Bangalore District Court
State Of Karnataka Represented By ... vs Diwakar.B S/O Late Bhanappa on 7 June, 2018
IN THE COURT OF THE XXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU CITY. (CCH-24)
Dated this the 07th day of JUNE, 2018
PRESENT
SMT.MANJULA ITTY, B.A.L.LL.B.,
XXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND
SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU.
Special C.C.No.107/2017
Complainant: State of Karnataka represented by Karnataka
Lokayuktha Police Wing, City Division,
Bengaluru.
(By Sri. D. Ramesh Babu, Public Prosecutor)
V/s
Accused : 1. Diwakar.B S/o Late Bhanappa, aged about
44 years, Revenue Inspector, Nada Kacheri
and office of the Deputy Tahasildar,
Bengaluru North Taluk, Nagarabavi,
Bengaluru. R/at No.8/17, 1 'A' Cross, 5th
st
Block, 3rd Stage, Banashankari, Bengaluru.
2. Anand S/o Ramegowda, aged about 33
years, Assistant to Revenue Inspector
(Private person) No.82, 1st Main Road, 3rd
Cross, Moodalapalya, Bengaluru-72.
(By Amar Corpea Associates, Advocate for
accused No.1 and Sri. R.Nagendra Naik
Advocate for accused No.2)
2 Spl.C.C.No.107/2017
Date of offence 05.05.2015
subsequently on 06.05.2015 when
the accused No.2 on behalf of
accused No.1 received bribe amount
of Rs 50,000/- and he was caught
red handed
Date of report of 06.05.2015
offence
Date of arrest of the 06.05.2015
accused
Date of release on 04.06.2015
bail
Total period of 29 days
custody
Name of the Rangaswamy @ Raju
complainant
Date of 05.12.2016
commencement of
recording evidence
Date of closing of 21.06.2017
evidence
Offences complained 7, 8, 13 (1)(d) read with section
13(2) of Prevention of Corruption Act
of
Opinion of the Judge Accused Nos 1 and 2 are acquitted
State represented by Public Prosecutor
Accused defended by Amar Corpea Associates, Advocate
for accused No.1 and Sri.
R.Nagendra Naik Advocate for
accused No.2
3 Spl.C.C.No.107/2017
JUDGMENT
The Police Inspector, City Division, Karnataka Lokayuktha, Bengaluru has submitted the charge sheet against the accused Nos. 1 and 2 for the offence punishable under sections 7, 8, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988.
2. The prosecution case in brief is that the Karnataka Group 'D' Employees Association had acquired a portion of land of one Smt. Channamma out of her 1.25 acres of landed property, which she got from her ancestors situated at Sy.No.24/3 of Srigandhada Kavalu, Bengaluru and hence she filed an application before the Bengaluru North Taluk Office seeking survey of her land and in the meanwhile she expired on 23-02-2015. Her son-in-law Sri. Rangaswamy @ Raju(CW1), made a follow up of her application and met accused No. 1, who was working as Revenue Inspector at the Nadakacheri and Office of the Deputy Tahsildar, Bengaluru North Taluk, Nagarabhavi, 4 Spl.C.C.No.107/2017 Bengaluru and enquired about the application of his mother- in-law and the survey work of the above said land. But A1 did not give any information to CW1 and simply dodged the matter and therefore, CW1 informed his friend CW4 Hyder, who along with CW1 came to the office of A1 on 05-05-2015 and enquired about the survey work of the above mentioned land, then A1 demanded an illegal gratification of Rs. 1,50,000/- which was later scaled down to Rs. 50,000/- and the said demand by the 1st accused was recorded by CW1 in his mobile phone and unwilling to give bribe amount he lodged a complaint before the Police Inspector, Anti- corruption Bureau who registered Crime No 28/2015 and he submitted the FIR to this court in a sealed cover on 06-05- 2015. A trap was organized after securing two witnesses CWs 2 and 3 and the Investigating Officer had drawn entrustment mahazar at the Lokayuktha police station when CW1 produced 50 currency notes of denomination of Rs 1000/- each before the Investigating Officer. After noting the serial numbers of the said notes in a sheet of paper, the 5 Spl.C.C.No.107/2017 notes were smeared with phenolphthalein powder and it was kept in the front pocket of CW1's pants. After pre-trap proceedings, the Investigating Officer gave necessary instructions to CW1 to give the bribe amount only if demand is made by the accused and asked CW2 to accompany CW1 as a witness and observe what transpires between the CW1 and the accused person. When CW1 and the witness went inside the office of A1 they found another person i.e., A2 in the office of A1 and when CW1 contacted A1 over phone, A1 informed CW1 to hand over the bribe amount of Rs. 50,000/- to A2. Thereafter, A2 took CW1 to the BBMP tax collecting office situated at the ground floor of the office of A1 and demanded to handover the bribe money and thereby received Rs. 50,000/- from CW1. A2 after counting the money tried to handover the same to CW 5 Basavaraju who was inside the tax collecting office, who refused to receive the amount. After that CW1 flashed the pre-determined signal of rubbing his head with his hand to the Investigating Officer indicating the receipt of bribe amount by A2. 6 Spl.C.C.No.107/2017 Suddenly the Investigating Officer and his team rushed to the spot and introduced themselves to A2. Investigating Officer prepared sodium carbonate solution and both the hands of the A2 were washed in the solution separately, then the colourless solution turned to pink colour which suggested the handling of the tainted notes by the accused. The tainted currency notes were seized from the possession of A2 and the Investigating Officer compared the serial numbers of the notes with the sheet containing the serial numbers of the notes entrusted with CW1 during the pre- trap proceedings and was found tallying with each other. After sometimes, a person named Harish called A2 to his mobile phone and informed that he is waiting A2 near a tea shop in front of Nadakachery. The trap team went the said tea shop with A2 and Investigating Officer introduced himself to the said Harish. On interrogation Harish informed the Investigating Officer that he is driver of A1 and he was sent by A1 to receive the money from A2. Then A1 was called by A2 through his phone on instructions of the Investigating 7 Spl.C.C.No.107/2017 Officer and as such A1 came to Nadakachery and the Investigating Officer obtained explanations from both A1 and A2 and as the explanation given by them were not satisfactory, the Investigating Officer arrested A1 and A2 and after investigation laid charge sheet against the accused persons for offence punishable under sections 7, 8, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. My predecessor in office has taken cognizance for alleged offence and the case was taken on file as Spl.C.C.No.107/2017.
3. Accused Nos. 1 and 2 were secured through summons and after hearing the prosecution and defence, as there were sufficient materials to proceed against the accused persons charges were framed by my predecessor-in- office for the offence punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 against the accused No.1 and for offence punishable under section 8 against the accused No.2. Charges were 8 Spl.C.C.No.107/2017 read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.
4. In order to prove the prosecution case, the prosecution has examined in all nine witnesses as PWs 1 to 9 and got marked documents at Exs. P.1 to P.31 and 31(a) and MOs. 1 to 14 and 14(a) were identified. After closure of the prosecution evidence, statement of accused persons under section 313 Cr.P.C were recorded. Both the accused denied all the incriminating circumstances appearing against them in the prosecution evidence and they did not choose to adduce any defence evidence on their behalf.
5. Now, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 being public servant holding the post of Revenue Inspector, Nada Kacheri, office of the Deputy Tahasildar, Bengaluru North Taluk, Nagarabavi, Bengaluru, 9 Spl.C.C.No.107/2017 demanded illegal gratification of Rs.1,50,000/- which was scaled down to Rs 50,000/- in connection with survey of the land in Sy.No.24/3 of Srigandhada Kavalu, Bengaluru belonging to the mother-in-law of PW2 and on 05.05.2015 Accused No.1 demanded illegal gratification of Rs.50,000/- and on 06.05.2015 between 4.10 and 4.30 p.m. accused No.1 demanded and accepted illegal gratification of Rs.50,000/- through accused No.2 at the BBMP tax collection center situated at the ground floor of his office and thereby accused No.1 committed the offence punishable U/Sec.7 of Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond all reasonable doubt that on the said date, time and place, accused No.1 being public servant, by abusing his official position, has obtained illegal gratification of Rs.50,000/-10 Spl.C.C.No.107/2017
through accused No.2 from PW2 without public interest and committed criminal misconduct and thereby accused No.1 has committed an offence punishable under section 13(1)(d) read with section 13(2) of The Prevention of Corruption Act, 1988?
3. Whether the prosecution proves beyond all reasonable doubt that on the said date, time and place, accused No.2 a private individual accepted illegal gratification of Rs. 50,000/- on behalf of the accused No.1 as a motive or reward, for inducing by corrupt or illegal means to influence accused No.1 for submitting the report in connection with the survey of the land and thereby accused No.2 committed an offence punishable under section 8 of the Prevention of Corruption Act ?
4. What order?11 Spl.C.C.No.107/2017
6. Having heard the arguments on both sides and taking into consideration of evidence on record, my findings on the above points are as:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: In the Negative Point No.4: As per final order, for the following REASONS
7. Point Nos. 1 to 3: Since these three points are interlinked to each other and to avoid repetition I have taken them for discussion together.
8. According to the prosecution, accused No.1 being public servant holding the post of Revenue Inspector, Nada Kacheri, office of the Deputy Tahasildar, Bengaluru North Taluk, Nagarabavi, Bengaluru demanded illegal gratification of Rs.1,50,000/- which was scaled down to Rs 1,00,000/-, then to Rs 50,000/- in connection with submitting the report with regard to the survey of the land 12 Spl.C.C.No.107/2017 Sy.No.24/3 of Srigandhada Kavalu, Bengaluru belonging to the mother-in-law of PW2 and on 06.05.2015 between 4-10 and 4-30 p.m, Accused No.1 received illegal gratification of Rs.50,000/- through accused No.2 from PW2 Rangaswamy @ Raju.
9. There is no dispute that the accused No 1 is a public servant holding the post of Revenue Inspector, Nada Kacheri, office of the Deputy Tahasildar, Bengaluru North Taluk, Nagarabavi, Bengaluru. Hence, to prosecute accused No.1 prosecution sanction order from competent authority under section 19 of the Act is essential, since, grant of proper sanction by the competent authority is sine qua non for taking cognizance of the offence. It is contended on behalf of the accused No 1 that the sanction order is not valid. Two components have to be established before accepting a sanction order. First one is competency of the sanctioning authority and the other one is the application of mind by the sanctioning authority.
13 Spl.C.C.No.107/2017
10. Ex P1 is the sanction order issued by the Deputy Commissioner, Bengaluru City. Here in this case, PW1 V. Shankar was examined to prove the prosecution sanction order issued by him to prosecute A1. PW1 has deposed before this court that on 30.07.2016, Additional Director General of Police, Karnataka Lokayuktha, Bengaluru had made a requisition to him to accord prosecution sanction to prosecute accused No.1 with copies of the complaint, FIR, entrustment mahazar, trap mahazar, FSL report, sketch of place of occurrence, statements of the witnesses and explanation given by the accused persons. All these documents were scrutinized by him and he found that there is a prima facie case against the accused No.1. He deposed that at that time, accused No.1 was working as Revenue Inspector, Sanigoravanahalli Circle-2. He further testifies that he is the competent authority to remove Revenue Inspectors from their post and hence in exercise of the powers conferred on him, he issued Ex. P1 prosecution sanction order. From the cross examination of PW1 it can be 14 Spl.C.C.No.107/2017 seen that the accused has not disputed the competency of PW1 in issuing the sanction order. His cross examination is limited only with respect of rejection of the applications filed by mother-in-law of PW2 during the year 2010, 2012 and 2014 requesting the survey of the encroached land. It is contended by the counsel for the 1st accused that since PW1 had not properly perused the facts of the case and without applying his mind he had issued the Ex. P1 prosecution sanction order.
11. The learned Public Prosecutor submits that the contention of the learned counsel for the accused person will not sustain as the sanction order is valid and the accused No.1 has not disputed the competency of PW 1 in issuing the sanction order. Ex P1 sanction order which shows that PW 1 the Deputy Commissioner is the competent authority to remove a Revenue Inspector from his post and hence PW1 is the competent authority and he after looking into all the relevant materials placed before him with respect the 15 Spl.C.C.No.107/2017 allegations against the 1st accused he has issued the sanction order.
12. Before going to the validity of the Ex. P1 sanction order I am persuaded to look into some of the decisions of the Hon'ble Supreme Court in this regard relied by the learned Public Prosecutor. He drew my attention to the following case laws:
i. Hon'ble Supreme Court in C S Krishnamurthy Vs. State of Karnataka reported in (2005)4 SCC 81 has held that "the sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order".16 Spl.C.C.No.107/2017
ii. In State of Maharashtra through C.B.I V/s Mahesh G.Jain reported in (2013) 8 S.C.C. Page 119, the Hon'ble Supreme Court has held that "Grant of sanction is irrefragably a sacrosanct act and is entitled to provide safeguard to a public servant against frivolous and vexatious litigations. Satisfaction of the sanctioning authority is essential to validate an order granting sanction". The Hon'ble Supreme Court has further held that "Minor irregularities or technicalities are not to be given Everstine status". The Hon'ble Court has culled out certain principles with respect to the sanction order which are as under:
a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
b) The sanction order may expressly show that the sanctioning authority has perused 17 Spl.C.C.No.107/2017 the materials placed before it and, after consideration of the circumstances has granted sanction for prosecution;
c) The prosecution may prove by adducing the evidence that the materials were placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the materials placed before it.
iii. In Manzoor Ali Khan Vs. Union of India and others reported in (2015)2 SCC 33 Hon'ble Supreme Court of India held that "a fine balance has to be maintained between need to protect a public servant against mala fide prosecutions on the one hand and the object of upholding the probity in public life in prosecuting the public servant against whom prima facie material in support of allegation of corruption exists on the other hand."
iv. In P V Narasimha Rao Vs. State (CBI/SPE) 12 reported in (1998) 4 SCC 626 the Hon'ble Apex Court 18 Spl.C.C.No.107/2017 observed that "requirement of sanction u/s 19 (1) of PC Act is a matter relating to procedure and the absence of sanction does not go to the root of the jurisdiction of the Court"
13. Here, in this case, the prosecution has produced and marked the sanction order Ex P1 which clearly shows that all the materials were placed before it and after scrutiny of those materials sanction order has been issued. From the light of the above discussed decisions and the from the prosecution evidence adduced in this case, it can be safely concluded that there was sufficient material before the sanctioning authority and the Ex P1 prosecution sanction order is issued by the Competent Authority after applying his mind and hence it is not possible to agree that the Ext P1 prosecution sanctioning order is in any way vitiated.
14. Now coming to the facts and circumstances of this case, Smt. Channamma, mother-in-law of the de facto complainant Rangaswamy @ Raju, PW2 owned 1 acre 25 19 Spl.C.C.No.107/2017 guntas of land in Sy.No.24/3A of Srigandhakavalu, Bengaluru. The Karnataka 'D' Group Employees Association has acquired some portion of the said land and hence, she filed an application before the Taluk Office, Bengaluru North for survey of her land and she contacted the accused No.1., while so, she expired and therefore, PW2, son-in-law of Smt. Channamma contacted the accused No.1 in connection with the above application and requested accused No. 1 to carry out the survey work and to submit the report. The accused No.1 demanded bribe amount of Rs 1,50,000/-, later he scaled down to Rs 1,00,000/- and then to Rs 50,000/-. Accused No.1 informed PW2 to hand over the bribe amount to accused No.2 and accused No.2 was caught red handed while accepting the bribe amount on behalf of accused No.1 from PW2.
15. The de facto complainant CW1, who was examined as PW2 deposed that he and his mother-in-law approached the accused No.1 and requested to conduct survey the land 20 Spl.C.C.No.107/2017 then accused No.1 demanded money. After the death of his mother-in-law he approached accused No.1 twice or thrice. Initially, accused No.1 demanded Rs 3 lakhs as bribe to conduct the survey work of the land and when PW2 expressed his inability, accused No.1 intimated to give it by instalments. PW2 informed this to his friend Hyder, PW5 and they both approached accused No.1 who again demanded Rs 3 lakhs, which was later scaled down to Rs 2,50,000/-. PW2 informed the 1st accused that he is ready to give only Rs 50,000/-. These conversations were recorded by PW5 in his mobile phone. Thereafter, PW2 along with PW5 went to Lokayuktha office and lodged Ex. P2 complaint. This evidence of PW 1 is corroborated with the evidence of PW5 who in his chief examination has deposed that PW 2 Rangaswamy @ Raju informed him that the accused No.1 is demanding bribe amount for conducting survey of the land and hence, he and PW 2 approached the accused No.1 and enquired about the work, accused No.1 demanded bribe amount of Rs 1,50,000/- and when they expressed their 21 Spl.C.C.No.107/2017 inability, accused No.1 scaled down the bribe amount to Rs. 50,000/-. Therefore, accused No.1 lodged complaint at the Lokayuktha police station before PW 9. PW 9 also deposed that PW 2 appeared before him and lodged Ex P2 complaint. It is not seriously disputed by both the defence counsel with respect to Ex.P2 complaint. Therefore, from the evidence of PWs 2, 5 and 9 the prosecution has proved about the lodging of complaint by PW2 before PW 9.
16. It is the evidence of PW 2 that PW 9 has secured PW 3 Guruprasad and PW 4 Rajakumar, shadow witness and trap witness respectively. PWs 2, 3, 4 and 9 have deposed that PW 2 has produced 50 notes of Rs 1,000/-
denomination amounting to Rs 50,000/-, the numbers of the said notes were reduced to writing on a sheet of paper which is marked as Ex P4, notes were smeared with phenolphthalein powder and were placed in the pocket of PW 2's pants by PW4. Thereafter the fingers of PW4 were washed in a solution which turned to pink colour and the 22 Spl.C.C.No.107/2017 same was seized in a bottle. PWs 2, 3, 4 and 9 have further deposed that PW 9 instructed PW 2 to part with the tainted currency notes only on demand made by accused No.1. They further deposed that PW 9 instructed PW 3 to accompany PW 2 and observe what transpires between accused No.1 and PW 2. Later, PW 9 has drawn Ex. P5 pre- trap mahazar. From analysis of cross examination conducted by both the counsel for accused persons of these witnesses it is revealed that they have not raised any serious dispute with respect to pre-trap proceedings and pre-trap mahazar and hence the pre-trap proceedings and Ex. P5 mahazar stands proved.
17. Now the question arises for my consideration is whether the accused No.1 has demanded and accepted bribe from the PW2 for survey of land belonging to his mother-in- law to do an official favour. It is necessary to state that the prosecution is bound to establish that there was illegal demand of bribe and acceptance thereof and the same has 23 Spl.C.C.No.107/2017 to be found on facts. Learned counsel for accused No.1 vehemently argued that the prosecution has utterly failed to prove the basic aspect of demand and acceptance of bribe by A1 from PW2. He argued that Smt. Channamma, mother-in-law of PW2 had earlier filed applications in the year 2010, 2012, 2014 and 2015 before the Revenue Inspectors seeking the same relief for which she had filed the latest application and all the applications were rejected. The 'D' Group employees Housing Association had purchased the said agricultural land in question from father-in-law of PW2 after obtaining permission from the Deputy Commissioner and the land was converted to non- agricultural land from agricultural land, sites were formed and were allotted to its members for residential purpose. Therefore, the question of considering the application filed by Smt. Channamma does not arise. PW2, knowing the above facts in order to humiliate and implicate A1 in false case has lodged complaint against A1. The evidence of PWs 2, 3, 4 and 9 are not corroborating with each other. There 24 Spl.C.C.No.107/2017 are material omissions in their testimony which uproots the prosecution case. He further argued that mere recovery of tainted currency notes from the accused without demand is not sufficient to convict the accused. He argued that it is well settled principle that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, the burden of proving the defence shifts upon the accused and the presumption would arise under section 20 of The Prevention of Corruption Act 1988. In the present case, PWs 2, 3, 4, 5 and 9 have not specifically supported the case of the prosecution with regard to the demand and acceptance of bribe by accused No.1. He relied on the following authorities.
1. (2016) 12 Supreme Court Cases page 150 in V.Sejappa V/s State by police inspector, Lokayuktha, Chitradurga. 25 Spl.C.C.No.107/2017
2. (1985 GLH Page 103 in Kishorchand Manuskhlal Joshi V/s State of Gujrat.
3. (2016)1 Supreme Court Cases page 713 in N.Sunkanna V/s State of Andhra Pradesh
4. (2009) 15 Supreme Court cases page 200 in State of Maharastra V/s Dyaneshwar Laxman Rao Wankhede
5. (1987) 1 Supreme Court Cases page 533 (Balbir Singh V/s State of Haryana)
18. Learned counsel for the accused No.2 argued that the accused No.2 is no way concerned with the present case. He is a private individual and he is not working in the office of the accused No.1 as alleged by the prosecution. He had been to B.B.M.P office to remit the tax. When he enquired about the place where the tax is to be remitted, two persons took him to the office of the Revenue Officer and discussed with another person in the said office and handed over some amount of currency notes to him and asked him to help them to count the amount for remitting 26 Spl.C.C.No.107/2017 tax. While he was counting the amount, Lokayuktha police came and seized the said amount from his hands and recorded his statement. He further argued that from the evidence of PWs 2, 3, 4, 5 and 9 nothing could be gathered that accused No.2 demanded and accepted bribe amount. He relied on the following authorities:
1. AIR 1990 Supreme Court page 287 (Sadashiv Mahadeo Yavaluje and Gajanan Shripatrao Salokhe V/s The State of Maharashtra.
2. AIR 1996 Supreme Court page 490 (Virendranath V/s State of Maharashtra)
3. 2013 Supreme Court page 3368 in State of Punjab V/s Madan Mohan Lal Verma).
4. AIR 2016 Supreme Court page 298 (Kishan Chander V/s State of Delhi)
5. (2016) 12 Supreme Court Cases page 150 (V.Sejappa V/s State by Police inspector, Lokayuktha Chitradurga.
6. (2006) 13 Supreme Court Cases page 305 (V.Venkata Subbarao V/s State represented by Inspector of Police, A.P)
7. (2011) 6 Supreme Court Cases page 450 in State of Kerala and another V/s C.P.Rao.27 Spl.C.C.No.107/2017
8. (2015) 3 Supreme Court Cases page 247 in M.R.Purushotham V/s State of Karnataka.
9. (2005)6 Supreme Court cases page 211 (Ganga Kumar Srivastava V/s State of Bihar)
10. (2009) 15 Supreme Court cases page 200 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede)
11. (2014) 13 Supreme Court cases page 55 (B.Jayaraj V/s State of Andhra Pradesh)
12. (2007) 8 Supreme Court Cases page 246 (K.Subba Reddy V/s State of A.P)
13. (2015) 16 Supreme Court Cases page 350 (Khaleel Ahmed V/s State of Karnataka)
14. (2015) 11 Supreme Court Cases page 314 (C.Sukumaran V/s State of Kerala).
15. (2016) 1 Supreme Court Cases 713 (N.Sunkanna V/s State of Andhra Pradesh)
16. (2014) 10 Supreme Court Cases 473 (Anvar P.V. V/s P.K.Basheer and others)
19. I have perused Ex.P.2 complaint lodged by PW.2 dated 06.05.2015 which reveals that his mother-in-law had made an application to the Taluk office for survey of the land 28 Spl.C.C.No.107/2017 bearing Sy.No.24/3A, situated at Srigandhada Kavalu, Bengaluru. In this connection, PW.2 approached the accused No.1 who demanded bribe of Rs.1,50,000/- which was later scaled down to Rs 1,00,000/- and then to Rs. 50,000/-. PW 2 further testifies that before going to the office A1, he contacted the accused No.1 through mobile phone, then accused No.1 informed that he is not in his office and will be late in reaching his office. At about 2.00 - 2.30 p.m., PW2 again went to the office of accused No.1 and found that he was not there is his office and hence called him and talked with him over phone and informed him that he has brought the money then, accused No.1 told the PW2 to hand over the amount of Rs 50,000/- to accused No.2 who was then present in the office of A1. PW2 went inside the chamber of A1 where A2 was sitting and told him that the accused No.1 had instructed to hand over Rs 50,000/- to accused No.2. Accused No.2 took him to the ground floor where the BBMP tax collection counter is situated and received the cash of Rs 50,000/- from PW2 and after 29 Spl.C.C.No.107/2017 counting the same kept tried to hand over the same to CW5 one Basavaraju who refused to accept it and then A2 kept the tainted currency notes inside the pocket of his pants. In the meantime, he flashed the signal. Immediately, PW 4 and police party arrived to the spot and caught hold of accused No.2. The tainted currency notes were recovered from A2 and his hands were washed in a colourless solution which turned to pink when the hands of A2 were immersed in the solution. Police secured A1 to the Nadakachery through A2. The Lokayuktha police inspector seized the documents pertaining to PW2. Lokayuktha police seized the pants worn by accused No.2 after making alternative arrangement for another pair of pants. Both accused Nos 1 and 2 submitted their respective explanations.
20. In his cross examination, PW 2 admits that earlier in the year 2010, 2012 and 2014 his mother-in-law had filed applications for survey of the same land which were rejected. Once again on the same set of facts, another 30 Spl.C.C.No.107/2017 application was filed in the year 2015. He further admits that he did not file any application for survey of the said land after the death of his mother-in-law nor he filed any letter to consider the said application of his mother-in-law and continue the survey work on his behalf. He also admits that after he lodged the complaint before the Lokayuktha police, he did not make any follow up of the said application. It is his evidence that there were many civil and criminal cases pending before courts with respect to the said land. He further admits that he had filed many cases against the possessor of the said land and later compromised the cases after receiving compensations. He also admits in his cross examination that the Tahsildar and Revenue Inspector have informed him as per the previous applications filed by his mother-in-law permission was granted to 'D' Group Employees Association to purchase 11.09 acres of land in Sy.No.24/3A under Section 109(4) of Karnataka Land Reforms Act as per Order dated 10.12.2002. He further admits that his father-in-law Munivenkatappa informed him 31 Spl.C.C.No.107/2017 about the delivery of possession of the aforesaid property to 'D' Group Employees Association through General Power of Attorney dated 11.03.2002
21. In their evidence PW 3 Guruprasanna H.L. and PW4 Rajkumar, the shadow witness and trap witness respectively, depose that before leaving the Lokayuktha office, PW 2 contacted the accused No.1 over phone and accused No.1 informed that he will reach the office a little late and asked PW 2 to hand over the cash to accused No.2 who was in the office of accused No.1. But they both testify in their cross examination that they do not know to which numbers PW2 had called before leaving the Lokayuktha office and after reaching Nadakachery. They also admit that they cannot decisively say the person on the other side of the phone who had talked to PW2 was A1 alone. Hence, the oral evidence of PW2 that accused no.1 demanded bribe from him and when he contacted accused no.1, PW2 was intimated to handover the bribe amount to accused no.2 32 Spl.C.C.No.107/2017 stands as such without any corroboration since PW3 and PW4 who are said be present with PW2 at the time when PW2 contacted accused No. 1 over phone could not say precisely with whom PW2 was talking. To corroborate the version of PW2 with respect to demand of bribe by A1, the prosecution produced MOs 2 and 3 CDs which contains the voice of A1 demanding bribe is recorded and the prosecution also produced the CDs which contains the voice samples of the A1 and A2 along with the Call Details Record of the mobile of the complainant wherein the details of the call made by PW2 to accused No.1 to his mobile phone at that particular time is found which is marked as Ex. P29 through the Investigating Officer, PW9. The prosecution also produced the transcriptions of the phone call recordings. The EX. P 29 CDR of M/s Bharthi Airtel Ltd., shows the call details of mobile number 9880501573, owned by PW2, wherein lot of incoming and outgoing calls are made to and from a mobile number 9008030610, but no documents are produced before this court to prove that this particular 33 Spl.C.C.No.107/2017 mobile number is owned by or used by the 1st accused. Along with Ex. P29 CDR, a certificate contemplated u/s 65 B of the Indian Evidence Act is also annexed which is marked as Ex. P 30 before this court through PW9 the Investigating Officer. Therefore, the evidentiary value of Ex. P30 is limited to the effect that the Investigating Officer had in fact received it from M/s Bharthi Airtel Ltd. The contents of Ex. P30 is not proved as per law since the person who issued the said document is not examined before this court. Therefore, Ex. P29 and 30 cannot be relied upon to arrive at a conclusion that the mobile number 9008030610 to which PW2 had called from his mobile belongs to accused No.1. The prosecution has produced the CDs at MO2, 3, 4 and 5 which contains the voices of A1 and A2. MO2 is the recordings of demand of bribe by A1 which was recorded by PW2 in his mobile phone and when he produced the same along with his complaint the Investigating Officer had transferred the same using his office computer to the CD. MO3 is the recordings which were recorded through the 34 Spl.C.C.No.107/2017 digital voice recorder which is alleged to contain the voices of A1 and A2 and contents of the same is transferred to MO3 by the Investigating Officer using his officer computer. MO4 and MO5 are the sample voices of A1 and A2 collected by the Investigating Officer during investigation. Law is well settled with respect to admissibility of electronic/digital evidence as per the law laid down by Hon'ble Apex Court in Anvar P. V. v/s P. K. Basheer and others reported in (2014)10 SCC 473 that a digital evidence should necessarily be produced with a certificate mentioned under section 65-B of the Indian Evidence Act. Ex. P31 is the certificate attached by the Investigating Officer to ensure the authenticity of these digital evidences as contemplated u/s 65-B of the Indian Evidence Act. The Investigating Officer certifies with respect to the copying of the contents from the sources devices to the CDs and also certifies that the computer which was used to copy the same was in his custody and the said computer was operating properly. From the perusal of the certificate it can be seen that there is no 35 Spl.C.C.No.107/2017 authentication or affirmation made stating that the contents of the CDs are the true reproduction of the original data found in the source devices. Therefore, Ex. P31 does not fully satisfy the conditions as laid down in section 65B of the Indian Evidence Act, 1872 with respect to admissibility of electronic/digital evidence and hence the MOs 2 and 3 CDs which contains the voice of A1 demanding bribe is recorded and MO4 and 5, the CDs which contains the voice samples of the A1 and A2 is not admissible in evidence. MO 8 and MO9 are the CDs wherein in the pre-trap proceedings and trap proceedings were videographed by the Investigating Officer using a Sony Handycam and the contents were copied to MO 8 and MO9 CDs to which also there is reference in the Ex. P31 certificate. Therefore, these digital evidences also cannot be accepted for want of proper certificate as contemplated u/s 65-B of Indian Evidence Act.
22. Learned counsel for accused No.1 drew my attention to the Hon'ble Apex Court decision in Mukhtiar 36 Spl.C.C.No.107/2017 Singh (since deceased) through his Legal Representatives V/s State of Punjab reported in AIR 2017 Supreme Court page 3382, wherein it was held that;
"The bald allegations of the complainant with regard to the demand and payment of Rs 30,000/- as well as the demand of Rs 20,000/- as remained uncorroborated. His statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a deceive conclusion that such demand in fact has been made by the original accused" - and the Court laid down the proposition that "stray query ipso facto in the absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under section 7 or 13 of the Act".
Applying the settled position of law as laid down by the Hon'ble Supreme Court to the case on hand, I am of the considered opinion that the prosecution has not proved the 37 Spl.C.C.No.107/2017 demand of bribe by either A1 or A2 by adducing cogent and convincing evidence.
23. It is the prosecution case that A1 received bribe amount of Rs. 50,000/- through A2, a private person who was appointed by A1 as his assistant. It is not disputed that the tainted currency notes were recovered from the possession of A2 by the Investigating Officer and his team. From the testimony of PW2 and PW3 it is revealed that when they went to the office of the 1st accused they found A2 in the office and PW2 was told by A1 to hand over the bribe amount to A2 and hence A2 took PW2 out of the chamber of A1 to the office of the BBMP Tax collection center and received the tainted currency notes on behalf of A1, counted it and kept it in the left side of his pants pocket. The further testimony of PW2, 3 and the testimonies of PW4 and PW9 goes on to show that the said tainted currency notes were taken out of the pocket of A2 and both the hands of A2 were washed in colourless Sodium Carbonate 38 Spl.C.C.No.107/2017 solution which turned to pink colour indicating the reception of the tainted currency notes. The pants worn by A2 were also seized by the Investigating Officer after making alternate arrangements for another pair of pants to the 2nd accused. The seized pants were also sent for chemical examination to confirm the presence of phenolphthalein which was smeared on the currency notes during the pre- trap proceedings along with the hand wash solutions of the 2nd accused. The Chemical Examination Report which is marked as Ex. P28 proves positive to the presence of phenolphthalein in the front left pocket of pants belonging to A2. Since the recovery of tainted money from the possession of the 2nd accused is not disputed by him, the explanation given by him to the Investigating Officer soon after the recovery of tainted money from his possession has to be looked into at this juncture. The explanation given by him is marked as Ex. P8 wherein he states that he was appointed by A1 as a private assistant and he was working at the office of the 1st accused for the last 5 months as on date of trap 39 Spl.C.C.No.107/2017 and on 06-05-2015 a person came to his office when A1 was not there in the office and informed him that A1 had told that man to hand over the money that man had brought to him. Hence, he tried to contact A1 over phone but he could not connect A1 through phone and as he had some work at the BBMP Tax collection center situated near the office of A1, he had left the office and then the man also followed him and handed over the money which he received and kept it in his pocket. Suddenly the Lokayuktha police came and caught hold of him and recovered the money from his pocket. Later in the presence of the Investigating Officer when 1st accused called him in his mobile phone and when he enquired as to what to do with the money he had received, 1st accused told him to hand over the money to one Harish. Therefore, from the line of cross-examination conducted by the learned counsel for the 2nd accused and from the explanation offered by the 2nd accused to the Investigating Officer soon after his arrest, the receipt of the tainted money by him is not disputed. Since, section 20 of 40 Spl.C.C.No.107/2017 the PC Act is not applicable to a private person presumption cannot be raised against the 2nd accused. As demand of bribe by A1 is also not proved by the prosecution section 20 presumption cannot be raised against him either. The burden is still on the prosecution to prove that the money received by the 2nd accused is the illegal gratification he received for and on behalf of A1. When A2 was examined u/s 313 of the Code of Criminal Procedure, he offered an explanation which is entirely different to the stance taken by him at the time of his arrest. He says in his 313 Cr.P.C statement that he had come to the BBMP Tax collection center to remit tax and while he was there PW2 approached him and gave him Rs. 50,000/- and asked him to help him (PW2) in counting the said amount and as such he counted the money and when he was about to return the said money the Investigating Officer and the trap team came to the spot and caught hold of him.
41 Spl.C.C.No.107/2017
24. Learned Public Prosecutor submits that the 2nd accused has no case that the there was any ill will for PW2 to unnecessarily hook the 2nd accused in a false case. He further submits that the circumstances are consistent with the guilt of the accused persons and the oral evidences with respect to the demand by A1 and subsequent acceptance of the bribe money by A2 for and on behalf of A1 proves the guilt of both the accused.
25. The counsel for accused No.2 pointed out the opinion of the Hon'ble High Court of Karnataka R.Malini V/s State of Karnataka reported in 2012(1) KCCR page 414, wherein it was held that-
"mere possession of the amount by the accused cannot be taken as receipt of the amount by the accused after demand made by him as the evidence of demand is totally lacking"..... "It is not the passing of the money alone that establishes a corruption charge because the gravamen of the offence lies in the fact 42 Spl.C.C.No.107/2017 that the money was paid for a corrupt purpose and it is that aspect which is paramount". It is further held that "in the absence of any evidence of demand and acceptance of the amount as illegal gratification -
mere acceptance of money by the appellant will not be sufficient to fasten the guilt".
It is not the case of the prosecution that A2 had demanded any bribe from PW2, but from thorough reading of the entire prosecution records and the evidences adduced by the prosecution, nowhere it is stated that the PW2 was in any acquainted with A2. It can be seen from the evidence that PW2 was meeting A2 for the first time on the date of trap. It is the specific case of PW2 that he had handed over the tainted currency notes to A2 on instructions from A1. From the testimony of PWs 2, 3 and 5 it is clear that A2 had no idea for what purpose PW2 was giving the money to him. Hence applying the ratio given by the Hon'ble High Court of Karnataka in R. Malini's case(supra), even though A2 gives two different versions with respect to the receipt of the 43 Spl.C.C.No.107/2017 tainted currency notes, as long as the prosecution discharges its initial burden that A2 had received money on behalf of A1 knowing that it is the bribe amount, it is not possible to fasten guilt upon him on mere recovery of tainted currency notes from him.
26. It is the prosecution case that after A2 was arrested, A2 received a call from one Harish, who is said to be the driver of A1 stating that he was waiting near the tea shop situated in front of the office of A1 and hence the Investigating Officer and his trap team along with A2 went near the tea shop and when the Investigating Officer introduced himself to the above said Harish, he informed that he had come there as per the instructions of A1 to receive money from A2. This Harish could have been a good link to connect A1 to this incident, but he is neither cited as witness by the Investigating Officer nor examined before court by the prosecution. It is revealed from the testimonies of PWs 2, 3, 4, 5, and 9 that immediately after the arrest of 44 Spl.C.C.No.107/2017 A2 the Investigating Officer secured the presence of A1 and obtained the explanations of both accused Nos 1 and 2. Investigating Officer seized the documents pertaining to PW2 and after obtaining the Xerox of the said documents, returned the original documents to accused No.1.
27. Ex. P7 is the explanation given by the accused No.1 on 6.5.2015 which reveals that on 7.4.2015 he received an application from Nadakacheri and due to Government holidays and other urgent work, delay was caused in considering the application of PW2. He further states that he asked PW2 to furnish the certified copied of RTC and Mutations with respect to the land in question, but PW2 produced only certified copy of RTC and hence the application could not be considered. He further stated that a complaint was lodged by one Nanjundappa and one C.Anand against PW2 alleging that PW2 was demanding Rs 50 lakhs from them after raising a temporary shed in the property sold to them by his father-in-law. The owner of the property 45 Spl.C.C.No.107/2017 bearing Sy.No.24/3A by name Munivenkatappa, who is none other than the father-in-law of PW2, sold the aforesaid property to 'D' Group Employees Association and Smt.Channamma illegally got mutated 1 acre 25 guntas of land in the said survey number causing trouble to the vendees of the said property. Therefore, in order to solve the dispute and to submit the report in this regard, he kept the said application with him. He further stated that on 6.5.2015 when he was away from his office on other official work, PW2 contacted him over phone and informed him that the certified copies of mutation pertaining to the property is ready with him and hence he instructed PW 2 to hand over to the same to accused No.2, but instead PW 2 paid the bribe amount to accused No.2 only to harass him and to get the work done.
28. Again the learned counsel for accused No.1 took me to the decision in R.Malini's case (supra) with respect to necessity of pendency of work with the accused to hold him 46 Spl.C.C.No.107/2017 guilt for demand of bribe to complete the pending official work. It is held by the Hon'ble High Court of Karnataka that-
"when the certificate was kept ready much before lodging of the complaint the question of accused demanding bribe amount for doing any work does not arise as no work was pending at the time of lodging the complaint".
As far as facts of this case is considered it can be seen that an application pertaining to Smt. Channamma was pending before A1 and PW2 was making a follow up of the said application. And Ex. P12 is the document dated 28-05- 2015 marked by the learned counsel for A1 through PW6, the Tahsildar of Bangalore North while cross-examining him which corroborates the Ex. P7 explanation given by A1 to the Investigating Officer. Therefore, as far as A1 is considered there was no work pending before him as it was PW2, who had to furnish necessary documents before the 1st accused so that he could consider the application.
47 Spl.C.C.No.107/2017
29. Section 20 of The Prevention of Corruption Act 1988 provides that if the accused person had accepted any gratification other than legal remuneration, it shall be presumed, unless the contrary is proved, that he accepted that gratification, as a motive or reward such as mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. If it is proved by the prosecution that the accused had accepted any bribe amount, then only the burden shifts to accused to prove that the amount he received was not a bribe amount. None of the prosecution witness could convincingly lay credence to the prosecution case before this court and prove the demand and acceptance of bribe by A1 so that this court could raise the statutory presumption as contemplated u/s 20 of the P C Act.
30. Upon appreciation of oral and documentary evidences on record and relaying upon the authoritative decisions placed before me by the learned counsel for the 48 Spl.C.C.No.107/2017 accused and learned Public Prosecutor, I am of the considered view that the prosecution could not satisfactorily prove the guilt of accused No.1 and 2 beyond reasonable doubt by adducing cogent, convincing and corroborative evidence. Thus, I answer point Nos. 1 to 3 in the in the Negative.
31. Point No 4: In the result, I proceed to pass the following:
ORDER Under section 248(1) Cr.P.C the accused No.1, Diwakar is acquitted of the offence punishable under section 7 of The Prevention of Corruption Act 1988. The accused No. 1 is also acquitted of the offence defined under section 13(1)(d) which is punishable under section 13(2) of The Prevention of Corruption Act 1988. Accused No.2 Anand is acquitted of the offence punishable under section 8 of The Prevention of Corruption Act 1988.
The bail bonds and surety bonds of the accused Nos. 1 and 2 other than the bonds 49 Spl.C.C.No.107/2017 executed by A1 and A2 under section 437A of Cr.P.C, stands cancelled.
MO 16 cash of Rs 50,000/- is ordered to be confiscated to the State. MOs 1, 2, 3, 4, 5, 8 and 15 are ordered to be returned to the Superintendent of Police, Karnataka Lokayuktha, Police Wing, City Division, Bengaluru. MOs 2(a), 3(a), 4(a), 5(a), 6, 7, 8(a), 9, 10, 11, 12, 13, 14, 14(a), 15(a) and 16(a) being worthless are ordered to be destroyed. Order regarding the disposal of MOs 1 to 16, 16(a) shall be given into effect after the appeal period is over.
(Typed on my dictation by the Judgment Writer directly on computer, printed copy taken over, corrected, signed and then pronounced by me in open Court on this the 07th day of June, 2018) Sd/- 7.6.2018 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : V.Shankar
50 Spl.C.C.No.107/2017
PW.2 : Rangaswamy @ Raju
PW.3 : Guru Prasanna H.L
PW.4 : Rajkumar
PW.5: M.Hyder
PW 6 : B.A.Appaji Gowda
PW 7 : Shilpa
PW 8 : Smt.Srividhya
PW 9 : K.P.Vishnuvardhan Pandith
List of documents marked on behalf of prosecution:
Ex P 1 : Sanction order Ex P1(a) : Signature of PW 1 Ex P2 : Complaint Ex P2(a) : Signature of PW 2 Ex.P2(b) : Signature of PW 9 Ex P 3 : Sheet containing the mobile record transcription Ex P3 (a) : Signature of PW 3 Ex P3 (b) : Signature of PW 4 Ex P3 (c) : Signature of PW 9 Ex P4 : Sheet containing details of currency notes Ex P4 (a) : Signature of PW 3 Ex P4 (b) : Signature of PW 4 Ex P4 (c) : Signature of PW 9 Ex P5 : Pre-Trap Mahazar 51 Spl.C.C.No.107/2017 Ex P5(a) : Signature of PW 3 Ex P5(b) : Signature of PW 4 Ex P5(c) : Signature of PW 9 Ex P6 : Sheet containing the transcription of voice recorder Ex P6 (a) : Signature of PW 4 Ex P6 (b) : Signature of PW 9 Ex P7 : Explanation of accused No.1 Ex P7 (a) : Signature of PW 4 Ex P7 (b) : Signature of PW 9 Ex P8 : Explanation of accused No.2 Ex P8 (a) : Signature of PW 4 Ex P8 (b) : Signature of PW 9 Ex P9 : Trap mahazar Ex P9 (a) : Signature of PW 4 Ex P9 (b) : Signature of PW 2 Ex P9 (c) : Signature of PW 4 Ex P9 (d) : Signature of PW 9 Ex P10 : Report of Basavaraju dtd 6.5.2015 Ex P10 (a) : Signature of PW 4 Ex P 11 : Sheet containing the transcription of phone call recordings Ex P11 (a) : Signature of PW 4 Ex P 12: Report of PW 6 Ex P12 (a) : Signature of PW 6 Ex P 13 : Relevant portion of the statement of PW 7 52 Spl.C.C.No.107/2017 Ex P 14 : Relevant portion of the statement of PW 7 Ex P 15 : FSL Report Ex P15 (a) : Signature of PW 8 Ex P 16 : Specimen sample seal Ex P 17 : Case papers Ex P17 (a) : Portion of the page No.73 Ex P 18 : Attendance register extract Ex P 19 : Work distribution details Ex P 20 : Seal acknowledgment letter Ex P 21 : PF No.51/2015 dtd 6.5.2015 Ex P 21(a) : Signature of PW 9 Ex P 22 : Sketch prepared by Engineer Ex P 23 : Service particulars of the accused Ex P 24 : Voice sample mahazar Ex P 24 (a) : Signature of PW 9 Ex P 25 : Specimen seal Ex P 26 : Acknowledgment letter of Rajkumar Ex P 27 : PF No.89/2015 dtd 25.6.2015 Ex P 27(a) : Signature of PW 9 Ex P 28 : FSL Report Ex P 29 : CDR of Airtel company (call details) Ex P 30: 65 B Certificate of Airtel company Ex P 31 : 65-B certificate issued by PW 9 Ex P 31(a) : Signature of PW 9 53 Spl.C.C.No.107/2017 List of material objects marked on behalf of the prosecution:
MO 1 : 'F' Metal seal
MO 2 : C.D (Complainant produced the CD)
MO 2(a) : Cover
MO 3 : C.D : conversation recorded in the voice recorder
MO 3(a) : Cover
MO 4 : C.D - Sample voice of Accused No.1
MO 4 (a) : Cover
MO 5 : CD - Sample voice of Accused No.2
MO 5 (a) : Cover
MO 6 : Bottle containing sample solution
MO 7 : Bottle containing hand wash of witness Rajkumar
MO 8 : CD - Pre trap proceedings
MO 8 (a) : Cover
MO 9 : Bottle containing sample solution
MO.10: Bottle containing right hand wash solution of
accused No.2
MO.11: Additional bottle containing right hand wash
solution of accused No.2
MO 12 : Bottle containing left hand wash solution of
accused No.2
MO 13 : Additional bottle containing left hand wash
solution of accused No.2
MO 14 : Pant
54 Spl.C.C.No.107/2017
MO 14 (a) : Cover
MO 15 : CD - Trap proceedings video
MO 15 (a) : Cover
MO 16 : Cash of Rs 50,000/- ( 1000 x 50)
MO 16 (a) : Cover
List of witnesses examined on behalf of accused:
NIL List of documents marked on behalf of accused: Ex D1. True copy of letter of Smt.Channamma dtd 28.04.2010 Sd/- 7.6.2018 [MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU