Bangalore District Court
The State Of Karnataka vs Sri Purushottam on 30 November, 2019
Spl.C.15/2013
1
IN THE COURT OF THE LXXVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE, CITY
CIVIL COURT, BENGALURU (CCH77)
Present: SRI RON VASUDEV,
B.Com.,LL.B(Spl).,
LXXVI Addl.City Civil & Sessions Judge,
Special Judge, City Civil Court, Bengaluru.
Dated this the 30th day of November 2019.
SPL.C.NO.15/2013
Complainant: The State of Karnataka,
by Police Inspector, Karnataka
Lokayukta, City Division,
Bengaluru,
(Represented by Spl.Public
Prosecutor)
vs
Accused: Sri Purushottam,
S/o Revanna,
Asst. Engineer (Electrical),
14(2), Kaval Byrasandra,
BESCOM, C5 SubDivision,
RT Nagar, Bengaluru 32.
Date of offence 10042012 and earlier to it.
Spl.C.15/2013
2
Date of report of offence 10042012
Name of First Informant Mohammed Jaffer Pasha (PW.2)
Date of commencement of 20072019
trial
Date of closure of 24102019
evidence
Offences complained of Section 7, 13(1)(d) r/w Sec.13(2) of
Prevention of Corruption Act,1988
Finding of the Court Acquitted
JUDGMENT
In substance Prosecution case is that one Mohammed Jaffer Pasha (CW.1) is a ClassI Electrical Contractor running his business in the name & style as HiTech Electricals at R.T. Nagar, Bengaluru. That Smt. Lakshmamma, resident of K.B. Sandra, R.T. Nagar Post, Bengaluru, who was constructing her new residential building, applied for power sanction to her said upcoming building through said Jaffer Pasha. Moving her file, the said Jaffer Pasha submitted all the documents and it was attended by none other than the accused, who was working as Assistant Engineer(Electrical) C5 Subdivision, L.R. Bande, K.B. Sandra, BESCOM. In the process of discharging his duties accused prepared the estimate for drawing of power line and Spl.C.15/2013 3 while making his endorsement on the file and forwarding it further, he demanded bribe of Rs.5,000/. Since Jaffer Pasha had no other option, he was forced to pay Rs.2,000/ and received the said file for further steps. Then after attending other office requirement of depositing security amount, when he once again approached the accused for the purpose of erection of electrical poles, on the guise that the said poles are not immediately available, accused went on postponing the days and finally insisting for Rs.3,000/ bribe, he received Rs.2,500/ and secured the poles. Having not satisfied with receipt of Rs.4,500/ bribe in all, even for erection of the poles accused insisted Rs.1,500/ as expenses to the linemen and also for transportation and warned that unless the said amount is paid, he will not proceed further. Finally at the assurance of Jaffer Pasha accused got erected the poles and insisted him to pay Rs.1,000/ atleast, so that he can pay the Linemen by adding Rs.500/ of his own and to settle the accounts later. Being fed up with his repeated demands of gratification, Jaffer Pasha recorded the mobile conversation between him and accused and approached the Lokayuktha Police on 09042012. Hearing his grievance Police Inspector Yogesh (CW16) asked him to get the said mobile conversation transmitted to a C.D. and to come up with a written complaint. Accordingly on Spl.C.15/2013 4 10042012 Jaffer Pasha produced the C.D. and also filed his complaint.
2. Registering the same in their PSCR No.30/2012, Inspector Yogesh requested head of the Health & Family Welfare department, Vikasa Soudha, Bengaluru to send two of his officials as panchas and accordingly when CW.2 & 3 appeared before him, appraising them about the complaint filed by Jaffer Pasha, he did all the pretrap exercise. Then all of them, along with other police staff, proceeded to the office of the accused on the very same day at 12 noon and on the arrival of the accused as per the instructions of the Lokayuktha police the said Jaffer Pasha, on the demand of the accused, offered him Rs.1,500/ and requested him to appraise the status of Laksmamma's file. Out of the said amount received by him by retaining Rs.1,000/ accused returned Rs.500/. Immediately receiving the information from Jaffer Pasha, the Inspector Yogesh, CW.2 ,3 and other police men barged to the office of the accused and by holding his hand removed bribe amount from his pant pocket, washed his hands and completing the procedure of successful trap, arrested him and produced before the Court. In the crime stage itself accused was released on bail.
Spl.C.15/2013 5
3. Continuing further Investigation Inspector Yogesh recorded the statements of witnesses and collecting the necessary documents got recorded the statement of Mohammed Jaffer Pasha before ACMM under Sec.164 of Cr.P.C. Then completing the investigation, he obtained sanction to prosecute the accused and laid the charge sheet for the offences punishable under Sec.7, 13(1)(d) r/w Sec.13(2) of Prevention of Corruption Act, 1988.
4. On receipt of the charge sheet cognizance of offences was taken and copy of the charge sheet was supplied to the accused. He filed application under Section 239 of Cr.P.C., for his discharge. Upon hearing the Prosecution my learned Predecessor in office by his order dated 12072018 rejected it and recorded the charge. Since accused pleaded not guilty Prosecution examined the Sanctioning authority viz., Company Secretary of the KPTCL as PW.1, the said Mohammed Jaffer Pasha as PW.2, said CW.2 & 3 (panchas) as PW.3 & 4, the Assistant Executive Engineer of BESCOM, the immediate higher Officer of the accused, as PW.5, son of said Lakshmamma as PW.6 and Inspector Yogesh as PW.7. In all 22 documents are marked as Exs.P1 to P22 and MO.1 to 13 are identified. During the crossexamination of PW.2 defence got Spl.C.15/2013 6 marked Ex.D1. Then accused was examined under Sec.313 of Cr.P.C., and he did not like to adduce evidence or produce the documents on his behalf.
5. I have heard the arguments of learned Special P.P. and Sri S.V.V., Advocate of the accused. Sri S.V.V., Advocate also filed his written arguments along with citations. Learned Special P.P. also submitted memo of citations. Now the following points would arise for my consideration :
1) Whether the Prosecution proves beyond all reasonable doubt that on 10042012 and prior to it accused being the public servant insisted for gratification of Rs.1,500/ from PW.2, in order to discharge his official duty in respect of file belonging to Smt. Lakshmamma and thereby committed an offence punishable under Sec.7 of Prevention of Corruption Act, 1988?
2) Whether the Prosecution further proves beyond all reasonable doubt that during the above said period by demanding gratification from Mohammed Jaffer Pasha/PW.2 accused committed criminal misconduct and thereby committed an offence punishable under Sec.13(1)(d) r/w Sec.13(2) of P.C. Act ?
Spl.C.15/2013 7
3) What order ?
6. Having gone through the arguments of learned Special P.P., the defence counsel, the evidence made available by the Prosecution, the written arguments filed by the accused and the decisions relied by both side, my findings on the above points are as under : POINT NO.1: In the Negative POINT NO.2: In the Negative POINT NO.3: As per final order for the following :
REASONS
7. POINT NOS.1 & 2: For the sake of convenience I have taken these two points simultaneously.
8. Arguing for the prosecution learned Special P.P. contended that many of the things in this case are not in dispute viz., accused is an employee of BESCOM and he is working as an Assistant Engineer (Technical) at Kavalbyrasandra ; that Smt. Lakshmamma submitted an application for obtaining power sanction to her up coming residential building through PW.2 ; that the said PW.2 is a licensed Electrical Contractor ; that the said file was attended Spl.C.15/2013 8 by the accused and he prepared the estimate for erection of poles for drawing of electrical lines to her said residence and receipt of Rs.1,000/ by the accused. Thus he canvassed that once it is shown that accused is a public servant and before whom the work of said Lakshmamma was pending through the licensed contractor (PW.2) and further that accused admits the receipt of Rs.1,000/ from the PW.2., the prosecution is relieved of proving many aspects. It was his contention that once accused admits the receipt of Rs.1,000/ from the PW.2, which is admittedly other than the legal remuneration, then burden shifts to the accused to show that he did not receive it as a bribe or gratification. Therefore he submitted that proving of the mobile communication between accused and PW.2, the process that was followed during the pretrial mahazar and the procedure that was followed thereafter has no significance. He further argued that even for that matter hostile evidence of PW.3 to some extent and complete hostile evidence of PW.4 and crossexamination of PW.2 by him for limited purpose will not dilute the Prosecution case. Thus he submitted that Prosecution has placed enough evidence to prove the guilt of the accused beyond all reasonable doubt.
9. In so far as the sanction to prosecute the accused is Spl.C.15/2013 9 concerned learned Special P.P. argued that in the case in hand Prosecution Sanction Order (PSO) is produced at Ex.P1 and it was issued by the PW.1 in the capacity of the Secretary of KPTCL at the authorization of the Board, which is evidenced by the Board resolution at Ex.P2. Thus he submitted that Ex.P1 is legal and valid and there is no force in the contention of the accused that PW.1 has no authority to issue PSO on behalf of the Board. To augment his argument he also drew my attention to the Regulation 10 of Karnataka Electricity Board Employees' (Classification, Disciplinary Control and Appeal) Regulations, 1987 (herein after referred to in short as a Regulations). He contended that Regulation No.14(A) to which the accused has pointed out has no application to the case in hand and the said Regulation is only limited for the purpose of enquiries that could be initiated by Vigillance Commission/Lokayuktha/Upa Lokayuktha either suo moto or on the reference of the Board. Distinguishing between Regulation 14(A) and Regulation No.10 learned Special P.P. invited my attention to the decision of our Hon'ble High Court reported at 2002 Crl. Law Journal 903 in the case of M. Nagaraju vs. State of Karnataka. Thus summing of his arguments he reiterated that when Prosecution has demonstrated the valid sanction and also the proof of receipt of Spl.C.15/2013 10 bribe amount by the accused, accused has to be convicted for the offences alleged.
10. On the other hand refuting the said arguments Sri S.V.V., Advocate contended that from the inception accused is disputing the validity of PSO/Ex.P1 by raising all the grounds that were available to him through an application under Sec.239 of Cr.P.C, r/w Sec. 19 of P.C. Act 1988 for his discharge, but unfortunately while disposing of the said application the grounds urged by him were not at all considered by the Court leading to dismissal of the said application. He submitted that questioning the said findings this accused has already moved Hon'ble High Court in Crl.Rev.Ptn. No.887/2018 and it is still pending. At the same time he conceded that the initial order of interim stay granted in that Revision Petition was not continued thereafter, therefore accused conceded to proceed with the trial in terms of the decision of the Hon'ble Supreme Court in the case of AIR 2018 S.C. 2039 in the case of "Asian Resurfacing of Road Agency Pvt. Ltd., and another v. Central Bureau of Investigation" . However, the learned Advocate continued to submit that notwithstanding the fact that still Revision Petition is pending before the Hon'ble High Court, this Court can very Spl.C.15/2013 11 well reconsider the validity of the sanction at this stage also. According to him as per the scheduleVIA of the said Regulations Director (A & HR) is the appointing authority for the officers shown therein and in the 79 th Board meeting a resolution was passed on 2482011 by amending the schedule V & VI of the said Resolutions and through the said resolution disciplinary powers are delegated to the Managing Directors of the ESCOMs. Therefore it was his submission that in the instant case there was no occasion for the Board to issue PSO through the PW.1. He contended that urging this very ground discharge application was filed, but it was dismissed. In support of his submission that Director ( A & HR) is the disciplinary authority and the said regulations have to be strictly adhered to, he relied on the decisions reported at MANU/KA/2681/2016 in the case of V. Venkatasiva Reddy vs. State. Then contending that the validity of sanction goes to the root of the matter and invalid sanction would vitiate the whole trial, he relied on the decision of the Hon'ble Supreme Court reported at AIR 2015 SC 3060 in the case of Nanjappa vs. State of Karnataka.
11. Then urging on the quality and quantity of the evidence lead by the Prosecution, he contended that the alleged mobile Spl.C.15/2013 12 conversation between accused and the PW.2 being a primary evidence, before the said conversation was transmitted to a C.D. it was the duty of the PW.7 to ensure that whether the requisite precautions were taken to see that so called conversation is not tampered with as alleged transmission to the C.D. is a secondary evidence. He contended that the failure of the PW.7 to collect the said mobile of PW.2 and its memory card as well as the further failure of the said I.O. in recording the hash value of the said communications, whether it is audio or visual and failure to issue certificate under Sec.65B of the Evidence Act and also failure of the PW.7 to obtain FSL report on the identification of voice of the accused totally defeats the whole process of investigation. To substantiate his said arguments he referred to the decisions reported at AIR 2015 SC 180 (Anvar P.V. vs. P.K. Basheer), AIR 2010 SC 965 (Tukaram S. Dighole vs. Manikrao Shivaji Kokate), MANU/SC/0057/2015 (Tomaso Bruno vs. State of U.P.), MANU/IN/0106/2019 ( Hillwood Imports and Exports Pvt. Ltd., and Others vs. The Deputy Commissioner of Income Tax, Central Circle2) and MANU/SCOR/45933/2017 (In Re:
Prajwala Letter Dated 18.2.2015 Videos of Sexual Violence And Recommendations vs. Respondent). Inviting my attention to the observations made in the said judgments Spl.C.15/2013 13 learned Advocate argued that the ratio and guidelines laid down in those decisions are completely flouted by the PW.7/ Investigation Officer while collecting the digitally recorded so called evidence, therefore one cannot accept the truthfulness and authenticity of it. Then urging his third limb of arguments he submitted that both shadow witnesses in this case viz., PW.3 and PW.4 turned hostile and when there is no consistency in the evidence of PW.2 regarding the alleged amount of bribe he paid, it would be totally incorrect to hold that Prosecution has brought home the guilt of the accused. Then heavily relying on the Ex.P16, the letter of PW.5 addressed to the PW.7, he submitted that said letter was not placed before the Board before obtaining sanction to prosecute this accused and as per the said letter work was incomplete and in the given situation when the accused did not budge to the pressure of PW.2 to endorse on the Lakshmamma's file (Ex.P.5) that work is already completed, this ill designed plan was mooted to make him to surrender of illegal demand of PW.2. Further pointing out how the PW.7 has failed to collect the crucial evidence whether it is a digital or otherwise he submitted that accused is made as a scape goat by the Association of Electrical Contractors, which always plans this kind of systematic traps of innocent officers by morphing the Spl.C.15/2013 14 electronic communications. Thus relying on the decisions reported at AIR 2015 SC 3549 (P. Satyanarayana Murthy vs. The Dist. Inspector of Police and others.), AIR 2013 SC 3817 (Sujit Biswas vs. State of Assam) and 2009(15) SCC 200 (State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede) he prayed to acquit the accused. Regarding the statement of PW.2 recorded under Sec.164 of Cr.P.C. which is produced at Ex.P14 he submitted that it is not a substantial piece of evidence and it can be used only for the purpose of corroboration or to contradict. To support the said submission he referred to the decisions reported at 2003 Criminal Law Journal 3253 (Guruvindapalli Anna Rao and three Ors., vs. State of Andhra Pradesh), 2006 Crl.Law Journal 4813 (T. Diwakara S/o Rangappa vs. State of Karnataka) and AIR 1960 SC 490 (State of Delhi vs. Ram Lohia). Then again highlighting on the written arguments filed by him he prayed to acquit the accused as prosecution has failed to prove the case on legal as well as on factual basis.
12. On thorough reading of the entire file I too of the view that this case has to be analyzed in two aspects viz., on legal aspect and on the factual basis. In the case in hand as accused has questioned the validity of the sanction from the beginning, so Spl.C.15/2013 15 invariably I have to record my finding whether there is any force in his submission that the order at Ex.P1 suffers from any illegality or short coming. In this context even I have gone through the discharge application filed by him on 5102016 and additional grounds raised through his subsequent statement on 1362018. Deciding on the legality of the sanction order is a fundamental for the obvious reason that as held in said Nanjappa's case if the trial Court finds that there is legal error in the order of sanction, except discharging the accused it has no other choice, and keep open the field to the Prosecution to present the charge sheet again with fresh sanction order. In that case it was held that the invalid sanction order would vitiate the whole trial. Therefore keeping that ratio in my mind before I have evaluated the oral and documentary evidence produced by the Prosecution.
13. It is not in dispute that this accused is working as Asst. Engineer (A.E.) and was holding additional charge of A.E. (Technical) in BESCOM, C5 Subdivision, Kavalbyrasandra, Bengaluru. It is also not in dispute that after repealing of earlier Electricity (Supply) Act 1948, new Act namely Electricity Act 2003 is promulgated and it is in force. Consequently not only the employees of the KPTCL even the Spl.C.15/2013 16 officials of the ESCOMs are also governed by the provisions of the said Act. Notwithstanding the fact that the earlier Act of 1948 was repealed and enacting of new Act to cater to the need of emerging and developing nation, there is no corresponding new Regulations have been formed to govern the employees of KPTCL and ESCOMs, who were erstwhile employees of the Karnataka Electricity Board. So undoubtedly it is the Karnataka Electricity Board Employees' (Classification, Disciplinary Control and Appeal) Regulations of 1987 are applicable to them. In this background one has to read the said Regulations along with Sec. 19 of the Prevention of Corruption Act. It is unnecessary to say that Sec.19 deals with obtaining of previous sanction to prosecute a public servant for the offences punishable under Sec.7, 10, 11, 13 and 15 of the Act. The accused in this case being a public servant falling within the ambit of Sec.19(1)(c) of the Act, in his case it is the authority which is competent to remove him from his office is empowered to issue the order of sanction. Harping on this point and blowing it out of proportion and by referring to the decision of Venkatasivareddy's case accused tried to contend that it is the Director (A & HR) of KPTCL is the appropriate authority to issue sanction order and not the Board as evidenced by Ex.P2. However, his said submission is contrary Spl.C.15/2013 17 to his own application for discharge dated 5102016, to which I referred earlier. In that application at para 3, 5 & 6 he repeatedly urged that it is the Board which is competent to accord sanction to prosecute him, but in the instant case Prosecution has produced the sanction order (Ex.P1) issued by the Company Secretary, therefore he sought for his discharge by relying on Nanjappa's case and also hosts of decisions cited by him in para 5 of that application, including H.J. Tambad's case reported at 2013(3) KCCR 1794. When the Prosecution filed its objections explaining in what capacity the PW.1 issued the sanction order, immediately realising that he is treading a wrong path, he filed his statement with additional grounds on 13062018. While filing the statement with additional grounds he took the shelter under the decision in Venkatasivareddy's case by giving go bye to his contention that Board is the competent authority to accord sanction. Perhaps the said change in his stance was caused due to change in the baton i.e., due to the change of his Advocate. It appears that by engaging new Advocate accused also changed his tune and in his written arguments as well as in the oral arguments he started contending that Board has no authority to issue sanction order against him and it is the Director (A & HR). Even while making that statement he never shown his firmness. As Spl.C.15/2013 18 pointed out by me earlier along with his written arguments accused also produced list of documents and citations on 14112019 and along with said list he enclosed relevant pages of 1987 Regulations and also copy of the so called amendment made by the KPTCL in the 79th Meeting of the Board held on 28092011. It was so done in order to show that after amendment of ScheduleVIA to the Regulations for Asst. Engineer (Electrical) appointing authority is the Director ( A & HR) and that particular authority is empowered to impose penalty. However, the book titled as " Guide to Disciplinary Proceedings Against Government Servants in Karnataka", published by KLJ publications, 2016 2 nd Edition contains the said Regulations of 1987 there I am surprised to note that there is no such corresponding amendment of ScheduleVIA as claimed by the accused. Instead as per the ScheduleVI (page No.375) of the said volume in case of Asst. Engineer (Electrical) the Chief Engineer Electricity (General) is the appointing authority and that very authority is empowered to impose penalty covered in Regulation No.9(ii) to (iva), (v) to (viii). Now the question is whether accused can take shelter under the ScheduleVI of the Regulations to attack the Ex.P1. For this I would straight away refer to the Regulation No.9 which prescribes several kinds of minor and major penalties. Then as Spl.C.15/2013 19 per Regulation No.10(1) Board may impose any of the penalties specified in Regulation No.9 on any Board employee. However, subregulation(2) reads that subject to sub regulation No.(3) penalties specified in the Regulation No.9 may be imposed on a Board employee by the appointing authority or the authorities specified the schedule in that behalf, to the extent indicated therein. Here one has to pause for a moment and read the Regulation No.10(2) (a) carefully. From bare reading of the said subregulation and its clause there cannot be any ambiguity in understanding the said clause. It is not the Board alone even the authority specified in the schedule can impose penalty as contained in Regulation No.9 on a Board employee. Therefore even if the Board accords sanction to prosecute an employee of the cadre of Asst. Engineer(Electrical), like the accused that cannot be held as illegal or irregular.
14. The contention of the accused that as per Regulation No.14A the authorities shown in the schedule alone are competent authorities to impose penalty is quite uncalled for. In my considered view Regulation 14A has absolutely no application to the facts of this case as the said Regulation precisely and specially deals with the misconduct of Board Spl.C.15/2013 20 employees which has to be investigated by the Vigillance Commission/Lokayuktha/Upa Lokayuktha in relation to departmental enquiries. There is no indication in the said regulation that it also includes the criminal prosecution of employees under the provisions of P.C. Act by the Lokayuktha police. One has to make a clear distinction between Vigillance Commission/Lokayuktha/Upa Lokayuktha, who investigate as per the provisions of the Lokayuktha Act and the powers of Investigation Officer under the provisions of P.C. Act.
15. My above finding is vindicated by the ratio laid down in M. Nagaraja's case, relied by the Special P.P. Consequently ratio laid down in Venkatasivareddy's case has no application to the facts of this case. Once it is held that in exercise of the power vested in it the Board in its meeting held on 2992012 took a decision to prosecute this accused based on the documents and investigation report made available by the Investigation Officer and authorised PW.1 to accord sanction and pursuant to it when PW.1 issued the sanction order as per Ex.P1, one cannot find fault in it.
16. It is true that in Ex.P2, while giving synopsis of the rules & regulations it has relied, on page No.1 at para(a) Board referred to the Regulation No.14(A)(f), that cannot be a ground Spl.C.15/2013 21 to contend that it is that regulation which is applicable to the accused. I reject his said submission on two grounds, firstly in the Regulation 1987 at Regulation No.14A there is no clause as "14(A)(f)" as noted in the Ex.P2. Secondly, if the Board erroneously cites some regulation in ignorance under what circumstance it has to be enforced, that cannot be a ground to the accused to contend that, that very regulation has to be applied in the criminal prosecution.
17. I have also gone through the contention of accused that Ex.P16 was not placed before the Board and that has mislead it to accord sanction. It is true that in his crossexamination PW.7 conceded that he did not furnish the copy of the Ex.P16 to the Board. Before we look in to the effect of nonproduction of the copy of that document, it is necessary to understand the contents of it. Reading of the said document would reveal that it was written by the PW.5 on 2142012 in response to the queries raised by the PW.7 during the investigation. While furnishing the information as called upon, naturally PW.5, who being immediate higher officer of accused, stated that during his spot visit he noticed that wiring was completed only in one house out of 3 houses constructed in the ground floor and instead of installing 200 Ltr. Solar water heater, as under taken Spl.C.15/2013 22 by the applicant - Lakshmamma, 100 Ltr., heater was installed there. He further wrote that inspite of installing the lessor capacity heater no invoice was produced by the applicant. Further in order to assist his subordinate (accused) PW.5 also recorded that there were shortage of instruments and poles for drawing power line to the up coming house of said Lakshmamma. Taking advantage of the said information provided by the PW.5 lot of hue and cry was made by the accused by contending that he is innocent of the charges leveled and unnecessarily he has been proceeded against. He sought to contend that if Ex.P16 was placed before the Board it could not have proceeded to accord sanction against him. However, after reading that letter and digressing it I afraid that such an inference cannot be drawn by any stretch of imagination. When it is the specific allegation of the Prosecution that when this accused demanded bribe or gratification other than the legal remuneration, even some favourable remarks of his superior (PW.5) with an obvious intention to bale him out make no impact.
18. In the crossexamination of PW.1 no material worth as such was elicited to show how this Ex.P1 legally invalid, if not factual basis. Strange questions were asked to him whether the Spl.C.15/2013 23 Ex.P2 contains what all the deliberation that took place before passing said resolution, forgetting that resolution would be an outcome of deliberation and it will hardly contain the reasons therefor. Again contrary to his own discharge application at the end of page No.5 and beginning of page No.6 of cross examination of PW.1 it was contended by the accused that Board has no legal authority to accord sanction.
19. Even assuming for a moment that Board is not the competent authority and Chief Engineer, Electricity(General) is the authority empowered to impose penalty as contained in Regulation No.9 indisputably Board being the superior authority than the said appointing authority, one cannot question its authority to issue the sanction order.
20. Now let us turn to the factual aspects of the matter. As rightly submitted by the Prosecution it is not in dispute that PW.2 as an Electrical Contractor had submitted application for power sanction on behalf of Smt. Lakshmamma. This fact has been admitted by the accused in the crossexamination of PW.2 and PW.7. Apart from that in his statement recorded under Sec.313 Cr.P.C. at question No.7 when his attention was drawn to the incriminating evidence that he prepared the estimate for drawing the power line to the upcoming house of Smt. Spl.C.15/2013 24 Lakshmamma, he admitted it and replied that he prepared the estimate. However he tried to escape by answering that PW.2 did not approach him in respect of the said application of Smt. Lakshmamma. But on that score one cannot say that there was nexus between Lashmamma's file, marked at Ex.P5 and the PW.2. The question No.9 recorded at page No.3 of the said statement, again accused tried to escape by saying that though the PW.2 did not meet him for installation of poles, but replied that as per the rules and norms he worked on that file. Again at question No.17 when his attention was drawn to the other incriminating part of the evidence, nevertheless he admitted meeting of PW.2 on the fateful day by him, again denied that the said contractor questioned regarding the status of the Ex.P5. But he could not suppress the truth when he replied to the question No.19 by stating that though there was no demand from him PW.2 came forward to pay Rs.1,500/ forcibly and in that melee amount was changed from his hand to the hands of PW.2. Above all in his written explanation, which he gave immediately after the alleged trap, accused has admitted in writing that HiTech Electricals had applied for power sanction and as there was shortage of materials and nonavailability of the departmental vehicle he had to spend Rs.1,000/ from his pocket to transport the poles in hiring a Spl.C.15/2013 25 cart. Thus consciously he admitted that he was attending the file submitted by the HiTech Electricals. Then if one turns to question No.5 of his said statement, there accused conceded that PW.2 is an Electrical contractor, but he does not know from how many years he is engaged in that business. If the said evidence is read along with Ex.P5, wherein very accused has made endorsement in his hand writing on the overleaf of page No.94 as to why the said file was pending i.e., for want of 4 pin cross arms, insulators, bolts and nuts, which was also suggested in the crossexamination of PW.2 and 5 by the accused, it leaves no doubt that file belonging to Smt. Lakshmamma was pending consideration before the accused and only for the sake of escaping from the undeniable fact, while replying to the questions under Sec.313 Cr.PC., accused tried to maintain that there was no nexus between PW.2 and Ex.P5. So I can safely conclude that accused was seized with file of Smt. Lakshmamma, that was moved by the PW.2 as a licensed contractor.
21. Then one more requirement that needs to be examined is whether the Prosecution has proved the demand of bribe by the accused and receipt of it by him. In this regard again referring to the evidence produced by him learned Special P.P. Spl.C.15/2013 26 submits that so far as receipt of Rs.1,000/ by the accused out of Rs.1,500/ is concerned there is no dispute, therefore as per Sec.20 of the P.C. Act Court has to raise presumption and call upon the accused to prove his innocence. Here I have to make a sharp distinction between the demand for bribe by the accused and admitted receipt of Rs.1,000/ by him. In other words mere proof of receipt of Rs.1,000/ by him does not lead to an inference that there was a demand by him to pay that amount as a bribe. According to me this latter aspect plays a pivotal role in deciding this case. However, before I record my finding on this aspect I would like to bestow my attention on the decisions cited by the accused, which have extracted in the earlier part of this judgment.
22. In P. Satyanarayana Murthy's case referring to its previous decision in Jayaraj vs. State of Andhra Pradesh Hon'ble Supreme Court held that mere possession and recovery of currency notes from the accused without proof of demand would not establish an offence under Secs.7 as well as Sec.13(1)(d)(i) & (ii) of the P.C. Act. It further held that in the absence of any proof of demand for illegal gratification or the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage Spl.C.15/2013 27 cannot be held to be proved. Then reiterating the golden principle which it had laid down in the administration of justice in criminal cases, it referred to Sujit Biswas v. State of Assam. In that case Hon'ble Court held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It further held that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are possible, then the benefit of doubt must be given to the accused. Similarly in Dnyaneshwar Laxman Rao Wankhede's case Hon'ble Supreme Court held that demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. Then referring to Sec.20 of the Act Hon'ble Court held that even to press that provisions the trial court is required to consider the explanation offered by the accused, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. It once again reiterated that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail.
Spl.C.15/2013 28
23. Taking the ratio laid down in those decisions as a torch bearer, I have culled out the Prosecution evidence to decide the points in hand. It is true that the accused might have sang different songs at different intervals, but the fact remains that he admits the receipt of Rs.1,000/ and he further admits that the said Rs.1,000/ was recovered from him by the PW.7 in presence of punchas and PW.2. For this I straight away refer to Ex.P10 once again, wherein in unequivocal words accused conceded that as he had spent Rs.1,000/ towards cartage charges for transportation of poles from his pocket, on that fateful day i.e., on 1042012 when PW.2 gave him Rs.1,500/, as he had spent Rs.1,000 only, retaining that much of amount he returned Rs.500/. The said Ex.P10 is signed by the accused as well as PW.3 & 4. It is true that during his cross examination by the Prosecution PW.2 could not recollect properly and reply that the said written explanation was offered by the accused in his presence, but that will not dilute the legality and validity of the said document in any way. A question may also arise whether Court can look into that document and accept its contents as it may amount to confession statement and hit by Sec.25 of Evidence Act. Allying with legal fear I would say that no part of that written explanation attracts Sec.25 of Evidence Act. It is only an Spl.C.15/2013 29 explanation dehorr of the confession so as to eschew it from consideration. Therefore absolutely I do not find any legal impediment in receiving and accepting Ex.P10 as a crucial piece of evidence. At this stage once again turning to question No.19 of the statement of the accused, recorded under Sec.313 of Cr.P.C., I would emphasis that, there accused admitted that though there was no demand from him PW.2 forcibly paid that amount towards transportation charges and in that scuffle there was exchange of amount between him and PW.2. In accordance with his said defence he crossexamined PW.2, 3 and 4 and I would point out the relevant portions of their crossexamination to show that Rs.1,000/ was paid by PW.2 and it was graciously received by the accused and without any resentment.
24. On page No.17 of the crossexamination of PW.2 at para 16 accused himself suggested that said witness gave that Rs.1,500/ towards transportation charges and using that circumstance trapped him. Further suggesting that out of Rs.1,500/ paid by that witness Rs.1,000/ was retained by him and he returned Rs.500/. These are the suggestions of the accused, nonetheless, they were denied by the said witness. Then on page No.9 at para 7 again suggesting to the said Spl.C.15/2013 30 witness why that amount was paid by the PW.2 and what conversation was took between the said witness and himself accused conceded the receipt of that amount. Then again on page No.8 at para 8 in the middle portion by making one more suggestion accused directly admitted that in his Ex.P10 he has stated reasons why he received that amount and why he returned Rs.500/. Added to this in the crossexamination of PW.4 on page No.7 at the fag end of his crossexamination accused suggested and elicited that the said amount was paid to him for transporting of electrical poles. I hope this much documentary and oral evidence is enough to come to a conclusion that on that day he received Rs.1,000/ from PW.2 and returned Rs.500/. Therefore any amount of contrary suggestions made in the crossexamination of PW.2 are the contrary reply by him in his statement under Sec.313 of Cr.P.C., i.e., the said amount was paid to him forcibly by the PW.2 looses its ground and it is only an after thought story to dilute his own written explanation at Ex.P10.
25. But I am conscious of the fact that the above finding is not enough to hold that there was a demand by the accused to pay that amount as a gratification or bribe. As pointed out by me above, by referring to the decisions in the earlier Spl.C.15/2013 31 paragraphs, Prosecution has to prove the demand of bribe by the accused and receipt of Rs.1,000/ as bribe. Mere proof of receipt or recovery of it from his immediate possession is not sufficient.
26. Here Prosecution mainly relies on the mobile conversation between accused and PW.2 and also the so called recording of receiving of bribe amount through spy camera. Since my previous discussion reveals that accused admits the receipt of Rs.1,000/ from the PW.2, use of spy camera by PW.7 with the assistance of PW.2 has no significance, therefore the whole case is to be rested on the mobile conversation between accused and PW.2 prior to 10042012. Now the question would arise how that electronic evidence is to be received and what is the evidentiary value of the so called mobile conversation which is produced in the form of C.D. marked as M.O.2. Here I am guided by hosts of decisions relied by the accused. In Tukaram S. Dighole's case Court had an occasion to examine the mode and proof of electronically generated evidence. In that case an election petition was filed alleging use of communal and racial speeches by the returned candidate. In support of his election petition the defeated candidate had produced some cassette said to contain the Spl.C.15/2013 32 speeches of the returned candidate and his agents along with its transcript. But rejecting the authenticity of the said cassette and also the manner in which they were acquired the Election Tribunal dismissed the election petition. Against the said finding matter reached the Hon'ble Supreme Court. Seized with that opportunity Hon'ble Court referring to Sec.23 of the Representation of the People Act 1951 and also the provision of Evidence Act held that when the source and manner of acquisition of the cassette was not proved, it cannot be read in evidence despite the fact that such cassette may be a public document. It was further held that tape recorded speeches are documents as defined in the Sec.3 of the Evidence Act and they stand on no different footing than photographs, therefore it was essential to produce the original viz., tape recorder through which the cassette were prepared. Thus Hon'ble Supreme Court dismissed the appeal without interfering the order of the Election Tribunal. In that case at para 20 to 24 referring to its previous judgments Hon'ble Court held that since law is now fairly settled as to how and the manner in which the electronic evidence is to be proved, it came to the conclusion that the said cassettes were not reliable. In Anvar's case when again interpretation and application of Sec.65B of Evidence Act was came up before the Hon'ble Supreme Court, Spl.C.15/2013 33 which also involved the election dispute between parties, Hon'ble Court held that in case of C.D., VCD, chip etc.,same shall be accompanied by certificate in terms of Sec.65B of Evidence Act obtained at time of taking such document and without which secondary evidence pertaining to the electronic record, is inadmissible. Considering the alleged facts in that case that speeches, songs and announcements were recorded using other instrument and by feeding them in to computer, thereafter C.Ds were made therefrom and were produced in Court, without due certification, Court held that such secondary documents cannot be received in evidence. In para 15 of the judgment Hon'ble Court observed that certificate in Sec.65B must accompany the electronic record like computer printout, C.D., VCD, Pen drive etc., pertaining to which a statement is to be given in evidence, when the same is produced in evidence. It was further held that all these safeguards have to be taken to ensure the source and authenticity, which are the two hallmarks pertaining to the electronic record sought to be used as evidence. Hon'ble Court was of the opinion that electronic records being more susceptible to tampering, alteration, transposition, excision etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. In that case Spl.C.15/2013 34 taking note of the failure of the appellant to produce certificate under Sec.65 and 65B of Evidence Act to prove the authentic record of speeches and the songs Hon'ble Court held that in the event if the very electronic device, which is used to record such a speeches and songs is produced as a primary evidence under Sec.62 of the Evidence Act, there is no need to comply Sec.65B of the said Act.
27. In Tomaso Bruno's case where the trial Court as well as Hon'ble High Court convicted the appellants for the commission of evidence under Sec.302 of IPC based on the circumstantial evidence and also evidence of a witness who witnessed the CCTV footage, turning down the concurrent finding of conviction Hon'ble Court held that when the Prosecution failed to produce the very CCTV device or its stored footage, it was error on the part of the trial Court as well as the First Appellate Court to convict and to sustain the conviction in appeal based on the evidence of the witness who saw the CCTV footage. In Hillwood Imports & Exports Pvt. Ltd., case laying emphasis on the "hash value" of contents of a pen drive Hon'ble High Court of Cochin observed that unless a Court is satisfied with security of "data integrity" with reference to the hash value of electronically generated evidence Spl.C.15/2013 35 it is not safe to accept such evidence. In that case at para 10 Hon'ble Court explained meaning of the term hash value and also the mode in which Investigation Officer is required to collect the electronically generated evidence and how he has to get it examined through a forensic expert. In reference to Prajwala Letter case Hon'ble Supreme Court, with the assistance of committee of experts, gave greater thrust as to how the artificial intelligence, deep learning, machine learning etc., have to be used in day to day trial and collection of secured data integrity.
28. In the context of the said decisions I have evaluated the evidence produced by the Prosecution in proof of socalled demand by this accused. According to the Prosecution PW.2 recorded the mobile conversations between him and the accused on 742012 and thereafter took them to PW.7 as he was fed up with the repeated demands of the accused for bribe and at the instructions of the said PW.7 transmitted the said conversation to a C.D. and lodged complaint along with that C.D. It is further case of the Prosecution that the said C.D. was seized by the PW.7 under mahazar and that very C.D. is marked as MO.2. It is not the case of the Prosecution that either PW.2 produced his mobile or the memory card that Spl.C.15/2013 36 contained the conversation between him and the accused. No explanation was offered by the PW.7 why he did not seize them. Even at the stage of trial those devices were not produced. Consequently in the absence of the primary evidence as required under Sec.62 of Evidence Act Prosecution had no other option to rely on the secondary evidence i.e., C.D. In case of secondary evidence, as held in the decisions cited above complying of Sec.65B of Evidence Act was inevitable to the PW.7. Unfortunately he did not enclose such certificate nor he subjected the said conversation to the forensic investigation, leave alone securing the socalled collected data integrity. The mere transmitting the socalled conversation to written transcript as per Ex.P8 serves no purpose to the Prosecution. When the very genuinety of MO.2 cannot be accepted in the absence of primary evidence like mobile and its memory card, MO.2 will not serve any purpose to the Prosecution. In the cross of PW.7 when accused thoroughly grilled him about the lack of professionalism in the investigation, he could not withstand it except accepting his lack of knowledge to all those procedures. Therefore all mountainous exercise done by the PW.7 in his made believe successful trap fetches nothing to the Prosecution.
Spl.C.15/2013 37
29. The contention of the Prosecution that PW.2 gave his statement under Sec.164 of Cr.P.C. and he stood by it and getting marked said statement as Ex.P14 is also of no use since in Guruvindapalli Anna Rao, T. Diwakara S/o Rangappa and Ram Lohia's cases, Hon'ble Courts have time and again held that the statement recorded under Sec.164 of Cr.P.c. has limited use i.e., to corroborate or to contradict the witness and nothing more than that. In the said cases it was held that such statement cannot be used as substantial piece of evidence.
30. Hence for the afore made discussions I am unable to find any worth acceptable evidence to hold that there was a demand by the accused to pay Rs.1,000/ or R.1,500/ as a bribe. I would buttress the above view with the very case of the Prosecution that out of Rs.1,500/ received by him accused returned Rs.500/. It is bit difficult to believe that a greedy person or person who takes bribe would be satisfied with lesser amount than what is offered to him as bribe. So admitted returning of Rs.500/ by the accused also creates an element of suspicion in the Prosecution case. The defence of the accused that he received Rs.1,000/ towards transportation of poles cannot be gainsaid in the background of collection of Ex.P16 by the PW.7 from PW.5. As I said earlier the said Spl.C.15/2013 38 document is an official letter of PW.5 in response to the queries raised by the PW.7 in the course of investigation and through that letter PW.5 informed in writing that though it is not permissible as per the norms of KPTCL/BESCOM to transport the poles through hired carts by the applicants, that to at their own expenses, but on some events due to pressure of applicants, such arrangement will be made and poles will be transported in the carts if the department vehicle is not available.
31. In this case it is on record that already poles were erected to draw the power line to the upcoming house of Smt. Lakshmamma. Given the circumstances, it was for the Prosecution to show that the said poles were transported through department vehicle or at the cost of the applicant, so there was no occasion for the accused to demand for Rs.1,000/ or Rs.1,500/ from PW.2 for their transportation again. So once again in the background of the discussion made herein above I am constrained to hold that Prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt, which is a legal parameter. In the absence of the authenticated electronic evidence rest of the exercise done by the Prosecution takes it nowhere and it is like attempting to catch fish with a Spl.C.15/2013 39 bare hand, that too in a troubled water in the absence of a net. Thus summing up of my discussion I answer both points in the Negative.
32. POINT NO.3: In the result, I proceed to pass the following :
ORDER Accused is acquitted.
MO.1 to 8 and MO.11 to 13 being valueless, they are to be destroyed after the appeal period is over, whereas MO.9 and 10 are ordered to be returned to the PW.2 after aforesaid period.
The bail bond executed by the accused stands discharged.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open court on this the 30th day of November, 2019).
(RON VASUDEV) LXXVI Addl.City Civil & Sessions Judge & Spl.Judge, Bangalore(CCH77) Spl.C.15/2013 40 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 R. Sridhar PW2 Mohammed Jaffer Pasha PW3 M. Umesh PW4 Venugopal B.S. PW5 Shivalingappa K.H. PW6 Swamy PW7 Yogesh S.T.
List of documents marked on behalf of prosecution:
Ex.P.1 Sanction Order
Ex.P.2 Resolution copy
Ex.P.3 Complainant
Ex.P.3(a) Signature of PW2
Ex.P.3(b) Signature of PW7
Ex.P.4 Currency Nos. note sheet
Ex.P.4(a) Signature of PW.2
Ex.P.4(b) Signature of PW.2
Ex.P.4(c) Signature of PW.3
Ex.P.4(d) Signature of PW.3
Ex.P.4(e) Signature of PW.4
Ex.P.4(f) Signature of PW.7
Ex.P.4(g) Signature of PW.7
Ex.P.5 Copy of Lakshmamma's file
Spl.C.15/2013
41
Ex.P.5(a) Signature of PW.3 (Page No.36 ot 95)
Ex.P.5(b) Signature of PW.4
Ex.P.5(c) Signature of PW.5
Ex.P.6 Pretrap Mahazar
Ex.P.6(a) Signature of PW.2
Ex.P.6(b) Signature of PW.3
Ex.P.6(c) Signature of PW.4
Ex.P.6(d) Signature of PW.7
Ex.P.7 Trap Mahazar
Ex.P.7(a) Signature of PW.2
Ex.P.7(b) Signature of PW.3
Ex.P.7(c) Signature of PW.4
Ex.P.7(d) Signature of accused
Ex.P.7(e) Signature of PW.7
Ex.P.8 Transcript of mobile conversation.
Ex.P.8(a) Signature of PW.2 (page No.20 & 21)
Ex.P.8(b) Signature of PW.4
Ex.P.8(c) Signature of PW.7
Ex.P.9 Transcript of spy camera
Ex.P.9(b) Signature of PW.2
Ex.P.9(c) Signature of PW.7
Ex.P.10 Explanation of accused
Ex.P.10(a) Signature of PW.2
Ex.P.10(b) Signature of PW.3
Ex.P.10(c) Signature of PW.4
Ex.P.10(d) Signature of PW.7
Ex.P.10(e) Signature of accused
Ex.P.11 Statement of PW.3 (relevant portion)
Ex.P.12 Acknowledgment of PW.4
Ex.P.13 Statement of PW.4
Ex.P.14 Statement U/s 164 Cr.P.C. of PW.2
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Ex.P.15 Letter of PW.5 (Page No.97)
Ex.P.15(a) Signature of PW.5
Ex.P.15(b) Signature of PW.7
Ex.P.16 Letter of PW.5 dated 2142012
Ex.P.16(a) Signature of PW.5 (Page No.35)
Ex.P.17 F.I.R.
Ex.P.17(a) Signature of PW.7
Ex.P.18 Requisition of I.O. (Page No.25)
Ex.P.19 Rough Sketch
Ex.P.20 Sample seal wax impression sheet
Ex.P.21 Service particulars of accused
Ex.P.22 FSL Report of liquids.
List of material objects marked on behalf of the prosecution:
MO.1 Metal seal
MO.2 C.D.
MO.3 Sample solution bottle
MO.4 Solution hand wash
MO.5 C.D.
MO.6 Sample solution bottle
MO.7 Right hand wash solution
MO.8 Left hand wash solution
MO.9 Currency notes (Rs.500 x 2 = 1000)
MO.10 Currency note of Rs.500/
MO.11 Pant of the accused
MO.12 C.D. (Trap mahazar)
Spl.C.15/2013
43
MO.13 C.D. (proceedings)
List of witnesses examined on behalf of the Accused:
Nil List of documents marked on behalf of the Accused:
Ex.D.1 Application - Requisition to BESCOM (Page No.95 - part of Ex.P.5) (RON VASUDEV) LXXVI Addl.City Civil & Sessions Judge & Spl.Judge, Bangalore(CCH77) Spl.C.15/2013 44 Judgment pronounced in open court vide separate order.
ORDER Accused is acquitted.
MO.1 to 8 and MO.11 to 13 being valueless, they are to be destroyed after the appeal period is over, whereas MO.9 and 10 are ordered to be returned to the PW.2 after aforesaid period.
The bail bond executed by the accused stands discharged.
(RON VASUDEV) LXXVI Addl.City Civil & Sessions Judge & Spl.Judge, Bangalore(CCH77)