Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 29 (KAR)

H. P. Venkatesh v. State of Karnataka

2015-01-05

R.B.BUDIHAL

body2015
JUDGMENT : Since these two appeals are arising out of the same judgment pertaining to the same crime number, they have been taken together to dispose of them by common judgment to avoid repetition of discussion. 2. These two appeals are filed by the appellants accused Nos.1 and 2 being aggrieved by the judgment and order of conviction and sentence dated 24.2.2014 passed by the Special Judge, Bangalore Urban District, Bangalore City in Spl. C.C. No.17/2009 thereby convicting the appellants accused Nos.1 and 2 for the offence punishable under Section 7 of Prevention of Corruption Act, 1988 (for short ‘The Act’) and sentencing them to suffer rigorous imprisonment for a period of one year and to pay fine of Rs.2,000/ with default clause and further convicting the appellants accused Nos.1 and 2 for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act and sentencing them to undergo R.I. for 1½ years and to pay fine of Rs.3,000/ for default clause. 3. The case of the persecution as per the complaint Ex.P.23 dated 13.12.2007 is that one P.R. LokeshP.W.6 lodged a complaint to the police inspector, Karnataka Lokayuktha, Bangalore city alleging that since 10 years, he is running Fabrication workshop at Rajajinagar under the name and style of M/s. Sri.Rangaswamy Fabrication Workshop. On 12.12.2007, the complainant was taking the fabricated railings in tempo No.KA02/B1309 towards ECCI Company at Magadi Road. At 1.30 p.m., nearby ECCI Company gate at Magadi Road, a person came in a Tata Sumo and checked the tempo of the complainant and verified the bills pertaining to railings. The said person told the complainant that there is a difference about the wait mentioned in the bill and also the wait of the railings kept in the tempo. Accordingly, he demanded Rs.30,000/, for which the complainant told that he is not able to pay such amount as he is working in the small workshop. The said person asked to pay at least Rs.25,000/ and the complainant told that it is not possible to pay even Rs.20,000/ also and requested the said person to reduce the amount. Then the said person told to pay Rs.10,000/ for that the complainant told that he will pay Rs.8,000/ on the next day. The said person asked to pay at least Rs.25,000/ and the complainant told that it is not possible to pay even Rs.20,000/ also and requested the said person to reduce the amount. Then the said person told to pay Rs.10,000/ for that the complainant told that he will pay Rs.8,000/ on the next day. The complainant requested to release his vehicle at that time, the other two persons of the said department came there and out of the two, one Ganapathyappa gave his mobile number 9448031517 to the complainant and asked the complainant to inform him as soon as he keeps the money ready. The complainant came to know that the person who demanded the bribe amount from him was an officer belonging to Commercial Tax Department. On the name plate of the Tata Sumo, it was mentioned as Government of Karnataka having the registration number as KA01G3035. In the evening, on 12.12.2007, the complainant called the mobile number of Ganapthyappa and told him that he will bring Rs.8,000/ the next day i.e., 13.12.2007. He requested the said person to release the tempo and also asked him to reduce the amount to some extent and this conversation has been recorded in the tape recorder and he has produced the tape recorder along with the complaint. As complainant was not interested to pay Rs.8,000/ to get release of his vehicle along with the railings, he requested the police to take action against Ganapathiyappa who demanded the bribe amount and also the officer of the CTO. 4. On the basis of the said complaint, case was registered. After investigation, charge sheet was filed against both the appellants for the offences punishable under Sections 7, Section 13(1)(D) read with Section 13(2) of the Prevention of Corruption Act. 5. The Special Judge framed the charges against the appellants for the said offence. Then the prosecution in support of its case examined witnesses PWs.1 to 7 and produced the documents Exs.P.1 to P.28 and also got marked material objects M.Os.1 to 10. On the side of the appellants accused, three witnesses have been examined as D.Ws.1 to 3 and got marked the documents Exs.D.1 to D.3. 6. After considering the merits of the case, ultimately, the learned Special Judge convicted both the appellants for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act. On the side of the appellants accused, three witnesses have been examined as D.Ws.1 to 3 and got marked the documents Exs.D.1 to D.3. 6. After considering the merits of the case, ultimately, the learned Special Judge convicted both the appellants for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act. The appellants accused Nos.1 and 2 have challenged the legality and correctness of the judgment and order of conviction on the grounds they have urged in the appeal memorandum of the respective appeals. 7. Heard the arguments of the learned Senior Counsel for the appellant accused NO.1 and arguments of the learned Counsel appearing for appellant accused No.2 and also the arguments of learned SPP on behalf of the respondent State in respect of both appeals. 8. Learned Senior Counsel appearing for appellant accused No.1 in Crl. A.No.217/2014, during the course of his arguments, made submission that the complainant P.W.6 himself has not supported the case of the prosecution and he turned hostile. Even in the cross examination of P.W.6 by the prosecution, nothing had been elicited from his mouth so as to believe that the accused persons had demanded and accepted the bribe amount to show official favour for the work of the complainant. He further made the submission that even looking to the evidence of P.W.1 who is a shadow witness, it shows that he has not stated in his evidence as to what was the conversation between the accused and the complainant. The evidence of P.W.1 is not helpful to the prosecution in establishing its case that there was demand and acceptance of bribe amount. As there was overloading of the railings in the said vehicle and as there was difference in the weight mentioned in the bills so also the weight of the railings actually transported in the said vehicle, the accused seized the vehicle and asked the complainant to pay a fine of Rs.8,000/. The learned Senior Counsel further made the submission that even the receipt which the accused persons were preparing for payment of the penalty amount of Rs.8,000/ was not completely written and as the Lokayuktha police came and seized the said receipt, it has become incomplete receipt. However, looking to the said receipt also, it supports the contention of the appellant accused that the payment of Rs.8,000/ is towards the penalty and not the bribe amount. However, looking to the said receipt also, it supports the contention of the appellant accused that the payment of Rs.8,000/ is towards the penalty and not the bribe amount. He made the further submission that the accused have also examined D.Ws.1 to 3 and the prosecution witness admitted the presence of D.Ws.1 and 3 at the said place when the vehicle was seized. Their evidence also supports the defence of the accused. When as per the evidence of P.Ws.1 and 6 i.e. the shadow witnesses and the complainant, the demand and acceptance of the bribe amount itself is not established, mere recovery of the amount of Rs.8,000/ will not prove the persecution case beyond all reasonable doubts. The evidence adduced in the case, both oral and documentary, has not been properly appreciated by the Special Judge and he has come to the wrong conclusion that there was demand and acceptance of bribe amount by the accused. He made submission that the letter issued by the Joint Commissioner of Commercial Tax Department dated 20.5.2008 goes to show that in fact the said receipt is in accordance with Section 53(12) of the Karnataka Value Added Tax Act (for short the ‘KVAT Act’) and hence, the Special Judge is not justified in the convicting the appellant accused No.1 and the same is illegal. When the demand and acceptance of the bribe amount itself is not established with acceptable evidence, the question of raising presumption by the Special Judge is contrary to law and facts. Accused NO.1 filed an application under Section 91 of Cr. P. C. to call for the original documents pertaining to the case, but without considering the said application, the Special Judge proceeded with the case and convicted the accused. Hence, the judgment and order of conviction passed by the Special Judge as against accused No.1 appellant is illegal, perverse and capricious and accordingly, submitted to allow the appeal and to set aside the judgment and order under appeal. In support of his contention, the learned Senior Counsel has relied upon the following decisions and the materials: 1. Information under the RTI Act. 2. Criminal Appeal 696/2014 (SC) 3. 2006 (1) SCC 401 (T Subramanian Vs. State of T.N.) 4. 2006 (13) SCC 305. (V Venkata Subbarao Vs. State represented by Inspector of Police, A.P.) 9. In support of his contention, the learned Senior Counsel has relied upon the following decisions and the materials: 1. Information under the RTI Act. 2. Criminal Appeal 696/2014 (SC) 3. 2006 (1) SCC 401 (T Subramanian Vs. State of T.N.) 4. 2006 (13) SCC 305. (V Venkata Subbarao Vs. State represented by Inspector of Police, A.P.) 9. Learned Counsel for the appellant accused No.2 in Crl.A.No.220/2014 during the course of the arguments, submitted that in the present case, after seizure of the vehicle of the complainant, the Commercial Tax department insisted him to pay the fine amount and in this regard, notice was also issued to the complainant as per the provisions of Section 53(A) (12) of the KVAT Act. The learned Counsel draws the attention of this Court to the original record at page No.166 with regard to issuance of said notice. The learned Counsel made the submission that the complainant was liable to pay tax of Rs.4,000/ at the rate of 12.5% of the value of the goods and also the penalty for evasion of tax. The penalty is to be levied under Section 53(12)(1)(ii) of the KVAT Act and three times, the penalty can be imposed at the maximum. In this case, the commercial tax officer, who was having the discretionary power to levy the penalty, has levied the penalty of Rs.8,000/. This aspect has been ignored by the Special Judge by wrongly interpreting that if the penalty levied is Rs.8,000/, notice was for Rs.12,000/ and hence, the same cannot be accepted that the payment of Rs.8,000/ is towards the penalty. Hence, the learned Counsel made the submission that the Special Judge has not at all looked into the documents in a proper perspective and has wrongly observed in the judgment that the amount of Rs.8,000/ is towards bribe. In this regard, the learned Counsel has also made the submission that the calculation of penalty of Rs.8,000/has been properly explained in the written arguments filed before the Special Judge. But the Special Judge has failed to look into the written argument and wrongly came to the conclusion that it is the bribe amount and not the penalty amount. In this regard, the learned Counsel has also made the submission that the calculation of penalty of Rs.8,000/has been properly explained in the written arguments filed before the Special Judge. But the Special Judge has failed to look into the written argument and wrongly came to the conclusion that it is the bribe amount and not the penalty amount. The learned counsel further submitted that in so far as raising presumption under Section 20(1) of the P.C. Act is concerned, it is only in respect of the offence under section 7 of the Act and not in respect of the alleged offence under section 13(1)(d) read with Section 13(2) of the said Act. The learned Counsel also made the submission that in the recent judgment of the Hon’ble Supreme Court, it has been observed that when the materials placed do not make out a case that there was demand and acceptance of the bribe amount, the question of raising presumption does not arise at all. Hence, the learned Counsel submitted that looking to the oral evidence of even the prosecution witnesses and more particularly, the evidence of P.W.6 complainant and the defence witnesses .W.1 to 3, it is very clear that the payment of Rs.8,000/ is towards penalty amount and not the fine amount. The learned Special Judge has not properly appreciated the oral and documentary evidence and has wrongly convicted the appellant accused No.2 and hence submitted to allow the appeal and to set aside the judgment and order under appeal. In support of his contention, the learned Counsel relied upon the following judgments: 1. 2014 SAR (Crl.) 554 (B Jayaraj Vs. State of A.P.) 2. (1987) 2 SCC 647 (Bal Krishan Sayal Vs. State of Punjab) 3. 2007 (3) SCC (Crl.) 175 (V Venkata Subbarao Vs. State represented by Inspector of Police, A.P.) 10. As against this, learned Special Public Prosecutor appearing for the respondent Lokayuktha, during the course of the arguments, submitted that the fine amount even according to the calculation made by the appellants in their appeal memorandum would be either Rs.4,000/ or Rs.6,000/ and it cannot be Rs.8,000/ and hence, the contention of the appellants has been rightly rejected by the Special Judge. The learned Special Public Prosecutor also made submission that the material was not at all weighed to ascertain as to what was the exact wait of the railings and hence, the contention of the appellants regarding payment of the fine amount of Rs.8,000/ is not in accordance with the materials placed on record. If at all the receipts were prepared on the same day when the vehicle was seized for collection of the fine amount, then the receipt would have been dated 12.12.2007. But looking to the date of the receipt, it is shown as 13.12.2007. It is submitted that P.W.1 is the independent witness, who all along accompanied the complainant P.W. 6 and observed as to what was happening between the accused and the complainant and accordingly, he gave evidence which clearly goes to show that there was demand and acceptance of bribe amount by the accused. He made further submission that in order to ascertain whether there was demand and acceptance of bribe amount, the entire materials placed on record has to be looked into, which is done by the learned Special Judge in this case. When the prosecution material goes to show that the accused has demanded and accepted the bribe amount, the special Judge has rightly raised presumption as per Section 20(1) of the Act and appellants have not rebutted the said presumption by cogent and satisfactory materials. It is not just sufficient to offer some explanation to rebut presumption, but there must be positive proof to rebut the said presumption and the appellants accused have not placed such materials to rebut the said presumption. The learned SPP further made the submission that looking to the receipt dated 13.12.2007, the registration number of the vehicle mentioned in the said receipt is different from the registration number of the vehicle belonging to the complainant. In this regard, the learned SPP draws the attention of this Court to page Nos.166 and 167 of the original file. The learned SPP further made the submission that if at all the notice is issued for collection of the fine amount, the date of issuing such notice should be in chronological order. But in this case, the register extract shows that it is not in chronological order and hence, that itself raises the suspicion about the issuance of the said notice. But in this case, the register extract shows that it is not in chronological order and hence, that itself raises the suspicion about the issuance of the said notice. The learned SPP also draws the attention of this Court to the relevant portion in the deposition of P.W. 6 and P.W.1 and made the submission that looking to the evidence of these two witnesses, there is satisfactory material to show that there was demand and acceptance of the bribe amount. Referring to judgment of the trial Court at page Nos.188, 191 and 195, the learned SPP submitted that the Special Judge has taken into consideration all the materials placed on record and has rightly come to the conclusion that the prosecution has proved the charges against the appellants with acceptable evidence and rightly convicted both the appellants. Hence, no illegality has been committed by the Special Judge, nor there is any perverse and capricious view taken in passing the impugned judgment. There are no grounds for this Court to interfere with the judgment and order of the Special Judge and hence, submitted to dismiss the appeals. In support of his contentions, the learned SPP has relied on the following decisions: AIR 1990 SC 1269 (M Sunderamoorthy Vs State of Tamil Nadu) (2004) 3 SCC 753 (T Shankar Prasad Vs. State of A.P.) 2006 AIR SCW 5267 (The State Vs. A Prthiban) 11. I have perused the oral evidence of P.Ws.1 to 7, D.Ws.1 to 3 and the documents at Exs.P.1 to P.28, Exs.D.1 to D.3, material objects M.Os.1 to 10 and also perused the judgment and order dated 24.2.2014 passed by the Special Judge, Bengaluru Urban District, Bengaluru City in Spl. C.C. No.17/2009. 12. P.W.6 K.R. Lokesh is the complainant in this case and his complaint is as per Ex.P.23. About the contents of the document Ex.P.23, reference is already made in the beginning of the judgment. The case of the prosecution that the complainant P.W.6 went to the Lokayuktha office on 13.12.2007 and lodged the complaint as per Ex.P.23. The prosecution witnesses were examined. P.W.1 – G. Sathish is the shadow witness, who was instructed by P.W.7 Irshad Ahmed Khan Investigating Officer to accompany the complainant and to observe as to what was happening between the complainant and the accused. The prosecution witnesses were examined. P.W.1 – G. Sathish is the shadow witness, who was instructed by P.W.7 Irshad Ahmed Khan Investigating Officer to accompany the complainant and to observe as to what was happening between the complainant and the accused. Perusing the oral evidence of P.W.1, he has deposed that on 13.12.2007, he was commissionered as witness by Lokayuktha Police and after instruction from his superior, he went to Lokayuktha Office at 2.00 p.m. and there was another witness along with him by name Deepak Kumar P.W.2. The police inspector introduced the complainant to him and copy of the complaint was provided to him. He has gone through the same and the police inspector asked the complainant to produce the currency amount of Rs.8,000/ and the complainant produced the same in the denomination of Rs.1000 x 6 and Rs.500 x 4. The serial numbers of the currency notes were noted down on a paper and it was Ex.P.1 and his signature was P.1 (a). Thereafter, Lokayuktha police smeared phenolphthalein powder on both sides of the currency notes and P.W.2 Deepak Kumar was asked to keep the tainted currency notes in the said pocket of the complainant. Solution was prepared in a bottle as per M.O.1 and in the remaining solution, hands of witness Deepak Kumar was washed and the colourless solution turned into pink colour and it was secured in a bottle as per M.O.2. Photographs of the proceedings were obtained as per Exs.P.2 to P.6 and the witnesses were instructed to maintain confidentiality and P.W.1 was asked to be with the complainant. The proceedings were reduced into writing as per Ex.P.7 and Ex.P.7(a) is the signature. The complainant was asked to telephone the accused and he did so. Accused No.2 told the complainant that Saheb has called and asked to go to Rashildhar road. They left the Lokayuktha office at 3.45 p.m. At 4.00 p.m., they reached Rashildhar road. They were instructed to pay money on demand and they reached the Rashildhar road at 4.00 p.m., by that time, the vehicle of the accused arrived. It was about 4.15 p.m. Accused No.1 was sitting in the vehicle. Accused No.1 chided in a raised voice on the complainant and the complainant told that he had brought the money and requested to release the vehicle. It was about 4.15 p.m. Accused No.1 was sitting in the vehicle. Accused No.1 chided in a raised voice on the complainant and the complainant told that he had brought the money and requested to release the vehicle. Complainant went to pay the money to accused No.1 and he asked to pay the same to accused No.2. Accused No .2 received money, counted and kept the same in the pocket. Thereafter the complainant flashed the signal by keeping the pen on his ear. 13. In the cross examination, P.W.1 has deposed that when he went to Lokayuktha office on 13.12.2007, Lokayuktha inspector, witness Deepak Kumar and other staff were present. Complainant was also present and it was 2.15 p.m. He denied the suggestion that mahazar was already written by the time when he went to Lokayuktha office. He also denied the suggestion that he was unaware of the contents of Ex.P.7 entrustment mahazar. When he was asked in the cross examination whether he could recollect the conversation heard by him in the tape recorder, replied that it was conversation between the complainant and accused No.2 and complainant was pleading to reduce the money and he will bring it on the next day. He denied the suggestion that the amount given by the complainant was the penalty amount legally due for the vehicle and denied the further suggestion that complainant was asked to pay penalty because of variance in the documents. He denied the further suggestion that no bribe was demanded by the accused from the complainant. 14. P.W.2 Deepak Kumar has deposed, in the examination in chief, that on 13.12.2007, he was requisitioned to be a witness by the Lokayuktha police and he went to the Lokayuktha office on the instruction of the superior officer. In the Lokayuktha office, it was in respect of proceedings against the demand of bribe and mahazar was conducted in the Lokayuktha office and chemical process were demonstrated and instructions were issued to the witnesses. Many items including solution, coloured solutions were sealed in the Lokayuktha office under mahazar. Similarly, mahazar was also conducted in the office of the accused, where chemical process preparing of solution, seizure of ordinary and coloured solution and other articles were seized and similarly the money. Many items including solution, coloured solutions were sealed in the Lokayuktha office under mahazar. Similarly, mahazar was also conducted in the office of the accused, where chemical process preparing of solution, seizure of ordinary and coloured solution and other articles were seized and similarly the money. Each of the sealed items were seized with the help of metal seal bearing English letter ‘AL’ and it was handed over to him after obtaining the specimen seal under acknowledgment. He produced the seal before the court as per M.O.8. and the specimen seal is Ex.P.8. and his acknowledgment is Ex.P.19. 15. In the cross examination by advocate for the accused, P.W.2 deposed that bottles were seized under mahazar in Lokayuktha office only. When the question was put to him, that “the solution wherein your hand was washed and hand wash of the accused were all seized in the Lokayuktha office, what do you say ?”, his answer was “my hand wash and Lokesh were sealed in Lokayuktha office. The hand wash of accused and complainant were sealed in the office at Rashildhar road. “He denied the suggestion that no chemical examination was conducted in his presence in Lokayuktha office. When it was suggested that M.O.8 metal seal was given to him in the office of the Lokayuktha on 13.12.2007, he replied that after the completion of the proceedings, the seal was given to him at Rashildhar road. He denied the suggestion that Lokesh did not accompany Sathish. 16. P.W.5 B.M. Ganeshachar deposed in his evidence in the examination in chief that between October 2007 to May 2009, he was working as gazette manager at enforcement division at JCCT, Bengaluru. He received a letter dated 3.4.2008 to furnish the particulars relating to H.P. Venkatesh and Ganeshappa, who were as CTO and CTI respectively, and they have furnished the particulars with covering letter as per Ex.P.22. In the cross examination he has deposed that the complainant in this case was liable to pay penalty of Rs.8,000/. Their office has got records of issuing Ex.P.22. 17. P.W.6 is the complainant. He has deposed in the examination in chief that he has filed the complaint. During the year 2007, he was running a welding shop. One day, he had hired 407 vehicle for transporting ECCI railings. It was on 12.12.2007 railings were being transported. Their office has got records of issuing Ex.P.22. 17. P.W.6 is the complainant. He has deposed in the examination in chief that he has filed the complaint. During the year 2007, he was running a welding shop. One day, he had hired 407 vehicle for transporting ECCI railings. It was on 12.12.2007 railings were being transported. He was informed that the vehicle was stopped and held by accused No.1 CTO at 1.30 p.m. near Magadi ECCI company gate when the vehicle was carrying railings. His boy telephoned to him and he went to the spot. At that time, accused No.1 Venkatesh asked him that he should pay tax of Rs.30,000/ as there was difference in the weight transported and the permitted weight. Later accused No.1 scaled down to Rs.8,000/. Accused No.2 Ganesh, who gave his mobile number to complainant, took away the vehicle on that day. Between 6.00 to 7.00 pm. he telephoned and asked the complainant, whether he has adjusted the money. He wanted to adjust the money by pledging the jewels of his wife. Meanwhile, he met his father in law, who was a lorry broker, who told him about asking of money of about Rs.30,000/ or Rs.20,000/, is not legal and asked him to telephone by adopting recorder to the landline. He spoke from the landline telephone of his father in law. Ganesh received the phone. He asked Genesh how much should he pay and Ganesh said that Saheb (A1) has already indicated Rs.30,000/, then it was scaled down to Rs.20,000/ finally, A2 asked him to get Rs.8,000/. The conversation was recorded. He said that he was looking out for money. On the next day, i.e., on 13.12.2007, he went to the office of Lokayuktha to lodge the complaint. He was also carrying the cassette that was recorded through phone and met the Lokayuktha police inspector and lodged the complaint and gave cassette. He has seen the complaint and it is as per Ex.p.23 and Ex.P.23(a) is his signature. The police inspector secured two government witnesses. He has introduced to witnesses. The witnesses were asked to verify the complaint and its contents from him. He produced Rs.8,000/, it was in the denomination of Rs.1,000 x 6 and Rs.500 x 4. He gave it to police inspector who counted and numbers were verified and then gave it to witness Deepak Kumar. He has introduced to witnesses. The witnesses were asked to verify the complaint and its contents from him. He produced Rs.8,000/, it was in the denomination of Rs.1,000 x 6 and Rs.500 x 4. He gave it to police inspector who counted and numbers were verified and then gave it to witness Deepak Kumar. Deepak Kumar was asked to verify and another witness was also asked to verify. Thereafter, powder was smeared on the currency notes through police Indramma. Currency notes were given back by Indramma and Deepak Kumar and kept the currency notes in the shirt pocket of complainant. His hand was washed in the solution and it turned to pink colour and hand of Deepak Kumar was also washed and the solution turned to pink colour. Pen was given to him and he was asked to flash the signal by scratching the pen on his ears. He was instructed to pay money if it was asked. Witness SAtishP.W.1 was designated to be his companion. Satish was instructed to observe the activities between him and the accused. He had rang up accused no.2 through his mobile and accused No.2 asked him to go near slum board. Photogrpahs were taken in the office and they were as per Exs.P.2 to 6. They left Lokayuktha office by 2.30 p.m. and went in a maruthi van towards slum board road. They went near Swastic (area) and proceeded for a further while. Van was stopped. Himself, Satish and the other Lokayuktha officials got down. It was slum board road. They were coming on the road and the vehicle of the accused Venkatesh was coming from opposite direction and the persons who were travelling in the vehicle were accused Nos.1 and 2, driver and the other two persons. When he went to pay money to accused No.1, he asked him to give it to accused No.2 by saying ‘katti’. He gave it to Ganeshappa. Ganeshappa was writing something in the book. P.W.6 signaled, Lokayuktha people surrounded them and thereafter, Ganeshappa was taken to office. The amount was in the hands of accused No.2. It was recovered and counted by the police inspector. The hands of accused No.2 was washed separately and on both the occasions, solution turned to pink colour. Earlier sample was preserved in a bottle and coloured solutions were seized separately in a bottle. The amount was in the hands of accused No.2. It was recovered and counted by the police inspector. The hands of accused No.2 was washed separately and on both the occasions, solution turned to pink colour. Earlier sample was preserved in a bottle and coloured solutions were seized separately in a bottle. His hands were also washed in a freshly prepared solution. The solution turned to pink colour and it was seized in a bottle. The currency notes were also put in a powder and seized. Then accused persons were enquired by the inspector. Accused persons denied for having received the money. The proceedings were typed, he had signed it, photographs and video graphs were taken and they were as per Exs.P.11 to P.14. Trap mahazar is also as per Ex.P.18 and he has singed as per Ex. P.18(b). 18. The Spl. P.P had, by requesting the court to treat the witness hostile, cross examined P.W.6. When it was suggested to P.W.6 that he has stated before the police as per Ex.p.24, he answered that he came to the spot ten minutes later to the stopping of their vehicle and accused No.1 asked him to pay Rs.30,000/. When it was again suggested that accused demanded Ras.30,000/ as bribe for releasing vehicle, P.W.6 deposed that accused stated that he had to pay fine and he had stated about the same to the police. He admitted as true that mahazar was conducted in the Lokayuktha office and he has signed it and the contents were told to him. Mahazar is Ex.P.7 and his signature is as per Ex. P.7(b). When it was suggested that the accused was the person who demanded bribe on the previous day, P.W.6 answered that the accused had told it was penalty. He denied the suggestion that he has stated before the police as the amount given to the accused was bribe. When the court questioned P.W.6 that “you have lodged the complaint being not interested to pay the bribe. What do you say? ”. The answer was “witness takes too much of time to answer and when reminded by the court that he has to answer the question, he starts blinking the same and keeps quite for long time.” He further deposed that the complaint had been written according to his version. He has studied up to third standard. What do you say? ”. The answer was “witness takes too much of time to answer and when reminded by the court that he has to answer the question, he starts blinking the same and keeps quite for long time.” He further deposed that the complaint had been written according to his version. He has studied up to third standard. In the further cross examination, he answered to the question that he told his father in law that accused No.1 was demanding Rs.30,000/ and then came to Rs.20,000/and then to Rs.10,000/ katti. No notice was given to him when the vehicle was seized. No notice was given to him even before collecting money. He had admitted as true that the key of the vehicle was procured from accused No.2. By seeing the currency notes marked as M.O.3, he had also admitted that it was the amount which he had produced in the Lokayuktha office and recovered from accused No.2. 19. P.W.7 Irshad Ahmed Khan is the investigating officer in the case. He had deposed in the examination in chief that on 13.12.2007, a person by name Lokesh appeared before him and lodged a complaint as per Ex.P.23 against demand of bribe of Rs.8,000/ for releasing the vehicle. He registered the case and issued FIR as per Ex.P.24. He had also deposed that he secured two witnesses, P.Ws. 1 and 2 from BESCOM and introduced the complainant to the witnesses and gave copy of the complaint to the witnesses and asked them to verify the veracity of the complaint from complainant. The complainant also produced tape recorder which was played. He asked the complainant to produce currency notesM.O.3 and it was in denomination of Rs.1,000 x 6 and Rs.500 x 4. The numbers of the notes were noted in Ex.P.1. The conversation was reduced into transcription and it is incorporated in the proceedings/mahazar. Thereafter, the cassette was seized as per M.O.9. P.W.7 has also narrated in detail about the entrustment mahazar as per Ex.P.7. Photographs were taken as per Exs.P.2 to 6 and thereafter all of them washed their hands. At 3.45 p.m., they left Lokayuktha office along with complainant and witnesses and reached the spot at 4.00 p.m. near Rashildhar road. At about 4.15 p.m., the complainant flashed the signal by keeping the pen on the left ear and then, they went there. Photographs were taken as per Exs.P.2 to 6 and thereafter all of them washed their hands. At 3.45 p.m., they left Lokayuktha office along with complainant and witnesses and reached the spot at 4.00 p.m. near Rashildhar road. At about 4.15 p.m., the complainant flashed the signal by keeping the pen on the left ear and then, they went there. Complainant showed accused No.1 and said that he was the person who demanded money and asked to pay money into the hands of accused No.2 and accused No.2 received the money and the amount was on the pad. P.W.7 had also deposed in detail about the trap mahazar and seizing of the currency notes from accused No.2. He further deposed that accused Nos.1 and 2 gave their explanation as per Exs.P.9. and 10. Photographs were taken as per Exs.P.11 to P.14. he has recorded the statement of C.W. 1 Lokesh stated as per Ex.P.24. on 28.3.2008, he received C.E. report and it is as per Ex.P.26. In the cross examination, it was suggested to P.W.7 that the complainant has not lodged the complaint as per Ex.P.23 which suggestion was denied by the witness. During the course of cross examination, only suggestions were made to the witness, which were denied by P.W.7. Nothing more was elicited from the said witness to disbelieve the story of the prosecution. He has also denied the suggestion that complainant has not given statement as per Ex.P.24. 20. On the side of the accused persons, three witnesses were examined. D.W.1 Basavaraj deposed in his evidence that on 12.12.2007, they were near Magadi Road. Vehicle passed through and he stopped the vehicle, then informed accused Nos.1 and 2, who asked him to go and see what was there in the vehicle. He went and saw that there were grills and he showed it to accused No.1. Driver came down and said that the owner will be coming. Within five minutes, the owner came. Ganeshappa went to give notice, driver did not receive. Thereafter it was pasted to glass after mahazar. On the next day, the person telephoned accused that he had brought the penalty amount and asked them to come and collect. Accused Nos.1 and 2 came near slum board and party told that he had brought penalty money. They were coming out of the slum board. Thereafter it was pasted to glass after mahazar. On the next day, the person telephoned accused that he had brought the penalty amount and asked them to come and collect. Accused Nos.1 and 2 came near slum board and party told that he had brought penalty money. They were coming out of the slum board. When they were near the gate, the party came and told accused No.1 that he has brought penalty and accused No.1 told that inspector is there and to remit. Accused No.2 received the money and when he was writing receipt, by that time, Lokayuktha police came and apprehended accused persons and because of the gathering of the public, they were taken to slum board office. D.W.1 had further deposed that after accused were taken, the documents which were on the table were handed over to him by the Lokayuktha police to be handed over to the office and accordingly, he did so by dispatching to the Koramangala office. After three days, accused Nos.1 and 2 asked him as to where were the documents, he produced them from the control room. In the cross examination by the Spl. PP, he denied the suggestion that the amount given by the complainant was not penalty but bribe. He denied the further suggestion that no receipt was being written there and he is deposing falsely. 21. D.W.2 Tulasi Kumar deposed in his evidence, in the examination in chief, that he knew accused Nos.1 and 2 and there was an order by the Joint Director and he was asked to take over the charge from accused No.1. He received the order on 17.12.2007. He contacted accused No.1 and informed him of the order and took over the charge from him. The documents were brought by D.W.1 and the documents were returned by accused No.2. 22. D.W. 3 Sathish Kumar had deposed, in his evidence, in the examination in chief, that the accused persons had seized the vehicle. He was with his vehicle. Accused came and introduced him. Accused No.1 said that he is CTO and he wanted help from him. He said ‘no’. There was a person beside him and later both of them were agreed. Accused No.1 took him to a vehicle and it was a goods vehicle 407. Thereafter, driver was called and accused asked the driver to sign. Accused came and introduced him. Accused No.1 said that he is CTO and he wanted help from him. He said ‘no’. There was a person beside him and later both of them were agreed. Accused No.1 took him to a vehicle and it was a goods vehicle 407. Thereafter, driver was called and accused asked the driver to sign. enquired his name and the driver that he will not sign and the accused said that the driver has to remit the penalty. Driver left the vehicle and went away. Notice was pasted on the glass and they conducted mahazar as per Ex.D.3. In the cross examination by Spl. PP, he denied the suggestion that no mahazar was conducted and he was not invited and no proceedings were held. 23. Perusing the oral evidence as also the documents produced in the case, P.W.6 complainant has admitted in his oral evidence that he had lodged complaint Ex.P.23 and it bears his signature. Looking to the complaint averments as also the oral evidence of the parties, which are referred above, they clearly show that there was demand of the bribe amount by accused Nos.1 and 2. Firstly, it was for Rs.30,000/ and then reduced to Rs.20,000/ and then again on request, it was reduced to Rs.10,000/ and lastly to Rs.8,000/. As per the contentions of the accused persons, it was the penalty amount and not the bribe amount. In this regard, the explanation given by accused Nos.1 and 2 as per Exs.P.9 and 10 is the most important material. The contention of the accused persons is that on 13.12.2007, at about 2.30 p.m., the complainant phoned and informed them that he will come and pay the fine amount and asked them to come near the vehicle. Accordingly, they went nearby the vehicle and they took the receipt book and gave notice. After issuing K notice, when they were writing the receipt, the complainant kept the amount on the receipt and asked the accused to count it. Immediately, 34 persons came and told that they were from Lokayuktha office and took the accused inside the Abhaya compound. Firstly, there is no satisfactory material placed by way of defence either oral or documentary with regard to decision of the accused to impose Rs.8,000/ as penalty and how they arrived at the said amount. Immediately, 34 persons came and told that they were from Lokayuktha office and took the accused inside the Abhaya compound. Firstly, there is no satisfactory material placed by way of defence either oral or documentary with regard to decision of the accused to impose Rs.8,000/ as penalty and how they arrived at the said amount. Apart from that, looking to explanation of accused as per Exs.P.9 and 10, these two documents completely demolishing the whole defence of the accused persons because, on 13.12.2007 at about 2.30 p.m., the complainant phoned to them that he will come to pay the penalty amount and accordingly they took the receipt book and when they were issuing K notice and writing the receipt book, the complainant came and kept the amount on the receipt book and immediately 45 persons came and took them inside the compound. But looking to the explanation at Ex.P.9 on page No.2, the date is mentioned that as December 12, in the noon at 2.30, they received the phone call that the complainant will pay the fine amount. Looking to the explanation of the another accused under Ex.P.10, firstly in the beginning, the date was mentioned as 11.12.2007 and the vehicle was passing carrying the railings in the vehicle bearing NO.KA04B1309. But in the figure ‘11’ (date), the second figure ‘1’ has been over written as ‘2’. In the second paragraph, it is mentioned that on 12.12.2007 at 2.30 p.m., they received phone call that the fine amount would be paid. But closely perusing the said date, the figure ‘2’ has been over written and made it as figure ‘3’ which is clearly visible to the naked eye. Even with regard to the time that the amount will be paid at 2.30, if the figure ‘2’ is perused closely in the explanation of both accused at Exs.P.9 and 10, original time mentioned is 1.30 and the figure ‘1’ is over written making it to appear as ‘2’ which is also clearly visible. This itself is sufficient to come to the conclusion that the explanation offered by accused Nos.1 and 2 as per Exs.P.9 and 10 is not acceptable one. 24. As per the case of the prosecution, the amount was paid by the complainant to accused no.2 at about 4.15 p.m. at Rashildhar road when Accused Nos.1 and 2 came in a government vehicle. 24. As per the case of the prosecution, the amount was paid by the complainant to accused no.2 at about 4.15 p.m. at Rashildhar road when Accused Nos.1 and 2 came in a government vehicle. This contention of the prosecution is satisfactorily established with the help of oral evidence of P.W.1 Satish, who is a shadow witness and P.W.7investigating officer so also it has come in the document at the document Ex.p.18 trap mahazar. The payment of the amount by the complainant to the accused at 4.15 p.m. has been consistently established by the prosecution. 25. It is clear from the materials on record that when accused No.2 received the amount by his right hand from the complainant, he counted the notes. The prosecution material go to show that when the hand wash of accused No.2 was taken in two separate bowls, one in right hand and another in left hand, both the solutions turned into pink colour. The currency notes smeared with phenolphthalein powder were mentioned in Ex.P.1. The currency notes were said to have been handed over to accused No.2 and hand wash of accused No. 2 in the sodium carbonate turned into pink colour and they were sent to FSL. The FSL report is produced by the prosecution as per Ex.P.26 and the result of the analysis is positive. It is clearly mentioned in Ex.p.26 that the presence of phenolphthalein is detected in both the right and left hand finger washes of the AGO. This also goes to falsify the explanation offered by the accused as per Exs.P.9 and 10 because in the explanation it is mentioned that when the complainant informed that he will come to pay the penalty amount, then the accused issued K notice and while writing the receipt, the complainant kept the amount on the receipt pad. In the explanation, it is not the case of the accused that when the amount was kept on the receipt pad, accused No.2 took the currency notes into his hands and counted them with both the hands. But, his explanation is that when the amount was kept on the receipt pad, immediately 34 persons said to be from the Lokayuktha police came and took them inside the Abhaya compound. But, his explanation is that when the amount was kept on the receipt pad, immediately 34 persons said to be from the Lokayuktha police came and took them inside the Abhaya compound. If it is true, then the hand wash of accused no.2, both right and left hand, separately in two bowls would not have been turned into pink colour. 26. It is the specific case of the prosecution that the accused demanded bribe of Rs.8,000/ and as the complainant was not willing to pay the amount, he came to the Lokayuktha office and lodged the complaint. Then entrustment mahazar proceedings were conducted as per Ex.P.7 in the Lokayuktha office and then P.Ws.1 and 6 were asked to go and if the accused demanded, then only to pay the bribe amount. P.W.1 Satish consistently deposed before the court about the accused persons demanding the bribe amount from the complainant and then the complainant when wanted to pay the amount to accused No.1, he said to pay the same into the hands of accused No.2. Accordingly, it was paid into the hands of accused No.2, who received the amount through his right hand and then counted the notes with both of his hands. Both P.Ws.1 and 7 have deposed that the hand wash of accused NO.2 was taken in two separate bowls and it turned into pink colour. The prosecution materials, both oral and documentary, would show that the tainted currency notes were seized from accused No.2. 27. It is the contention of the accused that Rs.8,000/ was the penalty amount and not the bribe. If according to them, the fine amount was ascertained at Rs.8,000/ only, then what was the need for them firstly to demand Rs.30,000/, then reducing the same to Rs.20,000/ and 10,000/ and lastly at Rs.8,000/. The tape recorder about the conversation between the complainant and accused is also produced before P.W. 7 and then P.W.7 in turn produced the same before the court and it is marked as M.O.9. The proceedings that the accused came in the government vehicle bearing No.KA01G3035 to the Rashildhar road is also seen in Ex.P.11 photograph and taking the hand wash of accused No.2 is seen in photograph Ex.P.14. The proceedings that the accused came in the government vehicle bearing No.KA01G3035 to the Rashildhar road is also seen in Ex.P.11 photograph and taking the hand wash of accused No.2 is seen in photograph Ex.P.14. All these materials satisfactorily established the case of the prosecution that accused Nos.1 and 2 demanded and accepted the bribe of Rs.8,000/from the complainant to show official favour to the complainant for release of his vehicle. Therefore, legal presumption under section 20(1) of the Prevention of Corruption Act arises in this case which is to be rebutted by accused Nos.1 and 2. So far as rebuttal is concerned, accused Nos.1 and 2 have utterly failed to prove the defence that it is the fine amount and not the bribe amount. It is not only sufficient to offer an explanation as per Exs.P.9 and 10, but the accused are under legal obligation to prove their defence through the explanation. Regarding the explanation in Exs.P.9 and 10, I have already discussed above and held that explanation is not acceptable. 28. I have perused the decisions relied upon by learned Counsel appearing for accused Nos.1 and 2 produced separately along with list of citations which are referred above. Since the prosecution has placed cogent and satisfactory materials about the demand and acceptance of the bribe amount of Rs.8,000/ by the accused from the complainant and as the complainant in his oral evidence has also deposed that he went to the Lokayuktha office and lodged the complaint as per Ex.P.23 and his signature is Ex.P.23(a) and even on oath, he has further deposed that the averments in the complaint are written as per his narration and as the accused persons have failed to prove satisfactorily their defence in the case to rebut the legal presumption, the said decisions will not come to the aid and assistance of the accused persons. 29. It may be true that regarding some contents in the complaint and the statement, the witness P.W.6 might have been treated as hostile and cross examined by the Spl.PP, but the same will not come in the way of the prosecution case when the prosecution has satisfactorily proved the charges leveled against the accused persons. 30. I have also gone through the decisions relied upon by the learned Spl.P.P appearing for the respondent Lokayuktha. Perusing the decision reported in 2004 (3) SCC 753 ( T Shankar Prasad Vs. 30. I have also gone through the decisions relied upon by the learned Spl.P.P appearing for the respondent Lokayuktha. Perusing the decision reported in 2004 (3) SCC 753 ( T Shankar Prasad Vs. State of A.P.), the facts and circumstances involved in the said reported decision are almost similar to the facts and circumstances involved in the case on hand and is made applicable to the present case. 31. Looking to the entire materials on record, both oral and documentary, and the impugned judgment and order, the Special Judge has considered each and every aspect of the matter and rightly came to the conclusion in recording the finding that the prosecution has proved its case against both the accused and rightly convicted accused persons. No illegality has been committed nor there is any perverse or capricious view taken by the Special Judge in coming to such conclusion. There are no valid and justifiable grounds for this court to interfere with the judgment and order of the Special Judge and to reverse the findings. There is no merit in both the appeals and accordingly, they are dismissed confirming judgment and order dated 24.2.2014 passed in Spl. C.C. No.17/2009 by the Special Judge, Bengaluru Urban District, Bengaluru City.