl. This also shows that the prosecution case has not been proved beyond all reasonable doubt 16. The above submissions are sought to be supported by the learned counsel by relying on the decisions reported in 2010 AIAR (Criminal) 628, 2010 MAR (Criminal) 495, 2007(1) Kar. U. 227 (SC), AIR 1979 SC 1408 and AIR 1992 SC 665. 1, 17. Relying on the aforesaid dccsions. learned counsel tncreiore argued that. the conviction 01 the appellant by the learned trial Judge iii contra to the welt established principles of law as laid down in the aforementioned eases and the accused therefore be acquitted. 18. On the other hand, submission of learned counsel Sri. MBKanavi for the CBI is that. all the grounds put forward by the appellant’s counsel are not. such as to alicct the prosccuton case n pith and substance. It is submitted that, as. far as the sanction order is concerned, in the instant case, th.e prosecut.t.ri has examined PW3 and he has deposed to the effect that he has gone through all the documents before according sanction and therefore in the light of the evidence of the said witness and sanction order also being produced., the sanr..tion order cannot hr. found at ‘ ‘ as o —- — )tinsci tor ted’ CBi on the apex t_:oti’t dcclsou reporwd in I P 1 S 674 13 19. As regards the demand by the accused is concerned, submission made is that, the evidence of PW-2 the complainant coupled with the evidence of PW-1 the shadow witness and PW-4 the investigating officer clearly indicates that the accused demanded and accepted bribe amount of Rs.3,000i-. The very fact that the possession of bribe amount was found with the accused itself is sufficient to shift the burden on the accused and this burden has not been discharged by the accused by placing any defence evidence. Reliance is placed in this connection on the decision of the Apex Court reported in (2010)1 5CC (Cri) 147. 20. As regards the discrepancies in the time of the FIR is concerned, submission made is that, the complaint was lodged at Bangalore by PW-2 and thereafter the complaint along with FIR were sent by PW-4 to Hubli to be submitted before the learned Sessions Judge, Dharwad and accordingly the FIR was delivered to the Judge on 3.12.98 and as such, there is no delay in either the FIR being registered or in the FIR being delivered to the court. 14 2 1 , As far as the other discrepancies or varjations in the evidence of the prosecution witnesses arc concerned. submission made is that, those variations and contradictions are of retinor nature and they do not atTec:t the core of the prosecution case. Moreover, when the accused has not been able to discharge the burden put on him and has gone on to admit that he received the amount from the complainant, though as a hand loan, yet no evidence was placc.d by the accused to substantiate this defence taken by him, Und..er the said circumstances, the overall evidence on record has clearly established the prosecutioit. cast in respect of the offences with which the accu.sed has been charged, Under those circ.umstances, the conviction f the. appellant by the Trial Court and the consequent sentence imposed do not call for any intcrferenc.e at. the hands of this court nriess it — r “ “ is perverse iii’ nature on unreasonable. 22. In the letht ci the atonesait contentions riot C C I C — — ,— j ‘I 1- — — — — 15 I proceed to consider the various contentions put forward by the learned counsel for the appellant. 23. The first of the contention which I like to refer to is, with regard to the validity of the sanction order. The sanction order has been produced at Ex.P14. The witness who has spoken to about the sanction order is PW-3. In the course of his evidence, PW-3 Bhanu Prakash Singh, Chief Mechanical Engineer, West Central Railway has deposed before the court that, he received the requisition from the CBI on 12.1.1999 to accord sanction to prosecute the accused and along with the requisition, copy of the FIR, statements of witnesses, entrustinent mahazar, trap mahazar etc., were all sent. After going through the documents, PW-3 came to the conclusion that it is a fit case to accord sanction and accordingly he issued the sanction order Ex.P14. There is no reference number mentioned But however, he says that Ex.P14 was sent along with a covering letter and in the covering letter the reference number has been mentioned and he also says that in Ex.P14 16 he has not mentioned the details of the documents gone through by him. 24. The sanction order is produced at Ex.P14 and it reveals that the sanction authority being competent to remove the accused, on carefully examining the material placed before him such as copy of FIR, supporting evidence including copies of statement of documents etc., with regard to the allegations and circumstances of the case concluded that there is prima facie case against the accused. It is therefore clear from the combined reading of the evidence of Pw-3 the sanctioning authority and the contents of Ex.P14 the sanction order, that the authority concerned was competent to issue the order and secondly the authority did go through the relevant documents before according sanction. 25. The Apex Court in the case of Mohd. Iqbal Ahmed Vs State of Andhra Pradesh (AIR 1979 S.C.677) has held that, it is incumbent on the prosecution case to prove that a valid sanction has been granted by the Sanctioning 1 \uthorit’i, after it as satisfied that ‘i c asc for sanc tion has been madc ou onstit itin° the oftencc i he court ;c nt on to )bscrvc that this shcukt Lx dcnc ii two ‘say . th r by prc iuc.ino ‘hc ngma ‘ ti)n hi F itself con a r tic facts constituting the offence and the grounds of satisfaction md t’ addac 1 ig vidcricc iund’ t shov tbc fa ts çlaccd before thc Sanctioning Authont and thc satisfaction anned attn it 26 Ic. thc inqtant asc both the aforesa d methods hac. been ccmphed ‘sitr thc prcsccution md thcrcfore i donotsc.c aryerror cr ntcib hc 1 arrsd In 1 udgc. n upholdinthc thit )ftl ax io 1d 2 i r f p a ac t 18 C the accused is not seriously disputed. No doubt, learned counsel is right in submitting that, unless demand is proved, the question of the case corning under the provisions of the Prevention of Corruption Act, does not arise. 28. PW-2 is the complainant and he has deposed in his evidence that, after going to the office of the accused, accused took him out of the office and both came near a canteen and the accused immediately after going to the spot, which is about 100 mis from the office compound, the accused asked PW-2 to give the amount early and PW-2 gave the accused the currency notes which had been treated and accused took the same in his right hand and counted them using both the hands and hurriedly kept the amount in his shirt pocket. He has also deposed that, he also gave a digital diary to the accused which the accused took. As far as this evidence of PW-2 is concerned, in the cross examination also, the witness has come out successfully by denying the suggestion that no demand was made by the accused. On the other hand, PW-2 has deposed in the course of his examination in chief itself that, he did not borrow the loan 19 from ilic at c wa Rs.3.uO’’ b .‘ - trap i ill .1 palmibliT •! [< chowmi 4 niTh ..‘ 1’.. .i 2” Iit’i ‘is F .ourse of cross examination of PW ) it haq bun ii tic ih t PW ) along vuth the ictuscd ame out from the fIl” ,.t :1,. accused near the canteen and the accused imrrn dii if afici going there, started demanding the moan so PW to giie it quickl, Thus, the c’ ident “ 9? ir: indicates that the LitCUsed C(flcti I i 1 rbcannart a S ., G%T(,aJ ‘:l.nrr! P\..: . rfi r/’.,_ ;f the ts..e ‘i d flt 4 aft! 1 4k ‘ ild d I • f • i). St t 1 flY%’ ‘fi.t thr’ it Ji I I a ci that Ua. complainant had borro’ied :r’ :li V u:ts iciurnecl n the date of the I is 1 pmcd hat tt nale he t1r icc’scd by way ‘f bribe fur Iii hic.. . ,.i s. t’C its C, ••i ‘. U • 3’ ,j .JI% it 1 J.. It C •1 I— I I I. ‘0 gave it h tile ‘. ‘ 1%’fl .i’til ‘lit’ .iceusrcl took ii from his nght hand 311(1 ‘t it 1. :.il! is oi nued ‘he rinSes and then put it in flit h 1 i ‘ ctres his jfrg .a cd folio inç the swn i )r’plnnant (21 41’c’ers rena mcI caught held s’ • ised md took the accused to the 1tailwa lan •• “. hcrc the hands of the accused west inirut L. si.,iution which solution had turned into pin i ol P has ilso reiterated in his nidenc c. that hc.i t. (13’ flla.crs quc qtioned the accused. thc, accused ‘ii.. ‘ q.’ iflon hat he had received from flu cornpla’.:a.it w .. . .•. hand loan. P T II’ n spectn dud lie i ore Pan’ier Slit :. ••fl . . :‘cd ii rik ;lenc e th heui t’ic. C. itnpl:. it :. . ‘J ut’: cf’ i’ ‘ 1 Lt 1 tbt C ‘I I er C 4 EcC t .,r ‘Co tc C C $ . •‘ . C- r%e it I r’u,tit ••‘ r 4 •. . • ‘j(( .•• . l’lt ti)i, ii(ilt t.r . . .. II. •.- •J [‘ - •1’l 1. .1’ 21 hothhaica PW4 has t she th’2.’ ‘ •‘• astob’ ‘ anddisd c sonic ch ii n near iii. ‘• br t’)fl t• pancha ta auto ut EngineS 11 thei ‘.‘ ‘• . - uink ‘t I a d2L. %t I?. ‘ .1 r c. cui rc ncy notes in his shirt pockct (I :ts I hat tile complainant handcd on r - . ü.c ..s”c’ased ar±d t ‘N tile .4%.meLl .errane’ PW 1 went tQ the accused 1 I. tc’ thc accused and as there was ig I icld b3 the Rwlwai Employees !“ tuok the accused to a safe place ‘ r proccedings Then along with used he caine to l)BM office m an hamber of th Scmor Di isional • ‘s.c. wcuscd ere tcsted rind when In rniral solutior. ‘ turned into • e nn ‘ derost the cvic 1 en’e I_I aitfl .I. . • e ç’rlrj .3 1 r. . ictt C. 1 .j - I. .- — •1 .1 I. .4. 4 4 ‘4 alit 1, I complainant gave the amount of Rs.3,000/- to the accused and accused took the same in his right hand and counted them using both hands and put it into his shirt pocket and gave the explanation to the investigating officer that he had received the amount as hand loan from the complainant. Thus the possession of the amount with the accused has been established even as per the very admission made by the accused before the 1.0. 33. Apart from this, even in the trap mahazar Ex.P2 it is stated that the accused gave explanation that he accepted the amount as a hand loan. Such being the evidence on record, it goes to show that the burden shifts to the accused to prove that he did not demand and accept the bribe amount This burden has not been discharged by the accused by entering the witness box. Once it is proved that the currency notes which were smeared with phenolphthalein powder wcre in possession of the accused, nothing more is required to be proved by the prosecution. I; LI’ F- j t 31 Wi iii hc. tdw ul Krishna Ram ,s Statt, ot Ra s t rud :n POlOj I S.C C iCri) 14 has