Smt H H Rajeshwari Vs State by Police

THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE PASSED BY THE XXXII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR CBI CASES, BANGALORE (CCH-34) IN SPL. C.C. NO.110/2011 DATED 28/9/2012 - CONVICTING THE APPELLANT/ ACCUSED FOR OFFENCES P/U/S.7 OF P.C. ACT AND SEC.13(1(D) R/W. 13(2) OF P.C. ACT. APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR ONE YEAR SIX MONTHS FOR OFFENCE P/U/S.7

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OF P.C. ACT AND TO PAY FINE OF RS.5,000/- IN DEFAULT OF FINE TO UNDERGO S.I. OF SIX MONTHS. APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR ONE YEAR AND SIX MONTHS FOR THE OFFENCE P/U/S.13(1)(D) R/W.13(2) OF P.C. ACT AND SHALL PAY FINE OF RS.5,000/- IN DEFAULT OF FINE, SHE SHALL UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS. THE SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY. APPELLANT PRAYS THAT SHE MAY BE ACQUITTED.

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THIS CRL.A, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The accused in Special CC No.110/2011 on the file of the learned XXXII Additional City Civil and Sessions Judge and Spl.Judge for CBI Cases, Bangalore, is impugning the judgment of conviction and the order of sentence dated 28.09.2012, convicting him for the offences punishable under Sections 7, 13(1)(d) R/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act') and sentencing him to undergo simple imprisonment for the period of one year six months and pay a fine of Rs.5,000/- for offences punishable under Sections 7 of the PC Act; and to undergo simple imprisonment for the period of one year six months and pay a

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fine of Rs.5,000/- for offences punishable under Section 13(1)(d) R/w Section 13(2) of the PC Act, with default sentence.

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Brief facts of the case of prosecution in brief is that the accused was working as Inspector in the department of Income Tax and she was a public servant. On 20.01.2011 at about 07.35 p.m., the accused by abusing her official position, demanded and accepted illegal gratification of Rs.1,000/- from the informant - PW1, as a reward to change his address in the departmental system, for the purpose of giving income tax refund and thereby committed the offence punishable under Sections 7, 13(1)(d) R/w Section 13(2) of the PC Act.

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It is the contention of the prosecution that the informant PW1 is an Income Tax Assessee. He has submitted his income tax returns requesting to refund the excess income tax of Rs.19,590/-. The same was accepted by the department and a cheque was issued to him to his known address. It is the further contention of the prosecution that, PW1 had changed his address and therefore, he could not receive the cheque sent through post. On the other hand, the same was returned to the

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department. After coming to know about the return of the cheque, PW1 approached PW6 and submitted an application for change of his address to enable the department to issue the cheque and forward it to the proper address. The application for change of address is as per Ex.P1. It is the further contention of the prosecution that PW6 has referred the informant to the accused, who was working under him as Income Tax Inspector. It is then the informant approached the accused and requested for change of address. The accused even though effected change of address in the system, demanded illegal gratification of Rs.1,000/-. Since the complainant was not willing to pay any amount as gratification, he has filed the first information as per Ex.P3. The FIR came to be registered as per ExP.32. Pre-trap Panchanama was drawn as per Ex.P4, entrusting the currency notes smeared with phenolphthalein powder to the complainant with a direction to go and meet the accused.

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It is the contention of the prosecution tha, on 21.01.2011, PW1 along with the shadow witness - PW3, went and met the accused in her office. The accused informed PW1 that the change of address is already effected in the system, but asked whether he has brought what she had asked for.

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Then the informant tendered the entrusted currency notes. The accused received the same with her right hand and kept it in the table drawer with her left hand. Immediately, the informant gave signal to the Investigating Officer, who came to the spot, introduced himself, both right and left hand wash of the accused were taken in sodium carbonate solution separately, which turned into pink colour. When the accused asked to produce the tainted amount, the entrusted currency notes were found in the table drawer of the accused, which were recovered by the Investigating Officer. Thus, it is the contention of the prosecution that the accused being a public servant, demanded and accepted illegal gratification of Rs.1,000/- from PW1, to show the official favour i.e., to change the address of PW1 in the system to allow issuance of the cheque to the said address. After investigation, charge sheet came to be filed for the above said offence after obtaining necessary sanction to prosecute the accused.

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The accused appeared before the Trial Court, pleaded not guilty and she claimed to be tried. The prosecution, in order to prove its contention, examined PWs.1 to 12, got marked by Exs.P1 to 35 and identified MOs 1 to 7. The accused

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has denied all the incriminating materials available on record in her statement recorded under Section 313 of Cr.PC. She filed the written statement stating that she has been falsely implicated in the matter and that the refund work was being done by outsourced employee. The complainant had given the petition to such outsourced employee on 20.01.2011. On the same day, the amount of Rs.21,360/- has been refunded by entering the same online, and to evidence the same, the accused has produced certified copy of the refund details, which shows that the refund was processed on 20.01.2011, but the complaint came to be filed on the same day. Therefore, the accused contended that there was no demand or acceptance of the bribe amount to show the official favour. The information sought by the accused from the department and such information received under the right to information is produced. According to which, cheque bearing No.4021491809 dated 20.01.2019 was issued to the complainant for Rs.21,360/- and ECS was found successful. Thus, it is the contention of the accused that no official work was pending with her and that it was an outsourced employee, who effected change of address

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and the refund was processed on 20.01.2019 itself. Therefore, there was no demand or acceptance of illegal gratification.

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The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, and accordingly, passed the impugned judgment of conviction and order sentence as stated above. Being aggrieved by the same, the accused is before this court.

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Heard Sri.M.V.Seshachala learned Senior Advocate for Sri. Nagharish G.S., learned counsel for the appellant and Sri.P.Prasanna Kumar, learned counsel for the respondent. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the points that would arise for my consideration is:

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“Whether the appellant-accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?

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My answer to the above point is 'in the negative' for the following:

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R E A S O N S

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It is the contention of the prosecution that, the

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accused was a public servant, working as Income Tax Inspector. This fact is admitted by the accused. It is the further contention of the prosecution that the complainant - PW1, is an Income Tax Assessee, and submitted his Income Tax Returns and claimed refund of the excess tax amount deducted. Such excess was quantified as Rs.19,590/-. The cheque was issued by the department towards refund of the tax to the address that was mentioned in the system. Since the complainant had already changed his address, the cheque so sent was returned to the department. After coming to know about this fact, PW1 approached PW6 - Income Tax Officer and requested to issue the cheque. At the instance of PW6, PW1 has submitted the application as per Ex.P1, requesting for the change of address in the departmental system.

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PW6 in his evidence stated that on receipt of the application as per Ex.P1, he referred PW1 to the accused, who was working as Income Tax Inspector. Accordingly, the

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complainant went and met the accused and requested for change of address in the system.

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PW1 - complainant in his evidence states that, when he met the accused with a request to change his address in the system, the accused stated that she has changed the address in the system and demanded illegal gratification of Rs.1,000/-. As the complainant was not willing to pay that amount, he filed the first information with the CBI, as per Ex.P3, stating that, there was demand by the accused to pay the illegal gratification. She had even called him over phone at 7.35 p.m. on 20.01.2011, demanding Rs.1,000/-, to change the address of PW1 for getting the refund of Income Tax. On receipt of the first information - Ex.P3, entrustment mahazar Ex.P4 was drawn on 21.01.2011. Six currency notes as referred to in Ex.P4 i.e., one currency note of Rs.500/-, five currency notes of Rs.100/- were entrusted to the informant smeared with phenolphthalein powder. PW1 in his evidence states that after the entrustment of the currency notes, he along with PW3 - the shadow witnesses went and met the accused in her office.

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It is stated that when he met the accused in the office along with the shadow witness, asked her whether she has done her

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work, the accused replied stating that she has changed the input in the system by changing the address and handed over the application submitted by the complainant on the previous day. It is thereafter, the accused asked for the amount, and the complainant tendered the phenolphthalein powder smeared currency notes. The same was received by the accused with her right hand, opened the table drawer and kept it inside with her left hand. Immediately, complainant gave signal to the Investigating Officer, who came to the spot along with the pancha witness - PW10. Hand wash of the accused in sodium carbonate solution was taken in separate bowls, it turned into pink colour. Thereafter, the accused was asked regarding the tainted amount, which she produced from the table drawer. When the accused was asked as to why she has received the bribe amount, she stated that she has received the same for doing the work quickly. Therefore, the Trap Panchanama was drawn.

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PW1 the material witness being the informant has deposed in detail about the official work that was pending in the department, demand and acceptance of illegal gratification by the accused, and recovery of the same by the investigating

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officer. This witness was cross-examined at length. It is elicited from the witness that it was the accused, who endorsed the application Ex.P1, which states that refund of Rs.21,300/- is already effected. Nothing fatal is elicited from the witness to disbelieve his version.

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PW3 is the shadow witness, an independent public servant. He has fully supported the case of the prosecution. Ofcourse during cross-examination, it is elicited that only one hand wash of the accused turned into pink colour. With regard to the other particulars, no fatal admission is elicited.

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Investigating Officer is examined as PW4 and independent pancha is examined as PW10, and all these witness have given evidence consistently in support of the case of the prosecution. Even though the witnesses were subjected to cross-examination at length, nothing has been elicited to disbelieve their version.

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It is pertinent to note during the cross-examination of the prosecution witnesses, the accused has taken inconsistent defence saying that cheque was directly handed over to PW1 immediately after change of the address in the

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system. It was also suggested that the cheque was sent through post on the same day i.e., 20.01.2011. The third stand taken by the accused is that the refund amount was transferred online by the officer - PW6 on the same day. Fourthly, it is suggested that the amount was directly transferred online to the account of PW1 by Bombay office of Department of Income Tax. It is not made clear as to which version of the accused is to be accepted.

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Ex.P21 is produced by the prosecution to show that the cheque for Rs.21,360/- was issued to PW1 on 22.01.2011 and cleared on 03.02.2011 i.e., after the incident which had taken place on 21.01.2011.

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It is the specific contention of the prosecution that, the hand wash of the accused tested positive for the presence of phenolphthalein powder. Ex.P25 is the chemical examiner report. According to which, the presence of phenolphthalein is detected in the right hand finger wash of AGO. There is absolutely no explanation by the accused as to how right hand wash tested positive for presence of phenolphthalein powder,

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when she never demanded and accepted the illegal gratification.

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Learned Senior Advocate for the appellant contended that Ex.P1, the application was submitted by the complainant to PW6 - the Income Tax Officer, who was authorized to operate the system with the key and password. Accordingly, he opened the system with the help of key and password and asked a private computer operator by name Asha to change the address. Accordingly, it was said Asha, who effected change of address in the system and endorsement found on Ex.P1 is that of private computer operator and not that of the accused. But unfortunately, no such defence was taken by the accused before the Trial Court during crossexamination of the prosecution witnesses.

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It is pertinent to note that Ex.P6 is the proceedings drawn in the office of the CBI by the Investigating Officer when PW1 has produced the digital voice recorder said to be containing the conversation with accused. As per the conversation transcribed , PW1 had met the accused and asked her as to at what time he should come and meet her. The

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accused asked him to meet her right now. The complainant asked how much is to be brought. The accused replied that she has already told him in the morning. PW1 asked to reduce the said amount and the accused has categorically stated no. This conversation found in the digital voice recorder was transcribed and the digital voice recorder was sent with the voice sample of the accused collected during investigation.

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Ex.P33 is the report by Central Forensic Science Laboratory, New Delhi, signed by the Director/Chemical Examiner, after examining the questioned voice and compared with the standard voice. He has given his opinion that voice marked as Ex.Q(I)(A) is the probable voice of person Smt. H.H. Rajeshwari, whose specimen voice is marked as Ex.S(I)(A). Even this report Ex.P33 is not disputed by the accused in any manner.

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From the materials on record which are referred to above, the prosecution is successful in proving the pendency of the work, demand for illegal gratification, acceptance of the same and recovery of the tainted amount from the table drawer of the accused. The accused has denied all the incriminating

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materials in her statement recorded under Section 313 of Cr.PC and produced the copy of the screen shot obtained by her under Right to Information Act. According to which, cheque bearing No.4021491809 was issued in the name of PW1 on 20.01.2011 for Rs.21,360/- and the ECS was successful. There is no explanation for this document by the accused, nor it is elicited from PW6 as to how this cheque could be issued on 20.01.2011. When such inconsistent defence was taken during cross-examination of the witnesses that the cheque was directly handed over to PW1, it was sent through post to the changed address, the amount was transferred online by the office where the accused was working and fourthly that, such online transfer was done by the office at Mumbai.

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The accused was working as Income Tax Inspector in the department and was competent to explain regarding the same or at least, should have sought for explanation by PW6, who was working as Income Tax Officer at the relevant point of time. No such attempts were made by the accused before the Trial Court.

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The contention of the learned Senior Advocate for the appellant that no official work was pending with the accused as it was PW6, who was authorized to operate the system having key and the password to effect change of address cannot be accepted in view of the categorical evidence led by the prosecution, which remained unchanged. If no such official work was pending with the accused, there was no reason for PW1 to approach the accused and have conversation with her. PW1 having met the accused and having conversation with her was never denied by the accused at any point of time. Under such circumstances, I am of the opinion that the prosecution is successful in proving the demand, acceptance and recovery of the tainted amount from the accused as per the trap panchanama. Thus, it is successful in proving the guilt of the accused beyond reasonable doubt. The accused has not taken any specific defence. On the other hand, she has taken inconsistent defence at each stage and has not probabalised any of those defences. Under such circumstances, the accused is liable for conviction.

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I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It

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has taken into consideration the oral and documentary evidence placed before it in a proper perspective and arrived at the right conclusion. I do not find any reason to interfere with the same.

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