Bangalore District Court
Lokayukta Police Inspector vs K.N.Ramakrishnappa on 12 December, 2017
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA),
BENGALURU (CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 12th day of December 2017
Spl.C.C. No.324/2010
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: K.N.Ramakrishnappa
S/o K.Nagappa, 53 years,
Asst. Sub-Inspector of Police,
Banashankari PS, Bengaluru.
R/at No.8, Y.V.Annaiah Road,
Yalachenahalli, Kanakapura Road,
Bengaluru. Native Place :
Koothayanahalli,
Sarjapura Hobli, Anekal Taluk,
Bengaluru Rural District.
(By Sri. Venkataraman Naik -Adv.)
2 Spl.C.No.324/2010
Date of commission of
offence 29-07-2010
Date of report of occurrence 29-07-2010
Date of arrest of accused: 29-07-2010
Date of release of accused 03-08-2010
on bail:
Date of commencement 18-04-2012
of evidence
Date of closing of 12-10-2017
evidence
Name of the complainant Sri. G.M. Eshwar
Offences complained of U/s 7, 13(1)(d) r/w
13(2) of PC Act,
1988.
Opinion of the Judge Acquitted
Date of Judgment: 12-12-2017
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against the accused for the offences punishable under Section 7, 13(1)(d) r/w Sec. 13 (2) of the Prevention of Corruption Act 1988.
2. The brief facts of the prosecution case is that Accused K.N. Ramakrishnappa was Assistant Police Sub-Inspector in 3 Spl.C.No.324/2010 Banashankari Police station and he is a public servant. On 29.07.2010 complainant G.M.Eshwar S/o Muniyappa gave complaint to Lokayukta Police Inspector stating that accused Ramakrishnappa, ASI, Banashankari Police station has demanded bribe of Rs.1500/- from him. In complaint, it is stated that with regard to chit transaction, for non payment of subscription amount of Chit, Devanna had gone to his house and quarreled and then complainant through a known person approached accused and met him in Banashankari Police station and accused called Devanna and settled the matter. It is stated in complaint that, on next day accused through landline phone contacted the complainant and told that he has not taken care of accused and thereafter, in 4 days, accused called complainant about 8 times and demanded bribe and also threatened complainant and on the night of 28.07.2010 and morning of 29.07.2010, accused again called complainant and demanded bribe and at 1 p.m. when complainant called accused and asked him how much amount he have to give, 4 Spl.C.No.324/2010 accused demanded Rs.2000/- and then reduced to Rs.1,500/- and asked him to come near Police station at 8.30 p.m. The complainant recorded this conversation and gave complaint to Lokayukta police. On receiving this complaint, Lokayukta police have registered the case in Cr.No.31/2010 and submitted FIR to the court. In Lokayukta office, complainant produced Rs.1500/- as amount demanded by accused. Lokayukta police Inspector by securing two panchas conducted pre-trap proceedings and made arrangement for Trap of accused. On the same day in Banashankari Police Station, when accused received tainted notes of Rs.1,500/- as bribe from complainant, accused was caught and Rs.1,500/- was recovered from him and trap procedures have been followed and trap mahazar was drawn. Accused was arrested and produced before the court and later he was released on bail. The Investigating Officer continued further investigation and after completion of investigation, obtained the sanction to prosecute the accused and filed charge sheet before this Special court against accused 5 Spl.C.No.324/2010 for the offences under Sec.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act.
3. Cognizance of offences is taken by this court. Accused appeared and is enlarged on bail. Copy of charge sheet and its enclosures are furnished to Accused. After hearing both sides regarding framing of charge and having found prima-facie materials, charges are framed against accused and read over to him. The accused pleaded not guilty and claimed to be tried.
4. In support of the prosecution case PWs 1 to 6 are examined. Documents as per Exs.P.1 to P.19 are marked. For the prosecution. MOs 1 to 13 are also marked.
5. After completion of the prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and the accused denied all the incriminating evidence appearing against him. The accused has not chosen to lead any defence evidence on his behalf.
6 Spl.C.No.324/2010
6. Heard both the counsels and perused the records.
7. Now, the points that arise for consideration are:-
POINTS
1. Whether the prosecution proves that there is a valid sanction to prosecute the accused?
2. Whether the prosecution proves beyond all reasonable doubt that accused being a public servant working as Assistant Sub-Inspector of Police in Banashankari Police station, Bengaluru has demanded bribe of Rs.1,500/- for settling dispute of complainant with one Devanna and on 29.07.2010 between 8.55 p.m. to 9.03 p.m. in Banashankari Police station accused demanded and received Rs.1,500/- from the complainant, as illegal gratification as a motive or reward to do official act or to show an official favour to the complainant and thereby committed an offence punishable u/s 7 of Prevention of Corruption Act?
3. Whether the prosecution proves beyond all reasonable doubt that accused being a public servant working as Assistant Sub-Inspector of 7 Spl.C.No.324/2010 Police in Banashankari Police station, on 29.07.2010 between 8.55 p.m. to 9.03 p.m. by corrupt or illegal means or by abusing his position as public servant demanded and obtained pecuniary advantage of Rs.1,500/-, without public interest, from complainant and thereby committed offence of criminal misconduct u/s 13(1)(d) of Prevention of Corruption Act which is punishable u/s 13 (2) of Prevention of Corruption Act?
4. What order?
8. My findings on the above points are :-
Point No. 1 : In the Affirmative
Point No. 2 : In the Negative
Point No. 3 : In the Negative
Point No. 4 : As per final order for the following:
REASONS
9. Point No.1 : This point is relating to sanction
accorded for prosecuting the accused for offences under Prevention of Corruption Act. Since accused is working as Assistant Sub-Inspector of Police, he is a Public servant. The 8 Spl.C.No.324/2010 offences alleged against accused are under Sec.7, 13(1)(d) r/w Sec.13 (2) of the Prevention of Corruption Act 1988. Therefore, obtaining valid sanction from competent authority is mandatory requirement to prosecute the accused. The prosecution sanction order is produced as Ex.P.1. Smt. Sonia Narang, IPS, DCP, South Division, Bengaluru who has accorded sanction has been examined as PW.1. She has stated that she was authority to hold disciplinary enquiry against cadre of ASI having power to remove them from service and she has gone through all these investigation materials and she was satisfied that there exist sufficient ground to accord sanction against accused and she has accordingly accorded sanction as per Ex.P.1. In the cross-examination she has denied contrary suggestions. She has stated that complainant had conveyed his grievance before accused, but accused had not registered case.
10. Ex.P.1 Prosecution sanction order show that the requisition was given by the ADGP, Karnataka Lokayukta along with copies of investigation papers and after considering all 9 Spl.C.No.324/2010 these materials the sanction has been accorded to prosecute the accused. There is no dispute that accused was working as Assistant Sub-Inspector in Banashankari Police station at the relevant time. His service particulars are also produced in this case as per Ex.P.16. Since accused is ASI, Deputy Police Commissioner, South Division, is competent authority to accord sanction to prosecute the accused. Accordingly, PW.1 by applying her mind and after perusal of investigation records has accorded sanction as per Ex.P.1. The documents referred in the order which are the charge sheet documents show that there was prima-facie case against the accused and even on the basis of same documents and materials, this court has taken cognizance and framed charge. Therefore, it is clear that sanction accorded by PW.1 is by proper application of mind. Hence, prosecution sanction order issued by PW.1 as per Ex.P.1 is valid. Accordingly, Point No.1 is answered in the Affirmative.
10 Spl.C.No.324/2010
11. Point Nos.2 and 3 : To avoid repetition of discussion and as both these two points are interlinked with each other, they are taken together for consideration.
12. The case of the prosecution is that, complainant had a chit transaction with Devanna and in that connection he had gone to his house and had quarreled with wife of complainant and when complainant met the accused and requested, accused called Devanna and settled the matter. As per prosecution case, thereafter accused continuously called complainant to his mobile and demanded illegal gratification and complainant gave complaint to Lokayukta police and after following pre-trap and trap procedures, accused was trapped when he received the tainted notes of Rs.1,500/- and committed the offences alleged against him.
13. In support of the prosecution case, complainant Eshwar has given evidence as PW.2. He has stated about chit transaction with Devanna and quarrel with him and accused 11 Spl.C.No.324/2010 settling the matter. PW2 has stated that thereafter on 28.07.2010 accused telephoned him at 9.45 p.m. and told him that after work is done, without looking after him, complainant came back and then complainant switched off his mobile and on 29.07.2010 at 6 a.m. accused again called complainant and told that he has not paid money and in the afternoon complainant called him and then accused asked him to pay Rs.2000/- and on request, brought it down to Rs.1,500/- and asked to come to Police station at 8.30 p.m. and this conversation is recorded. PW.2 has stated that thereafter he gave complaint to Lokayukta police at 3 p.m. as per Ex.P.2 and that he produced Rs.1500/- and has also stated about following of trap procedures. He has also stated about drawing pre-trap mahazar as per Ex.P.3 and also stated about the instructions given by Lokayukta Police Inspector to him. PW.2 has also stated that thereafter they proceeded towards Banashankari Police station and near Thyagarajnagar, he got down from Maruthi Omni Car and went to his house and came in his auto 12 Spl.C.No.324/2010 rickshaw and Maruthi Omni car in which other members of the trap team was coming have followed him. He has stated that at a distance of 100 meters, he stopped Auto and he waited for phone call of accused and has stated that at 8.30 p.m. he received phone call from accused and he asked him to come to Police station. He has stated that after asking sentry of Banashankari Police station he entered the station and on seeing him, accused came out and stood on the steps at the main entrance and panch witness and one Police constable were standing at a distance of about 15 feet. He has stated that accused asked him as to where is cash and then he gave tainted notes to accused and accused received it in his right hand and kept in left side pocket of his uniform shirt. He has stated that he told accused that he has no money to fill gas to his auto and requested him to give Rs.100/- and then accused gave him two currency notes of Rs.100/- each and then went inside Police station. PW2 has stated that thereafter, he gave signal to CW.22 by giving missed call and immediately 13 Spl.C.No.324/2010 Lokayukta Police Inspector along with his team entered Police station and he has shown accused and hands of accused were separately washed and right hand wash in the solution has turned to pink colour and left hand wash has not changed its colour and the solution was separately seized in bottles. He has stated that tainted notes which was with accused were taken and tallied with note numbers noted earlier and shirt of accused was also seized and that he handed over pen camera to Lokayukta police and contents of pen camera was transmitted to CD and stated about drawing of trap mahazar as per Ex.P.5 and accused giving explanation as per Ex.P.4 and also about other trap procedures that are followed.
14. In his cross-examination, PW2 has admitted that chit transaction took place in Jayanagar and admitted that he has not produced any documents with regard to chit transaction and that his house is at Cauverynagara, Banashankari and admitted that in Ex.P.2 his address is shown as Thyagarajnagar. He has stated that Devanna had come to 14 Spl.C.No.324/2010 his house in Cauvery nagar with his men and quarreled with him and he has not given any written complaint against him. He has stated that his auto owner Ram Prasad Reddy-CW.7, had called police officer by phone and asked him to enquire Devanna and admitted that at the time of giving complaint to Lokayukta police, CW.7 was also with him and Ex.P.2 complaint is written as dictated by CW.7. He has stated that after CW.7 calling the police officer he met the accused in Banashankari Police station and accused called Devanna to station. He has admitted that he do not know the mobile number of accused and stated that accused used to call him by landline. He has denied that accused told him that chit transaction is a civil matter and asked him to settle the matter through court and also told that if any complaint which has to be given to Jayanagar Police station and it does not come within his jurisdiction. He has stated that after 3 days of visiting accused in Banashankari Police station, he gave complaint to Lokayukta police. He has denied that accused has never called him and 15 Spl.C.No.324/2010 never demanded money. He has admitted that after pre-trap mahazar he went to his house in Thyagarajnagar and came to Banashankari Police station in his Auto and Lokayukta Police Inspector and his staff has come in another vehicle. He has admitted that there were other police officials in the Police station. He has stated that himself and another panch witness had not entered the Police station and by looking to him accused himself came out of the Police station. He has admitted that in Police station accused has not asked him to give any amount. He has denied that he has kept tainted notes on table and then gave signal to Investigating Officer.
15. PW.5 V.Mahesh is shadow witness who has stated that he met Lokayukta Police Inspector as per direction of higher officer. He has stated about pre-trap procedure that are followed. Complainant producing Rs.1500/-, noting down the numbers on Ex.P.6 and smearing phenolphthalein powder on the notes, keeping the notes in shirt pocket of PW2, Hand wash of PW3 and Lokayukta Police Inspector giving instructions are 16 Spl.C.No.324/2010 all stated by the witness. The witness has further stated that they left Lokayukta office and reached Banashankari Police station at 8 p.m. and he was talking to a police constable pretending as mobile was lost and he observed complainant giving Rs.1500/- to accused and stated that accused kept the same in right side of Shirt pocket and when complainant requested for money for auto gas accused gave Rs.200/- to complainant in denomination of Rs.100/- and thereafter complainant gave missed call to Investigating Officer and thereafter Investigating Officer and staff entered Police station and complainant informed that he has given amount to accused. He has stated that Sodium Carbonate solution was prepared and hands of accused was washed separately and solution turned to pink colour and was sealed in a bottles and also stated that he has taken out currency notes from shirt pocket of accused and it ws compared with Ex.P.6 and then was seized and has identified the same as MO.2. He has also stated that shirt of accused was also seized and identified same 17 Spl.C.No.324/2010 as MO.3 and also stated that entire proceedings were video graphed. He has also stated about further procedures that are followed and also stated about drawing of trap mahazar as per Ex.P.5 and also stated about the explanation given by accused as per Ex.P.4. He has also stated about seizing of Rs.200/- by drawing mahazar as per Ex.P.9. In cross-examination he has stated that he has not heard audio conversation on that day and has denied that no entrustment mahazar was drawn in his presence. He has admitted that he has not entered the Banashankari Police station and admitted that he has not heard conversation held between PW.2 and accused and has stated that he has seen PW.2 and accused outside Police station and has denied he has not seen PW.2 giving amount to accused. He has stated that he has taken out amount from pocket of accused and admitted that thereafter hands of accused were washed. He has stated that they were in Police station till mid night 12.30 a.m. He has admitted that Lokayukta Police Inspector has got prepared Ex.P.5 trap mahazar through his 18 Spl.C.No.324/2010 staff and denied that he has signed the same as per instructions of Police Inspector and stated that he has signed after knowing contents.
16. PW.3 R.Basavaraj is another panch witness who has also stated about prosecution case in his chief evidence. He has also stated that when entered Banashankari Police station, with members of trap team, he found accused sitting by the side of one Govindaraju, Police Inspector of Banashankari Police station and CW.22 disclosed his identity and has stated that accused produced tainted notes and CW.22 seized the same and thereafter solution was prepared and hands of accused was washed in the solution kept in bowls and solution turned to light pink colour and which was seized and shirt of accused was also seized. He has also stated that recordings in button camera and contents of same were displayed which revealed the images of accused and also his voice was seen and heard and it was identified by Chikka Govindaraju, Police 19 Spl.C.No.324/2010 Inspector and it was transmitted in a sheet of paper as per Ex.P.8 and accused gave explanation as per Ex.P.5 and has stated that metal seal sealing seized articles was given to him and he has produced the same as MO.1. In cross-examination he has stated that complaint was written in his presence and has stated that at about 6 p.m. they left Lokayukta office and PW.2 came in autorickshaw. He has stated that he has seen accused sitting in his chamber in Banashankari Police station. He has denied that on the instructions of CW.22 accused produced tainted currency notes which were kept on the table. He has stated that on the next day of trap, he has not visited the office of CW.22 and subsequent to trap he has not met Lokayukta Police Inspector.
17. PW.4 G.Srinivasa Chettiar has stated in his evidence that PW.2 G.M. Eshwar was working with CW.7 and about 5 or 6 years back, PW.2 had told him that in the matter of chit transaction some quarrel took place in his house and in that 20 Spl.C.No.324/2010 connection he along with PW.2 met accused in Banashankari Police station.
18. PW.6 Krishnappa is Investigating Officer. He has stated about registering the case on receiving complaint of PW.2 in Cr.No.31/2010 and submitting FIR to court. He has also stated that he has secured panch witnesses and stated about complainant producing amount of Rs.1500/- noting down number of the notes and then PW.3 keeping notes in shirt pocket of complainant and then hand wash of PW.3 and also about transmitting of conversation of accused recorded in mobile into a CD. He has also stated about instructions given to PW.2 and PW.5 and also about preparing pre-trap mahazar as per Ex.P.3. He has also stated about events took place at the time of trap and also procedures followed and also about receiving of explanation from accused and also about drawing trap mahazar Ex.P.5. He has also stated about recording statement under Sec.164 of Cr.P.C. and also about further investigation done by him including filing of charge sheet. In 21 Spl.C.No.324/2010 the cross-examination, he has stated that he has not secured any documents with regard to chit transaction of complainant and admitted that complainant is resident of Thyagarajanagar. He has admitted that if any crime is committed in the limits of Thyagarajanagar Police station it will come to that Police station. He has admitted that complainant had told in the complaint that Devanna had come to his house and abused his wife. He has stated that he has not enquired as to whether any case is registered with regard to this incident in Thyagarajanagar Police station. He has stated that he has not seized the mobile or chip containing recordings produced by complainant and has stated that he has not produced certificate with regard to CDs as required under Sec.65-B of Evidence Act. He has stated that he has not collected sample voice recordings in CD for Experts report. He has admitted at the time of registering complaint, there was no work of complainant pending with accused. He has admitted that when he entered chamber of accused, he was doing his work and admitted that 22 Spl.C.No.324/2010 complainant has shown accused and told that he received tainted notes from him. He has denied that he has taken written explanation of accused by dictating the same.
19. For the prosecution documents at Exs.P1 to P.19 are marked. Ex.P.1 is prosecution sanction order given by PW.1 to prosecute the accused. Ex.P.2 is complaint and Ex.P.10 is FIR. The pre-trap mahazar is marked as Ex.P.3. The trap mahazar is marked as Ex.P.5. Explanation stated to have been given by accused is marked as Ex.P.4. The sheet containing number of currency notes is Ex.P.6. Ex.P.7 is transcription of conversation between the complainant and accused noted down at the time of pre-trap mahazar. Ex.P.8 is conversation recorded in button camera at the time of trap. Ex.P.9 is mahazar by which the amount of Rs.200/- given by accused to complainant at the time of trap was seized. Ex.P.11 is copy of Station House Dairy. Ex.P.12 and 14 are the report of Police Inspector and Ex.P.13 is report by Police Sub- Inspector. The call details of mobile of complainant is marked 23 Spl.C.No.324/2010 as Ex.P.15. The service details of accused are produced as Ex.P.16 and P.17 and sketch of spot is marked as Ex.P.18 and chemical examination report is Ex.P.19. Metal seal by which seized articles are sealed is MO.1. The seized tainted notes are marked as MO.2. The currency notes of Rs.200/- is marked as MO.4. MO.3 is shirt of accused and MO.5 to 9 are bottles containing solution. MOs 10 to 13 are CD's.
20. To prove the commission of the offences by the accused under Sec.7 and 13 of the Prevention of Corruption Act, prosecution has to mainly establish that accused being a public servant demanded and accepted the illegal gratification. Secondly, said demand and acceptance of illegal gratification must be proved to be for doing some official act or to do some official favour to complainant. There is a presumption available under Sec.20 of Prevention of Corruption Act 1988 in respect of Commission of offence under Sec.7 and presumption can be drawn only after prosecution discharges initial burden of proving that accused has demanded and accepted the 24 Spl.C.No.324/2010 gratification other than legal remuneration. When prosecution discharges initial burden, then unless the contrary is proved, it shall be presumed that he accepted and received it as a motive or reward for doing official act or for doing official favour as mentioned in Sec.7.
21. As per the prosecution, complainant was having dispute with regard to chit transaction with one Devanna and he had approached accused who is Assistant Sub-Inspector of Police in Banashankari Police station and said Devanna was called by accused and matter between complainant and Devanna was settled. On what date such settlement was done is not stated in complaint. According to prosecution, after settling the matter between complainant and Devanna, accused called complainant from his landline number many times and asked him to look after him as he has settled the matter and indirectly demanded bribe. It is also prosecution case that accused has even directly asked for bribe amount from complainant. Thereafter, complainant gave complaint to 25 Spl.C.No.324/2010 Lokayukta police and before giving complaint, the complainant got recorded his conversation with accused in mobile and produced the same before Lokayukta police. Thereafter, case has been registered. Therefore after settling the dispute of complainant with Devanna, till the time of trap, complainant has not personally met accused. Entire demand of bribe amount by accused is through phone call as stated by complainant in his evidence and also in complaint. It is stated by complainant that phone calls are made from landline number. The call details of complainant's mobile number is produced at Ex.P.15 which is for the period from 01.07.2010 to 29.07.2010. A call received by complainant from landline number on 27.07.2010 and then on 28.07.2010 and 29.07.2010 are highlighted in Ex.P.15. As per this, on 27.07.2010, 28.07.2010 and on 29.07.2010, there was phone call made from landline number to the mobile of complainant. The present complaint is given on 29.07.2010. Since complainant has not met accused after settlement of his dispute with 26 Spl.C.No.324/2010 Devanna, as per prosecution case, entire demand of bribe by accused is made by phone. In complaint, Ex.P.2 it is mentioned that one month prior to giving complaint Devanna had quarreled by visiting house of complainant in his absence and regarding that complainant had talked to accused and accused settled the matter. It is mentioned in Ex.P.2 that thereafter accused called him and stated that he has not taken care of him and even thereafter it is mentioned that for 4 days the accused has called 8 times to mobile of complainant and demanded the money and also threatened the complainant and then on 28.07.2010 in night hours and on 29.07.2010 in morning hours accused had made a call.
22. As per Ex.P.2 before 29.07.2010 the accused had called complainant 4 to 5 days through landline and then on 28.07.2010 night also he had called. In Ex.P.15 which is from 01.07.2010 to 29.07.2010, there are no calls from this landline number till 27.07.2010 and first call is on 27.07.2010 and a second call is on 28.07.2010 and third call is on 29.07.2010 i.e 27 Spl.C.No.324/2010 on the date of trap in morning at 7.30 a.m. Therefore call details Ex.P.15 does not show that complainant has received calls from this landline numbers from 4 days prior to giving of complaint. It appears that landline number 26710245 is that of Police station. If it is of Police station, apart from accused, even some other staff may also have access to said landline phone. Moreover, as stated above, Ex.P.15 does not show that complainant has received 8 calls in 4 days prior to 28.07.2010. How complainant ascertained that it is voice of accused is also not explained. Therefore, only on the basis of these call details found in Ex.P.15, it cannot be said that this landline phone was exclusively with accused and accused had made several calls to complainant and then demanded for bribe amount as stated.
23. Apart from this, in Ex.P.2, the date on which complainant complained about Devanna, on which date accused has settled the said dispute is not stated. Interestingly, PW.2 in his cross-examination has stated that he 28 Spl.C.No.324/2010 has not given any written complaint against Devanna and has stated that Devanna had come to his house in Cauverynagar with his men and quarreled with him. There is no evidence before the court to show that complainant's house is in Cauverynagar. In Ex.P.2 address of complainant is given as Thyagarajnagar, Bengaluru. In evidence, PW.2 has given his address as Banashankari and has stated in evidence that his house is in Cauverynagar. Complaint is given on 29.07.2010 to Lokayukta police and on same day the trap was planned and after drawing pre-trap mahazar and following pre-trap procedures the trap team along with complainant proceeded towards Banashankari Police station. In evidence and also in trap mahazar it is mentioned that after leaving the Lokayukta office they went towards house of complainant in Thyagarajnagar near Maruthi Mandir and complainant got down and then he brought his Auto. Therefore even as per trap Mahazar Ex.P.5, house of complainant is in Thyagarajnagar where he got down and brought his auto towards Banashankari 29 Spl.C.No.324/2010 Police station. In complaint also his address is shown as Thyagarajnagar. It is not mentioned in complaint that accused had visited house of complainant in Cauverynagar, Banashankari as now stated by PW.2 in his evidence. PW.2 in his cross-examination has stated that chit transaction took place in Jayanagar. There is no evidence to show that complainant was having one house in Thyagarajnagar where he was residing and another house in Cauvery Nagar where his wife was residing or something like that. PW.2 in his cross- examination has stated that after 3 days of visiting accused in Banashankari Police station, he gave complaint to Lokayukta police. In view of these admissions of PW.2 and also Ex.P.15, averment in complaint that one month prior to giving of complaint, there was dispute with Devanna which was settled by accused and thereafter before 28.07.2010 for 4 days accused called complainant and demanded bribe cannot be accepted.
30 Spl.C.No.324/2010
24. At the time of giving complaint, complainant is said to have produced conversation had with accused which was recorded in mobile. It is mentioned in pre-trap mahazar that conversation in mobile was transmitted to CD MO.12 and was also transcribed in a sheet of paper as per Ex.P.7. Similarly, at the time of trap, button camera was also given to complainant and according to prosecution, in the button camera there are visuals and conversation recorded and same is transmitted to CD as MO-10 and transcribed on sheet of paper as per Ex.P.8. The conversation, when the complainant called accused to his landline number is said to have been recorded in digital voice recorder and said recording is stated to have been transmitted to CD as per MO.11. Another CD MO.13 is stated to be containing video recordings of pre-trap and trap proceedings. Therefore among CD's produced MO-10, MO-11 and MO-12 are stated to be containing the conversation had between complainant and accused on previous day of trap, on the date of trap and at the time of trap. Exs.P.7 and P.8 are stated to 31 Spl.C.No.324/2010 be the transcription of conversation between complainant and accused on previous day of trap and at the time of trap. Admittedly, mobile phone by which Ex.P.7 and MO.12 were transmitted and transcripted, voice recorder from which MO-11 was transmitted and the button camera from which Ex.P.8 and MO-10 are taken are not produced before the court. PW.6 in his cross-examination has clearly admitted that he has not seized mobile or chip containing recordings produced by complainant. He has stated that he has not produced certificate with regard to CD's as required under Sec.65-B of Evidence Act. He has also admitted that he has not sent the voice recordings in CD for experts report. Therefore, MO-10 to MO-12 and Exs.P.7 and P.8 which are stated to be containing the conversation between complainant and accused are the copies of original mobile, voice recorder or button camera and they are not primary evidence. These MOs and Exs.P.7 and P.8 are secondary evidence of electronic record. 32 Spl.C.No.324/2010
25. As per the decision of Hon'ble Supreme Court relied by learned counsel for accused and reported in 2015 (1) SCC (Cri) 24 = (2014) 10 SCC 473 Anwar P.V. Vs P.K.Basheer and others, when the secondary evidence of the electronic records are produced before the court, they cannot be admitted in evidence unless the secondary evidence is accompanied by certificate under Section 65B of Indian Evidence Act. The Hon'ble Supreme Court has also held in para No18 that, "The evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under section 65B of the Evidence Act are not complied with, as the law now stands in India". The Hon'ble Supreme Court also held in Para No.22 of this Judgment that; "The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with 65 of the Evidence Act shall yield to the same. ...". On going 33 Spl.C.No.324/2010 through this decision it is clear that unless certificate U/s.65-B of the Indian Evidence Act is produced along with this secondary evidence of electronic record, they cannot be considered as admissible evidence. In view of this decision and in view of discussion made above, these transcriptions at Exs.P.7 and P.8, CD's at MOs-10, 11 and 12 are not of any help in proving prosecution case.
26. As stated above, Ex.P.15 call details and these transcriptions & CD's do not help the prosecution to prove alleged demand made by accused. Admittedly, work of complainant was completed long back, as it is stated that one month prior to giving of complaint, there was a dispute with Devanna and accused has settled the same. PW.6 in his cross- examination has admitted that at the time of registering complaint in their office, there was no work of complainant pending with accused. When there is no work of complainant pending with accused, there is no possibility of accused demanding the bribe amount from complainant as stated in this 34 Spl.C.No.324/2010 case. It is stated in complaint that owner of complainant by name Ram Prasad Reddy, CW.7 had called accused and informed about the grievances of complainant against Devanna and on the say of CW.7 complainant is said to have met the accused. But this CW.7 is not examined before the court. PW.4 G.Srinivas Chettiar has stated in his evidence that in the matter of chit transaction he along with PW.2 met accused in Banashankari Police station. This witness has not stated anything about any demand of bribe by accused for settling his dispute with Devanna. Therefore, accused demanding bribe amount from complainant is not established by any materials placed by prosecution.
27. As admitted, there was no work of complainant pending with accused at the relevant time. As stated in complaint and as stated by PW.2 in his cross-examination and also as mentioned in trap mahazar Ex.P.5 the house of complainant is in Thyagarajnagar which is not within the jurisdiction of Banashankari Police station in which accused was 35 Spl.C.No.324/2010 working as Assistant Sub-Inspector. PW.2 in his evidence has stated that chit transaction took place in Jayanagar. Even this place at which chit transaction has taken place, does not come within the jurisdiction of Banashankari Police station. PW.6 Investigating Officer has admitted in his cross-examination that complainant is resident of Thyagarajnagar and admitted that if any crime is committed within the limits of Thyagarajnagar Police station it will come to that Police station and admitted that complainant has stated that Devanna had come to his house and abused his wife and has stated that he has not enquired whether any case was registered regarding this incident in Thyagarajnagar and admitted that there is no case registered and FIR lodged in Banashankari Police station with regard to this incident in house of complainant. Therefore, if any incident has taken place in house of complainant in Thyagarajnagar naturally complainant would have given complaint in Thyagarajnagar Police station and not before Banashankari Police station. There is no complaint registered 36 Spl.C.No.324/2010 in Banashankari Police station regarding incident took place in complainant's house in Thyagarajnagar. Accused was not even working in Police station within the jurisdiction of which complainant is residing or the alleged chit transaction or the alleged incident has taken place. Therefore, even capacity of accused to do some official act or official favour to complainant with regard to his dispute with Devanna is also not made out. Therefore, prosecution has even failed to prove that there was some official act or some official work of the complainant pending with accused or that accused was in a position to do some official favour to complainant. Under such circumstances, accused demanding complainant to pay some bribe amount does not arise. When there is no work or favour to be done by accused, he demanding bribe from complainant does not arise. Even there is no supporting evidence to show that accused has called complainant many times and demanded bribe amount. There is no corroborating evidence to the evidence of complainant PW.2. Though, complainant PW.2 has stated that 37 Spl.C.No.324/2010 accused was calling from landline number which is that of Police station, there is no evidence to show that accused who was Assistant Sub-Inspector was having exclusive use of landline phone and there was no access to other staff of Police station. Under such circumstances, demand of bribe amount by accused and possibility of accused demanding bribe from complainant are not established in this case.
28. It is stated that at the time of trap, complainant went to Police station and asked for accused and PW.5 V.Mahesh, shadow witness has seen the complainant giving Rs.1500/- to accused and accused kept the same in right side of shirt pocket and then, on asking money by complainant for auto gas, accused gave Rs.200/- to complainant which is subsequently seized by Ex.P.9 mahazar and said cash is marked as MO.4. Even PW.5 shadow witness has not stated that at the time of trap, accused demanded bribe amount of Rs.1500/- from complainant and then complainant has given tainted notes. PW.2 has stated that when he went to Banashankari 38 Spl.C.No.324/2010 Police station, on seeing him, accused came out of Police station and stood on the steps and he asked him where is cash and how much cash he has brought and then complainant gave tainted notes to accused. This evidence of PW.2 does not clearly show that accused asked for Rs.1,500/- bribe for doing any official work of accused. Moreover, as per evidence of PW.2 and PW.5, after giving Rs.1500/- tainted notes to accused, when complainant requested for some money for auto gas, the accused was generous enough to give Rs.200/- to complainant who is running auto. There is no conversation held at the time of trap between complainant and accused with regard to payment of bribe money by complainant to accused. Therefore, evidence of PW.2 and PW.5 also does not show the demand of any bribe amount by accused even at the time of trap. Therefore, prosecution has failed to prove that at the time of trap or before, accused has made any demand for bribe amount for doing some official act which was not existed, or as 39 Spl.C.No.324/2010 a reward for doing any act or as reward for the acts which he has already done.
29. Coming to the acceptance of bribe amount by accused, PWs 2 and 5 have stated that Rs.1500/- tainted notes were given to accused by complainant and then he kept it in his uniform shirt pocket. It is stated by PW.2 that he went to Police station and enquired for accused when he was going inside the station accused by seeing him has come out and on the steps he has given tainted notes to accused. According to PW.2 and PW.5, they have not gone inside the Police station till giving tainted notes. However, when complainant has given signal to Investigating Officer and trap team came to Police station, it is stated that accused was in chambers of Police Sub- Inspector. PW.6 has stated that when they entered Police station accused was found in chambers of Police Sub-Inspector. In cross-examination PW.6 has stated that when he entered the chamber of accused, he was doing his work. It is also stated in evidence that complainant after giving Rs.1500/- 40 Spl.C.No.324/2010 tainted notes has asked accused for some amount for gas to his autorickshaw. Then accused has given Rs.200/- to complainant. If the bribe amount was given to accused on his demand for the work of the complainant, which was already done about one month back as stated in Ex.P.2, accused would not have been so generous to give Rs.200/- back to complainant as stated.
30. Moreover, as there is no any work of complainant pending with accused or there is any favour to be made by accused to complainant, accused demanding and receiving Rs.1500/- as bribe from him and complainant giving such amount as bribe is doubtful. Only because the witnesses have stated about recovery of tainted notes from shirt pocket of accused and that hand wash of accused has turned to pink colour as stated by all the witnesses, it cannot be held that accused has received bribe from complainant. The proof of demand of bribe amount is sine-qua-non for further events. When prosecution has failed to prove the demand of bribe 41 Spl.C.No.324/2010 amount by accused and has also failed to prove the pendency of any official act to be done by accused for complainant, any length of evidence led by prosecution to show receipt of tainted notes by accused and recovery of said amount from accused will not help the prosecution to prove the guilt. On looking to the conduct of the accused in giving Rs.200/- to the complainant, when he requested for Rs.100/- for filling gas to the Auto, this receipt of tainted money, even if proved, does not appear to be transaction of demand and acceptance of bribe. It is stated in complaint that complainant approached accused through a person known to him and when accused called him many times, he asked him to approach his owner Ram Prasad Reddy CW7, who is not examined in this case. The evidence of PW.4 also show that PW.2 and PW.4 have met accused in Police station casually and not with any complaint. Even there is no complaint registered in Banashankari Police station with regard to alleged incident that took place in house of complainant. Therefore Accused has not done any official 42 Spl.C.No.324/2010 act or official favour to complainant and he was not even having such official capacity, as no incident took place within his jurisdiction.
31. Learned counsel for accused has drawn my attention to the decision of Hon'ble Supreme Court reported in 2015 (10) SCC 152 P Satyanarayan Murthy Vs District Inspector of Police, State of Andra Pradesh and another. In this decision in Para No.23 the Hon'ble Supreme Court has held as under:-
"The proof of demand of illegal gratification, thus, is the gravemen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offences under Section 7 or 13 of the Act would not entail his conviction thereunder".
In another decision reported in 2014 (13) SCC 55 B.Jayaraj Vs State of Andra Pradesh also the Hon'ble Supreme Court has held in Para No.7 as under :-
43 Spl.C.No.324/2010
"In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine-qua-non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court".
Both these decisions of Hon'ble Supreme Court are referred in another decision cited by learned counsel for accused which is reported in 2016(12)SCC 150 V.Sejappa Vs State by Police Inspector Lokayukta, Chitradurga. In this decision in Para No.10, the Hon'ble Supreme Court has held that "In order to constitute an offence under Section 7 of the Prevention of Corruption Act. "proof of demand" is a sine-qua-non".
In 2009 (15) SCC 200 State of Maharastra Vs Dhnyaneshwar Laxman Rao Wankhede also it is held that Proof of demand of illegal gratification is sine-qua-non. In the absence of proof of demand of gratification amount even if there is recovery, that has no consequence and recovery of the amount would not be sufficient to bring home the charge against accused under Sec.7.
44 Spl.C.No.324/2010
In 2016(1)SCC 713 N.Sunkanna Vs State of Andra Pradesh also it is held that when demand is not proved presumption under Sec.20 of Prevention of Corruption Act is not applicable. In Para No.5 of the Judgment Hon'ble Supreme Court has held, that "... It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine- qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13 (1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of 45 Spl.C.No.324/2010 demand of illegal gratification proof of acceptance will not follow".
In the decision reported in 2015(3) SCC 247 M.R.Purushotham Vs State of Karnataka it is held that "mere possession and recovery of currency notes from accused without proof of demand do not constitute offence under Sec.13(1)(d) r/w 13 (2)of the Act".
Even in another decision reported in (2009) 3 SCC 779 C.M.Girish Babu Vs CBI, Cochin, High Court of Kerala also it is held that Mere recovery of tainted money by itself is not enough, in absence of evidence to prove payment of bribe or to show that accused voluntarily accepted the money knowing it to be bribe.
32. All these decisions makes it very clear that when the prosecution has failed to prove the demand of illegal gratification by accused even if recovery of tainted notes is proved, it will not constitute offence under Sec.7 and 13 (1)(d) of Prevention of Corruption Act and mere recovery of the amount without proof of demand will not constitute the offence. In the present case also the 46 Spl.C.No.324/2010 demand of bribe amount by accused is not proved. Pendency of any work of complainant with accused is also absent. There is no evidence to show that as a reward for work already done or to do some favour to the complainant, accused has demanded bribe amount. Pendency of any work of complainant with accused, capacity of accused to do any official favour, accused demanding bribe and acceptance of illegal gratification of Rs.1500/- by him are not established in this case. Hence, prosecution has failed to prove the commission of offence under Sec. 7 of Prevention of Corruption Act by the accused. Similarly any criminal mis-conduct done by the accused by receiving pecuniary advantage without any public interest is also not made out. Therefore, prosecution has failed to prove the guilt of accused. Accordingly, Point No.2 and 3 are answered in the negative.
33. Point No.4: For the discussion and findings on Point Nos. 1 to 3, accused is to be acquitted. Hence, following order is passed:
47 Spl.C.No.324/2010
ORDER Accused is found not guilty.
Acting u/s 235(1) of Cr.P.C. accused is acquitted from the charges levelled against him for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. The bail bond executed by accused and his surety stands cancelled.
M.O.1 is ordered to be returned to the Karnataka Lokayukta Police after the expiry of appeal period.
M.O. 2 & 4 are ordered to be confiscated to the State Government after the expiry of appeal period.
M.O.3, 5 to 13 are ordered to be destroyed after the expiry of appeal period, as are worthless.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 12th day of December 2017) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.48 Spl.C.No.324/2010
ANNEXURE List of witnesses examined for the prosecution:
PW.1 Smt. Sonia Narang PW.2 G.M. Eshwar PW.3 R.Basavaraja PW.4 Srinivasa Chettiar PW.5 V.Mahesh PW.6 Krishnappa
List of documents exhibited for the prosecution:
Ex.P.1 Sanction order
P.1 (a) Signature of PW.1
Ex.P.2 Complaint
P.2 (a) Signature of PW.2
Ex.P.3 Pre-trap Mahazar
P.3 (a) Signature of PW.2
P.3 (b) to 3 9(d) Signature of PW.3
P.3 (e) Signature of PW.5
P.3(f) Signature of PW.6
Ex.P.4 Explanation of accused
P.4 (a) Signature of PW.5
Ex.P.5 Trap Mahazar
P.5(a) Signature of PW.2
5 (b) to (g) Signature of PW.3
P.5 (h)5(i) to 5 (n) Signature of PW.5
Ex.P.6 Currency details sheet
P.6 (a) & (b) Signature of PW.3
P.6 (c) & (d) Signature of PW.5
P.6 (e) & 6 (f) Signature of PW.3 & PW.5
Ex.P.7 CD Transcription sheet
P.7 (a) Signature of PW.3
Ex.P.8 Button Camera Transcription
sheet
P.8 (a) and 8 (b) Signature of PW.3
49 Spl.C.No.324/2010
P.8 (c) & 8 (d) Signature of PW.6
Ex.P.9 Mahazar dtd. 2.8.2010
P.9 (a) Signature of PW.5
P.9 (b) Signature of PW.6
Ex.P.10 FIR
P.10 (a) Signature of PW.6
Ex.P.11 Extract of SHD
Ex.P.12 Report of Police Inspector,
Banashankari PS
Ex.P.13 Report of Sub-Inspector,
Banashankari Police station
Ex.P.14 Report of CW.10, Police
Inspector, Banashankari PS
Ex.P.15 CDR's of PW.2 and PW.6
Ex.P.16 & P.17 Service particulars of
accused
Ex.P.17 (a) Property statement of
accused
Ex.P.18 Sketch
Ex.P.19 Chemical Examination Report
Evidence adduced on behalf of the defence :
- Nil -
Documents marked on behalf of the defence:
- Nil -
Material Objects marked by Prosecution :
MO-1 " M " Metal seal
MO-2 Currency notes
MO-2(a) Cover containing cash
MO-3 Shirt of the accused
MO-3 (a) Cover containing the shirt
MO-4 Currency notes
MO-4 (a) Cover containing the cash of
Rs.200/-
MO-5 Bottle Article No.1
50 Spl.C.No.324/2010
MO-6 Bottle Article No.2
MO-7 Bottle Article No.3
MO-8 Bottle Article No.4
MO-8(a) Bottle Article No.4(A)
MO-9 Bottle Article No.5
MO-9 (a) Bottle Article No.5(A)
MO-10 CD Article No.8
MO-11 CD Article No.9
MO-12 CD Article No.10
MO-13 CD Article No.11
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
***
51 Spl.C.No.324/2010
52 Spl.C.No.324/2010
Orders pronounced in the open Court
53 Spl.C.No.324/2010
vide separate Judgment :
ORDER
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Mayohall Unit, Bengaluru.
54 Spl.C.No.324/2010
55 Spl.C.No.324/2010