Criminal Appeal No. 970 of 2009. Case: Sanjay Sabharwal Vs State. High Court of Karnataka (India)
| Case Number | Criminal Appeal No. 970 of 2009 |
| Counsel | For Appellant: Pradeep C.S., Advocate and For Respondents: P. Prasanna Kumar, Special Public Prosecutor |
| Judges | John Michael Cunha, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 313, 374(2); Prevention of Corruption Act, 1988 - Sections 13(1)(d), 13(2), 20, 7 |
| Judgement Date | March 23, 2017 |
| Court | High Court of Karnataka (India) |
Judgment:
John Michael Cunha, J.
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This appeal is filed under section 374(2) of Cr.P.C. challenging the judgment of conviction passed by the XXI Addl. City Civil & Sessions Judge and Special Judge for CBI cases, Bengaluru in Spl.C.C. No. 258/2004. By the impugned judgment, the appellant is convicted for the offences punishable under sections 7, 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1998 (hereinafter referred to as 'Act'). The appellant is sentenced to simple imprisonment for 18 months and is directed to pay a fine of Rs. 10,000/- for both the offences and in default of payment of fine, to undergo simple imprisonment for a period of three months.
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The appellant was serving as an Executive Engineer, BSNL, Civil Division-II, Bengaluru. The case of the prosecution is that the appellant/accused demanded a bribe of Rs. 4,000/- from PW-4(complainant) as a motive or reward for making the payment of pending bills. The complainant was not inclined to pay the bribe amount. Hence, he approached the Inspector of CBI, Sri K.Hari Om Prakash-PW-5. He lodged the complaint as per Ex-P42 between 10.30 a.m. or 11.00 a.m. on 7.4.2004. The trap laying officer PW-5 secured two independent witnesses. Pre-trap formalities were conducted in the office of PW-5. At about 4.30 p.m., the complainant and the trap laying team proceeded to the office of the accused. It is the specific case of the prosecution that the complainant asked the shadow witness PW-1 to stay back as he apprehended that the accused may not receive the demanded money from the complainant in the presence of an outsider. The complainant PW-4 alone went to the office of the accused. According to the complainant, he offered to pay the demanded bribe of Rs. 4,000/-, but the accused asked him to pay the said amount in his house saying that another bill for Rs. 38,786/- was also to be passed by the accused. According to the complainant, the accused wrote the name of his apartment and his phone number on a small chit Ex-P5. The complainant returned to the office of the trap laying Officer (TLO) PW-5. The proceedings of the day were recorded in a mahazar Ex-P2. The chit given by the accused was taken possession by PW-5.
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On 8.4.2004, once again the trap formalities were conducted in the office of PW-5. At about 8.30 a.m., the complainant and the trap laying team proceeded to the residential apartment of the accused situated at Jakkur Main Road, Amruthahalli, Bengaluru. The name of the apartment was 'Shobha Windfall'. It is the case of the prosecution that before proceeding to the apartment of the accused, the complainant rang up to the mobile number given by the accused, but the phone was switched off and hence the complainant spoke to the accused through his landline number. At about 8.30 a.m., the complainant went to the apartment of the accused. The accused came down to the basement along with the complainant where the accused is stated to have received the tainted currency notes amounting to Rs. 6,000/-, whereafter the accused went back to his apartment. The complainant came out of the apartment complex and flashed the pre-instructed signal to PW-5 and the raiding team went to the apartment of the accused situated on the 2nd floor of the apartment building. PW.5 kept on knocking the door. The accused opened the door after about five minutes. He was identified by the complainant and the hand wash of the accused was taken and it turned to 'pink colour'. The shirt pocket and the pant pocket of the accused were also subjected to chemical wash and both the solutions turned to 'pink colour'. The accused however declined to disclose the amount received by him and hence the raiding team started to search the apartment and at that time, at about 9.45. a.m. the accused informed the raiding team that he has thrown the tainted currency notes into the passage through the ventilator situated in the apartment.
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There was no access to the said passage either from the apartment or from the basement. Hence, the maintenance staff was asked for to get hold of the said notes. But even the maintenance staff could not get into the said passage as it was too narrow. Hence, with the assistance of a boy, the said notes were recovered. The serial numbers of the notes were found tallying with the serial numbers and denominations entered in the pre-trap mahazar Ex. P2. Thereafter, requisite trap formalities were completed. On the same day, PW.5 went to the office of the accused to seize the documents relating to the transaction, but PW.5 could not trace any documents in the office. The premises was sealed. On the next day, the seal was opened and the file relating to the pending work was seized. Further investigation was continued by PW.10. In the course of investigation, PW.10 recorded the statements of witnesses, sent the seized chit - Ex. P5 to F.S.L. for examination and report. After securing the report, charge-sheet was laid against the accused for the above offences.
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The accused denied the charges and faced trial. In order to prove the charges leveled against the accused, the prosecution examined in all ten witnesses.
PW.1 V. Shashidhar is the shadow witness. At the relevant time, he was working as Senior Vigilance Assistant in HAL. This witness has spoken about his participation in the pre-trap panchanama as well in the trap panchanama at Ex. P7. In his evidence, he has stated that on the instructions of the complainant, he did not accompany the complainant to the office of the accused on 7.4.2004 as well as to the apartment of the accused on 8.4.2004.
PW.2 is the Director (Vigilance & Training) who accorded sanction for prosecution of the accused. The sanction order is marked in evidence as Ex. P21.
PW.3 is the Accounts Officer, Telecom Civil Division, BSNL, Bengaluru where the accused was working at the relevant point of time. This witness has narrated in detail the procedure followed in BSNL Office in respect of issue of work orders and payment of the bills.
PW.4 is the complainant. This witness has narrated in detail about the initial demand made by the accused and has specifically stated that he lodged the complaint as per Ex. P42. In his evidence, he has stated that on 7.4.2004, when he approached the accused to pay the demanded sum of Rs. 4,000/-, the accused asked him to come to his apartment hiking the demand to Rs. 6,000/- on the ground that another bill was also pending for payment. This witness has deposed in line with the prosecution case about the pre-trap formality conducted in the office of the accused as well as about the receipt of the tainted currency notes by the accused. He has identified the chit at Ex. P5 given by the accused and has also spoken about the conversation recorded in the micro cassette and the transcription thereof at Ex. P3 and Ex. P4.
PW.5 is the Inspector of C.B.I. who received the complaint at Ex. P42 and registered the F.I.R. at Ex. P43.
PW.6 is the handwriting expert who examined Ex. P5 with the handwriting of the accused and issued his opinion as per Ex. P44.
PW.7 is the Senior Office Assistant in the office of the Executive Engineer of Telecom. Through this witness, the prosecution has marked the bill register for the period from 20.10.2003 to 14.10.2004 at Ex. P2 and the relevant entries therein. This witness has also identified Ex. P30 - the office copy of the letter sent to the complainant by the Accounts Officer, Telecom Civil Division. He has also spoken about the dispatch register Ex. P31 relating to the period from 1.10.2003 to 9.7.2004.
PW.8 M.Prabhakar is the Junior Telecom Officer working in BSNL Sub-Division-IV at the relevant time. According to this witness, he made entries in the measurement book which is called as 'M' book and the same is marked as Ex. P37. The agreement executed by the complainant with BSNL is marked as Ex. P26. This witness has spoken about Ex. P23 namely the bill form relating to the work done by the complainant pertaining to the annual repair and maintenance work of staff quarters at KB Sandra and this witness has stated that the said bill was passed for payment and the amount of the bill Ex. P23 has been paid to the complainant R.Srinivas on...
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