Bangalore District Court
The State By Police Inspector vs B.R.Rajendra Prasad on 23 February, 2018
IN THE COURT OF LXXVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU.
(CCH-77)
PRESENT: Smt.SHRIDEVI S. ANGADI,
B.A., LL.M.,
LXXVI ADDL. CITY CIVIL & SESSIONS JUDGE
& SPECIAL JUDGE, BENGALURU.
DATED: This the 23rd day of February 2018
Spl. C.C.No.78/2013
COMPLAINANT The State by Police Inspector,
Police wing, City Division,
Karnataka Lokayuktha,
Bangalore.
(Rep by Spl.Public Prosecutor)
-Vs-
ACCUSED 1. B.R.Rajendra Prasad, s/o
late P.Ramprasad, aged 42
years, Assessor, Ward No.90,
Halasuru, BBMP Office,
Bangalore.
2. K.Nagaraju, s/o late
Krishnappa, aged 51 years,
Revenue Inspector, Ward
No.90, Halasuru, BBMP
Office, Bangalore.
(By Sri C.G.Sundar-Advocate
for accused Nos. 1 & 2)
1. Nature of Offence Offence punishable under
Sections 7, 13(1) (d) r/w 13 (2)
of Prevention of Corruption
Act, 1988.
2. Date of Commission
of offence 28.08.2012
2 Spl.C.C.78/2013
3. Date of First
Information Report 28.08.2012
4. Date of arrest
28.08.2012
5. Date of
commencement of 17.03.2017
recording of evidence
6. Date of 09.01.2018
closing of evidence
7. Date of
23.02.2018
pronouncement of
Judgment
8. Result of the case The accused No.1 & 2 are
acquitted under section
235(1) of Cr.P.C. of the
offence punishable under
section 7, 13(1) (d) r/w 13(2)
of Prevention of Corruption
Act, 1988.
JUDGMENT
The accused persons are charge sheeted for the offence punishable under Sections 7, 13(1) (d) r/w Section13 (2) of the Prevention of Corruption Act, 1988.
2. The case of the prosecution is that, the complainant- N.Suryaprakash, has filed application with requisite fee in the BBMP Office, Halasur, for change of Khata in respect of the property acquired by him under the Gift Deed executed by his father. 2-3 months thereafter, accused No.1 & 2 had visited the spot. When complainant met the accused No.2 after 15 days, he 3 Spl.C.C.78/2013 was told that the records are not correct and sent him back. Thereafter, the complainant has filed fresh application along with Affidavit and all the relevant documents. After some time, when the complainant met the accused No.1 & 2 and enquired about the work, they demanded Rs.20,000/-as bribe. Since the complainant was not willing to pay the bribe amount, on 28.08.2012, at about 10.00 a.m., he presented Written Information as per Ex.P1 before CW20-Sanjeevarayappa T. Police Inspector, Karnataka Lokayuktha, City Division, Bangalore, who arranged for the trap.
3. CW2-Chandra Babu & CW3-Chidananda, the Employees of Directorate of Municipal Administration, Vishweshwaraya Tower, Bangalore, were secured to act as witnesses to the trap. The complainant produced Rs.19,500/-(23 currency notes denomination of Rs.500/-). The serial number of the currency notes was recorded as per Ex.P4. The said currency notes were smeared with phenolphthalein powder. CW2-Chandra Babu after verifying and counting the tainted currency notes placed it in the left side shirt pocket of the complainant. Both hand fingers of CW2 were washed in sodium carbonate solution. The said solution becomes pink colour. CW20 has demonstrated the chemical reaction of the phenolphthalein powder when comes into contact with sodium carbonate solution. The Digital Voice Recorder produced along with the complaint was played in presence of the witnesses. The contents of the Digital Voice Recorder were converted into CD and transcript into writing. The complainant was instructed to approach the accused, speak about the work and to give the amount only on demand. He was further 4 Spl.C.C.78/2013 instructed to give signal by wiping his hair through left hand if the accused received the amount. Voice Recorder and Button Camera were given to the complainant with an instruction to switch it on while approaching the accused to give money and to record the conversation. CW3-Chidananda was directed to follow the complainant and to observe what transpires between the complainant & the accused. The entire pre-trap proceedings were covered with video. Entrustment Mahazar was prepared as per Ex.P2 and obtained the signature of the witnesses.
4. On the same day, at about 11.50 AM, CW20 along with the Trap Team Members, complainant & two panch witnesses left for BBMP Ward No.90, St.John's Road, in a Government vehicle. The vehicle was parked nearby the office of the accused. The complainant alone went inside the office. After sometime he came out of the office and informed the Investigating Officer that, Nagaraju told him that Prasad would be available in BBMP Office, Dispensary Road, and asked him to give the amount to Prasad himself. The complainant further informed that Nagaraju has not received the amount. Investigating Officer along with complainant, two panch witnesses & Trap Team Members proceeded to BBMP Office, Dispensary Road by instructing S.T.Yogesh & S.T.Wadayar- Police Inspectors in the Team, to keep a watch on Nagaraju.
5. The complainant went inside the ARO Office. CW3- Chidananda (shadow witness), has followed the complainant. The remaining Trap Team Members were standing outside the BBMP office waiting for the signal from the complainant. At about 1.20 PM, the complainant came outside the BBMP Office along with 5 Spl.C.C.78/2013 one person. When the said person was about to sit in the Maruti Omni Car, which was parked in front of BBMP office, the complainant gave pre-instructed signal. The raid party came nearby the complainant. On an enquiry, the complainant informed the Investigating Officer that Prasad has received the amount and now he is sitting in the Maruti Omni Car. Immediately, Investigating Officer has apprehended Mr.Prasad-accused No.1. In the meantime as per the instructions of the Investigating Officer, S.T.Yogesh & S.T.Wadayar-Police Inspectors brought Mr.Nagaraju- accused No.2 to the BBMP Office, Dispensary Road. Investigating Officer disclosed his identity and informed the purpose of visit. Both hand fingers of accused No.1 were washed separately in sodium carbonate solution. The said solution becomes pink colour. On being questioned, the accused No.1 told him that he kept the amount in his left side shirt pocket. Investigating Officer got removed the tainted currency notes from the accused No.1 through CW3-Chidananda. The said tainted currency notes were verified and tallied with the currency notes sheet. The Attendance Register was seized. The accused persons were brought to Lokayuktha Police Station and continued the trap proceedings. The shirt of the accused No.1 was seized. The Button Camera and Digital Voice Recorder given to the complainant at the time of trap was played in the presence of the witnesses, contents of it were converted into CD and transcript into writing. Entire trap proceedings were covered with video. The contents of the video were converted to CD. The accused persons gave their statement in writing. Sri T.V.Nagaraj- FDA, has identified the accused persons and their voice after viewing the CD containing the conversation/scene recorded in the 6 Spl.C.C.78/2013 Button Camera and Digital Voice Recorder. All the seized articles were seized with Metal Seal by using the Kannada letter "Jha" and handed over the Metal Seal to CW2-Chandra Babu and obtained an acknowledgment. Trap Mahazar was prepared as per Ex.P3 and obtained the signature of the witnesses. Investigating Officer has recorded the statement of CWs1 to 3 and incorporated the substance of it in the Trap Mahazar. On 31.8.2012, the documents relating to the complainant was seized from the cupboard of Smt.Gowramma-FDA and Seizure Mahazar as per Ex.P8 was drawn for having seized the documents. Investigating Officer has received the Spot Sketch as per Ex.P15, Chemical Examination Report as per Ex.P16, Service particulars of the accused No.1 as per Ex.P17, xerox copies of the documents relating to the complainant from the BBMP office as per Ex.P18. After completion of the investigation, Investigating Officer sent the Final Report to the Competent Authority seeking sanction to prosecute the accused No.1 & 2. After receiving Sanction Order (Ex.P9) from the Competent Authority, CW20 has filed the charge sheet against the accused Nos.1 & 2 before the Court on 12.03.2013 for the offence punishable under Sections 7, 12, 13(1)(d) r/w 13(2) of Prevention of Corruption Act,1988.
6. My Predecessor-in-Office took cognizance of the offence and issued process against the accused. In pursuance of the summons, accused persons appeared before the Court. The accused persons are enlarged on bail.
7 Spl.C.C.78/2013
7. After hearing, the charge was framed for the offence punishable under Sections 7, 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988. The Charge was read over and explained to the accused persons. The accused persons pleaded not guilty and claimed to be tried.
8. During the trial, the prosecution has examined in all 5 witnesses as PWs-1 to 5 and got marked 18 documents as Ex.P1 to Ex.P18 and 12 Material Objects as MO1 to MO12. The accused persons were examined under section 313 of Cr.P.C. for the purpose of enabling them to explain the circumstances existing against them. The accused persons denied all the incriminating evidence available against them. The accused persons have not chosen to lead any defense evidence. I have heard the arguments and perused the records.
9. The learned counsel appearing for the accused has placed reliance on the following citations:
1. 2016 (1) Crimes 29 (SC) (Krishan Chander -v-
State of Delhi)
2. 2012 (1) KCCR 414 ( R.Malini -v- State of Karnataka)
3. 2012 (2) KCCR 1157 (Sri Hanumanthappa -v-
State of Karnataka)
4. 2015 AIR SCW 5263 (P.Satyanarayana Murthy- v- Dist.Inspector of Police)
5. (2015) 4 Supreme Court Cases (Cri) 829 (Khaleel Ahmed -v- State of Karnataka).
8 Spl.C.C.78/2013
10. After hearing the arguments and on perusal of the records, the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused No.1 & 2 being public servants, working as Assessor & Revenue Inspector, Ward No.90, Halasuru, BBMP Office Bangalore respectively, on 28.8.2012 demanded and accepted illegal gratification of Rs.19,500/- from the complainant-Sri N.Suryaprakash, in the BBMP Office, Dispensary Road, Bangalore, as a motive or reward for showing an official favour in the matter of change of khata in respect of the property acquired by him under the Gift Deed executed by his father and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988?
2. Whether the prosecution proves beyond all reasonable doubt that the accused Nos. 1 & 2 being public servants, working as Assessor & Revenue Inspector, Ward No.90, Halasuru, BBMP Office Bangalore respectively, on 28.8.2012, by abusing their position as public servants, by corrupt or illegal means and without public interest obtained Rs.19,500/-
from the complainant-Suryaprakash as a pecuniary advantage and thereby committed Criminal mis-conduct punishable under section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act 1988?
3. What order?
11. My answer to the above points is as under:
POINT No.1: IN THE NEGATIVE
POINT No.2: IN THE NEGATIVE
POINT No.3: AS PER FINAL ORDER
for the following:
9 Spl.C.C.78/2013
REASONS
12. POINT No.1 AND 2: For the sake of convenience and to avoid repetition of facts, I have taken both the points together for consideration.
13. The prosecution has examined Suryaprakash as PW1. PW1 is the complainant. PW1 has deposed that, his father-late M.Narayanaswamy, had executed Registered Gift Deed in his favour in respect of ground & second floor of the building in Sy.No.26, measuring 20 x 40 ft, situated at Halasur near Doddakattappa Road, Bangalore. His father died 3 years back. After the death of his father, he gave an application before BBMP, Shivajinagar, for change of Khata in respect of the property acquired by him under the Gift Deed. He had enclosed D.D.for Rs.500/- along with the application. After two months, he had approached a clerk who was sitting in the office. He does not know the name of the said official. The said official asked him to come after 2-3 days. Once again, he visited the BBMP office, but Khata was not changed. He approached the Lokayuktha Inspector and gave complaint as per Ex.P1, alleging that the ARO is demanding Rs.20,000/- as bribe for change of Khata. Lokayuktha Inspector arranged for the trap. He produced Rs.20,000/-, denomination of Rs.500/-. The said currency notes were smeared with phenolphthalein powder. Lokayuktha Inspector has handed over the tainted currency notes to him and instructed to pay the amount to the person who demanded. Pre-Trap Mahazar as per Ex.P2 was prepared and obtained the signature of the witnesses. PW1 further deposed that, thereafter they left for the office of the accused in the Government Jeep. He alone went inside 10 Spl.C.C.78/2013 the office of the accused. When he was about to give the money to the Revenue Inspector, he refused to receive it. But he forcibly thrust the money in his shirt pocket and came out. Lokayuktha Inspector apprehended the accused No.1 and brought him to Lokayuktha office, wherein tainted currency notes were recovered from him. Trap Mahazar as per Ex.P3 was prepared and obtained the signature of the witnesses. Lokayuktha Inspector has not recorded his statement.
14. PW-1 has turned hostile. He has not supported the prosecution case. The Learned Spl.P.P has cross-examined PW1 at length. But nothing useful to the case of the prosecution is forthcoming during the course of cross-examination.
15. During the course of cross-examination made on behalf of the accused, PW1 has deposed that his mother tongue is Telugu. He does not know reading and writing Kannada. He does not know the contents of the complaint. He has not given complaint against accused No.1 & 2 who is sitting in the Court Hall. The accused Nos.1 & 2 never demanded money from him. He is seeing the accused No.1 & 2 for the first time.
16. The prosecution has examined CW3-Chidananda B.G. as PW2. According to the prosecution, PW2 is shadow witness. PW2 has deposed that, on 28.8.2012, CW2-Chandra Babu & he were called to Lokayuktha Police Station to act as witnesses in the trap. Complainant was present. Contents of the complaint were made known to them. After following the due procedure, Entrustment 11 Spl.C.C.78/2013 Mahazar as per Ex.P2 was prepared and obtained their signature. Before that, serial number of the currency notes was recorded. Thereafter, they left for Dhanvantri Road, in a Government vehicle and then to Shivajinagar. Complainant & he went inside the BBMP Office. Complainant alone could go inside the chamber of accused No.1. He stood outside the chamber of accused No.1. The chamber of accused No.1 was visible from outside. He was observing the complainant & accused No.1. The complainant tried to give the money to accused No.1 but he refused to receive it. Thereafter, the complainant came outside and gave pre-instructed signal. By then, accused No.1 came outside his chamber and proceeded towards his car which was parked in front of the BBMP office and sat inside the car. Immediately, Police Inspector & staff apprehended the accused No.1. CW2 has removed the tainted currency notes from the shirt pocket of accused No.1 and handed over the same to Police Inspector. The said currency notes were tallied with the Currency Notes Sheet. Thereafter, both hand fingers of accused No.1 were washed. The right hand wash of accused No.1 turned to pink colour. The left hand wash has not turned to any colour. The file relating to the complainant was seized from the office of the accused No.1. Thereafter, accused persons were brought to Lokayuktha Police Station. He gave statement before the Lokayuktha Inspector that, he has not seen the payment of bait money by the complainant to the accused No.1 nor overheard the conversation between them. The higher Officer of accused No.1 & 2 were secured to the Lokayuktha Police Station. Trap Mahazar-Ex.P.3 was prepared and obtained his signature. He does not know what 12 Spl.C.C.78/2013 happened thereafter. No other proceedings were conducted in his presence.
17. PW2 has turned hostile. He has not supported the prosecution case. The Learned Spl.P.P has cross-examined PW2 at length. But nothing useful to the case of the prosecution is forthcoming during the course of cross-examination.
18. During the course of cross-examination made on behalf of the accused, PW2 deposed that he did not go through the complaint; he does not know about Rajendra Prasad before trap, he did not cross-check against whom the complaint was given. At the time of trap, the accused No.2 was not present in the office, but he was secured from some other office. He has not given instructions to prepare Pre-Trap Mahazar, Trap Mahazar and Seizure Mahazar. He subscribed his signature on the Pre-Trap Mahazar, Trap Mahazar and Seizure Mahazar, without going through the contents of it. He has stated before the Police Inspector that, he rushed to the chamber of the accused along with the Trap Team Members only after receipt of signal from the complainant. After seizure of the tainted currency notes, hand wash of the accused No.1 was taken. On 31.8.2012, the documents relating to the complainant was seized from the cupboard of some other case worker.
19. The prosecution has examined CW2-Chandra Babu as PW3. PW3 is co-panch witness. PW3 has deposed that, he was called to Lokayuktha Police Station to act as witness in the trap. Complainant produced Rs.19,500/- which was smeared with the phenolphthalein powder. He counted the tainted currency notes, 13 Spl.C.C.78/2013 placed it in a cover and handed over the same to the complainant. Pre-Trap Mahazar was prepared and obtained his signature.
20. PW3 has further deposed that, thereafter they left for BBMP Office, Shivajinagar. After receiving the signal, he went inside the BBMP Office. Accused No.1 was apprehended. His hands were washed in sodium carbonate solution. Thereafter, tainted currency notes were recovered from him and tallied with the Currency Notes Sheet. Button Camera & Voice Recorder given to the complainant at the time of trap were played. Contents of it were transcript into writing. Some documents were seized from the BBMP Office, Shivajinagar. Trap Mahazar was prepared and obtained his signature. All the seized articles were sealed with Metal Seal by using the Kannada letter "Jha".
21. PW3 has turned hostile. He has not supported the prosecution case. The learned Spl.P.P. cross-examined PW3 at length. But nothing useful to the case of the prosecution is elicited during the course of cross-examination.
22. During the course of cross-examination made on behalf of the accused, PW3 deposed that, he does not know whether the names of accused No.1 & 2 were not referred to in the complaint. He has not given any other currency notes to the complainant, except the currency notes that were placed in the cover. Thereafter, he did not see the said cover. PW3 has further deposed that, Lokayuktha Police gave signal, thereafter he went inside the office. Before he entering the office, the tainted currency notes were recovered. The hand wash of the accused No.1 was not taken either in the BBMP Office or in the Lokayuktha Police Station.
14 Spl.C.C.78/2013
23. The prosecution has examined CW9-Siddaiah, the then Commissioner of BBMP, Bengaluru, as PW4. PW4 is the Sanctioning Authority, who accorded sanction to prosecute the accused Nos.1 & 2. The Sanction Order dated 19.2.2013, is produced and marked as Ex.P9.
24. During the course of cross-examination made on behalf of the accused, it is elicited that, the complaint was given against Nagaraj-ARO and one Inspector and not against accused No.1 & 2. The Final Report reveals that, the demand of bribe was not made by accused No.1 & 2. He did not cross-check the contents of the Final Report with that of the complaint. It is further elicited from PW4 that, application for change of Khata was given under Section 114 of Karnataka Municipal Corporation Act. It was not brought to his notice that accused No.2 has not handled the file of the complaint. It was not brought to his notice that the complainant has suppressed the fact of pending of civil litigation in respect of the property which he sought for change of Khata and that was the reason for causing delay in changing the Khata.
25. CW20-Sanjeevarayappa T. is examined as PW5. PW-5 is the Investigating Officer. PW-5 has deposed about registering of FIR, drawing of Entrustment Mahazar, laying of trap, resultant hand wash of accused No.1 turning to pink colour, recovery of currency notes of Rs.19,500/- from the accused, arrest of the accused persons, playing of Digital Voice Recorder & Button Camera containing the conversation/scene, converting into CD & transcript into writing, identification of voice of accused through T.V.Nagaraj- FDA, seizure of Attendance Register, seizure of documents relating 15 Spl.C.C.78/2013 to the complainant & drawing of Seizure Mahazar, recording of statement of witnesses, incorporating material substance of the statements of witnesses in the Trap Mahazar, collecting Service Particulars of the accused No.1 & 2, receipt of Chemical Examination Report, obtaining Spot Sketch, receiving Sanction Order from the Competent Authority to prosecute the accused persons, etc.
26. The Hon'ble Supreme Court in the case of Krishan Chander-v-State of Delhi held that:
"Demand and acceptance of bribe is sine-qua-non for constituting offence under Section 7 & 13(1)(d) of PC Act- Complainant turning hostile on point of demand and acceptance of bribe by accused- Panch witness did not overhear conversation between accused and complainant at the time when the complainant had approached him to give bribe money- Investigating Officer's evidence silent as to contents of statement of complainant recorded under Section 161 of Cr.P.C.- Factum of demand not proved."
27. The Hon'ble High Court of Karnataka in the case of R.Malini-v- State of karnataka, held that:
"B. Section 7, 13(1)(d)- 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.
D. Sections 7, 13(1)(d)- 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."
16 Spl.C.C.78/2013
28. The Hon'ble High Court of Karnataka in the case of Sri Hanumanthappa-v- State of karnataka, has held that:
"Criminal Trial- Appreciation of Evidence- Trap Mahazar - The Trap Mahazar was not drawn on the spot but according to the I.O the Trap Mahazar was drawn in the office of the Lokayukta. As the accused has denied having given the explanation as mentioned in the Trap Mahazar, the drawing up of Trap Mahazar at the place far away from the place of incident also has given rise to doubt the prosecution case. More so when no work was pending with the accused and record also not seized from the accused."
29. The Hon'ble Supreme Court in the case of P.Satyanarayana Murthy-v- Dist. Inspector of Police & another held that:
"The proof of demand of illegal gratification is the gravamen of the offence under Sections 7 and 13(1) (d)(i) & (ii) 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, ispso 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 offence under Ss 7 or 13 of the Act would not entail his conviction thereunder."
30. The Hon'ble Supreme Court in the case of Khaleel Ahmed-v- State of Karnataka held that:
"Demand of illegal gratification is a sine-qua-non for offences under Ss 7 and 13(1)(d)- Conversely, in 17 Spl.C.C.78/2013 absence of proof of demand of illegal gratification, offences aforementioned cannot be made out."
31. It is well settled that demand of illegal gratification by the accused, and acceptance of the same, is sine-qua-non for constituting the offences u/s 7 of the Prevention of Corruption Act, 1988. The prosecution is required to prove that, there was demand and acceptance of bribe to bring home the guilt of the accused. The prosecution is also required to prove that, the work of the complainant was pending with the accused as on the date of the Trap and the accused was the Competent Authority to do an official favour to the complainant. The burden to prove the accusation for the offences punishable under Sections 7, 13(1)(b) r/w 13(2) of the Prevention of Corruption Act,1988 with regard to demand and acceptance of illegal gratification by the accused from the complainant to do an official favour, lies on the prosecution.
32. In the present case, PW1-complainant who is the best person to say regarding demand of illegal gratification and acceptance of the same by the accused for showing an official favour has turned hostile. He has not supported the prosecution case. The evidence of PW1 reveals that, he does not know reading & writing Kannada. He does not know the contents of the complaint. He has not given the complaint against the accused Nos.1 & 2. Further the evidence of PW1 reveals, that accused Nos.1 & 2 never demanded money from him. He has never seen the accused No.1 & 2 before giving evidence. Further it reveals that, when he was about to give the money to the Revenue Inspector(accused No.2), he refused to receive it, but he forcibly 18 Spl.C.C.78/2013 thrust the money in his shirt pocket. In the present case, the demand and acceptance of illegal gratification by the accused persons from the complainant is missing.
33. PW2 being an independent witness has not played his role as instructed and in the manner required in law. The impartial witness to the trap proceedings is taken with an object to prove the demand and acceptance of bribe by independent corroboration. According to PW2, complainant alone could go inside the chamber of accused No.1 and he stood outside the chamber. He has not overheard the conversation between the accused & complainant at the time when complainant had approached him to give bribe money. PW2 goes inside BBMP office only after receipt of signal from the complainant. He has not overheard the conversation nor seen the incident. The evidence of PW2 also does not prove the demand of illegal gratification by the accused. The fact of demand and acceptance of bribe money by the accused not proved.
34. The evidence of PW3 reveals that, during the Entrustment Mahazar, after counting the tainted currency notes, he placed it in a cover and handed over the same to the complainant. He has not given any other currency notes to the complainant, except the currency notes that were placed in the cover. But he has not seen the said cover thereafter. The cover in which tainted currency notes said to have been placed is not seized. What happened to the said cover is not explained by the prosecution. Further, in the presence of PW3, tainted currency 19 Spl.C.C.78/2013 notes were not recovered. He has not witnessed the seizure of the currency notes.
35. It is relevant to note that the complainant in his evidence has categorically stated that he has not given complaint against accused No.1 & 2. He has further stated that accused No.1 & 2 never demanded money from him. The complainant has disowned what he has stated in the complaint and has not supported the prosecution case in so far as demand of illegal gratification by the accused persons. Investigating Officer admits that complaint was not given against accused No.1 & 2. Even the evidence of PW4 corroborates this fact. Further the evidence on record reveals that the application for change of khata was given to Commissioner of BBMP u/s 114 of the Karnataka Municipal Corporation Act. The power of transfer of khata or bifurcation of khata vests with the Joint Commissioner & Revenue Officer. Further the evidence on record(Ex.P18) reveals that, Smt.Saraswathi N. has filed the suit in O.S.26593/2011 on the file of City Civil & Sessions Judge Court, against Uma Devi N. & others for the relief of partition & separate possession. The property in respect of which transfer of khata sought for was one of the suit schedule properties in O.S.26593/2011. The complainant- N.Suryaprakash was one of the defendants in the said suit. The order sheet in O.S.No.26593/2011 reveals that, there was an order of status quo passed by the Court in O.S.No.26593/2011. The complainant has suppressed the fact of pending of civil litigation in respect of property for which change of khata sought for. The evidence on record further reveals that, the Assistant Revenue 20 Spl.C.C.78/2013 Officer has issued notice on 15.9.2012 to Mr.L.Suryapakash(complainant) & Smt.N.Saraswathi to appear before him on 25.9.2012 for enquiry in the matter of transfer of khata. Smt.Saraswathi has filed objection for change of khata before ARO-BBMP. In view of these facts there was delay in transfer of khata. Further accused No.1 & 2 being the Assessor & Revenue Inspector respectively, had no competency or empowered in the matter of change of khata.
36. It is well settled that mere recovery of tainted currency notes and positive result of phenolphthalein test is not sufficient to establish the guilt of the accused, unless there is corroboration of testimony of complainant, regarding demand and acceptance of bribe by the accused. In the present case, demand and acceptance of illegal gratification by the accused persons, has not been established.
37. It is well settled that electronic record like CD, VCD, Pen-drive, etc. which contains the statement and which is sought to be given as secondary evidence, has to be accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence. This view of mine, is supported by the decision of Supreme Court in the case of Anwar P.V. -v- P.K.Basheer and others; (2014) 10 Supreme Court Cases 473.
21 Spl.C.C.78/2013
38. In the present case, MOs5 & 11 are the CDs said to have contained the conversation, MOs6 & 12 are the CDs containing the video-graph taken during Pre-Trap & Trap proceedings, sought to be given as secondary evidence, are not accompanied by a certificate as specified in Sec.65-B(4) of the Indian Evidence Act. In the absence of such certificate, these material objects cannot be admitted in evidence. Further, the Investigating Officer has not collected the sample voice of the accused Nos.1 & 2 and sent it to Forensic Science Laboratory for Voice Analysis Test. On this ground also, MOs-5 & 11 are not admissible in evidence.
39. In the instant case, the prosecution has failed to discharge its burden to establish that the accused persons demanded illegal gratification beyond reasonable doubt. The testimony of the complainant raises considerable doubt in the prosecution version, and two views of matter are possible, and therefore, the benefit of doubt must go to the accused. Accordingly, I hold that, demand of illegal gratification by the accused is not proved by the prosecution.
40. So far as the presumption raised under Section 20 of the P.C.Act, it is settled law that the presumption raised under Section 20, is a rebuttable presumption, and that the burden placed on the accused for rebutting the presumption is one of preponderance of probabilities. In this background the defence set up by the accused has to be considered & appreciated. In the explanation offered by the accused, the accused No.1 has stated 22 Spl.C.C.78/2013 that the complainant had forcibly thrust the amount in his shirt pocket. It has come in the evidence that the accused persons had no competency or empowered in the matter of change of khata. Under the circumstances, question of accused persons demanding illegal gratification from the complainant for change of khata, legally & factually does not arise. In this background, the explanation offered by the accused, seems to be reasonable & acceptable.
41. I have gone through the decisions cited by the learned counsel appearing for the accused. I respectfully agree with the principles laid down in the aforesaid decisions. Having regard to the facts and circumstances of the case, and keeping in view the principles laid down in the aforesaid decisions, I have come to the aforesaid conclusion.
42. The prosecution has miserably failed to prove the charges leveled against accused No.1 & 2. Hence, I answer Point No.1 & 2 in the Negative.
43. Point No.3:- In the result, I proceed to pass the following:
ORDER The accused No.1 & 2 are acquitted under section 235(1) of Cr.P.C. of the offence punishable under Ss. 7, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and set at liberty.
23 Spl.C.C.78/2013 Bail bond executed by the accused stands cancelled.
MO1- Currency notes are ordered to be confiscated to the State after expiry of appeal period.
MO2- Metal Seal shall be handed over to the Karnataka Lokayuktha Police.
Mos-3 to 12 being worthless are ordered to be destroyed after the appeal period is over.
(Dictated to the Judgment writer on the computer, after transcription, corrected by me and then pronounced in the open court on this the 23rd day of February 2018) (SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge,Bengaluru (CCH-77) 24 Spl.C.C.78/2013 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 Suryaprakash PW2 Chidananda B.G PW3 Chandra Babu PW4 Siddaiah PW5 T.Sanjeevarayappa
List of documents marked on behalf of prosecution:
Ex.P.1 Complaint
Ex.P.1(a)) Signature of PW1
Ex.P.1(b) Signature of PW5
Ex.P.2 Pre-Trap Mahazar
Ex.P.2(a) Signature of PW1
Ex.P2(b) Signature of PW2
Ex.P.2(c) Signature of PW3
Ex.P.2(d) Signature of PW5
Ex.P.3 Trap Mahazar
Ex.P.3(a) Signature of PW1
Ex.P.3(b) Signature of PW2
Ex.P.3(c) Signature of PW3
Ex.P.3(d) Signature of PW5
Ex.P.4 Currency Notes Sheet
Ex.P.4(a) Signature of PW1
Ex.P.4(b) Signature of PW2
Ex.P.4(c) Signature of PW3
Ex.P.4(d) Signature of PW5
Ex.P.4(e) Endorsement with signature of
PW5
Ex.P.5 Statement of PW2
Ex.P.5(a) Relevant portion marked in ExP5
Ex.P.6 Transcription of Digital Voice
Recorder produced along with the
complaint
Ex.P.6(a) Signature of PW2
Ex.P.6(b) Signature of PW3
Ex.P.6(c) Signature of PW5
25 Spl.C.C.78/2013
Ex.P.7 Transcription of Digital Voice
Recorder given to the complainant
at the time of trap.
Ex.P.7(a) Signature of PW2
Ex.P.7(b) Signature of PW3
Ex.P.8 Seizure Mahazar
Ex.P.8(a) Signature of PW2
Ex.P.8(b) Signature of PW5
Ex.P.9 Sanction Order dt: 19.2.2013
Ex.P.9(a) Signature of PW4
Ex.P.10 FIR
Ex.P.11 Rough sketch
Ex.P.11(a) Signature of PW5
Ex.P.12 Xerox copy of Attendance Register
Ex.P.13 Acknowledgment
Ex.P.14 Attested copy of the documents
seized from the cupboard of
Smt.Gowramma (page No.71 to
107 of charge sheet )
Ex.P.15 Spot Sketch
Ex.P.16 Chemical Examination Report
Ex.P.17 Service particulars of accused
Ex.P.18 Xerox copies of the documents
relating to the complainant from
BBMP Office (page No.120 to 178)
of charge sheet
List of material objects marked on behalf of the prosecution:
MO.1 Currency notes (Rs.1000 x Article 8 8=Rs.8000, Rs.500/- x 23= Rs.11,500/-, Total: Rs.19,500/- MO.2 Metal seal MO.3 Sample solution Article 1 MO.4 Hand wash solution of CW2 Article 2 MO.5 CD containing the conversation Article 3 recorded in the Digital Voice Recorder MO.6 CD containing the contents of Article 4 Videograph MO.7 Sample solution Article 5 26 Spl.C.C.78/2013 MO.8 Right hand wash solution of accused Article 6 No.1 MO.9 Left hand wash solution of accused Article 7 No.1 MO.10 shirt of accused No.1 Article 9 MO.11 CD containing the Article 10 conversation/scene recorded in Button Camera & Digital Voice Recorder at the time of trap MO.12 CD containing the scene recorded in Article 11 the videograph at the time of trap
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-
(SHRIDEVI S. ANGADI) LXXVI Addl. City Civil & Sessions Judge & Special Judge,Bengaluru (CCH-77) 27 Spl.C.C.78/2013