Bangalore District Court
The State Of Karnataka vs D.A.Chandrashekaraiah on 30 April, 2019
1
Spl. C C No.428/2015
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
CCH-78)
PRESENT: SRI MALLIKARJUNAGOUD,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: This the 30th day of April 2019
Spl. C.C.No.428/2015
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayukta Police,
Bengaluru City Wing, Bengaluru.
(Rep.By Sri.S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: D.A.Chandrashekaraiah, S/o.
Annajappa, Aged 57 years, Revenue
Inspector, BBMP, Kogilu Ward
No.5, Byatarayanapura Sub-
Division, Bengaluru-560 045.
Residing at No.3/1, 7th A Main,
Muthyala Nagara, Mattikere,
Benglauru.
(Rep by Sri. , Advocate)
1. Nature of Offences: Offences punishable
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Spl. C C No.428/2015
under Sec. 7 & 13(1)(d)
R/w Sec.13(2) of
Prevention of Corruption
Act,1988.
2. Date of Commission 29-09-2014 and
of offence: before that date.
3. Date of First Information 30-09-2014
Report:
4. Date of Arrest: -
5. Date of Commencement 04-07-2017
Of recording of evidence:
6. Date of Closing of evidence: 19-11-2018
7. Date of Pronouncement of 30-04-2019
Judgment.
8. Result of the case: Accused is acquitted.
JUDGMENT
In this case, the Police Inspector, Karnataka Lokayukta, Bengaluru City Division has filed charge sheet against the accused for the offences punishable under Sec.7 & 13(1)(d) R/w Sec.13(2) of the Prevention of Corruption Act, 1988.
2. The charges leveled against the accused are that:
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Spl. C C No.428/2015 The complainant A.P.Krishnappa has submitted an application for transfer of their ancestral property in his name and in the name of his brother. At that time, this accused being a public servant working as a Revenue Inspector in Kogilu Ward No.5, Byatarayanapura Sub-
Division, Bengaluru has demanded illegal gratification of Rs.2,50,000/- for doing his official favour to the complainant. On bargain it was settled for Rs.2,00,000/-.
The complainant has recorded his conversation with the accused regarding the demand of illegal gratification amount from him. The complainant was not intended to pay the bribe amount so, on 30-09-2014 he filed a complaint against the accused.
3. After registering the case, the Investigation Officer has secured the presence of two panch witnesses namely CW-2 T.P.Narasimha Murthy and CW-3 K.K. Pramod. In their presence he has completed the pre-trap proceedings. After completion of pre-trap proceedings, when the complainant enquired with the accused as to 4 Spl. C C No.428/2015 where he has to meet him to pay the bribe amount, at that time, he has instructed him to come near GKVK on Jakkur Road in the evening. On that day, around 5.05 p.m., when the complainant had came over to that spot along with the panch witnesses, IO and his staff, at that time, this accused taken him to Bhagini Hotel situated at GKVK. After they went inside the hotel, on enquiry by the complainant to the accused about his pending work, at that time, the accused has demanded illegal gratification of Rs.2,00,000/- from the complainant and instructed him to keep the bribe amount in a plastic cover by making sign and gesture. After accepting the bribe amount by the accused from the complainant, the complainant gave signal to the IO as instructed by him. Thereafter, the IO trapped this accused in the presence of panch witnesses, seized the bribe amount by conducting trap mahazar. After completion of entire investigation the IO has submitted the charge sheet against the accused for the offences punishable U/s. 7 & 13(1)(d) of Prevention of 5 Spl. C C No.428/2015 Corruption Act, 1988.
4. After submitting the charge sheet, the presence of accused was secured before the court by issuing summons. The accused appeared before this court through his counsel. Copy of charge sheet was supplied to him U/s. 207 of Cr.P.C., and he was enlarged on bail.
5. Heard the Spl. Public Prosecutor and the counsel for the accused on hearing before the Charge. After hearing on HBC, after perusal of the charge sheet this court held that, there is a prima-facie case against the accused for having committed the offences punishable U/s. 7 & 13(1)(d) R/w 13(2) of the Prevention of Corruption Act, 1988.
6. The charges against accused for the offence punishable under Sections 7 & 13(1)(d) R/w. 13(2) of the Prevention of Corruption Act are read over and explained to him in the language known to him, for that, he pleaded not guilty and claims to be tried.
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Spl. C C No.428/2015
7. In all the prosecution has cited as many as 17 witnesses in the charge sheet. Out of them the prosecution has examined CW.1 - A.P.Krishnamurthy the complainant is examined as PW-2, CW-2 T.P.Narasimha Murthy panch witness is examined as PW-3. CW-4 Panchalingegowda, Revenue Officer and CW-5 K.R.Satish Asst. Revenue Inspector of BBMP, Byatarayanapura the circumstantial witnesses are examined as PW-4 & 5. CW-16 N.G.Shivashankar the IO is examined as PW-6. CW-17 G.Kumara Naik, the Commissioner, BBMP, Bengaluru, who issued the sanction order to prosecute the accused is examined as PW-1. Later the prosecution has examined two additional witnesses namely Chikkaswamy, Dy. S.P. and Smt. Srividya, the Asst. Director of FSL, Madiwala are examined as PW-7 & 8, got marked documents at Exs.P-1 to Ex.P-35 and MOs.1 to 12 are marked. Special Public Prosecutor submitted that, he has given up other witnesses and closed his side. 7
Spl. C C No.428/2015
8. Statement of the accused Under Section 313 of Cr.P.C. is recorded and he denies the incriminating evidence against him. Enquired the accused about his defence evidence for that, he submitted that, he has no defence evidence, so his defence evidence is taken as nil and recording of evidence is closed.
9. Heard the arguments of both the sides.
10. After hearing the arguments, after perusal of the charge sheet and evidence of the prosecution witnesses along with the documents exhibited in their evidence, the following points arise for consideration of this court:-
1. Whether the prosecution proves that, the sanction order obtained for prosecuting this accused for the offences alleged against him is a valid sanction ?
2. Whether prosecution proves its case against the accused beyond all reasonable doubt that, the accused being a public 8 Spl. C C No.428/2015 servant, working as Revenue Inspector in Kogilu Ward No.5, Byatarayanapura Sub-
Division has demanded illegal gratification of Rs.2,50,000/- from the complainant for changing the khatha of their ancestral property in his name and in the name of his brother, on bargain it was settled for Rs.2,00,000/-, thereafter on 30-09-2014 at about 5-05 p.m., this accused demanded and accepted illegal gratification of Rs.2,00,000/- from the complainant in Bhagini New Delux Hotel situated near GKVK, Byatarayanapura, Bengaluru thereby he has committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
3. Whether the prosecution proves its case against the accused beyond all reasonable doubt that, the accused being a public servant working as a Revenue Inspector , BBMP in Kogilu Ward No.5, Byatarayanapura Sub-Division by misusing his official position as public servant on 30-09-2019 at about 5-05 p.m., he has demanded and accepted 9 Spl. C C No.428/2015 illegal gratification of Rs.2,00,000/- from the complainant for doing his official favour to the complainant for changing of khatha of their ancestral property in his name and in the name of his brother thereby he has committed criminal mis-conduct punishable U/s. 13(1)(d) punishable U/s. 13(2) of the Prevention of Corruption Act, 1988?
4. What Order?
11. My findings on the above points are as follows;
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
12. POINT No.1: Hereafter considering the evidence of the PW-1 G.Kumara Naik, the then Commissioner of BBMP along with the sanction order marked at Ex.P-1 the point remains for consideration of this court is whether the sanction order issued by the 10 Spl. C C No.428/2015 PW-1 to prosecute this accused for the offences punishable U/s. 7 & 13(1)(d) R/w. Sec. 13(2) of Prevention of Corruption Act, 1988 is a valid sanction order or not ?.
13. To prosecute a public servant for the offences punishable U/s. U/Ss. 7, 10, 11, 13 & 15 of Prevention of Corruption Act, 1988 obtaining of previous sanction from the competent government or authority is mandatory. Section 19 of P.C. Act, 1988 states as to who are the competent authorities to grant sanction for prosecuting a public servant. Hereby considering the working place of the accused in BBMP, it indicates that, the Commissioner of BBMP is the competent authority to issue sanction order for prosecuting the accused for the offences alleged against him. That, Section 19(c) of P.C. Act, 1988 says that, the person who is competent to remove a public servant from office for his criminal misconduct is the competent authority to issue sanction. 11
Spl. C C No.428/2015
14. Herein this case, learned counsel for the accused very much argued on the point of non application of mind by the PW-1 before issuing sanction order. He has contended that, issuing of sanction order is not a mechanical process. Before issuing the sanction order the concerned authority or government is duty bound to scrutinize all the documents and to apply its mind as to whether there is a prima-facie case against the accused to accord sanction or not. Hereby looking into the trap mahazar marked at Ex.P-12 there is no mention about the conducting of hand wash proceedings of the accused, but in the sanction order marked at Ex. P-1 the sanctioning authority has stated about the conducting of hand wash proceedings by the IO, so it indicates that, the sanctioning authority PW-1 has issued the sanction order without applying his mind. Further he has contended that, though there is no prima-facie case against the accused for according sanction, by issuing such sanction order the learned Commissioner PW-1 has 12 Spl. C C No.428/2015 erred in discharging his duty, so on this count also he requested the court to acquit the accused. In support of the same, he relied on the following decisions reported in......
1. AIR 2014 SC Page 827 (Between C.B.I. Vs. Ashok Kumar Aggarwal)
2. 2010(2) Kar. L.J. 1=2010(2) KCCR 1010 (Between Babappa Vs. State by Lokayukta Police)
3. AIR 2008 SC 108 (2008 Cri. LJ 347) (Between State of Karnataka Vs. Ameer Jan)
4. AIR 2015 SC 3060(Between Nanjappa Vs. State of Karnataka)
15. Learned Spl. PP submitted before the court stating that, just because some typographical mistake with regard to conducting of hand wash proceedings by the IO has crept in the sanction order itself is not mean to say that, that sanction order is illegal. Such typographical mistake crept in the same is not a justifiable ground for acquittal of the accused. Whether the documents sent for scrutiny of PW-1 make out a prima-facie case against the accused for according 13 Spl. C C No.428/2015 sanction order or not ? is the fact to be considered by the court. In the re-examination of PW-1 he has admitted that, the mistake with regard to the conducting of hand wash proceedings of the accused is crept due to typographical mistake and such mistake can be rectified at any stage. When the PW-1 has stated about that fact before the court on oath, under such circumstances the evidence given by the PW-1 before the court on oath will prevail, so said mistake itself is not a ground to hold that, PW-1 has issued that sanction order without applying his mind.
16. Hereafter considering the submissions of both the sides and after going through the sanction order marked at Ex.P-1 it is true that, on page-3 of the sanction order the hand wash proceedings of the accused is mentioned. That itself is not a poof to hold that, the said sanction order is invalid. For considering the validity of a sanction order the court has to consider 14 Spl. C C No.428/2015 the fact that, whether the documents sent by the ADGP, Lokayukta makes out a prima-facie case against the accused to accord sanction to prosecute him for the offences punishable U/s. 7 & 13(1)(d) R/w. Sec. 13(2) of P.C. Act or not ? are the facts to be considered by the court. For considering that fact the PW-1 was suppose to consider the documents sent for his scrutiny. Ex.P-10 speaks about the pendency of work of the complainant with the accused, Ex.P-2 states about the filing of complaint by the complainant against accused. Ex.P-3 to 5 are the documents of pre-trap proceedings. Ex.P-12 is the trap mahazar.
17. By looking into the above said documents along with the submissions of both the sides it indicates that, for considering the above said documents by the PW-1, it indicates that, he satisfied that, there is a prima- facie case against the accused for according sanction to prosecute him for the offences punishable U/s. 7 & 13(1) 15 Spl. C C No.428/2015
(d) R/w. 13(2) of P.C. Act. Merely a typographical mistake crept in Ex.P-1 i.e., in the sanction order with regard to conducting of hand wash proceedings of the accused is crept and same is not appearing in the trap mahazar will not make this sanction order invalid. When there is no mention in the trap mahazar with regard to conducting of hand wash proceedings of the accused and it was stated that, accused has not touched the tainted currency notes with his hands, so the question of conducting hand wash proceedings of the accused by the IO does not arise. The typographical mistake in Ex. P-1 will not make the sanction order invalid. I have also gone through the decisions relied upon by the counsel for the accused stated above. The facts of the said cases are entirely different from the case on hand, so the ratio involved in the said decisions are not helpful to the case of the accused to hold that, the sanction order marked at Ex.P-1 is invalid. That, PW-1 has stated in his evidence about the documents scrutinized by him for issuing 16 Spl. C C No.428/2015 sanction order marked at Ex.P-1. Said documents makes out a prima-facie case against the accused for according sanction, so this court held that, the sanction order issued by the PW-1 to prosecute this accused before the court is valid sanction. Hence, this court answered Point No.1 in the affirmative.
18. POINT NO.2 & 3 : For giving findings of this court on point No.2 & 3, common discussion of the oral and documentary evidence placed by the prosecution before the court are necessary, so both the points are taken up for common discussion.
Hereafter considering the prosecution case along with the evidence of its witnesses examined before the court, documents and material objects got marked in the examination of prosecution witnesses, now the point remains for consideration of this court is whether this accused being a public servant working as a Revenue Inspector in BBMP, Bengaluru has demanded and 17 Spl. C C No.428/2015 accepted illegal gratification of Rs.2,00,000/- from the complainant for doing his official favour in the matter of the complainant as contended in the complaint or not are the facts to be considered by the court.
19. For convicting the accused for the offences alleged against him, the prosecution has to prove the fact of pendency of work, demand and acceptance of illegal gratification by the accused for doing his official favour.
20. In support of the case of the prosecution learned PP submitted before the court stating that, all the prosecution witnesses examined before the court have fully supported the prosecution case and the evidence of complainant in his examination-in-chief corroborates with the evidence of shadow witness. The evidence of PW-2 & 3 corroborates with the evidence of IO and other prosecution witnesses, so the prosecution has proved its case against the accused beyond all reasonable doubt. However, after examination-in-chief of 18 Spl. C C No.428/2015 complainant, for the reasons best known to him he has supported the defence set up by the accused counsel and given his contrary statement already given before the court on oath. When the complainant has fully supported the prosecution case in his examination-in- chief and said good-bye to the prosecution case by admitting all the suggestions put to him in his cross- examination by the defence counsel, it indicates that, he was won-over by the accused, so he has given his contrary statement before the court. When the very act of complainant PW-2 goes to show that, he blows hot and cold in his evidence and he has no regards towards the truth. Under such circumstances his evidence given before the court on oath in examination-in-chief shall be accepted as true and correct and minor discrepancies in his cross-examination be discarded. Though there are minor contradictions in the evidence of shadow witness and other prosecution witnesses, that itself will not falsifies the prosecution case to disbelieve the same 19 Spl. C C No.428/2015 totally. Since the accused being a public servant, who was not suppose to demand and accept any bribe amount for doing his official favour has demanded and accepted bribe amount as stated by the complainant and shadow witness in their evidence before the court, so the prosecution has proved its case against the accused beyond all reasonable doubt. Hence the accused shall be convicted for the offences punishable under Sections 7 & 13(1)(d) R/w. Sec. 13(2) of P.C. Act by awarding maximum sentence.
21. Contrary to this, learned counsel for the accused submitted before the court stating that, merely because the prosecution witnesses have supported the prosecution case in their examination-in-chief itself is not sufficient to hold that, the prosecution has proved its case against the accused beyond all reasonable doubt. The evidence does not mean to say that, only the deposition of the prosecution witness in examination-in- chief. The very object of cross-examination of 20 Spl. C C No.428/2015 prosecution witnesses is to find out the truth of the case. Though in the examination-in-chief the complainant and shadow witness have supported the prosecution case in a para tutor manner, when they are subjected to cross- examination, they have spoken truth before the court stating that, there was no demand and acceptance of bribe amount of Rs.2,00,000/- by the accused from the complainant. Further the complainant has stated that, he has paid that amount as balance development charges and he misconstrued the same as a bribe amount. Even though the IO has seized the said Rs.2,00,000/- kept in a plastic cover pertains to the accused, it is not a bribe amount as contended by the prosecution. By looking into the documents at Ex.P-10 it indicates that, for changing of khatha the complainant and his brother were suppose to pay development charges of Rs.28,00,000/-. Out of it a part amount of Rs.7,00,000/- was paid on 15-09-2014 along with application. That, in the affidavit marked at Ex.P-10(B) the undertaking of the complainant and his 21 Spl. C C No.428/2015 brother Jayaram are appearing that, they will pay the balance amount in October, November and December- 2014 on instalment basis of Rs.7,00,000/-
22. By looking into the prosecution case it indicates that, it is a planned trap created by the complainant colluding with the Lokayukta Police. Because on the date of trap there was no call from this accused to the complainant and there was no demand of bribe amount by the accused from the complainant. The place of meeting of the accused with the complainant was selected by the complainant. After arrival of the accused the complainant taken him to Bhagini Hotel, hand over the affidavit and kept the seized amount without demand from the accused. In the cross-examination the complainant has admitted that, he has filed his complaint before the Lokayukta police under wrong impression stating that, the development charges demanded by the accused was the bribe amount. When 22 Spl. C C No.428/2015 the complainant himself has stated that, this accused has not demanded and accepted the bribe amount and the amount paid by him was the part of development charges amount, under such circumstances it cannot be considered as a bribe amount.
23. After the cross-examination of complainant and after giving some admissions by the complainant, he was treated as hostile by the Public Prosecutor and cross-examined him. In that cross-examination Public Prosecutor put suggestions about the documents appearing in Ex.P-10 marked as Ex.P-10(B). In that cross- examination he has admitted the fact of partial payment of Rs.7,00,000/- towards development charges and in the affidavit marked at Ex.P-10(B) undertaking of remaining balance of development charges instalment is appearing. Said suggestions of Public Prosecutor itself falsifies the prosecution case against the accused for the demand and acceptance of bribe amount.
24. Further he has contended that, though the 23 Spl. C C No.428/2015 shadow witness PW-3 T.P.Narasimhamurthy has supported the prosecution case in his examination-in- chief, but in his cross-examination he has admitted that, after the arrival of the accused he asked the complainant about the affidavit and collected that affidavit and kept in a plastic cover brought by him. While they were sitting in that hotel, the complainant told the accused stating that, he brought the thing told by the accused and in his presence the accused has not demanded any money from the complainant. Further he has stated that, though the accused has not demanded anything from the complainant, the complainant has kept the tainted currency notes into a plastic cover of the accused after hand overing the affidavit. This statement of PW-3 at Para-2 on page No.11 falsifies the prosecution case about the demand and acceptance.
25. The evidence of PW-5 with regard to identifying the voice of the accused is not admissible, as the voice was not clear. Further his evidence is not a conclusive 24 Spl. C C No.428/2015 proof with regard to the demand and acceptance of bribe amount by the accused from the complainant, as they have not stated that, there was a conversation with regard to demand of bribe amount.
26. With regard to the evidence of IO he has stated that, there are so many latches on he part of IO in non seizing the material objects used by the complainant for recording the conversation of the accused with him in the mobile phone. IO has not collected the certificates of the concerned persons with regard to the electronic evidence as required U/s. 65-B of Evidence Act. IO has admitted with regard to seizure of the document marked at Ex.P-10, if he would have consider the said document thoroughly, he use to ascertain that, the balance development charges was not paid by the complainant for attending his work by the accused. By considering this fact into consideration it creates doubt in the mind of the court stating that, it is a concocted case. 25
Spl. C C No.428/2015
27. The IO has not recorded the statements of Proprietor or the workers of Bhagini Hotel with regard to the raid, so it is fatal to the prosecution case. The prosecution has much relied on the statement of the complainant U/s. 164 of Cr.P.C. given before the Magistrate and it is not a conclusive proof for convicting the accused. The said statement is not par with the statement recorded by the police officer U/s. 161 of Cr.P.C.
28. PW-7 Chikkaswamy Dy. S.P., Lokayukta has stated with regard to collecting of FSL report and after collection of the same produced the same before the court along with covering letter Ex.P-33 & 34. His evidence is of no use for considering the guilt of the accused. With regard to PW-8 he has contended that, the evidence of said witness is not helpful to the prosecution case, as the IO has not sent the original devise used for recording of conversation of the accused with the complainant and recording sample speech of the 26 Spl. C C No.428/2015 accused during investigation. Further PW-8 has not issued the certificate U/s. 65-B of I.E. Act, so in view of the same, the evidence of PW-1 to 8 holds not good for convicting the accused.
29. There are so many omissions and contradictions in the evidence of prosecution witnesses and the said omissions and contradictions creates doubt in the mind of the court about the prosecution case, so its benefit shall be given to the accused for acquittal and accused shall not be convicted by taking benefit of doubt. With these observations and in view of the reasons stated in his written arguments he requested the court to acquit the accused.
30. In support of the case, the learned counsel for the accused relied on the following decisions....
1. AIR 2015 SC 3549 (Between P.Satyanarayana Murthy Vs. Dist. Inspector of Police and others)
2. AIR 2013 SC 3817 (Sujit Biswas Vs. State of Assam)
3. (2009) 15 SCC 200 (State of Maharashtra Vs. 27 Spl. C C No.428/2015 Dnyaneshwar Laxman Rao Wankhede)
4. 2003 Cri.L.J. 3253 (Between Guruvindapalli Anna Rao and three others Vs. State of Andhra Pradesh)
5. 2006 Cri. L.J. 4813 (Between T.Diwakara S/o. Rangappa Vs. State of Karnataka by its SPP)
6. AIR 1960 SC 490 (Between State of Delhi Vs. Ram Lohia)
7. AIR 2015 SC 180 (Between Anvar P.V. Vs. P.K.Basheer)
31. Hereafter considering the charge sheet, evidence of the prosecution witnesses, documents marked in the evidence of the prosecution witnesses along with the submissions of both the sides and the ratio involved in the decisions relied upon by the counsel for the accused the points remain for consideration of this court are whether this accused being a public servant has demanded and accepted illegal gratification of Rs.2,00,000/- from the complainant on 30-09-2014 at about 5-05 pm., in Bhagini New Deluxe Hotel situated near GKVK, Byatarayanapura, Bengaluru or not are the facts to be considered by the court. For considering the 28 Spl. C C No.428/2015 case of the prosecution, the pendency of work of the complainant with the accused, demand and acceptance of illegal gratification by the accused from the complainant are the most important factors to be proved by the prosecution.
32. It is true that, by looking into the documents marked at Ex.P-10 it indicates that, as on the date of alleged trap the work pertains to the complainant with regard to transfer o his ancestral property in his name and in the name of his brother was pending. However, whether there was a demand of illegal gratification of Rs.2,00,000/- by the accused from the complainant on 30-09-2014 at about 5-05 p.m., and accepted the same or not are the facts to be considered by the court. For proving the same, the prosecution is much relying on the evidence of complainant, shadow witness and the CDs marked at MO-4 & 7. MO-4 & 7 are the alleged conversation of accused with the complainant with regard to demand of bribe amount earlier to filing of the 29 Spl. C C No.428/2015 complaint and on the date of trap. It is true that, under Section 65-B of Indian Evidence the Electronic Records are also admissible in evidence if the conditions of Section 65-B are properly fulfilled by the prosecution. In a decision relied upon by the counsel for the accused reported in AIR 2015 SC 180 (Between Anvar P.V. Vs. P.K.Basheer) their lordships have stated as to how the electronic evidence are admissible. In the said decision at para-11 their lordships have specifically stated that, for considering the electronic evidence fulfilling the conditions of Section 65-B are important. Under Section 65-B(4) of the Indian Evidence Act their lordships have stated about obtaining of certificate, collecting of the device used for recording such evidence etc., When the prosecution is relying on the electronic evidence marked at MO-4 & 7, under such circumstances, the IO ought to have seize the device used for recording such conversation and obtaining of certificate from the concerned person. Herein this case, the IO has not 30 Spl. C C No.428/2015 collected such certificate and seized the device used for recording the same and conversation of such statements. In his cross-examination on page-17 he has admitted that fact and it reads as follows;
".............The complainant has produced his mobile in which he has recorded his conversation dated 25-09-2014 with the accused regarding demand of bribe amount. Said mobile was not seized by me."
Further he has stated that,......
".........Complainant has not produced his another mobile phone in which he has recorded his conversation with the accused dated 29-09-2014 as stated in his complaint and same is not seized. The memory card kept in the 3 mobiles used by the complainant for his conversation with the accused are not seized by me."
33. However, for supporting the case of the prosecution the learned Public Prosecutor has much relied on the evidence of the expert PW-8 Smt. Srividya, 31 Spl. C C No.428/2015 the In-charge Asst. Director of FSL, Madiwala, Bengaluru stating that, the said conversation CDs MO-4 & 7 are sent for expert's examination along with the sample speech CD of the accused marked at MO-9. The Expert opined that, comparison of respective voices based on auditory and feature extraction method. The voice of the accused appearing in MO-4 & 7 are similar to the voice appearing in MO-9. Whether the said evidence of Expert itself is conclusive proof for admissibility of the said electronic records or not is the fact to be considered by the court. That, section 65-B has specifically states what are the conditions to be fulfilled for admissibility of the electronic records. As per the said provision the seizure of device used for recording such conversation and the device used for transmission of the same into CDs along with the certificate of the person, who recorded and transmitted the same into CD are important, but IO has not seized such device, collected the certificates and sent the said articles to the PW-8 for her examination 32 Spl. C C No.428/2015 along with the MOs marked at 4, 7 & 9, so non seizure of the MOs and non fulfilling the conditions of Section 65-B of the Indian Evidence Act is fatal to the prosecution case.
34. In the cross-examination of PW-8 Smt. Srividya she has stated that, there is a noise of other persons in the CD marked at article No.3. Further she has stated that, the noise of others persons are also appearing in article No.7. She has stated that, IO has not sent sample speech of the complainant with the sample speech of accused. When the sample speech CD of the complainant is not sent to the expert for examination stating that, the conversation appearing in MO-4 & 7 are the voice of accused and complainant, under such circumstances, the very fact of the conversation of this accused with the complainant is doubtful. In her cross- examination she admitted that fact and it reads as follows;
"..............It is true that, since that speech CD 33 Spl. C C No.428/2015 is not sent to me, I cannot say as to who was the another person conversation with the accused, said to be Chandrashekar."
35. Further she has stated that, the IO has not sent the certificate as required under Section 65 along with the instruments and device used for recording the same. Further she has not issued any certificates stating that, she has conducted the test of the said CDs, so in view of all these defects in the prosecution case and in view of the ratio involved in the decision of Anvar P.V. Vs. P.K.Basheer, this court held that, the prosecution fails to prove the electronic record is admissible.
36. Further by considering the evidence of PW-4 & 5 again it creates doubt in the mind of the court as to whether audio heard by them was of the accused with the complainant or not. Because in the cross- examination of PW-4 he has stated that, personally he do not know as to with whom this accused has made that conversation. PW-5 has stated that, the voice of 34 Spl. C C No.428/2015 complainant was clear and the voice of accused was not clear. In his cross-examination he has stated that, definitely he cannot say as to whether the said voice was of Krishnappa or not. When the evidence of said witnesses are not clear to support the case of the prosecution, under such circumstances also their evidence is of no use to case of prosecution.
37. For deciding the case of prosecution, now the evidence of complainant, shadow witness and IO remains. As per the ratio involved in the decision reported in 2016 (1) KCCR 815 Headnote-A (Between R.Srinivasan and another Vs. State by Police Inspector, Lokayukta Bengaluru) his lordship held as follows;
".................Complainant-In a trap case the complainant will normally be an interested person in the sense he would be interested in getting the accused trapped since accused is stated to have not acted legally, according to him. Hence his evidence needs corroboration in material particulars 35 Spl. C C No.428/2015 and this is where corroboration by the shadow witness assumes importance.
Further in Head note-H his lordship held as follows;
"................ Demand official favour- The scope for demanding bribe by a public servant would arise if there is a possibility of doing any official favour the prosecution is expected incidentally to make out a case that the accused had opportunity to do official favour and therefore demand, in a trap case relating to the role of a public servant receiving bribe money prosecution is expected to discharge its initial burden to prove that the said bribe amount was received only after demand as contemplated under Sections 7 & 13(1)(d) of the Act."
38. In a decision reported in 2010 KCCR 1851 (Between State of Karnataka Vs. M.Gopalakrishnaiah and Others) Head note-A his lordship held as follows ".........Even to draw a presumption under 36 Spl. C C No.428/2015 Section 20 of the Act the prosecution is required to prove that there was demand and acceptance- If the Demand and acceptance of of the purpose of official favour is proved by the prosecution beyond the reasonable doubt the burden may shift on the accused the same-
However when the initial burden of proving the demand and acceptance is not proved he presumption under Section 20 of the Act does not arise.
In Head note-B his lordship held as follows;
"..............Sections 7 and 13(1)(d) readwith Section 13(2) - Prosecution which is required to prove the case beyond reasonable doubt on par with any other criminal case.
39. In a decision reported in 2000 Supreme Court Cases (Cri) 878 Head note-A their lordships held that, "............Mere recovery of the currency note and positive result of the 37 Spl. C C No.428/2015 phenolphthalein test not enough in the peculiar circumstances of the case, to establish guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence -
Charge must be proved beyond reasonable doubt."
40. In another decision reported in 1972 (3) Supreme Court Cases-652 (Ram Prakash Arora Vs. State of Punjab) their lordship held as follows;
"...........Criminal Trial - Witnesses - Trap witness-Partisan witness interested in trap-Held-Evidence of such witness must be tested like other interested witnesses-
Court may look for independent
corroboration before convicting the
accused -
Criminal Trial -Appreciation of evidence
-Point not raised in cross-examination of witness-Held- Court should not draw any adverse inference."38
Spl. C C No.428/2015
41. So, by keeping the ratio involved in the said decisions the evidence of prosecution witnesses must be scrutinized cautiously. It is true that, in his examination- in-chief the complainant has supported the prosecution case and in his cross-examination he said good-bye to his earlier version. Under such circumstances, whether the evidence given by the complainant before the court on oath in examination-in-chief alone shall be considered or his cross-examination also to be considered is the fact to be considered by the court.
42. Section 3 of Indian Evidence Act state about the interpreting clause and in the same it states about the evidence and it reads as follows;
"......Evidence meas and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; 39
Spl. C C No.428/2015
43. Chapter-X of the Indian Evidence Act states about the examination of witnesses and Section 137 of Indian Evidence Act states about the examination-in- chief, cross-examination and re-examination. Section 138 of Indian Evidence Act states about the Order of examination, so as per the said provisions once the witness is examined in chief, he shall be subjected to cross-examination by the other side. If he turned hostile to his any earlier statement, then with the permission of the court the person, who called that witness for examination can treat him hostile and cross-examine him with the permission of the court. Further if there is any ambiguity or new factors are made in the cross- examination of that witness, he shall be subjected for re- examination. For considering the evidence of a witness, his evidence given before the court on oath and in cross- examination and re-examination shall be considered.
44. It is true that, PW-2 A.P.Krishnappa has supported the case of the prosecution in his 40 Spl. C C No.428/2015 examination-in-chief. Further when he was subjected to cross-examination he went on giving his admissions to all the suggestions put to him by the counsel for accused. In the said suggestions the most important factors are, as on the date of trap the complainant has not paid the entire development charges for attending his work. Because in his cross-examination on page-6 he admitted that fact and it reads as follows;
"..........It is true that, that land was converted into non-agricultural land. It is true that, after conversion of that land I had paid only part of the betterment charges. According to me I have to deposit the betterment charges around Rs. 25 to 27 lakhs. It is true that BBMP authorities were insisting me to deposit the betterment charges."
45. Further in his cross-examination on page-7 he has admitted the delay in payment of betterment charges and it reads as follows;
".........It is rue that the change of khatha of my 41 Spl. C C No.428/2015 property delayed on account of non-payment of my betterment charges to BBMP"
Further in his cross-examination on the same page he has admitted that, "....... It is true that since there was delay in change of khatha of my property, so I presumed that, they are expecting something from me to do the same."
Such presumption does not give scope to believe the prosecution case. In his cross-examination on page-7 he has admitted that, he was advised to submit his affidavit for delay in depositing the betterment charges. Said affidavit is appearing in document marked at Ex.P-10-B and in that affidavit he has requested the BBMP authority to give monthly instalments up to December- 2014. By considering the same it indicates that, as on the date of trap the complainant has not paid the entire betterment charges to the BBMP Authority. When he has not paid the entire betterment charges, under such circumstances the BBMP authority was not suppose to 42 Spl. C C No.428/2015 change the khatha in the name of the complainant and his brother.
46. In his cross-examination on page-8 he has admitted that, as the khatha was not changed, he was under the impression that the accused was expecting something and the said statement reads as follows;
"........I was not aware as to whether the amount insisted by this accused to deposit in BBMP was a betterment charge or not but I was under the impression that he is expecting something from me to do my work, so I filed a complaint against the accused stating that he is demanding illegal gratification for change of khatha of my property."
47. By considering the admissions of complainant on page-9 it indicates that, he is the master mind of this trap. Because in his cross-examination he has stated that, it is true that, "on that day I insisted this accused to come early near GKVK stating that since I am injured I have to go to hospital for taking treatment. It is true that 43 Spl. C C No.428/2015 on that day I told him that as per his instructions I prepared my affidavit and I am intending to hand over the same to him". This statement of PW-2 goes to show that, he has lodged that complaint with an intention to get this accused to work done by him by putting threat. Further by considering his admissions in his cross- examination at page-10 it indicates that, said trap was planned by the complainant and the Lokayukta Police. Because in his cross-examination he has stated as follows;
"........It is true that since his hands were wet I put my affidavit in a cover to hand over the same to the accused. It is true that police have instructed me to keep the bribe amount cover in a cover in which I had kept my affidavit, so on their instruction I kept that notes cover without the knowledge of this accused."
48. Further in his cross-examination on page-10 he has admitted that, there was no demand and acceptance of bribe amount by this accused from the 44 Spl. C C No.428/2015 complainant and it reads as follows;
"......... It is true that this accused has never demanded any bribe amount from me. It is true that this accused use to told me that he has to reach the target by collecting revenue from the public, so to reach his target he has to collect my betterment charges also".
This admission of the complainant goes to show that it is a planned trap.
49. That, in a decision reported in 2013 SC 3817 (Between Sujit Biswas Vs. State of Assam) their lordships held as follows;
"suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given 45 Spl. C C No.428/2015 to the accused".
50. In a decision of Supreme Court reported in 2015 SCC Online SC 814 -Headnote-A (BetweenP.Satyanarayana Murthy Vs. Dist. Inspector of Police) their lordships held as follows "Reiterated that suspicion, however grave, cannot take the place of proof -
Thus, prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of must be "true - Prosecution must steer clear of any possible surmise or conjecture -Then two views are plausible, then the benefit of doubt must be given to the accused -
Prevention of Corruption Act 1988 -Ss. 7, 13(1)(d)(i), 13(1)(d)(ii) & 13(2)
51. In another decision reported in 2012(1) KCCR
-414 Head note-C & D his lordship held as follows;
".........C. It is not the passing of the money alone that establishes a Corruption charge because the gravemen of the offence lies in the fact that the money was 46 Spl. C C No.428/2015 paid for a corrupt purpose and it is that aspect which is paramount.
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"
52. Further in another decision reported in (1979) 4 Supreme Court Cases 725 (Suraj Mal Vs. State (Delhi Administration) their lordships held as follows;
"........Mere recovery of bribe money divorced from the circumstances under which it was paid, held, is not sufficient to convict when the substantive evidence in the case was not reliable-Case not proved beyond reasonable doubt.
Mere recovery by itself cannot prove the charge of the prosecution against the appellant in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money."47
Spl. C C No.428/2015
53. PW-3 is a shadow witness and he has supported the prosecution case. In his cross-examination on page- 10 & 11 he has stated that, this complainant has secured the presence of the accused near GKVK and after arrival of this accused asked the complainant to produce the affidavit and kept it in his plastic cover. Further in his cross-examination on page-11 at para-2 he has stated that, there was no demand of bribe amount by the accused and it reads as follows;
".......When we are sitting in that hotel, complainant Krishnappa told the accused stating that he brought the thing told by the accused. In my presence the accused has not demanded any money from the complainant. It is not true to say that though this accused has not demanded anything to the complainant, the complainant put that tainted currency notes cover into other plastic cover of the accused after handing over the affidavit."
so, this statement of PW-3 is of no use to the prosecution case stating that there was no demand and acceptance 48 Spl. C C No.428/2015 of bribe amount by the accused from the complainant. When the material ingredients of demand acceptance of bribe amount by the accused from the complainant are not appearing the evidence of PW-2 & 3 and PW-2 & 3 have not stated about the same in their evidence and proved with cogent evidence, under such circumstances their evidence are of no use for convicting the accused for the offences punishable U/Ss. 7 & 13(1)(d) readwith Sec. 13(2) of P.C. Act.
54. It is true that, the prosecution has much relied on the statement of the complainant recorded by the Magistrate U/s. 164 of Cr.P.C., appearing at Ex.P-14. In view of the ratio involved in the decisions relied upon by the counsel for the accused reported in 2003 Cri.L.J. 3253 (Between Guruvindapalli Anna Rao and three others Vs. State of Andhra Pradesh) and 2006 Cri. L.J. 4813 (Between T.Diwakara S/o. Rangappa Vs. State of Karnataka by its SPP) their lordships held that, the statement of witness recorded before the Magistrate U/s. 49
Spl. C C No.428/2015 164 of Cr.P.C. is not a conclusive proof. It is as good as statement U/s. 161 of Cr.P.C. Further in the cross- examination of PW-2 by the PP on page-11 he has stated that, Lokayukta Police have stated him as to how he has to state before the Magistrate. Further in his cross- examination by PP he denied the suggestions of the PP stating that, though this accused demanded and accepted the bribe he is deposing falsely. That evidence of complainant and shadow witness are doubtful to consider the case of prosecution about the demand and acceptance of bribe amount by this accused from the complainant. Under such circumstances their evidence are of no use to convict the accused. In catena of decisions of Hon'ble Supreme Court and various High Courts their lordships held that, if two views are plausible, then the view favourable to the accused shall be considered and its benefit shall be given to the accused. Herein this case also the absence of demand and acceptance of bribe amount by the accused from 50 Spl. C C No.428/2015 the complainant are appearing from the evidence complainant and shadow witness, so its benefit shall be given to the accused.
55. After discussion of the evidence of PW-2 & 3 now the evidence of IO PW-6 remains for consideration of this case. It is well settled principles of law of evidence that, the evidence of the IO is not a conclusive proof for convicting the accused. However, his evidence can be used for corroborating with other witnesses. By considering the evidence of PW-6 on page-14 it indicates that, he has not conducted the preliminary enquiry with regard to the genuineness of the complainant's allegation. Because in his evidence he has stated as follows;
".....Complainant has not informed m stating that, despite his appearance before the higher authorities of the accused his khatha application was not considered. There is no mention in the complaint about the carrying of bribe amount by the complainant to my office.51
Spl. C C No.428/2015 It is true that, complainant has not stated about any other articles except his conversation with the accused recorded in his mobile phone".
56. In the cross-examination of PW-6 on page-15 he has admitted that, complainant has not produced his mobile at the time of pre-trap proceedings, so he cannot say about its detail. Further he has admitted that, there is no mention in the pre-trap mahazar about seizure of mobile chip and he has not collected the certificate of the complainant U/s. 65-B of I.E. Act.
57. In his cross-examination on page-17 he has admitted that, he has not seized the mobile phone containing the conversation of the accused and complainant on 25-09-2014. The complainant has not produced his another phone used on 29-09-2014. For considering the electronic evidence seizure of the said mobile phone was necessary, but non seizure of the said mobile phones by the IO is fatal to the prosecution case. 52
Spl. C C No.428/2015
58. In the cross-examination of the IO on page-19 he has admitted that, as per the papers appearing in Ex.P-10 complainant has not paid the entire development charges. Even by considering this fact also, IO ought to have insist the complainant to pay that development amount first and then demand the change of khatha in his name and in the name of his brother, so the said fact also goes to show that, the investigation done by the IO is not fair investigation. In the cross- examination of IO on page-23 he has admitted that, he has not recorded the statements of proprietor, workers and customers of Bhagini Hotel. It is also fatal to the prosecution case. In his cross-examination on page-24 IO admitted that, he has not obtained the certificates of his staff, who have actually transmitted the conversation of the CDs to another CD and the signatures of his staff are not appearing on Ex.P-5. By considering the evidence of PW-2, 3 & 6 into consideration the prosecution has not proved its case against the accused beyond all 53 Spl. C C No.428/2015 reasonable doubt, so accused cannot be convicted for the offences alleged U/Ss. 7 & 13(1)(d) read with Section. 13(2) of P.C. Act, as the very important ingredients of demand and acceptance of bribe amount by the accused from the complainant are not proved.
59. I have gone through the decisions relied upon by the counsel for the accused. The ratio involved in the said decisions are applicable to the case of the accused, so same are considered for adjudication of this case. In view of the reasons stated above, the prosecution has failed to prove its case agianst the accused beyond all reasonable doubt. Hence, this court answered point No.2 & 3 in the Negative.
60. POINT No.4: In view of all the reasons, this court proceed to pass the following :
ORDER Acting under Sec.235 (1) of Cr.P.C., 54 Spl. C C No.428/2015 accused is acquitted for the offences punishable under Sec.7 & 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act,1988.
His bail bond stands cancelled after lapse of appeal period.
MO-11 cash of Rs.2,00,000/- (Rs. Two Lakhs only) is ordered to be confiscated to the State and M.O.1 to 10 & 12 which are worthless are ordered to be destroyed and after lapse of appeal period.
(Dictated to the Stenographer, after transcription, corrected by me and then pronounced by me in the open court on this the 30th day of April 2019.) (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78) ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 :: G.Kumar Naik
55
Spl. C C No.428/2015
PW.2 :: A.P.Krishnappa
PW.3 :: T.P.Narasimhamurthy
PW.4 :: Panchalingegowda
PW.5 :: Satish Kumar
PW.6 :: N.G.Shivashankar
PW-7 :: Chikkaswamy
PW-8 :: Smt. Srividya
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 :: Sanction Order Ex.P.1(a) :: Signature of PW-1 Ex.P.2 :: Complaint Ex.P.2(a) :: Signature of PW-2 Ex.P.2(b) :: Signature of PW-6 Ex.P.3 :: Pre-trap mahazar Ex.P.3(a) :: Signature of PW-2 Ex.P.3(b) :: Signature of PW-3 Ex.P.3(c) :: Signature of CW-3 Ex.P.3(d) :: Signature of PW-6 Ex.P.4 :: Mobile conversation transcription Ex.P.4(a) :: Signature of PW-3 Ex.P.4(b) :: Signature of CW-3 Ex.P.4(c) :: Signature of PW-6 Ex.P.5 :: Note sheet of currency notes Ex.P.5(a) :: Signature of PW-3 56 Spl. C C No.428/2015 Ex.P.5(b) :: Signature of PW-6 Ex.P.6 :: Rough sketch of spot Ex.P.6(a) :: Signature of PW-3 Ex.P.6(b) :: Signature of CW-3 Ex.P.7 :: Digital voice recorder transcription Ex.P.7(a) :: Signature of PW-3 Ex.P.7(b) :: Signature of PW-6 Ex.P.8 :: Report given by CW-4 Ex.P.8(a) :: Signature of PW-3 Ex.P.8(b) :: Signature of PW-4 Ex.P.9 :: Report given by CW-5 Ex.P.9(a) :: Signature of PW-3 Ex.P.9(b) :: Signature of PW-5 Ex.P.10 :: Documents seized from accused Ex.P.10(a) :: File pertain to the complainant Ex.P.10(b) :: Affidavit Ex.P.11 :: Accused written explanation Ex.P.11(a) :: Signature of PW-3 Ex.P.11(b) :: Signature of CW-3 Ex.P.11(c) :: Signature of accused Ex.P.11(d) :: Signature of PW-6 Ex.P.12 :: Trap mahazar Ex.P.12(a) :: Signature of PW-3 Ex.P.12(b) :: Signature of CW-3 Ex.P.12(c) :: Signature of accused 57 Spl. C C No.428/2015 Ex.P.12(d) :: Signature of PW-6 Ex.P.13 :: Copy of attendance register Ex.P.14 :: Statement of complainant u/s. 164 Ex.P.14(a) :: Signature of PW-2 Ex.P.15 :: First Information Report Ex.P.15(a) :: Signature of PW-6 Ex.P.16 :: Requisition to depute officials Ex.P.16(a) :: Signature of PW-6 Ex.P.17 :: Acknowledgement given by CW-3 Ex.P.17(a) :: Signature of PW-6 Ex.P.18 :: Covering letter of PW-6 Ex.P.18(a) :: Signature of PW-6 Ex.P.19 :: Covering letter to chemical examiner Ex.P.19(a) :: Signature of PW-6 Ex.P.20 :: Letter to Joint Commissioner, BBMP. Ex.P.21 :: Duty particulars of accused Ex.P.22 :: Letter to A.E.E. PWD Ex.P.23 :: PWD Sketch map Ex.P.24 :: Chemical examination report Ex.P.25 :: Letter to Joint Commissioner, BBMP Ex.P-26 :: Service particulars of accused Ex.P-27 :: Sample voice collect mahazar Ex.P.27(a) :: Signature of CW-2/PW-3 Ex.P.27(b) :: Signature of CW-3 Ex.P.27(c) :: Signature of accused 58 Spl. C C No.428/2015 Ex.P.27(d) :: Signature of PW-6 Ex.P.28 :: Acknowledgement Ex.P.28(a) :: Signature of CW-3 Ex.P.28(b) :: Signature of PW-6 Ex.P.29 :: Script for sample voice collection Ex.P.29(a) :: Signature of CW-2/PW-3 Ex.P.29(b) :: Signature of CW-3 Ex.P.29(c) :: Signature of accused Ex.P.29(d) :: Signature of PW-6 Ex.P.30 :: Certificate U/s. 65-B of I.E. Act Ex.P.30(a) :: Signature of PW-6 Ex.P.31 :: Call details of complainant Ex.P.31(a) :: Signature of PW-6 Ex.P.32 :: Call details of accused Ex.P.32(a) :: Signature of PW-6 Ex.P.33 :: FSL Report Ex.P.33(a) :: Signature of PW-7 Ex.P.33(b) :: Signature of PW-8 Ex.P.33(c) :: Signature of Director, FSL Ex.P.34 :: Requisition to Court/covering letter Ex.P.34(a) :: Signature of PW-7 Ex.P.35 :: FSL Sample seal (Specimen seal) LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1 :: Metal seal "F"
59
Spl. C C No.428/2015
MO.2 :: Sample Solution
MO.3 :: Witnesses hand wash solution
MO.4 :: C.D.
MO.5 :: C.D.
MO.6 :: Plastic cover
MO.7 :: C.D.
MO.8 :: C.D.
MO.9 :: C.D.
MO.10 :: C.D.
MO.11 :: Currency Notes
MO.12 :: Metal Seal "G"
LIST OF WITNESSES EXAMINED FOR ACCUSED:
NIL LIST OF DOCUMENTS MARKED FOR ACCUSED:
NIL (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & PECIAL JUDGE, BENGALURU (CCH-78)