Bangalore District Court
State By Lokayukta Police Station vs Sri.M.B. Ramakrishna Reddy on 24 May, 2016
IN THE COURT OF THE LXXVIII ADDL.CITY
CIVIL & SESSIONS JUDGE & SPECIAL JUDGE:
MAYO HALL UNIT: BANGALORE.
(CCH-79)
Present: Sri. D.T.Devendran, B.A. LL.B.
LXXVIII City Civil & Sessions Judge
& Special Judge, Mayo Hall Unit,
Bengaluru.
Dated this the 24th day of May 2016.
SPl.C.C. No: 90/2011
Complainant: State by Lokayukta Police Station,
Bangalore.
(By Public Prosecutor)
Vs.
Accused: Sri.M.B. Ramakrishna Reddy
S/o Bayyareddy, 31 years,
Police Sub-Inspector, Kadugondanahalli
PS, Bangalore.
R/at No.3, Tunga Block, Police quarters,
CAR North, Bangalore.
(By Sri.K.Janardhan, Advocate)
2
Spl.C.C.No.90/2011
Date of commission of offence 25.11.2010
Date of report of occurrence 03.12.2010
Date of arrest of accused 03.12.2010
Date of release of accused on 08.12.2010
bail
Date of commencement of 31.07.2013
evidence
Date of closing of evidence 18.02.2016
Name of the complainant M.S.Siddiqui
Offence complained of U/S 7, 13(1)(d) r/w
13(2) of Prevention of
Corruption Act,1988.
Opinion of the Judge Acquitted
Date of Judgment: 24-05-2016
....
JUDGMENT
The Police Inspector, Bangalore City Division, Karnataka Lokayukta has filed charge sheet against the accused for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
2. Brief facts leading to the case are that complainant by name M.S. Siddiqui, a building contractor in the name of 3 Spl.C.C.No.90/2011 Décor Concept was running his office in the first floor of building belonging to one Shaik Abdul Khader. In the month of May 2010, the said Shaik Abdul Khader and the complainant entered into an agreement for renovation of the building for a sum of Rs.7,60,000/-. Out of that the complainant has received Rs.6 lakhs and was doing the repair work. On 19.08.2010 Raja, Gopi and Anitha the sons of one M.Muniyappa came along with the stay order of the court and taking the complainant to KG Halli Police station through police have instructed the complainant not to proceed with further work. When this matter was informed to Shaik Abdul Khader who instructed the complainant to go on with construction work and he would get the stay order vacated. Two months thereafter one Sajjad taking advantage of the situation has instigated Shaik Abdul Khader to lodge complaint against the complainant and to get the matter settle and in that connection has asked for commission of Rs.50,000/-. In furtherance of that, they have also approached KG Halli PS and lodged complaint with 4 Spl.C.C.No.90/2011 the accused who was the Sub-Inspector of Police. The accused called complainant over phone, when he was shown the copy of stay order scolding Shaik Abdul Khader has sent the complainant. On 23.11.2010 when the complainant had approached accused he has suggested for settlement. On 25.11.2010 in the mid night when the complainant met the accused he was told to pay Rs.50,000/- for settlement. The complainant told that he is not in a position to pay Rs.50,000/- but will make payment of Rs.25,000/- for that he did not agree. As the police were sent to his house, fed up with that the complainant on 03.12.2010 had approached Lokayukta and lodged his complaint.
3. On the basis of the said complaint the Lokayukta police registered the case in their station Cr.No.58/2010 securing panch witnesses drew the pre-trap mahazar. When the complainant contacted the accused over phone he was asked to come to Police station. When the complainant told that he is afraid of going to Police station, he was told to 5 Spl.C.C.No.90/2011 come to the house of Shaik Abdul Khader. For that also the complainant did not agree as such the accused told him to come to Krishna Sagar Hotel at HBR Layout, Bengaluru.
4. Accordingly, the complainant and trap party at about 4.15 p.m. went to new Krishna Sagar Hotel and were waiting for arrival of accused. When the accused came there the complainant along with him went to the first floor after taking some food they came down. Both of them went to the place where the accused has stopped his department motor cycle bearing Regn.No.KA.02.G.685 where the complainant has kept the tainted money in the dickey box. Then the complainant gave signal to the trap party, before they could arrive the accused sped. Therefore, the trap party assuming that the accused might have gone to Police station at about 6.15 p.m. went to KG Halli Police station and found the motor cycle parked in the main gate. The Investigating Officer went inside the Police station introduced himself to the accused and on asking the accused 6 Spl.C.C.No.90/2011 told that the money is in the dickey box of his motor cycle. Getting the key of dickey box, one of the panch witnesses was asked to open the dickey where the trap party found the tainted money. The trap party rubbed the dickey box and the paper found therein with the help of cotton. When it was immersed in the sodium carbonate, the same turned into a pink colour. Thereafter the trap party arresting the accused retuned to Lokayukta police station for preparing trap mahazar. During the course of trap mahazar the Investigating Officer got reduced the conversation recorded in the digital voice recorder and the button camera, videographed the proceedings. On questioning the accused gave his written statement, as the same was not convincing the Investigating Officer produced the accused before the Special Judge. Initially the accused was taken to judicial custody and later released on bail. Thereafter, the Lokayukta police collecting necessary documents and obtaining sanction from the competent authority have filed charge sheet against the accused.
7
Spl.C.C.No.90/2011
5. After receipt of charge sheet, cognizance is taken. The accused is duly represented by his counsel. After furnishing copies of charge sheet and other connected papers and hearing both sides, charge came to be framed against the accused it was read over and explained. Since the accused denied the charges leveled against him and claimed to be tried the matter was posted for trial.
6. In support of its case, the prosecution examined PWs 1 to 8 through them got marked documents as per Ex.P.1 to P.29 and MOs 1 to 21 and closed its side. Then the accused was examined U/s 313 of Cr.P.C., and questioned about incriminating evidence appearing against him in the evidence of prosecution witnesses. Except that Lokayukta police visited his station the accused has denied all other evidence as false and he has also filed his written statement along with the copy of judgment passed in O.S.No.1242/2011. However, the accused did not choose to 8 Spl.C.C.No.90/2011 lead any defence evidence. Therefore, the matter was posted for arguments.
7. Heard Learned Public Prosecutor for the State and Sri. K.Janardhan, the learned counsel for the accused and perused the case papers.
8. On perusal, the following points arise for my consideration:
1. Whether prosecution proves that the sanction for prosecution issued against the accused is a valid one?
2. Whether the prosecution proves beyond reasonable doubt on 03.12.2010 at about 6.10 p.m. near Krishna Sagar Hotel, HBR layout, Bangalore the accused being a public servant working as Police Sub-Inspector, K.G.Halli Police station, Bengaluru for not registering the case against complainant M.S.Siddiqui has demanded and accepted Rs.25,000/- as illegal gratification?
3. Whether the prosecution proves that the accused be a public servant 9 Spl.C.C.No.90/2011 on 03.12.2010 at about 6.10 p.m. near Krishna Sagar Hotel, HBR layout, Bengaluru by corrupt or illegal means or otherwise by abusing his possession obtained pecuniary advantage to the extent of Rs.25,000/- and thereby committed criminal misconduct?
4. What order?
9. My findings to the above points are as under:
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
10. Point No.1:- The learned counsel for accused
submitted that in this case the prosecution has not produced the valid sanction order. In order to prove the validity of sanction order the prosecution apart from producing Ex.P.1 the sanction order has also examined PW.1 who has issued it. PW.1 in his chief-examination deposed that during the 10 Spl.C.C.No.90/2011 year 2011 when he was working as Additional Commissioner of Police, Administration, Bengaluru on 05.02.2011 has received letter from ADGP Lokayukta seeking sanction to prosecute the accused. It is also his evidence that on going through the papers send to him he was convinced and as the disciplinary authority was competent had issued sanction order. During the course of his cross-examination held on behalf of the accused though admitted that he has not referred to the appointment order of accused, has denied the suggestion that he had no powers to issue sanction u/s 19 (1)(c) of Prevention of Corruption Act, 1988.
11. The learned counsel for accused submits that at the relevant point of time PW1 was working as Additional Commissioner of Police. The Commissioner was the competent authority therefore the sanction order produced in the case is issued by an incompetent authority. In support of his submission that commissioner is the competent 11 Spl.C.C.No.90/2011 authority the learned counsel for accused has relied on Ex.P20 wherein at col No.7 it has been mentioned as Police Commissioner is the competent authority. DgÉÆævÀgÀ ¸ÀPÀëªÀÄ ¥Áæ¢üPÁgÀ ¥Éǰøï DAiÀÄÄPÀÛgÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ (DgÉÆævÀgÀ£ÀÄß PÉ®¸À¢AzÀ ªÀeÁ ªÀiÁÀqÀĪÀ C¢üPÁgÀªÀżÀîªÀgÀÄ) The learned counsel for accused in support of his submission has relied on certain rulings. In the case of State, Inspector of Police -Vs- Surya Sankaram Karri reported in 2006 AIR SCW 4576 in para 26 it has been held that when a sanction is granted by a person not authorized in law, the same being without jurisdiction, would be a nullity. In the case of Nanjappa -Vs- State of Karnataka reported in AIR 2015 SC 3060 the Hon'ble Supreme Court has held that the question of validity can be raised at any time and once the trial court finds sanction to be invalid should discharge accused instead of acquittal.
12
Spl.C.C.No.90/2011
12. The grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. The learned Public Prosecutor supporting Ex.P1 as a valid sanction order referring to amendment brought to Karnataka State Police (Disciplinary Proceedings) Rules in the year 1989 submits that the Additional Commissioner of Police equivalent to that of Commissioner of police is also competent authority. Sec.12 of Karnataka Police Act deals with appointment of subordinate police which states that subject to such rules as the government may from time to time make, the appointment of Police officers of below the rank of Inspectors shall be made by prescribed authority. The word prescribed authority is not defined in the Act. However, the word 'Prescribed' is defined u/s 2(17) stating 'Prescribe' means prescribed by rules. Therefore one has to look into the rules. Item No.4 of the schedule annexed to Karnataka State Police (Disciplinary Proceedings) Rules goes to show that officers of the rank of Deputy Inspector General of Police are the prescribed authority to appoint officers of 13 Spl.C.C.No.90/2011 the rank of Submitted-Inspector of Police. In this connection the learned counsel for accused submits that the officers of the rank of Deputy Inspector General of Police are authorities competent to appoint officers outside Bengaluru, according to him as far as Bengaluru City is concerned it is only the Police Commissioner is competent authority to grant sanction.
13. The learned counsel for accused in this connection has relied on the unreported ruling of our Hon'ble High Court of Karnataka rendered in Crl.R.P.No.54/99 DD on 22.08.2000. I the case of State of Karnataka -Vs- T.Yellappa and another the similar point was arose for consideration. Wherein the Hon'ble High Court of Karnataka considering the amendment brought to Karnataka State Police (Disciplinary Proceedings) Rules has upheld the order of discharge passed by the trial court on the ground that the sanction order issued by Additional Commissioner of police is subordinate to 14 Spl.C.C.No.90/2011 Commissioner of Police, who is the appointing authority. In the later case similar point was raised, the matter went upto Hon'ble Supreme Court and on remand our Hon'ble High Court of Karnataka in its ruling reported in 2003 Cri.L.J. 3977 in the case of State of Karnataka -Vs-
T.R.Krishnamurthy has held that the Government created posts of Commissioner and Addl. Commissioner of Police in Bangalore City, for the purpose of strengthening the Police set up in the City to achieve certain objects. According to the said order of the Government, the post of the Commissioner and Addl. Commissioner of police, Bangalore City, is equivalent in status and responsibilities to the post of IGP and DIG of Police, respectively. Therefore, I do not find much force in the submission of learned counsel for accused that the sanction order produced by the prosecution is not a valid one. In this regard the learned Public Prosecutor though relied on the ruling of State of M.P. -Vs- Jiyalal reported in AIR 2010 SC 1451 the principles laid down in therein are applicable to appellate and revisional courts. In 15 Spl.C.C.No.90/2011 the result, the point No.1 raised for my consideration is answered in the affirmative.
14. Point Nos.2 & 3 : These two points are inter- related, in order to avoid repetition their discussion is taken together. It is the case of prosecution that PW.2 Shaik Abdul Khader is a owner of premises where the accused as a tenant was running his business. There was an agreement between PW.2 and the complainant M.S. Siddiqui who is examined as PW.3 in this case for renovation of said premises. There was dispute between PW.2 and 3 and for its settlement PW.2 had approached the police. It is also the case of prosecution that accused in order to settle the dispute between PW.2 and PW.3 has demanded for Rs.50,000/- as illegal gratification from PW.3, on 03.12.2010 while accepting Rs.25,000/- was caught red handed. PW.2 in his chief-examination has not supported the prosecution. During the course of cross-examination held by the Public 16 Spl.C.C.No.90/2011 Prosecutor told that the Police Inspector Rangappa who is examined as PW7 in the case has instructed accused to secure the complainant and get the matter settled. PW7 the police Inspector in his evidence has said that in the month of November 2010 accused has brought PW.2, PW.3 and PW.6 on coming to know about the quarrel between them instructed the accused to register non cognizable case and look into the matter. Further he has deposed that on 03.12.2010 received phone call from PW.8 informing trapping accused while accepting bribe of Rs.25.000/- from PW3. He has also deposed that furnishing copies of station house diary and covering letters as per Ex.P.10 Ex.P13. During the cross-examination has asserted that since PW.2 was a senior citizen has instructed accused to look into the matter. PW.6 a relative on whose advise PW.2 went to police station has told that accused has interfered in the matter of settlement, however in his cross-examination quite interestingly said that on the day on which Lokayukta Police came to the office of accused, the accused advised his elder 17 Spl.C.C.No.90/2011 brother to receive amount from PW.3 stage by stage. Thus, from the above evidence it is clear that there was dispute between PW.2 and PW.3 and for its settlement have approached the police station. The accused in his written statement produced at the time of examination u/s 313 of Cr.P.C. has contended that when he has told PW.3 to return the amount in order to avoid repayment and create fear a false complaint was lodged and trap proceedings were conducted against him. Under the circumstances, it has become necessary to find out whether accused made demand and accepted bribe money or he was fallen to trap laid by PW.3 to avoid making payment to PW.2.
15. The Learned Public Prosecutor referring to the evidence adduced in the case submitted that by adducing evidence of PW.3 to PW.5 and PW.8 the Investigating Officer the prosecution is able to prove the charges leveled against the accused. It is her submission that the accused though 18 Spl.C.C.No.90/2011 instructed by PW.7 the Inspector of Police to register non- cognizable case and then to proceed, violating the directions of official superior in the guise of settling the dispute the accused demanded Rs.50,000/- and on 03.12.2010 while accepting Rs.25,000/- was caught red handed. The fact of accused demand and accepted the illegal gratification is found from both oral and documentary evidence. The learned Public Prosecutor relying on the ruling of Hon'ble Supreme Court in the case of L.Lakshmikantha Vs State reported in 2015 (2) SCALE 95 submits that once demand and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by evidence then conviction must follow. The learned counsel for accused submits that the prosecution has utterly failed to bring home the guilt alleged against the accused beyond reasonable doubt. It is his submission that no doubt the alleged money was recovered from the dickey of motor cycle belonging to accused, the said money was given to him by PW.3 for making payment to PW.2. It his submission that if really the demand was 19 Spl.C.C.No.90/2011 made by the accused towards illegal gratification he would not have asked PW.3 to come to the house of PW.2. Hence, let me examine the evidence adduced in the case in detail.
16. PW.3 in his evidence has deposed that on 23.11.2010 when he met the accused in the station said that he would suggest intermediary figure and he should settle. As he did not tell the figure, when asked, accused told him to pay Rs.50,000/-. On 01.12.2010 after adjusting Rs.25,000/- to be paid as bribe money has asked the accused where should come. When he was told to come to the PS he did not agree. But he was told that he would inform later. PW.3 further said that on 01.12.2010 when the police came to his house in the midnight, he went to Lokayukta police on 03.12.2010 and lodged his complaint as per Ex.P.2. So it is found from the evidence of PW.3 that after adjusting Rs.25,000/- has telephoned to accused. But from the reading Ex.P2 the first para on page 3 it is found that PW.3 after adjusting Rs.50,000/- has called accused 20 Spl.C.C.No.90/2011 over phone. Thus, the evidence of PW.3 leads to suspect the prosecution case.
17. It is the case prosecution that after registering the case in Cr.No.58/2010 PW.8 I.O. secured the presence of PW.4 and PW.5 panch witnesses and in their presence Rs.25,000/- brought by PW.3 to pay to accused in denomination of 500 x 50 counted and the numbers were noted down under Ex.P3 smearing with phenolphthalein powder were kept in the pocket of PW.3. No doubt PW.3 to PW.8 have deposed and identified Ex.P4 pre-trap mahazar their evidence is not consistent. PW.3 in his evidence said that the tainted money was kept in the right side pocket of pyjama, PW.4 and PW.8 said that the money was kept in the pant whereas PW.5 said as if the money was kept in the Jubba. From the reading of Ex.P4 it is found that PW.3 was instructed to make payment only on demand and then to flash signal. PW.3 in his evidence said that after accused 21 Spl.C.C.No.90/2011 coming to hotel along with him proceeded to the first floor, after having food spoke to accused and offered the cash of Rs.25,000/-. It is also his evidence that after coming out of hotel both went to a nearby service road and again offered Rs.25,000/-. Thus, it is clear that there was no demand by the accused and it is only offer made by PW.3. The evidence of PW.4 and PW.5 is also of no assistance to prosecution as they too did not say anything about demand made by the accused. It is not their evidence that they were away, PW.4 said that he along with PW.5 was sitting inside the hotel, PW.5 in his evidence said PW.4 was observing from a close distance. Thus, I am of the opinion that the prosecution has failed establish that accused made demand which is the necessary ingredient to establish charge under section 7 of the Prevention of Corruption Act, 1988.
18. The prosecution producing trap mahazar as per Ex.P5 has come up with a story that after talking for couple of minutes near the motor cycle parked on the service road 22 Spl.C.C.No.90/2011 PW.3 has kept the tainted notes in the dickey box. Here also the evidence is not consistent, PW.3 said that as told by accused he kept the cash in the dickey box and before he could flash message the accused left the place. Though PW.5 and PW.8 supports saying PW.3 has kept the money in dickey box, the evidence of PW.4 is quite contrary who says that both accused and PW.3 went on the motor cycle after covering a distance of about 50 feet accused stopped his motor cycle, PW.3 getting down talking to accused gave signal by removing his cap. Thus, he has not supported the case of prosecution that he has seen PW.3 keeping money in the dickey box.
19. It is also the case of prosecution that when they went to police station found the motor cycle and recovered tainted money which tallied with Ex.P3. All the four witnesses said about seizure of tainted money and drawing trap mahazar as per Ex.P5. PW.8 in his evidence said that after lifting cap of dickey box found the tainted money on a 23 Spl.C.C.No.90/2011 white paper and two envelopes by its side. He prepared solution kept the sample in MO.8 bottle on his instructions PW5 rubbed paper and envelopes with cotton when the said cotton immersed in the residual solution turned pink and seized the said wash in MO.9 and MO.10. He has also identified MO.11 to MO.16 the cotton, paper and envelopes and the covers. But PW.4 quite contrary to prosecution deposed as if the right hand and left hand figures of accused were washed in the solution when it turned pink the wash was seized in the bottle. Thus there arises doubt about Ex.P5 trap mahazar. Therefore it can believed that the prosecution has established the accused has demanded and accepted illegal gratification of Rs.25,000/-.
20. The learned Public Prosecutor referring to examination of accused u/s 313 of Cr.P.C. relying on the ruling of C.Chandrashekaraiah -Vs- State of Karnataka reported in 2015 (4) Crimes 159 submits that when the accused does not explain the circumstances of tainted 24 Spl.C.C.No.90/2011 money found with him presumption u/s 20 is not rebutted, thereby the prosecution case stands completely established. The accused that during the course of his examination u/s 313 Cr.P.C. though admits that raiding party visited the station has denied all other incriminating evidence appearing against him. Further, in his written statement has said that PW.2 approached PW.7 who instructed PW.3 to return the amount of PW.2. In order to avoid payment of more than Rs.4,50,000/- PW.3 has lodged a false complaint and a trap was conducted against him. in support of his version the accused also produced the copy of judgment passed in O.S.No.1242/2011. No doubt the prosecutor submits that the said case was instituted subsequent to the raid the facts clearly goes to show that the amount was due in connection with renovation only. In the case of State of Maharastra Vs Dnyaneshwar reported in 2009 Crl.L.J. 4425 relied by the learned counsel for accused it has been held that even while invoking the provisions of Sec.20 of the Act, the court is required to consider the explanation offered by the accused, 25 Spl.C.C.No.90/2011 if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. In view of such an explanation the ruling relied is of no help to the prosecution.
21. Now let me turn to the rulings relied by the counsel for accused. In the case of Hanumanthappa -Vs- State of Karnataka reported in 2012 (2) KCCR 1157 it has held that when there was no material to show that the payment was made to the accused pursuant to the demand, he should be given the benefit of doubt. As far as solitary evidence of complainant the Hon'ble Supreme Court in the case of Ayyasami -Vs- State of Tamilnadu reported in AIR 1992 SC 644 has held that there is no evidence apart from complainant to show that the money was placed in the drawer by the complainant at the asking of the appellant. Under the circumstances we agree with the learned counsel for the appellant that the conviction is based more on probabilities than on the evidence proving the guilt against 26 Spl.C.C.No.90/2011 him beyond reasonable doubt. In Banarasi Dass -Vs- State of Haryana reported in (2010) 4 SCC 450 it has been held that it is a settled cannon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. It has been further held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money.
22. The learned counsel referring to the facts of the case that the accused has not touched the money and recovered from his person has placed reliance on the ruling of Ganapathi Sanya Naik -Vs- State of Karnataka reported in (2007) 3 SCC (Cri) 541. With regard to possibility of two 27 Spl.C.C.No.90/2011 views in the case of State -Vs- K.Narasimhachary reported in (2005) 8 SCC 364 it has been held that the materials brought on record would lead to only one conclusion i.e. the guilt of the accused. As for as miscarriage of justice by the Investigating Officer the learned counsel for accused placed reliance on the judgment of Supreme Court in the case of State -Vs- Surya Sankaram Karri reported in 2006 AIR SCW 4576. In the said case the Hon'ble Supreme Court has held that the court of law would expect from the prosecution that the investigation would be a fair investigation. The investigation not only be carried out from the stand of the prosecution, but also the defence, particularly, in view of the fact that the onus of proof may shift to the accused at a later stage. In order to show that the statement recorded by the prosecution u/s.164 of Code of Criminal Procedure is not substantive evidence and it can only be used to corroborate or contradict a witness, the learned counsel has relied on the judgment rendered by the Hon'ble Supreme Court in the case of Ram Kishan Singh -Vs- 28
Spl.C.C.No.90/2011 Harmit Kaur and another reported in AIR 1972 SC 468 and T.Diwakara -Vs- State reported in 2006 Crl.L.J.4813.
23. In this case though prosecution produced mobile call records Ex.P.5 and P.6 in the light of attempt made by the accused to settle dispute, he might have held talk with PW.3. In order to establish its case the prosecution has produced Ex.P.7 CD containing the conversation between complainant and accused, Ex.P.8 the visuals recorded in the button camera and Ex.P.15 the transcription of voice recorded in the mobile phone. Apart from the documents the prosecution has also produced the CDs as per MO.5, MO.7, MO.17 and MO.19. With regard to admissibility of conversation recorded and the evidence adduced in this behalf the learned counsel for accused relied on rulings of Sanjay Sinh Ramarao Chavan -Vs- Dattatray reported in (2015) 2 SCC (Cri) 19 and Anvar P.V. -Vs- P.K.Basheer reported in (2014) 10 SCC 473. In the said cases it has been held that an electronic record by way of secondary 29 Spl.C.C.No.90/2011 evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. In the absence of certificate as required u/s 65-B of Evidence Act Ex.P.7, P.8, Ex.P.15, MOs.5, 7, 17 and MO.19 are not admissible. In the result, Points 2 and 3 raised in consideration are answered in the Negative.
24.Point No.4: In view of my above discussion, findings on Point nos.2 and 3 held in the negative, I proceed to pass the following:
ORDER Acting u/s 235(1) of Cr.PC., the accused is acquitted from the offences punishable u/s 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988.
Bail bonds executed by accused and his surety stands cancelled. The accused is set at liberty.
Mo.21 is confiscated to the State. MO.1 is ordered to be return to the Investigating Officer. MOs 2 to 20 being 30 Spl.C.C.No.90/2011 worthless are ordered to be destroyed after the expiry of appeal period.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced in the open court this the 24th day of May 2016) (D.T.Devendran) LXXVIII Addl.City Civil & Sessions Judge, Mayohall Unit, Bangalore.
ANNEXURE List of witnesses examined for the prosecution:
PW1: U.Nissar Ahmed, PW2: Shek Abdul Khader, PW3: M.S.Siddiqui PW4: Devaraju, PW5: H.Rajanna, PW6: Sanaulla, PW7: T.Rangappa, PW8: B.Y.Renuka Prasad
List of documents exhibited for the prosecution:
Ex.P1: Sanction order, Ex.P.1(a) signature of PW-1, Ex.P2: Complaint, Ex.P.2(a) signature of PW-3, Ex.P3: Currency details sheet, Ex.P3(a) signature of PW.4, Ex.P.3(b) & (c) signature of PW.5 31 Spl.C.C.No.90/2011 Ex.P.3(d) signature of PW.8 Ex.P4: Pre trap Mahazar, P.4 (a) signature of PW.3 4 (b)to (g) signature of PW.4 4(h) to 4 (m) signature of PW.5 4 (n) signature of PW.8 Ex.P5: Trap mahazar, P.5(a) signature of PW.3 5(b) to (k) signature of PW.4 5 (l) to (u) signature of PW.5 5 (v) signature of PW.8 Ex.P6: Explanation of the accused, P6(a) to (d): signature of PW.4, Ex.P6 (e): Signature of PW-8, Ex.P7: CD transcription of complainant & accused. 7(a) and 7(b) signature of PW.5 Ex.P.8 CD Digital camera data/transcription 8(a) and (b) signature of PW.5 Ex.P.9 Sketch 9(a) signature of PW.5 9(b) statement of PW.8 Ex.P.10 Copies of documents Ex.P.11 covering letter dtd.30.12.2010 Ex.P.12 Copy of station centry Register Ex.P.13 Covering letter dtd.13.01.2011 of Ex.P.12 Ex.P.14 FIR in Cr.No.58/2010 14(a) & 14(b) signature of PW.8 Ex.P.15 Mobile recording transcription sheet Ex.P.16 Copy of SHD of KG Halli PS Ex.P.17 BESCOM letter dtd 13.12.2010 Ex.P.18 Letter of DCP (EAST) Bangalore dtd.24.12.2010 Ex.P.19 Letter of Transport Department and DCP Ex.P.20 Service Particulars of accused Ex.P.21 Chemical Examination report Ex.P.22 Sketch issued by Engineer 32 Spl.C.C.No.90/2011 Ex.P.23 Particular of K.G.Halli PS staff dtd.06.01.2011 Ex.P.24 Copy of Register pertaining to Centry Allotment Ex.P.25 Cell-phone call particulars of PW.3 Ex.P.26 Cell Phone call details of accused (13 sheets) Ex.P.27 statement U/s.164 Cr.pc., of PW.2 Ex.P.28 statement u/s.164 Cr.PC., of PW.6 Ex.P.29 Statement u/s.164 Cr.PC., of PW.3 .......... Material objects: MO.1 : Metal seal MO.2 : Sample solution bottle MO.3 : Hand wash of WHF/H.Rajanna MO.4 : Cover MO.5 : CD Pretrap Video recording MO.6 : Cover
MO.7 : CD Demand recording and mobile phone Recording MO.8 : Sample solution Bottle (Trap) MO.9 : Cotton washing solution bottle MO.10: One more cotton washing solution bottle MO.11: Cover MO.12 : Cotton MO.13 : Cover MO.14 : One white paper (one side printing and another side blank) MO.15 & 16 : Two envelop covers MO.17 : CD Trap Video and button camera recording MO.18 : Cover MO.19 : CD Trap proceedings video recording MO.20 : Cover MO.21 : Cash of Rs.25,000/- (500X50) ......33
Spl.C.C.No.90/2011 Evidence adduced on behalf of the defence : Nil. Documents marked on behalf of the defence :Nil.
(D.T.Devendran) LXXVIII Addl.City Civil & Sessions Judge, Mayohall Unit, Bangalore.34
Spl.C.C.No.90/2011 The Learned counsel for accused in support of his submission has relied on the ruling of Sanjaysinh Ramrao Chavan Vs Dattatray Gulabrao Phalke reported in (2015) 3 SCC 123 wherein it has been held the whole purpose of taking cognizance of an offence is to commence proceedings under Chapter XVI of Cr.P.C., by issuing process u/s.204 of Cr.P.C., to the accused involved in the case. No doubt it is not innocence but involvement that is material at this stage. Once the legal requirements to constitute the alleged offence qua one of the accused are lacking, there is no point in taking cognizance and proceeding further as against him.
Our Hon'ble High Court of Karnataka While acquitting the accused who is not touched the currency notes. The Hon'ble Supreme Court in the case of Ganapathi Sanya Naik Vs State of Karnataka reported in (2007) 3 SCC (Cri) 541 has held that the currency notes had been put on the table by the former was a plausible explanation.
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Spl.C.C.No.90/2011 With regard to previous sanction is concerned the learned counsel for accused drawn my attention to the ruling of Nanjappa Vs State of Karnataka reported in AIR 2015 SC 3060. The said case it has been held while examining whether the error, omission or irregularity in the sanction had occasioned in any failure of justice. In unreported judgment of our Hon'ble High Court rendered in the case of State Vs T.Yellappa (Crl.R.P.No.54/99) the sanction order is issued by Addl. Commissioner of Police has been held in valid as it was not the appointing authority in respect of accused.
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36 Spl.C.C.No.90/2011 37 Spl.C.C.No.90/2011