Bangalore District Court
Lokayukta Police Inspector vs Syed Akhil Pasha on 30 April, 2018
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA), BENGALURU
(CCH.79)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
LXXVIII Addl. City Civil & Sessions
Judge & Spl. Judge (PCA),
Mayohall Unit, Bengaluru.
Dated this the 30th day of April 2018
Spl.C.C. No. 295/2010
COMPLAINANT: Lokayukta Police Inspector,
City Division, Karnataka Lokayukta,
Bengaluru.
(By Public Prosecutor)
- Vs -
ACCUSED: Syed Akhil Pasha
S/o Syed Mohiddeen Pasha,
H.C.3050, Sanjayanagara
Police station, Bengaluru.
R/o No.04, 7th Block, Police
Quarters, Shivajinagara, Bengaluru.
(By Sri. C.A.Ravindra- Adv)
Date of commission of offence 16-06-2010
17-06-2010
Date of report of occurrence
Date of arrest of accused: 17-06-2010
Date of release of accused on bail: 25-06-2010
Date of commencement of 06-03-2014
evidence
2 Spl.C.No.295/2010
Date of closing of evidence 04-04-2018
Name of the complainant Irfan s/o Amir Jan
Offences complained of U/s.7,13(1)(d) r/w 13
(2) of PC Act, 1988.
Opinion of the Judge Acquitted
Date of Judgment: 30-04-2018
JUDGMENT
The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed this charge sheet against accused for the offences punishable under Section 7, 13 (1)(d) r/w Sec.13 (2) of Prevention of Corruption Act 1988.
2. The brief facts of the prosecution case is as under;
The accused Syed Akhil Pasha, Head constable working in Sanjaynagara Police station is a public servant. The complainant Irfan S/o Amir Jan gave a complaint to the Lokayukta Police Inspector on 17.06.2010 stating that one month prior to that day, the accused and another police official Naresh had come to his house and enquired about the motorbike which was infront of his house and took the brother of the complainant by name Irshad to the Police station for enquiry and then sent him back. After 15 days when complainant was in the tailor shop of Mehaboob s/o Shabbir, the accused and Naresh came again and enquired about the motor cycle and complainant informed that motor cycle was belonging to his uncle who died 6 years back. On the same day, Shabbir met the complainant and asked him to give Rs.10,000/- to 3 Spl.C.No.295/2010 accused for not taking any action against his brother and if amount is not given Irshad will be booked in some false cases for theft and after two days again Shabbir contacted the complainant by phone and asked him to settle the matter and on 14.06.2010 complainant and his aunt have contacted Shabbir and informed that they are not able to pay that amount and then he asked them to pay Rs.4,000/-. Thereafter on 16.06.2010 at about 6.30 p.m. complainant met accused near JC Nagar Police station and accused demanded bribe of Rs.4,000/- and this conversation was recorded by the complainant in his mobile and then transmitted to CD. As complainant was not interested to pay any bribe, he gave complaint to the Lokayukta Police on 17.06.2010. On receiving the complaint, the Lokayukta Police Inspector has registered the case in Cr.No.22/2010 and sent FIR to the court. The Lokayukta Police Inspector secured panchas and made all arrangement for trap of the accused and on 17.06.2010, between 5.00 to 5.15 p.m. when accused received tainted notes of Rs.4,000/- from complainant, he was caught. Accused was arrested and was later released by the court on bail. Investigating Officer continued investigation and after completion and after obtaining prosecution sanction order filed charge sheet against accused.
3. Cognizance of offences is taken by this court. Accused appeared and is enlarged on bail. Copies of prosecution papers are furnished to him. After hearing both sides regarding framing of charge and having found prima-facie materials, charge is framed against 4 Spl.C.No.295/2010 accused and read over to him. Accused has pleaded not guilty and claimed to be tried.
4. In support of the prosecution case PWs 1 to 9 are examined. Documents as per Exs.P.1 to P.30 are marked. For the prosecution, MOs 1 to 17 are also marked.
5. After completion of the prosecution evidence, statement of accused as required under Section 313 of Cr.P.C. is recorded and he has denied the incriminating evidence appearing against him. Accused has lead the evidence of DW1.
6. Heard the arguments and perused the records.
7. Now, the points that arise for consideration are:-
POINTS
1. Whether the prosecution proves that there is valid sanction to prosecute accused ?
2. Whether the prosecution proves beyond all reasonable doubt that accused, being public servant working as Head Constable in Sanjaynagar Police Station, Bangalore has demanded bribe of Rs.10,000/-
from Complainant through CW9, by threatening to register a false case for theft of Motor Cycle against brother of complainant and then reduced it to Rs.4,000/- and on 16.06.2010 at about 06.30 PM near J C Nagar Police station when complainant met him, again demanded Rs.4,000/- and on 17.06.2010, between 5.00 to 5.15 p.m. near a Panipuri shop on the footpath infront of CRS Hardware shop in the circle of Ashwathnagar, 80 feet road and Sanjyanagar main 5 Spl.C.No.295/2010 road, again demanded and received the bribe amount of Rs.4,000/- from complainant, as illegal gratification as a motive or reward to do official act or favour and thereby committed an offence punishable u/s 7 of Prevention of Corruption Act?
3. Whether the prosecution further proves beyond all reasonable doubt that accused being public servant working as Head Constable in Sanjaynagar Police Station, Bangalore has on 17.06.2010, between 5.00 to 5.15 p.m. near a Panipuri shop on the footpath infront of CRS Hardware shop in the circle of Ashwathnagar, 80 feet road and Sanjyanagar main road, by corrupt or illegal means or by abusing his position as public servant, obtained pecuniary advantage of Rs.4,000/- without public interest from complainant and thereby committed criminal misconduct which is an offence punishable u/s.13(1)(d) of Prevention of Corruption Act, punishable u/s. 13 (2) of Prevention of Corruption Act?
4. What order?
8. My findings on the above points are:-
Point No.1 : In the affirmative
Point No. 2 : In the Negative
Point No. 3 : In the Negative
Point No. 4 : As per final order for the following:
REASONS
9. Point No.1: The offences alleged against accused are under Sec.7, 13(1)(d) r/w 13 (2) of Prevention of Corruption Act. Since accused is a public servant, working as Head constable in Sanjayanagar Police station, sanction from the competent authority is necessary to 6 Spl.C.No.295/2010 prosecute him. To prove prosecution sanction order PW7 H.S. Revanna, DIG is examined for the prosecution. In his evidence he has stated that earlier he was working as DCP, North division, Bengaluru city and he was the competent sanctioning authority to accused. He has stated that he has received the requisition seeking Prosecution Sanction order against the accused along with investigation records. He has stated that after going through the documents he was convinced that there existed prima-facie case to prosecute the accused and accordingly he has issued prosecution sanction order as per Ex.P.10 and has also stated that he has even furnished the service particulars as per Ex.P.11. The accused has not chosen to cross-examine the PW7. Ex.P10 is the prosecution sanction order, which show that after receiving the requisition along with the investigation records like complaint, FIR, Mahazars, statement of the witnesses, Chemical examination report etc., the PW7 has applied his mind and then issued prosecution sanction order. There is no material to show that the prosecution sanction order issued by PW7 is not proper. Moreover, on the basis of same materials which were available before PW7, this court has taken cognizance of the offences and has even framed charge. Therefore, prosecution is successful in proving that there is valid prosecution sanction order against the accused. Accordingly, Point No.1 is answered in the affirmative.
7 Spl.C.No.295/201010. Point Nos.2 and 3 : As these two points are inter-linked with each other, they are taken together for discussion to avoid repetition.
11. To prove the charge against accused, prosecution has examined PWs 1 to 9. PW.2 Irfan is the complainant. PW1 Srinivasamurthy and PW3 Dinesh Reddy are the panch witnesses. PW.4 Mehaboob Pasha and PW5 Shabbir Ahmed are stated to have negotiated with complainant for payment of bribe to accused. PW9 Smt Annu Sulthan, Advocate is stated to have written the complaint Ex.P.3. PW6 M.Nagaraj is the Police Inspector in Sanjaynagar Police station in which accused was working as Head constable at the relevant time. PW7 H.S.Revanna, DIG, KSRP is prosecution sanction officer and PW8 K.C. Lakshminarayana, Lokayukta Police Inspector is Investigating Officer.
12. On behalf of the prosecution, documents are marked as Ex.P.1 to P.30. Ex.P.3 is complaint, and Ex.P.12 is FIR. Ex.P.2 is pre- trap mahazar and ExP.1 is the sheet in which number of the currency notes was written. Trap-mahazar is marked as Ex.P.4 and MO-16 CD seizure mahazar dated 19.06.2010 is marked as Ex.P.5. Transcription of the recordings in MO-16, 14 and 13 are marked as Ex.P6, P13 and P16 to P18. Ex.P7 is the report of PW6 and Exs.P.8 and 9 are information and documents furnished by PW6. Prosecution sanction order is marked as Ex.P.10. Service details of the accused are marked as Ex.P.11. The rough sketch and the sketch prepared by Assistant Engineer are marked 8 Spl.C.No.295/2010 as Ex.P.14 and P.29. SHD of the Sanjaynagara Police station is marked as Ex.P.15. The report of Police Sub-Inspector Srinivas on identification of the voice is marked as Ex.P19. The sample seal and the acknowledgements of PW3 on receiving the seal are marked as Ex.P20, P21 and P24. The statement of five witnesses including the complainant recorded under Sec.164 of Cr.P.C. are marked as Ex.P.22, P23, P26, P27 and P28. Call details are marked as Ex.P.25. Ex.P.30 is the chemical examination report. The material objects 1 to 17 are also marked in this case. The seal used for seizing the articles is marked as MO-1. The solution taken in bottles at a different stage of the proceedings are marked as MO-2 to 11. The pant of the accused is marked as MO-12. The CDs seized in the case are marked as MO-13 to 16. MO-17 is the seized cash of Rs.4,000/-. For the accused DW.1 Iqbal is examined.
13. As per the materials placed by the prosecution, case of the prosecution is that PW2 complainant gave complaint as per Ex.P3 on 17.06.2010 stating that his brother Irshad was taken by accused and Naresh to Sanjaynagar Police station with regard to a motor cycle and was sent back after enquiry and later PW4 and PW5 have asked PW2 to pay Rs.10,000/- to accused to settle the matter and informed that if amount is not paid, false case for theft will be registered against Irshad. It is also the case that there was exchange of phone call between PW5 and complainant and PW5 finally asked PW2 to pay Rs.4,000/- and on 16.06.2010 at 6.30 p.m. PW2 met accused near JC Nagar Police station 9 Spl.C.No.295/2010 and accused demanded Rs.4,000/- and this conversation was recorded by PW2 in his mobile and then transmitted to CD as per MO-14 and the conversation is as per Ex.P.13. After giving complaint, PW8 Investigating Officer, registered the case and secured PWs1 and 3 and pre-trap procedures are followed. PW2 Produced Rs.4,000/- in denomination of Rs.1,000X4 and number of currency notes is noted down on EX.P.1 and phenolphthalein powder was applied and on the instructions of the Investigating Officer, PW3 kept tainted notes in right side front pant pocket of PW.2 and hands of PW3 were washed in the Sodium carbonate solution and the solution which turned to pink colour was seized. MO-14 CD produced by PW2 was played and it was in Hindi and in Urdu and with the help of PW2 it was transcribed as per Ex.P.13 and signatures were taken. Instructions were given to PW2 to meet the accused and to give the tainted notes only in case of demand and then to flash signal by wiping right ear by hand and button camera and voice recorder were also given to PW2. PW1 was instructed to be a shadow witness. Pre-trap mahazar as per Ex.P2 was prepared and signatures were taken. As per the prosecution case, thereafter, trap team went towards Sanjaynagar Police station and on the way accused was contacted by phone and he asked PW2 to come to the station and after some time accused gave missed call and when PW2 contacted him again, accused asked PW2 to come to Ashwathnagar and these talks were recorded in voice recorder and later transcribed as per Ex.P.16 and
17. Near Geddalahalli Venkateshwara Park, button camera and voice 10 Spl.C.No.295/2010 recorder were switched on and from Geddalahalli bus stop PW.2 was sent in autorickshaw towards Ashwathnagar and trap team followed in a car and motorcycle. Near circle of Ashwathnagar, 80 feet road and Sanjaynagar main road infront of CRS Hardware shop PW2 alighted from auto and went to panipuri cart on footpath and made a phone call to accused and accused informed that he will come there and this was informed to PW8 by PW2. When PW2 was eating panipuri, accused came there and started talking with PW2 and asked for amount and after one or two minutes PW2 gave tainted notes to accused and he took it in his right hand and kept in his right side pant pocket. Immediately PW2 gave signal and trap team came there and PW2 shown accused as person who demanded and received tainted notes. Then Investigating Officer introduced himself and the team to the accused and ascertained his details and they all came to Biriyani House hotel, wherein right and left hand fingers of the accused are washed in sodium carbonate solution separately and right hand wash turned to pink colour, left hand wash not changed the colour and both the solutions were seized in bottles. On questioning, accused informed that he has kept the tainted notes in his right side front pant pocket and as per the instructions of PW8, PW1 took out the notes from the pant pocket of accused and it tallied with Ex.P.1 and it was seized and is MO-
17. Thereafter, trap team came to Sanjaynagar Police station and on questioning accused and Police Sub-Inspector Srinivasalu have informed that no case is registered against Irshad. Ex.P.15 copy of SHD is 11 Spl.C.No.295/2010 secured from the Police station and thereafter they came to Lokayukta office. In the Lokayukta office, by making alternative arrangements pant of the accused was got removed and the pant pocket was washed in sodium carbonate solution and the solution which turned to pink colour and also the pant were seized. PW2 produced button camera and voice recorder and it was played and conversation recorded is transcribed as per Ex.P.16,17 and 18. The recordings were transmitted to MO-13 CD. Police Sub-Inspector Srinivasalu has identified the voice of the accused in MO-13 CD and also MO-14 CD and gave report as per Ex.P.19. Trap proceedings were video-graphed and transmitted to MO- 15 CD. Seized articles are sealed with MO-1 metal seal and by taking sample seal as per Ex.P.20 and by taking Ex.P.21 acknowledgment seal was given to PW.3. Accused was arrested, trap mahazar as per Ex.P.4 was prepared and signatures of the witnesses and the complainant is taken and copy of the mahazar is also furnished to accused. Thereafter, on 19.06.2010 PWs1 and 3 were again secured in Lokayukta office and PW2 appeared and produced MO-16 CD and it was played and recording is transcribed as per Ex.P.6 and Ex.P.5 mahazar is drawn and the seal is again returned to PW.3 by taking Ex.P.24 acknowledgment. The Investigating Officer has prepared a rough sketch as per Ex.P.14. PW8 continued the investigation and sent articles for chemical examination and received the report as per Ex.P.30. Call details of accused are received as per Ex.P.25. PW.2 and witnesses M.D. Siraj, Ram, PW.5 and Naresh were taken before Additional Chief 12 Spl.C.No.295/2010 Metropolitan Magistrate for recording their statement U/s. 164 of Cr.PC. They have given statement as per Ex.P.22, 23, 26, 27 and 28. PW-8 received the spot sketch from Assistant Engineer as per Ex.P.29 and obtained Ex.P.11 service details and prepared final report and after receiving prosecution sanction order as per Ex.P.10 filed the charge sheet.
14. In order to bring home the guilt of the accused for the offences under section 7,13(1)(d) r/w 13(2) of Prevention of Corruption Act, prosecution has to prove that the accused being a public servant demanded and accepted illegal gratification. The prosecution must also prove that demand and acceptance of illegal gratification is for doing some official act or for doing official favour to complainant. On proof of demand and acceptance, presumption under section 20 can be drawn to the effect that such illegal gratification is demanded and accepted as a motive or reward as mentioned in Section 7. On proof of commission of offence under Section 7, offence of criminal misconduct under Section 13(1)(d) will also be established.
15. PW.2 Irfan who is the complainant, in his evidence has re- iterated the prosecution case. There is little deviation in his evidence here and there from the case of prosecution. He has stated that on 14.06.2010 his brother Irshad was taken to Sanjayanagara Police station in connection with the motor cycle. Whereas in Ex.P.3 complaint it is mentioned that one month prior to giving of complaint, the brother of the 13 Spl.C.No.295/2010 complainant was taken to the Police station. PW.2 has stated that after accused was caught on receiving the amount, when PW.8 questioned the accused, he took out the tainted notes from the right side pant pocket and produced before PW8. But as per the prosecution case, PW.1 has taken out the currency notes from the pant pocket of accused as per the instructions of PW8. Except these minor deviations, the PW.1 has re- iterated the prosecution case. In his cross-examination, PW2 has stated that accused was not speaking with him and he was speaking with his brother Irshad. He has stated that subsequent to 14.06.2010 he has not asked Irshad as to why he was taken to Sanjaynagara Police station. PW2 has also stated that some police staff in the Lokayukta office wrote Ex.P3 complaint. But, as per the prosecution case complaint is written by PW9 Anu Sulthan. PW.2 has stated in his cross-examination that after the trap he has not communicated the same to his brother Irshad and denied that in order to avoid repayment of loan availed by Irshad he has filed a false complaint. PW9 Smt. Anu Sultan @ Anwar Sultan has stated that she has written the complaint on behalf of PW.2 as he was unable to write in Kannada language and has stated that Ex.P.3 complaint is in her handwriting. In her cross-examination, she has admitted that Irshad is working as two wheeler mechanic and she has not enquired about the details of complaint.
16. PW.1 S.G. Srinivas murthy who is shadow witness has also stated the prosecution case in his chief-examination. In his cross-
14 Spl.C.No.295/2010examination, he has stated that he do not know reading and writing Urdu language and CD produced by complainant before PW8 was not played in his presence and has stated that he was at a distance of 40 feet from Panipuri cart and has stated that he could not hear conversation between accused and PW2. PW3 Dinesha Reddy who is another panch witness has stated about following of certain procedures in the Lokayukta office and preparing the documents etc. He was treated as hostile and was cross examined for prosecution, wherein he has admitted the prosecution case suggested to him. However, he has stated that he do not remember that he kept the notes in the right side pant pocket of PW.2 and that his hands were washed in the solution in the pre-trap proceedings. In the cross-examination for accused, he has denied that he has not seen the accused receiving the money from PW.2 and has stated that he was outside the office of PW8 after the accused was brought to the office and has stated that himself or PW.1 have not given instructions for drawing the trap mahazar.
17. PW5 Shabbir Ahmed is stated to have asked PW.2 to settle the matter with accused by paying Rs.10,000/- and later asked him to give Rs.4,000/- to accused. He has stated that accused had come to his shop asking house of Irshad and accused told him that Irshad had taken Rs.10,000/- to sell two wheeler, but has not given vehicle and not even returned the amount and has stated that he called Irshad and asked him to return the money. The evidence of this witness is against 15 Spl.C.No.295/2010 prosecution case. Though he was cross-examined by Learned Public Prosecutor by treating him hostile, nothing worth is elicited from him. PW4 Mehaboob, who is son of PW.5 Pasha and was running tailoring shop to which accused and Naresh were stated to have come to enquire about Irshad has also not supported the prosecution case. He has also stated that Irshad had taken Rs.10,000/- from accused promising to give a two wheeler. In his cross examination for accused he supported the case of the accused that he had given Rs.10,000/- to Irshad for purchasing a two wheeler but he has not returned amount and not given vehicle. PW6 M.Nagaraj was Police Inspector at Sanjaynagara Police station who has stated about furnishing information as per Exs.P.7 to P9 to Lokayukta police. In his cross-examination, he has admitted that there was no complaints received against accused from Public and he was sincere in his duties. PW7 H.S.Revanna has stated about the prosecution sanction order issued.
18. PW8 K.C.Lakshminarayana, Investigating Officer has stated about registering of the case and pre-trap and trap proceedings and about the investigation done and filing of the charge sheet. In his cross- examination, he has stated that as per the complaint, the demand for bribe was made by accused and therefore he has not taken any steps to trap Naresh. He has stated that he has not enquired as to on what date Irshad was brought to Police station and he has not enquired Irshad in the presence of Centry, Station Officer or SHO of the Police station and 16 Spl.C.No.295/2010 has not made any investigation about ownership of motor bike mentioned in complaint. He has admitted that conversation in the CD was in Urdu language and he do not know where it was recorded. He has stated that he has not produced the certificate in respect to CDs as per section 65-B of the Indian Evidence Act and admitted that the alleged voice of the accused is not sent for verification through Forensic Science Laboratory and admitted that the mobile number stated to be belonging to the complainant was in the name of Asadulla and he has not enquired details of Asadulla. He has stated that he has not seized the chip of the mobile. He has admitted that complaint is given with regard to the incident connected to Irshad. He has stated that, as demand for bribe was made with complainant, he was sent with tainted notes to meet the accused.
19. DW-1 Iqbal in his evidence has stated that accused was in need of second hand two wheeler and they met Irshad and had negotiation for purchase of two wheeler for Rs.10,000/- and accused paid Rs.10,000/- to Irshad and Irshad told that he will give the documents of the vehicle, but documents were not proper and therefore he asked Irshad to return the amount. DW1 has also stated that three times he met Irshad along with accused and later he came to know that there was quarrel between them and complaint is given against the accused. In his cross-examination by learned Public Prosecutor he has stated that accused asked him to come to Court to give evidence and has stated that 17 Spl.C.No.295/2010 he do not know anything about the proceedings and denied that he is giving false evidence to help accused.
20. Since the offences alleged against the accused is for demanding and receiving illegal gratification to do official act or an official favour to the complainant, demand of bribe, acceptance and recovery and also pendency of official act and capacity of the accused to do official favour to the complainant are necessary to be established by the prosecution. As per the prosecution case, accused has demanded and received bribe of Rs.4,000/- for not registering any false case against Irshad for theft of motor cycle. Irshad is brother of complainant. As per Ex.P.3, one month prior to giving complaint accused and another police official Naresh had come near the house of complainant and had taken Irshad with regard to motor cycle which was parked infront of house of complainant and after questioning him, they have released him and subsequently through PW5 and PW.4, accused has made demand for bribe. PW.5 is stated to have talked to complainant and his aunt and conversation is said to have been recorded in MO-16 CD and its transcription is Ex.P.6. On 16.06.2010 the complainant is stated to have met accused near JC Nagar Police station wherein accused has demanded Rs.4,000/- and conversation is recorded in MO-14 and its transcription is Ex.P.13. Accused though was working in Sanjay Nagar police station, Ex.P.8 show that in the afternoon of 16.06.2010, he was on special duty in JC Nagar Police station. Except on 16.06.2010, complainant appears 18 Spl.C.No.295/2010 to have not met accused regarding demand of bribe. Upto 16.06.2010 it was PWs 4 and 5 who were talking with complainant about the demand of accused and even the CD at MO-16 is the conversation of complainant with PW5 and not with accused. Both these witnesses PWs 4 and 5, have not supported the prosecution case with regard to accused demanding bribe of Rs.4,000/- from complainant for not registering any case against Irshad. They have stated about some other transaction between accused and Irshad for purchase of two wheeler and accused paying Rs.10,000/- to Irshad and then demanding return of the same. Therefore to prove the alleged demand of bribe amount by accused, evidence of PWs 4 and 5 is not of any help. Except the evidence of complainant stating about demand of bribe by accused on 16.06.2010, and earlier by PW4 and 5 on behalf of accused, there is no other evidence before the court to say about such demand.
21. Prosecution case is about accused taking Irshad to police station and demanding bribe for not registering false case against Irshad. This Irshad, around whom entire case revolves, is not questioned in the course of investigation and is not cited as witness to prosecution case and is not examined. Irshad has not given any complaint against the accused. Whether really accused had taken Irshad to Police station and enquired and threatened to register a false case against him etc., could be established only by examining him. In his absence, as complainant has met the accused for the first time on 16.06.2010, he would not be a 19 Spl.C.No.295/2010 competent witness to say about incidents that took place prior to giving complaint. In his cross-examination, PW2 has stated that accused was not speaking with him and he was speaking with his brother Irshad. He has also stated that subsequent to 14.06.2010 he has not asked Irshad as to why he was taken to Sanjaynagar Police Station. When accused was not speaking with him regarding this incident and he was only talking to Irshad, accused demanding bribe from complainant is doubtful. Moreover, evidence of PWs 4 and 5 does not support his case. Under these circumstances, only on the basis of evidence of PW.1, the alleged demand of bribe amount by accused does not get established.
22. At the time of giving complaint, CD MO-14 was produced and its transcription is Ex.P.13 and subsequently CD containing conversation with PW5 is produced as MO-16 and its transcription is Ex.P.6. Even at the time of trap, accused is stated to have demanded bribe amount. The conversation had between complainant and accused in the phone, while going for trap and conversation even at the time of trap is said to have been recorded in voice recorder and then transmitted to CD as per MO-13 and its transcription is produced at Exs.P.16 to P.18. All these CDs at MO-13, 14 and MO-16 and the transcriptions at Exs.P.6, 13, 16 to 18 are secondary evidence of electronic record. The original devise in which these conversations have been recorded are not produced before the court. As admitted by PW.8, certificate under Sec.65-B of Indian Evidence Act is not produced in respect of these CDs and the transcriptions. The original voice recorder or mobile in which the 20 Spl.C.No.295/2010 conversation was recorded are not seized and not produced before the court. The CD at MO-13, 14 and 16 containing the conversation and also the CD at MO-15 containing the trap proceedings and the transcriptions at Ex.P.6, 13, 16 to 18 are not original records but are only copies.
23. The learned counsel for accused has submitted that these CDs and the transcriptions are not admissible in evidence as they are secondary evidence of electronic records and are not supported by certificate under Sec.65-B of Indian Evidence Act. In a decision reported in 2014 AIR SCW 5695 (Anvar P.V -Vs- P.K.Basheer and others), Hon'ble Supreme Court has considered the admissibility of secondary evidence of electronic records and has held that "when the secondary evidence of the electronic records are produced before the Court, they cannot be admitted in evidence, unless the secondary evidence is accompanied by certificate under Section 65B of Indian Evidence Act". As original device in which recordings are made is not produced before the court and the CDs which are produced and the transcriptions which are produced are not supported by certificate under section 65B of the Indian Evidence Act, these documents at Ex.P.6, 13, 16 to 18 and MO-13, 14 and 16 are not admissible in evidence.
24. The Call details are also produced at Ex.P25 by the prosecution. In the complaint it is stated that complainant had talked with PW5 and while going for trap he had talked with accused through his mobile. The call details of mobile of accused, complainant and PW5 are 21 Spl.C.No.295/2010 produced as Exs.P.25. Even in respect of call details, there is no certificate under section 65B of Indian Evidence Act produced before the court. In a decision of Hon'ble Supreme Court in Crl. Appeal No.2539/2014 between Harpal singh Vs- State of Punjab dated 21.11.2016, in para No.11, Hon'ble Supreme Court has held as under:
" Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details, kept in usual ordinary course of business and stored in a hard disc of the company sever, to complaint-relate the calls made from and to the cell phones involved including those amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under section 65B(4) of the Act. though the High court, in its impugned, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under section 65 of the Act had been complied with, in the teeth of the decisions of this court in Anvar P.V.(supra) ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the complainant, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65(2) had been complied with, in absence of certificate under Section 65B (4) , the same has to be held inadmissible in evidence."
25. As recordings in these CDs, transcriptions and call details are not admissible in evidence, prosecution have to establish its case of demand of 22 Spl.C.No.295/2010 bribe by accused in its absence. In the absence of these records, as PW4 and 5 have also not supported the case, only evidence available before the court to prove the alleged demand of bribe is evidence of complainant PW.2. But, as stated above, evidence of PW.2 standing alone does not prove the alleged demand of bribe by accused. Moreover, there was no work of the complainant pending with accused. Though, it is mentioned that for not registering a false case against Irshad amount is demanded, accused is only Head constable and has only limited powers. Moreover, Irshad is not cited as witness and is not examined for the prosecution. In the absence of Irshad it cannot be said that for not registering case against him, bribe is demanded from PW2. Apart from this, DW-1, PW4 and PW5 have stated about some other money transaction between Irshad and accused with regard to purchase of two wheeler. Whether the evidence of these witnesses that Irshad had taken Rs.10,000/- from accused and accused was asking return of the said amount is true or not is to be stated by Irshad, who is brother of complainant. Ex.P7 show that there was no case registered against Irshad, and even in respect of motor bike No.KA.01.R.1328, there is no case registered in Sanjay Nagar Police station. Under such circumstances, there was no work of complainant pending with accused. The accused was not having any capacity to do any official favour to complainant, as no such work of the complainant or his brother was pending.
26. Even at the time of trap near Panipuri cart, accused is stated to have demanded the bribe and then complainant is stated to have given the 23 Spl.C.No.295/2010 tainted notes. Though, PW.1 is shown as shadow witness he was not with PW2 at the time of trap and was at a distance of 40 feet from Panipuri cart and he could not hear the conversation between accused and PW.2. PW.3 another panch witness has even turned hostile and has not stated anything about demand of bribe amount by accused at the time of trap. Therefore, even there is no evidence to prove the demand of bribe amount by accused at the time of trap near Panipuri Cart.
27. In a decision reported in (2011) 6 SCC 450 State of Kerala and another Vs C.P. Rao Hon'ble Supreme Court has held that, When there is no corroboration of testimony of complainant regarding demand of bribe by accused, it has to be accepted that complainant's version is not corroborated and, therefore, evidence of complainant cannot be relied on. In 2006 (3) KCCR 1445 State of Karnataka Vs K.T.Hanumanthaiah, Hon'ble High Court has held that, in the case of offence under Sec.7 and 13 (1)(d) r/w 13 (2) of Prevention of Corruption Act there should be independent corroboration for proving the case of demand and acceptance of bribe. In another decision reported in 2006 (3) KCCR 1422 Manjunath Basappa Basavamurthy Vs State of Karnataka Hon'ble High Court has held that conviction only on the uncorroborated statement of complainant is not valid and without corroboration it is not safe to base a conviction on the evidence of the complainant. On looking to all these aspects, prosecution has failed to prove the demand of bribe amount by accused from the complainant for 24 Spl.C.No.295/2010 not registering a false case against his brother Irshad as contended. When demand of bribe amount is not established, acceptance of amount and recovery of amount from accused has no relevance.
28. Coming to the acceptance of amount by accused, PW.2 and panch witnesses PW1 and 3 have stated about receipt of tainted notes by accused and PW.1 has stated that he found the accused keeping tainted notes in right side pant pocket after receiving the bribe from PW.2. Recovery of tainted notes from accused and hand wash of accused are all stated by these witnesses. Mere acceptance of tainted notes by accused and recovery of the amount by accused does not prove the guilt of accused for the offences under Sec.7 and 13 (1)(d) of Prevention of Corruption Act. As discussed above, there was no work of complainant pending with accused. Therefore, there was no occasion for the accused to demand any bribe from the complainant. The alleged demand of bribe amount by accused is not established. Only because PW1 to 3 and 8 have stated about recovery of tainted notes from the pant pocket of accused and right hand wash of accused has turned to pink colour as stated by these witnesses, it cannot be held that accused has received bribe from the complainant. When prosecution has failed to prove the demand of bribe by accused and also failed to prove pendency of any official work to be done by accused for the complainant, any length of evidence led by prosecution to show receipt of tainted notes by accused and recovery of the same from accused will not help the prosecution to prove the guilt.
25 Spl.C.No.295/201029. In a decision cited by the learned counsel for accused reported in 2016(1) Crimes 503(Karnt.) S.M.Vijayakumar Vs State of Karnataka. The Hon'ble High Court has held that Mere recovery of amount is not sufficient unless there is a satisfactory proof of demand and acceptance of bribe amount by the accused person. When prosecution has failed to prove the demand of illegal gratification by accused even if recovery of tainted notes is proved, it will not constitute the offence under Sec.7 and 13(1)(d) of Prevention of Corruption Act and mere recovery of amount without proof of demand will not constitute the offence.
30. As per the decision reported in (2006) 13 SCC 305 V.Venkata Subba Rao Vs State, Represented by Inspector of Police,( A.P.) when demand by accused is not proved, the presumption under Sec.20 of the Prevention of Corruption Act cannot be raised. In this case also, as demand of bribe by accused is not proved presumption u/s 20 of P.C.Act is not available to prosecution. Even otherwise, evidence show that there was no work of the complainant pending with accused at the relevant time. The evidence of DW1 and PW4 and 5 states there was some other transaction between accused and Irshad. To deny the same, Irshad is not questioned and not examined. In (2009)3 SCC 779 C.M.Girish Babu, Vs CBI, Cochin, High Court of Kerala, it is held that, under Sec.20 of Prevention of Corruption Act, the accused can rebut charge either through 26 Spl.C.No.295/2010 cross-examination of prosecution witnesses or by adducing reliable evidence. It is also held that the burden of proof on the accused under Sec.20 is not the same as the burden placed on the prosecution to prove the case beyond all reasonable doubt. In this case accused is successful in rebutting the presumption, if any, in favour of the prosecution case. Hence, prosecution has failed to prove the commission of offence under Sec.7 of Prevention of Corruption Act. Similarly, any criminal mis-conduct done by accused by receiving pecuniary advantage without any public interest is also not made out. Therefore, prosecution has failed to prove the guilt of accused beyond reasonable doubt. Accordingly, Point Nos. 2 and 3 are answered in the negative.
31. Point No.4: For the discussion made above, following order is passed:
ORDER Accused is found not guilty.
Acting u/s 235(1) of Cr.P.C. accused is acquitted from the charges levelled against him for the offences punishable under Section 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. The bail bond executed by accused and his surety stands cancelled.
MO-1 Metal seal is ordered to be returned to the Karnataka Lokayukta police after the expiry of appeal period.27 Spl.C.No.295/2010
M.Os.2 to 16 are ordered to be destroyed after the expiry of appeal period, as are worthless.
M.O-17 is ordered to be confiscated to the State Government after the expiry of appeal period. (Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 30th day of April 2018) (Ravindra Hegde) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
PW.1 Srinivasa Murthy PW.2 Irfan PW.3 Dinesha Reddy PW.4 Mehaboob Pasha PW.5 Shabir Ahmed PW.6 M.Nagaraj PW.7 H.S. Revanna PW.8 K.C. Lakshminarayana PW.9 Smt. Annu Sulthan
List of documents exhibited for the prosecution:
Ex.P.1 Currency details sheet P.1 (a) & (b) Signature of PW3 Ex.P.2 Pre-trap mahazar P.2 (a) Signature of PW1 P.2 (b) Signature of PW2 P.2 (c) to (f) Signature of PW3 P.2 (g) Signature of PW8 Ex.P.3 Complaint P.3 (a) Signature of PW2 28 Spl.C.No.295/2010 P.3 (b) Signature of PW8 Ex.P.4 Trap Mahazar P.4 (a) Signature of PW2 P.4(b) to 4 (i) Signature of PW1 P.4(j) to 4 (q) Signature of PW3 P.4 (R) Signature of PW8 Ex.P.5 Seizure Mahazar (CD) P.5 (a) & 5 (b) Signature of PW1 P.5 (c) & 5 (d) Signature of PW3 P.5 (e) Signature of PW8 Ex.P.6 Transcription from CD P.6 (a) to (c) Signature of PW1 P.6 (d) Signature of PW8 Ex.P.7 Report of PW6 P.7 (a) Signature of PW8 Ex.P.8 Letter dated 22.07.2010 P.8 (a) Signature of PW8 Ex.P.9 Copy of passport counter file Ex.P.10 Prosecution Sanction order P.10 (a) Signature of PW7 Ex.P.11 Service Particulars of accused P.11 (a) Signature of PW11 P.11 (b) Signature of PW8 Ex.P.12 FIR P.12 (a) Signature of PW8 Ex.P.13 Transcription from CD P.13 (a) Signature of PW8 Ex.P.14 Rough Sketch P.14 (a) Signature of PW8 Ex.P.15 Copy of Station House dairy Ex.P.16 Transcription of mobile conversation P.16 (a) Signature of PW8 Ex.P.17 Transcription of mobile conversation P.17 (a) Signature of PW8 Ex.P.18 Transcripted sheet P.18 (a) Signature of PW8 Ex.P.19 Report of PSI Ex.P.20 Letter "N" metal seal P.20 (a) Signature of PW8 Ex.P.21 Acknowledgement of CW3 Ex.P.22 164 statement of CW4 Ex.P.23 164 statement of CW5 29 Spl.C.No.295/2010 Ex.P.24 Acknowledgment of metal seal Ex.P.25 Call details of mobile phones Ex.P.26 164 statement of CW1 Ex.P.27 164 statement of CW9 Ex.P.28 164 statement of CW.11 Ex.P.29 Sketch Ex.P.30 Chemical examination report Evidence adduced on behalf of the defence : DW-1 - Iqbal Documents marked on behalf of the defence: - Nil -- Material Objects marked by Prosecution : MO-1 "N" Metal seal MO-2 to MO-11 Bottle containing solution taken at different
stages. (Article Nos.1,2,3,4 4-A, 5, 5A, 7, 8, 8A) MO-12 Pant MO-13 to MO-16 CDs MO-17 Cash MO-17 (a) Cover LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.
*** 30 Spl.C.No.295/2010 Orders pronounced in the open Court vide separate Judgment :
ORDER Accused is found not guilty.
LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Mayohall Unit, Bengaluru.