Bangalore District Court
The State Of Karnataka vs No.1 Sri. L. Bheema Naik on 18 June, 2018
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: 18th day of June, 2018
Spl. C.C.No. 264/2014
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing, Bengaluru.
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: No.1 Sri. L. Bheema Naik,
Son of Late Laxman Naik,
Aged 43 years, Spl. Land Acquisition
Officer-02, Karnataka Housing Board,
Cauvery Bhavan, K.G.Road,
Bengaluru-09.
Residing at No.625, 2nd Cross, 2nd
main, Rajajinagara, Bengaluru-10.
Permanent resident of
Mariyammanahally Tanda,
Mariyammanhally Grama and Hobli,
Hospet Taluk, Bellary District.
2 Spl. C.C. No.264/2014
A-No.2 Sri. G. Siddalingappa, aged 62 years,
Son of Late Basavanagowda, Retired
Tahasildar, Now appointed on
contract basis at Special land
Acquisition Section, Karnataka
Housing Board, Cauvery Bhavan,
K.G.Road, Bengaluru-09.
R/at No.46, 1st main, 1st cross,
Dommaluru Layout, Bengaluru-09.
Permanent resident of No.1-210,
Nijalingappa Colony, Raichur, Native of
Hathanuru village, Shiravara Hobli,
Manvi Taluk, Raichur.
A-No.3 Sri. Kantharaju Son of Ramaiah, aged
about 37 years, Typist and case
worker, Special land Acquisition
Section, Karnataka Housing Board,
Cauvery Bhavan, K.G.Road, Bengaluru-
09.
Resident of No.1/4, 1st main, 2nd
Cross, Marenahalli, Vijayanagara,
Bengaluru-40.
(Rep by Sri. BMA/KS Advs. for A.1,
Sri. H.R.N. adv. for A.2 & Sri.
C.G.Sundar, Adv. for A-3)
1. Nature of Offence: Offences punishable under Sec.
7,13(1)(d)r/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 22-07-2013
of offence:
3. Date of First Information 23-07-2013
Report:
3 Spl. C.C. No.264/2014
4. Date of Arrest: ----
5. Date of Commencement 24-07-2017
Of recording of evidence:
6. Date of Closing of evidence: 19-04-2018
7. Date of Pronouncement of 18-06-2018
Judgment.
8. Result of the case: Accused are acquitted
^^^^^
JUDGMENT
In this case Police Inspector, Karnataka Lokayuktha, Bengaluru City Division, has filed charge sheet against the accused for the offences punishable under Sec.7 and 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988.(In short PC.Act).
2. Charges leveled against the accused are that: accused No.1 to 3 are the public servants. Accused No.1 was working as Spl. Land Acquisition Officer, accused No.2 as a Tahasildar (temporarily) and accused No.3 as a case worker in KHB, Bengaluru. The KHB acquired 30-Guntas of land pertains to the complainant in Sy.No.29 of Rayasandra village, Kanakapura Taluk. After acquiring the land, the KHB ought to have release the compensation amount in the name of complainant's mother i.e., CW.4-Smt. Manjula. The KHB authorities have not released that compensation amount, so on discussion with 4 Spl. C.C. No.264/2014 the other land loosers he came to know that, he cannot receive the compensation amount from the KHB without paying bribe to the concerned officials. In this connection, on 11-07-2013 the complainant had been to KHB office and consulted accused No.2. On discussion about his matter, accused No.2 demanded illegal gratification of Rs.10,000/- for moving his application to the Spl.L.A.O. later, same was settled for Rs.6,000-00 and received the same.
3. On 18-07-2013 the complainant had been to the office of KHB and met accused No.2 and discussed about his pending work. At that time, accused No.1 demanded illegal gratification of Rs.1,00,000/- and later it was settled for Rs.75,000-00. On that day accused No.1 received illegal gratification of Rs.30,000-00 from the complainant through accused No.2. Accused No.3 has also demanded illegal gratification of Rs.5,000-00 from the complainant for moving his application from the section and received a sum of Rs.2,000-00 as an advance and directed the complainant to pay the balance amount shortly. On 23-07-2013, the complainant filed a complaint against the accused before Lokayuktha Police and after registering the complaint, Lokayuktha Police went to KHB office along with the complainant and pancha witnesses. On that day, after meeting the accused No.1 by the 5 Spl. C.C. No.264/2014 complainant, accused No.1 demanded balance amount of Rs.45,000- 00 and lastly it was finalized for Rs.40,000-00 and accused No.1 has demanded and accepted the said bribe amount from the complainant. On the same day, accused No.3 has demanded and accepted Rs.3,000-00 from the complainant. Since the accused being the public servants who were not suppose to demand or accept illegal gratification from the public have demanded and accepted the bribe amount from the complainant for doing their official favour in his matter, so the Lokayuktha Police registered the case, investigated the matter and submitted the charge sheet against the accused for the offence punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
4. After completion of entire investigation, Lokayuktha Police have submitted the charge sheet before the court, presence of accused were secured before the court by issuing summons. Accused appeared before the court through their counsels, copies of the charge sheet was supplied to them under Section 207 of Cr.P.C., and they are enlarged on bail.
6 Spl. C.C. No.264/2014
5. Heard the arguments of both the sides on hearing before charge. After hearing on HBC, after perusal of the charge sheet and the documents placed before the court, this court held that, there is a prima facie case against the accused for prosecuting them for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
6. Charges against the accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act are read over and explained in the language known to them, for that, they pleaded not guilty and claims to be tried.
7. In all the prosecution has cited as many as 20-witnesses in the charge sheet. Out of them, the prosecution has examined CW.1- Nandeesh-complainant is examined as PW.3, CW.2-Aravinda Gowda and CW.3-P. Yogesh Kumar-pancha witnesses are examined as PW.4 and P.W.7, CW-4-Smt. Manjula-mother of the complainant is examined as P.W.6, CW.5-O.N.Arera- Under Secretary to the Revenue Department, Vikasa Soudha, Bengaluru, officer of accused No.1 is examined as P.W.2, CW.6-Dr.J. Ravishankar, M.D., Karnataka Urban and Water Supply Board, Bengaluru, who issued sanction order of accused No.3 is examined as P.W.1, CW.7-B.S.Pathri who identified 7 Spl. C.C. No.264/2014 the voice of accused and issued report and other documents of accused is examined as P.W.5. CW.10-Nandeesh Kumar-computer operator, circumstantial evidence is examined as P.W.8. CW.18- P.Narasimha Murthy, Police Inspector, Karnataka Lokayuktha and CW.20-M.S.Srinivas, Police Inspector, Karnataka Lokayuktha, Bengaluru City Division, I.Os. are examined as P.W.10 and P.W.9 and got marked 38-documents as Ex.P.1 to P.38 and got marked 18 material objects as M.O.1 to 18. In the cross-examination of the prosecution witnesses, the counsel for the accused got marked four documents as Ex.D.1 to Ex.D.4. Special Public Prosecutor submitted before the court stating that, he has given up other witnesses and closed his side.
8. Statement of the accused Under Section 313 of Cr.P.C. is recorded and they denies the incriminating evidence against them. Enquired the accused about defence evidence for that, they have no defence evidence, so their defence evidence is taken as nil and recording of evidence is closed and case was posted for hearing arguments.
9. Heard the arguments of both the sides.
8 Spl. C.C. No.264/2014
10. After hearing the arguments, after perusal of the charge sheet and evidence of the prosecution witnesses along with the documents marked in their evidence, the following points arise for consideration of this court:-
1. Point No.1: Whether the prosecution proves that, the sanction order issued by the competent authority to prosecute accused No.1 to 3 is a valid sanction?
2. Point No.2: Whether the prosecution proves its case against the accused No.1 beyond all reasonable doubt that, he being a public servant working as Spl.L.A.O., in KHB, Bengaluru, on 18-
07-2013 he has demanded illegal gratification of Rs.70,000-00 from the complainant through accused No.2 for release of the compensation amount with respect to their acquired land by KHB and received a sum of Rs.30,000-00.
Thereafter on 22-07-2013 at about 3.45 p.m. again he demanded illegal gratification of Rs.40,000-00 from the complainant for doing his official favour and received the same, thereby he has committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
3. Point No.3: Whether the prosecution proves its case against the accused No.2 beyond all reasonable doubt that, on 11-07-2013 in the morning when the complainant had been to KHB office to meet the accused No.2 and discussed about release of compensation amount to their acquired land, at that time, this accused demanded illegal gratification of Rs.10,000-00 for doing official favour and on 12-07-2013 he has 9 Spl. C.C. No.264/2014 received illegal gratification of Rs.6,000-00 from the complainant thereby he has committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
4. Point No.4: Whether the prosecution proves its case against the accused No.3 beyond all reasonable doubt that, he being a public servant working as Typist in KHB office, Bengaluru, about two months earlier to 22-07-2013, he has demanded illegal gratification of Rs.5,000-00 from the complainant and received a sum of Rs.2,000- 00 from him on that day and on 22-07-2013 in the evening he has demanded and accepted illegal gratification of Rs.3,000-00 from the complainant, thereby he has committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
5. Point No.5: Whether the prosecution proves its case against the accused beyond all reasonable doubt that, accused No.1 to 3 being the public servants have demanded and accepted the illegal gratification from the complainant on the above said dates for doing their official favour to him misused their official position as public servant and thereby they have committed criminal misconduct punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988?
6. Point No.6: What Order?
11. My findings on the above points are in the following because of my below discussed reasons.
10 Spl. C.C. No.264/2014
POINT No.1: IN THE AFFIRMATIVE POINT No.2: IN THE NEGATIVE POINT No.3: IN THE NEGATIVE POINT No.4: IN THE NEGATIVE POINT No.5: IN THE NEGATIVE POINT NO.6: AS PER FINAL ORDER.
REASONS
12. POINT No.1: Here after considering the evidence of P.W.1 and 2 along with the documents marked at Ex.P.1 to Ex.P.3, now the point remains for consideration of this court is, whether the sanction order issued by P.W.1 and 2 for prosecuting the accused No.1 and 3 are valid or not. As per Section 19 of the P.C. Act previous sanction is necessary for prosecuting the public servant. In that Section, it is stated that: "No courts have take cognizance of an offence punishable under Sections 7,10,11,13 and 15 alleged to have been committed by a public servant except with the previous sanction of the authorities mentioned at (a) to (c) of Sub- Section (2) of Section 19". Here by considering the case of the prosecution, the fact that, accused No.1 and 3 are the public servants working as Special L.A.O. and typist cum case worker in KHB 11 Spl. C.C. No.264/2014 Bengaluru, is not in dispute. P.W.1-Sri. Ravishankar has stated that, on 16-11-2014 he received a letter from ADGP Lokayuktha along with certified copies of FIR, Pre trap proceedings, trap proceedings, FSL report, statements of the accused, sketch map of scene of offence and statements of the witnesses. After verifying the charge sheet papers along with the requisition of the ADGP, he noticed that, there is an allegation of demand and acceptance of illegal gratification by accused No.3 from the complainant for doing his official favour for getting compensation amount from the KHB. When they are public servants, under such circumstances, previous sanction of the Government for prosecuting them for the offences alleged against them in the charge sheet is must. Here in this case, learned Public Prosecutor stated that, in the evidence of P.W.1, he has specifically stated that, he being the officer empower to terminate him from the office for his criminal misconduct, so he issued the sanction order, after satisfaction of verifying the charge sheet papers.
13. P.W.2-O.N.Orera has stated that, from Jan.2012 to May 2014 he was working as Under Secretary to the Government of Karnataka, Revenue Department, Services-3 and on 06-01-2014 he received a requisition from ADGP Lokayuktha, Bengaluru along with 12 Spl. C.C. No.264/2014 the copies of the charge sheet papers alleging that, accused No.1 being a public servant has demanded and accepted illegal gratification from the complainant and thereby he has committed an offence punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. Both P.W.1 and 2 after verifying the charge sheet papers they satisfied that, there is a prima facie case against the accused No.1 and 3 for having committed the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, so they accorded the sanction for prosecuting accused No.1 and 3 before the court. So, it is clear that, they issued the sanction order on the authority conferred upon them, so it is a valid sanction.
14. Contrary to this, learned counsel for the accused No.1 and 3 submitted before the court stating that, P.W.1 and 2 are not the competent persons to issue sanction order. Accused No.1 being the Junior Grade KAS Officer, the sanction order ought to have been issued by the Department of DPAR, but not by the Revenue Minister, so it is invalid. Counsel for the accused No.3 submitted before the court stating that, accused No.3 is the official of the Board and Board is the competent authority to issue sanction. Since both P.W.1 and 2 13 Spl. C.C. No.264/2014 have issued sanction order without applying their mind and without ascertaining their authority to issue the sanction orders have committed glaring mistake, so their sanction order was not valid for prosecuting the accused No.1 and 3 for the offences alleged against them, so they requested the court to acquit the accused on the ground of invalid sanction. Further they contended that, the investigation held by the I.O. is illegal as no authorization is given by the Deputy Superintendent of Police (Dy.S.P.) for investigation. In support of this contention, counsel for the accused No.3 relied on the following decisions:
1. 1998 Crl.L.J. 3511 Madhya Pradesh High Court between (Ashok Baijal V/s M.P.Government),
2. (2006) 3 Supreme Court Cases (Cri) 225 HN-F between (State Inspector of Police, Vishakhapatnam V/s Surya Sankaram Karri).
In view of the ration involved in the above said decisions and in view of their submissions, they requested the court to acquit the accused on the ground of invalid sanction and investigation done by the I.O. without any authority.
15. After considering the submissions of both the sides and after going through the provisions of Section 17 and 19 of P.C. Act, it is clear that, the Officers mentioned in Section 17(a) to (c) are the 14 Spl. C.C. No.264/2014 authorized persons to investigate into the matters of P.C. Act cases. However, in Section 17(c), it is stated that "A Deputy Superintendent of Police or the Police Officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest thereof without a warrant". However, in the proviso to the same, it is stated that, even Inspector of Police is authorized by the State Government by any investigation, he is also authorized to investigate into the matter. Here in Karnataka, Police Inspector is also authorized to investigate into the matters of P.C. Act cases punishable under Sections 7,10,11,13 and 15 of P.C. Act, so investigation done by the I.O. is not invalid as stated by the counsel for the accused.
16. It is true that, Section 19 states that obtaining of previous sanction for prosecuting a public servant as stated in Section 19 (a) to
(c) and sub-Section (2) of P.C. Act is must. Here in this case, Ex.P.1 and Ex.P.2 are the sanction orders issued by P.W.1 and 2 for prosecuting the accused No.1 and 3 before the court for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. Whether the said sanction order is valid or not is 15 Spl. C.C. No.264/2014 the fact to be considered by the court. Here by looking into the evidence of P.W.1 along with Ex.P.1, it indicates that, he is the competent person to remove accused No.3 from the service for criminal misconduct in discharging his duties. In Ex.P.1, he has specifically stated about receiving of requisition from ADGP Lokayuktha along with the charge sheet papers and verifying the same for ascertaining the prima facie case against accused No.3. By taking that fact into consideration, it indicates that, P.W.1 has applied his mind for issuance of sanction order marked at Ex.P.1 for prosecuting accused No.3 before this court for the offences alleged against him. Here counsel for accused No.3 stated that, for prosecuting the accused No.3 before the court, Board ought to have issue sanction order, but no such evidence is placed by the counsel for accused No.3 before the court and the statement of P.W.1 given before the court is not disproved with cogent evidence. It is true that, in the decision relied upon by the counsel for the accused No.3 reported in 1998 Crl.L.J. 3511 Madhya Pradesh High Court between (Ashok Baijal V/s M.P.Government). His Lordships held that, issuance of valid sanction for prosecuting a public servant is must. In that case accused was an Assistant Engineer in Municipal Corporation, so the said Corporation was the removing authority. Hence, issuance of sanction order by the 16 Spl. C.C. No.264/2014 said Corporation was must and sanction order obtained in that case was valid. Here in this case, P.W.1 has specifically stated before the court that, he is the competent person to remove him for any criminal misconduct. Under Section 19(2) of P.C. Act, it is stated that, "any other authority, such sanction shall be given by the Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed". By considering that provision along with the evidence of P.W.1, it is clear that, the sanction order issued by P.W.1 marked at Ex.P.1 for prosecuting accused No.3 is a valid sanction, so the decision relied upon by the counsel for accused No.3 stated above is not helpful to his case.
17. Counsel for the accused No.1 has taken a contention stating that, accused No.1 is the Junior Grade KAS Officer and Department of DPAR is the competent authority to issue the sanction order. But to substantiate that stand, counsel for accused No.1 has not produced any piece of paper before the court or examined this accused or any other competent person in that regard. After cross- examination of P.W.2 by the counsel for the accused No.1, he was re- examined Public Prosecutor and in his reexamination he has 17 Spl. C.C. No.264/2014 specifically made out a case stating as to how the sanction order issued by P.W.2 is valid. In the reexamination page 3 of P.W.2 he has stated as follows:
"........Since the accused No.1 Bheema Nayak was not a permanent junior KAS officer, so under Rule 32 of KCSR concerned Revenue Minister is the competent authority to issue sanction for prosecution."
This statement of P.W.2 is not disproved by the counsel for the accused No.1 with any cogent evidence. By considering the oral and documentary evidence of P.W.1 and 2 placed by the prosecution before the court, this court held that, sanction order issued by P.W.1 and 2 marked at Ex.P.1 and Ex.P.2 are valid for prosecuting the accused No.1 and 3 before the court. Hence, this court answered point No.1 in the Affirmative.
18. Point No.2 to 5: For giving findings of this court on point No.2 to 5, common discussion of the oral and documentary evidence placed by the prosecution before the court along with the submissions of both the sides on point No.2 to 5 are necessary, so both the points are taken up for common discussion.
18 Spl. C.C. No.264/2014
Here, it is the case of the prosecution that, the KHB authority has acquired 30-Guntas of land in Sy.No.29 of Rayasandra village, Kanakapura Taluk pertains to Puttamadaiah. Compensation amount of the said land was ought to have been allotted to the complainant's mother i.e., P.W.6-Smt. Manjula. But the KHB authority has not released that amount, so the complainant has wandered to KHB office on several occasion and requested accused No.3 to move his file for passing necessary orders. At that time, accused No.3 has demanded illegal gratification of Rs.5,000-00 and received Rs.2,000-00 as advance amount. Even after, the said file was not moved to the concerned authority, so on 11-07-2013 again the complainant went and asked accused No.3 about his file. At that time, the complainant told that, he has sent that file to the Tahasildar, accused No.2 and told him to go and met him. On that day, when the complainant went there and met accused No.2, at that time, accused No.2 demanded illegal gratification of Rs.10,000-00 for moving his file. At that time, the complainant agreed to pay Rs.4,000-00, but on bargain it was settled for Rs.6,000-00 and received the same. Despite the same, no order was passed, so again on 18-07-2013 complainant went and met accused No.2, paid the bribe amount and enquired about his file. At that time, accused No.2 told the complainant stating that, for release 19 Spl. C.C. No.264/2014 of the compensation amount he has to pay Rs.1,00,000-00 to the accused No.1, on bargain, it was settled for Rs.75,000-00 and on that day he paid a sum of Rs.30,000-00. Despite paying the bribe amount, concerned authorities have not released the compensation amount and the complainant was not intending to pay the balance bribe amount, so on 23-07-2013 he had been to Lokayuktha office and filed complaint against the accused. After registering the complaint, Lokayuktha Police have conducted pre trap proceedings in the presence of pancha witnesses P.W.4 and P.W.7 and the complainant. Thereafter, they went to the office of accused and trapped accused No.1 while he was demanding and accepting illegal gratification of Rs.40,000-00 from the complainant and trapped accused No.3 while he was demanding and accepting the illegal gratification of Rs.3,000-
00. Thereafter, they conducted trap proceedings and after completion of entire investigation, they submitted charge sheet against the accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act.
19. In support of the case of the prosecution, learned Public Prosecutor submitted before the court stating that, though the complainant, pancha witnesses and the mother of the complainant- 20 Spl. C.C. No.264/2014 P.W.6 have not supported the prosecution case fully, but by considering the pendency of the work of P.W.6 with the accused No.1 to 3, wandering of complainant to the office of accused, demand and acceptance of illegal gratification by them for doing their official favour to the complainant for release of compensation amount in the name of his mother are proved by the prosecution with the oral and documentary evidence placed before the court. However, there may be some discrepancies in the evidence of P.W.3,4,6 and 7 and said discrepancies are not material discrepancies to discard the entire case of the prosecution. By looking into the evidence of I.O. and other circumstantial witnesses like P.W.5,9 and P.W.10, it indicates that, the prosecution has proved its case against the accused beyond all reasonable doubt. There is no any suggestion by the counsel for the accused as to why the complainant has filed false complaint against the accused No.1 to 3. By considering the entire case of the prosecution along with the oral and documentary evidence placed before the court, it is clear that, the prosecution has proved its case against the accused for having committed the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, so he requested the court to convict the accused by awarding maximum sentence.
21 Spl. C.C. No.264/2014
20. Contrary to this, learned counsel for the accused No.1 to 3 submitted before the court stating that, merely the Investigating Officer and some other witnesses have supported the prosecution case itself is not a ground to convict the accused. It is well settled Principles of criminal jurisprudence that "Hundred criminals may be acquitted but one innocent person shall not be convicted". Keeping this principle in mind, the court has to scrutinize the evidence of all the prosecution witnesses and decide as to whether the prosecution has proved its case beyond all reasonable doubt. For considering the case of the prosecution, evidence of complainant and the shadow witnesses are more important than the evidence of other witnesses. There is a defect on the part of the Investigating Agency in non-registering the case against the accused on the earliest occasion when the complainant has given information about non-cognizable offences committed by the accused, so it is fatal to the prosecution case. Further in this case, the complainant and pancha witnesses have not supported the prosecution case with regard to demand and acceptance of any illegal gratification by accused No.1 and 3 from the complainant. However, the complainant has stated any evidence against accused No.2, his statement with regard to the demand and 22 Spl. C.C. No.264/2014 acceptance of any illegal gratification by accused No.2 from the complainant is not proved with any cogent evidence. Even-though, on the date of trap, the Lokayuktha Police have recovered any amount from accused No.1 and 3, such recovery shall not be considered as proof of demand and acceptance of illegal gratification by accused No.1 and 3. By looking into the charge sheet papers, it indicates that, no work of the complainant was pending with accused No.1 to 3 as on the date of trap. Earlier to that, pending work of the complainant was completed, so question of demand and acceptance of any illegal gratification by the accused from the complainant does not arise. It is true that, the I.O. and other witnesses have supported the prosecution case, but their evidences are all not much important for convicting the accused. Since the complainant and shadow witnesses themselves have not stated about the demand and acceptance of any illegal gratification by any of the accused for pending work of the complainant and as the prosecution has not proved its case against the accused beyond all reasonable doubt for having committed the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, so they requested the court to acquit the accused. In support of the case of accused No.1 counsel for the accused relied on the following decisions:
23 Spl. C.C. No.264/2014
1. 2016 Crl.L.J. 482 HN-A between (Christy Fried Gram Industries, Bangalore & another V/s State of Karnataka and others)
2. Unreported decision of Hon'ble High Court of Karnataka in Crl.P.No.3750/2013 between (Lakshmikanth S.G. V/s Lokayuktha Police and another),
3. (2014) 1 Supreme Court cases (Cri) 524 between (Lalita Kumari V/s Government of Uttar Pradesh and others),
4. 2012 (1) KCCR 414 HN-A between (Ra. Malini V/s State of Karnataka),
5. 2016 Crl.L.J. 1079 between (Krishan Chander V/s State of Delhi),
6. 2015 SAR (Criminal) 1142 between (P. Satyanarayana Murthy V/s The District Inspector of Police and another),
7. 2008 (2) KCCR 985 between (State by Lokayuktha, Mandya V/s K.M.Gangadhar),
8. 2010 AIR SCW 1900 between (L.I.C. India and Another V/s Ram Pal Singh Bisen),
9. 2006 Cri.L.J. 824 between (Suruvu Parshaiah V/s State of A.P.),
10. 2016 (3) Cr.P.C. 109 P & H High Court, between (Rakesh Jain V/s State of Harayana (P & H),
11. (2015) 1 Supreme Court Cases (Cri) 24 between (Anwar P.V. V/s P.K. Basheer and other),
12. AIR 1959 Supreme Court 488 HN-A (V46 C61) between (Haji Mohammed Ekramul Haq V/s The State of West Bengal),
13. (2011) 7 Supreme Court Cases 130 between (Krishan Kumar Mailk V/s State of Harayana), 24 Spl. C.C. No.264/2014
14. 2004 (2) KCCR 1233 HN-C between (D. Rajendran V/s State by Police Inspector, BOI),
15. 1998 Crl.L.J. 3511 Madhya Pradesh High Court between (Ashok Baijal V/s M.P.Government),
16. (2006) 3 Supreme Court Cases (Cri) 225 HN-F between (State Inspector of Police, Vishakhapatnam V/s Surya Sankaram Karri).
Counsel for the accused No.3 has relied on the following decisions:
1. 2014 AIR SCW 2080 Supreme Court HN-A & B between (B. Jayaraj V/s State of A.P.),
2. LAWSKAR 2004 393 High Court of Karnataka in Crl.P.No.853/1998 between (D. Rajendran V/s State by Police Inspector, BOI),
3. (2000) 5 Supreme Court Cases 21 between (Meena (Smt) W/o Balwant Hemke V/s State of Maharashtra),
4. LAWS(KAR) 2012 1 16 between (R. Malini V/s Stateof Karnataka),
5. (2010) 4 Supreme Court Cases 450 between (Banarasidass V/s State of Haryana),
6. LAWS(KAR) 2012 3 28 between (Hanumanthappa V/s state of Karnataka)
7. (2014) 10 Supreme Court cases 473 between (Anvar P.V. V/s P.K. Basheer and others),
8. 2014 AIR SCW 5740 between (M.R.Purushotham V/s State of Karnataka),
9. IV (2015) CCR 57 (Supreme Court) between (P. Satyanarayana Murthy V/s Dist. Inspector of Police and another), 25 Spl. C.C. No.264/2014
21. Here after considering the charge sheet, evidence of the prosecution witnesses, documents got marked as exhibits in their evidences and the decisions relied upon by the counsel for the accused, now the point remains for consideration of this court is, whether the accused being the public servants have demanded and accepted the illegal gratification from the complainant for release of the compensation amount with respect to the land Sy.No.29 measuring 30-guntas of Rayasandra village, Kanakapura Taluk, by misusing their official position and they have committed criminal misconduct or not or not is the fact to be considered by the court. The Legislatures have introduced this Act with an intention to see that, no corruption should practice in public office and the public servants should not expect or accept any illegal gratification from the public for doing or discharging their public duty, so this Act is introduced for that purpose. The Legislatures have imposed restriction to prosecute the public servants stating that, no public servant shall be prosecuted for the offences punishable under Sections 7,8,10,13 and 15 of P.C. Act without prior permission of the concerned Government or competent authority. The Legislatures have introduced this provision with an intention to curb the spurious complaint filed against the public servants and protect them from such false complaint. When the 26 Spl. C.C. No.264/2014 Legislatures have introduced this special provision with good intention for discharging of Governance in the society, the court has to scrutinize the evidence of all the prosecution witnesses cautiously either for acquittal or conviction.
22. In Prevention of Corruption Act cases, the evidence of complainant and the shadow witnesses are more important than the evidence of other witnesses. In a decision reported in 1993 Crl.L.J. 2878, Bombay High Court, HN-A between (M.G. Thatte V/s State of Maharashtra), His Lordship Justice M.F.Saldana Judge- held as follows:
" (A) Evidence Act (1 of 1872) S. 156-Corroborative evidence -Corruption case- Even where evidence of complainant is quite credible, no conviction can be based on such evidence unless it is corroborated by independent material".
In another decision reported in High Court of Karnataka reported in LAWSKAR 2004 393 High Court of Karnataka, between (D. Rajendran V/s State by Police Inspector, BOI). The Hon'ble High Court held that:
"unless the evidence of the complainant is corroborated with the shadow witness, it is not safe to convict the accused person". The corroboration evidence of shadow evidence with the evidence of the complainant is made compulsory with an intention that, the 27 Spl. C.C. No.264/2014 complainant being interested person is very much interested in supporting the prosecution case by exaggerating his evidence with an intention to see that, the accused must be punished. The shadow witness being a independent witness, his evidence is more safe to consider the guilt or innocence of the accused for adjudication of the matter, so in both the decisions their Lordships held that, unless the evidence of complainant is corroborated with the evidence of shadow evidence, accused shall not be convicted.
23. When the ratio involved in the said decisions stands as stated supra, now the court has to scrutinize the evidence of prosecution witnesses examined before the court to ascertain as to whether the evidence of the complainant and the shadow witnesses corroborates each other or not, is the fact to be considered by the court. Here in this case, complainant-Nandeesh is examined as P.W.3 and shadow witness-Aravinda Gowda is examined as P.W.4. Whether there is any corroboration in the evidence of P.W.3 and 4 with respect to demand and acceptance of bribe amount of accused No.1 to 3 or not, is the fact to be considered by the court. Here by looking into the evidence of complainant-P.W.3, his allegation is only against the accused No.2 with regard to the demand and acceptance of Rs.6,000- 28 Spl. C.C. No.264/2014 00 and Rs.30,000-00 for the complainant. There is no any evidence against accused No.1 and 3 about the demand and acceptance of any illegal gratification by them from the complainant. By looking into the charge sheet papers, it indicates that, the alleged bribe amount of Rs.30,000-00 received by accused No.2 from the complainant is recovered from the brother of accused No.1, but the said witness is not examined by the prosecution before the court and not proved the same with cogent evidence, so it is fatal to the prosecution case. Though, the complainant alleged in the complaint and stated before the court stating that, earlier to 12-07-2013 he paid Rs.6,000-00 to accused No.2, there is no any explanation from the I.O. stating as to why he has not recovered that illegal gratification amount from accused No.2. Further, there is no evidence as to why he has not recovered amount of Rs.2,000-00 received by accused No.3 about two months earlier to 12-07-2013. When the very fact of demand and acceptance of any illegal gratification by the accused from the complainant is not proved with any cogent evidence, under such circumstances, it is not safe to convict the accused only by considering some of the admissions given by the complainant in his cross- examination by the Public Prosecutor. Further, if there is any benefit of doubt in the evidence of prosecution it shall be given to the accused 29 Spl. C.C. No.264/2014 for acqujittal, and accused shall not be convicted by taking benefit of doubt.
24. By looking into the evidence of the complainant, it indicates that, firstly when he visited to the KHB office for enquiry about the release of compensation amount, at that time, one Siddalingappa was the Tahasildar and he was a special L.A.O. The said Siddalingappa is not cited as a witness or examined before the court. As the complainant has not fully supported the case of the prosecution, the Public Prosecutor requested this court to treat the complainant as hostile and permit him to cross-examine. His prayer was considered and he was permitted for cross-examination. In the cross-examination of complainant he admitted the suggestions put to him about demand of Rs.6,000-00 and Rs.30,000-00 to accused No.2, but he denies the demand and acceptance of any bribe amount by accused No.1 and 3. In the beginning of his cross-examination by Public Prosecutor on page 7 about accused No.3 he has stated as follows:
"............It is false to say that after I met Kantharaju and enquired about my file, he told me that for moving that file I have to pay him a sum of Rs.5,000/-, on that day I was possessing only 30 Spl. C.C. No.264/2014 Rs.2,000/- so, he collected that amount from me.......".
Further, in his cross-examination on page 8 about demand and acceptance of any illegal gratification by accused No.1, he has stated as follows:
"........It is false to say that on that day evening, I went and met A-1 in his chamber, at that time I told him that I have already paid Rs.30,000-00 for attending my file, then he demanded balance amount of Rs.45,000-00, there after I told him that I will pay balance amount of Rs.40,000-00 only and for that he had agreed.......".
By considering the evidence of complainant against the accused with respect to the prosecution case, that itself creates doubt in the mind of the court about the demand and acceptance of illegal gratification by accused No.1 to 3 from the complainant.
25. About filing of complaint by the complainant, he told that, he has not filed his complaint before Lokayuktha Police as per Ex.P.4, but same was got prepared by one of the Lokayuktha Police constable by name Chandrashekara, who is from his village. This statement of complainant again goes to show that, he is not the author of his complaint marked at Ex.P.4.
31 Spl. C.C. No.264/2014
26. By considering the case of the prosecution, it indicates that, the conversation between the accused and the complainant with respect to the pending work of the complainant and demand and acceptance of illegal gratification by the accused was recorded in the mobile phone of the complainant and same was transmitted into DVD and CD. By considering this fact into consideration, it is clear that, the conversation of the complainant with the accused recorded in his mobile phone is a primary evidence. The seizure and production of the said mobile and its chip before the court is important, but the I.O. has not seized the said mobile from the complainant. Non-seizure of the material object by the I.O. is fatal to the prosecution case. By considering the evidence of the I.O. with regard to the recording of conversation of complainant with the accused in the mobile phone, it indicates that, collection of a certificate from the complainant under Section 65-B of Indian Evidence Act, is must. I.O. has not collected that certificate from the complainant as required under the Section 65- B of Indian Evidence Act. In a decision relied upon by the counsel for the accused reported in (2014) 10 Supreme Court cases 473 HN-B between (Anvar P.V. V/s P.K. Basheer and others), Their Lordships held as follows:
32 Spl. C.C. No.264/2014
"....such certificate must accompany electronic record like CD, VCD, pen drive, etc., which contains the statement which is sought to be given as secondary evidence, when the same is produced in evidence-In absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence, as in present case".
In the absence of non-collecting of certificate by the I.O. non-display of any CD or DVD produced before the court, it is fatal to the prosecution case. Many decisions relied upon by the counsel for the accused reported in IV (2015) CCR 57 (Supreme Court) between (P. Satyanarayana Murthy V/s Dist. Inspector of Police and another). Their Lordships held as follows:
"Prevention of Corruption Act, 1988.-Sections 13(1)(d)(i), 13(1)(d)(ii), 13(2)-Illegal gratification
-Mere possession and recovery of currency notes from accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and 13(1)(d)(ii) of Act-Proof of demand of illegl gratification is gravemen of offence under Sections 7 and 13(1)(d)(i) and 13(1)(d)(ii) of the Act and in absence thereof, charge would fail-Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors proof of demand, ipso facto, would not be sufficient to bring home charge under these two sections of the Act-33 Spl. C.C. No.264/2014
Prosecution not able to prove factum of demand beyond reasonable doubt-Impugned judgment and order of High Court set aside".
In another decision relied upon by the counsel for the accused reported in 2014 AIR SCW 2080 Supreme Court HN-A between (B. Jayaraj V/s State of A.P.). Their Lordships held as follows:
"(A) Prevention of Corruption Act, 1988, S.17, S.13-
Bribery case-Demand of gratification-Proof-
Complainant disowning to have made complaint-No other evidence adduced by prosecution to prove demand- Demand of gratification cannot be held to be proved only on basis of complaint filed and evidence of panch witness -In absence of proof of demand mere recovery of tainted money from accused-Not sufficient for his conviction".
In another decision relied upon by the counsel for the accused reported in 2000(5) Supreme Court 21 between (Meena (Smt) W/o Balwant Hemke V/s State of Maharastra). Their Lordships held as follows:
"....Mere recovery of the currency notes and positive result of the phenolphthalein test 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 34 Spl. C.C. No.264/2014 must be proved beyond reasonable doubt-Criminal Trial-Prosecution-Failure to examine or produce".
27. As per the decision relied upon by the counsel for the accused reported in LAWS(KAR) 2012 1 16 between (R. Malini V/s State of Karnataka). At para 10 their Lordships held that: "Pendency of work as on the date of trap is must". But in this case no such work was pending as on the date of trap. In a decision reported in (2010) 4 Supreme Court Cases 450 between (Banarasidass V/s State of Haryana). Their Lordships held that;
" Offence should be proved against accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of chain of events is established pointing towards guilt of accused-Prosecution has to lead cogent evidence in that regard so far as it satisfies essentials of a complete chain duly supported by appropriate evidence".
Here in this case, evidence of the complainant itself is doubtful about act of the accused with regard to demand and acceptance of any illegal gratification by the accused from the complainant. In the cross- examination of complainant by the counsel for the accused No.1 he has stated that "No witnesses were present along with him while he was met the accused No.1 in the parking slot". Further he has stated 35 Spl. C.C. No.264/2014 that, the Lokayuktha Police have insisted him to meet the accused No.1 and 3 to pay the amount, but they raided the accused No.1 and 3 before the demand and acceptance of any illegal gratification by them.
28. P.W.4 and 7 who are examined as panchas to the prosecution case have not supported the prosecution case. Both the witnesses have denied the very fact of conducting pre trap or trap mahazars by the I.O. as required under the law and there is variation of time of appearance before Lokayuktha Police before conducting trap. Since both the witnesses have not supported the prosecution case, so with the permission of the court the prosecution treated them as hostile and cross-examined at length. Nothing has been elicited in their cross-examination to disbelieve their evidences given before the court on oath in his examination in chief and to accept the prosecution case. Evidence of P.W.4 and 7 creates doubt in the mind of the court about any at of these accused in demand and acceptance of illegal gratification from the complainant.
29. It is true that, P.W.5-Basavaraj Pathri has supported the prosecution case, but his evidence is not the conclusive proof with regard to the demand and acceptance of illegal gratification by the 36 Spl. C.C. No.264/2014 accused from the complainant for doing their any official favour. However, he has stated about identification of the voice of the accused recorded in DVD and CD. Since the certificate and original mobile of the complainant are not colleted by the I.O. and not produced before the court and the evidence of this witness holds no water.
30. P.W.6-Smt. Manjula is the mother of the complainant, she stated goodbye to the prosecution case and denied the statement given before the I.O. as per Ex.P.27. Further the complainant, pancha witnesses P.W.4 and 5 have denied the fact of giving of their statement before the I.O. as per Ex.P.18,22 and Ex.P.29. P.W.8-- Nandeesh Kumar S. is cited as circumstantial witness, he has also denied the prosecution case and denied the fact of giving of his statement before the I.O. as per Ex.P.31.
31. Now, the evidence of P.W.9-Srinivs M.S. and P.W.10-P. Narasimhamurthy, I.Os. remains for consideration of the prosecution case. It is well settled principles of law of evidence that, the evidence of I.O. itself is not a conclusive proof for conviction. The evidence of I.O. can be used for corroborating with the evidence of other prosecution witnesses. For convicting the accused, the prosecution has to prove its case about the demand and acceptance of illegal gratification by the accused from the complainant, its recovery and 37 Spl. C.C. No.264/2014 conducting of pre trap and trap mahazar by the I.O. as required under the law. Here by looking into the evidence of P.W.3,4,6 to 8 no such facts are proved by the prosecution. Further, the I.O. has not recovered the material object of mobile phone of the complainant used for his conversation with the accused and produced it before the court and he has not collected the certificate as required under Section 65-B of Indian Evidence Act. By considering of these facts in to consideration, the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt.
32. I have gone through all the decisions relied upon by the counsel for the accused stated supra and ratio involved in the decisions are applicable to the case on hand, so same are considered for disbelieving the prosecution case against the accused for demand and acceptance of illegal gratification from the complainant with respect to any pendening of work of complainant with the accused. Since the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt stating that, the accused being the public servants have demanded and accepted illegal gratification as alleged in the charge sheet, so this court answered point No.2 to 5 in the Negative.
38 Spl. C.C. No.264/2014POINT No.6:
33. In view of all the reasons, this court proceeds to pass the following order:
ORDER Acting under Sec.235 (1) of Cr.P.C., accused are acquitted for the offences punishable under Sec.7 and 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act,1988.
Their bail bonds stand cancelled after lapse of appeal period.
M.O. 12,13 and 18 i.e., cash of Rs. 73,000-00 (Rupees. Seventy-three thousands only) is confiscated to the State and MO.1 to 11, 14 to 17 which are worthless are ordered to be destroyed after lapse of appeal period.
(Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 18th day of June, 2018.) (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
CCH-78 ()()()()() 39 Spl. C.C. No.264/2014 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Ravi Shnakr PW.2: O.N. Arera PW.3: Nandeesh PW.4: Aravind Gowda PW.5: Basavaraj PW.6: Smt. Manjula PW.7: P. Yogesh Kumar PW.8: Nandeesh Kumar S. P.W.9: Srinivas M.S. P.W.10-P. Narasimhamurthy LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Sanction order Ex.P.1(a): Signature of PW.1 Ex.P.2: Sanction order of accused No.1 Ex.P.2(a): Signature of PW.2 Ex.P.3: Service details issued by P.W.2. Ex.P.3(a): Signature of PW.2 Ex.P.4: Complaint Ex.P.4(a & b): Signatures of PW.3 and 10 Ex.P.5: Trap mahazar Ex.P.5(a to d): Signatures of P.W.3,P.W.4, P.W.7 & P.W.10 Ex.P.5(e to g): Signatures of accused No.1 to 3 Ex.P.6: Note sheet of currency notes numbers 40 Spl. C.C. No.264/2014 Ex.P.6(a to c): Signatures of PW.3, PW.4 and PW.7 Ex.P.7: Voice transcription of accused No.2 Ex.P.7(a to c): Signatures of PW.3,4 & P.W.10 Ex.P.8: Transcription of accused No.2 Ex.P.8(a to c): Signatures of P.W.3,4 & P.W.10 Ex.P.9: Transcription of accused No.2 Ex.P.9(a to d): Signatures of PW.3,4,7 & P.W.10 Ex.P.10: Transcription of accused No.3 Ex.P.10(a to d): Signatures of PW.3,4,7 & P.W.10 Ex.P.11: Transcription of accused No.3 Ex.P.11(a to d): Signatures of PW.3,4,7 & P.W.10 Ex.P.12: Pre trap mahazar Ex.P.12(a to d): Signatures of P.W.3,4,7 & P.W.10 Ex.P.13: Transcription (Trap time) Ex.P.13(a to d): Signatures of PW3,4,7 & P.W.10 Ex.P.14: Report given by CW.7 Ex.P.14(a to c): Signatures of P.W.3,5 and P.W.7 Ex.P.15: Written explanation of accused No.1 Ex.P.15(a to c): Signatures of P.W.3,4 & P.W.10 Ex.P.16: Written explanation of accused No.2 Ex.P.16(a to c): Signatures of P.W.3,4 & P.W.10 Ex.P.17: Written explanation of accused No.3 Ex.P.17(a to c): Signatures of P.W.3,4 & P.W.10 Ex.P.18: 161 statement of P.W.3 Ex.P.19: Acknowledgement given by P.W.4. Ex.P.19(a & b): Signatures of P.W.4 and P.W.10 Ex.P.20: Attested copy of file of complainant Ex.P.20(a): Signature of P.W.5 on first page 41 Spl. C.C. No.264/2014 Ex.P.21: Seized dairy Ex.P.21(a): Entry in green ink at second page Ex.P.22: 161 statement of P.W.4 Ex.P.23: Copies of document produced by complainant Ex.P.23(a): Signature of P.W.4 Ex.P.24: Covering letter issued by P.W.5 Ex.P.24(a): Signature of P.W.5 Ex.P.25: Service particulars of accused No.2 Ex.P.25(a): Signature of P.W.5 Ex.P.26: Service particulars of accused No.3 Ex.P.26(a): Signature of P.W.5 Ex.P.27: 161 statement of P.W.6 Ex.P.28: Rough sketch of spot Ex.P.28(a & b): Signatures of P.W.7 and 10 Ex.P.29: 161 statement of P.W.7 Ex.P.30: PWD sketch of spot Ex.P.30(a): Signature of P.W.7 Ex.P.31: 161 statement of P.W.8 Ex.P.32: Covering letter of ADGP, Lokayuktha to P.W.9 Ex.P.32(a): Signature of P.W.9 Ex.P.33: FIR Ex.P.33(a): Signature of P.W.10 Ex.P.34: Letter to depute officials Ex.P.35: Letter of KHB Secretary pertaining work allotment of accused No.2 and accused No.3 Ex.P.36: Attested copy of attendance Ex.P.37: Chemical analysis report Ex.P.37(a):Signature of P.W.10 42 Spl. C.C. No.264/2014 Ex.P.38: Call details LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Metal seal 'V' MO.2: Sample Sodium carbonate solution MO.3: Hand wash solution of CW.3/P.W.7 M.O.4: Original DVD M.O.5: CD of pre trap proceedings MO.6: Sample solution MO.7: Right hand wash solution of Accused No.1 MO.8: Left hand wash solution of accused No.1 MO.9: Sample cotton M.O.10: Right hand wash solution of Accused No.3 MO.11: Left hand wash solution of accused No.3 MO.12: Currency notes seized from accused No.1 MO.13: Currency notes seized from accused No.3 MO.14: Pant of accused No.1 M.O.15: Pant of accused No.3 M.O.16: DVD M.O.17: CD containing trap proceedings M.O.18: Cash recovered from the custody of accused No.1 LIST OF WITNESSES EXAMINED FOR ACCUSED:
NIL LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: Copy of transfer order dated.05.01.2013 43 Spl. C.C. No.264/2014 Ex.D.2: Copy of transfer order dated.22.12.2012 Ex.D.3: Copy of suspension order dated.14.08.2013 of accused No.1 Ex.D.4: Copy of Resolution order dated.25.02.2014 of accused No.1.
(MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78) 44 Spl. C.C. No.264/2014