Bangalore District Court
The State Of Karnataka vs D.M.Rajanna on 31 January, 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: 31st JANUARY, 2018
Spl. C.C.No. 145/2014
*****
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: D.M.Rajanna, Aged 62 years,
Son of Late Motegowda,
Under Secretary,
Animal Husbandry and
Fisheries Department,
Government of Karnataka,
Vikasa Soudha, Bengaluru.
Residing at Deshihalli village,
Madduru Taluk, Mandya District.
(Rep by Sri. M. Naganna, Adv.)
2 Spl. C.C. No.145/2014
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 04-07-2013
of offence:
3. Date of First Information 04-07-2013
Report:
4. Date of Arrest: ----
5. Date of Commencement 21-03-2017
Of recording of evidence:
6. Date of Closing of evidence: 22-12-2017
7. Date of Pronouncement of 31-01-2018
Judgment.
8. Result of the case: Accused is 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. The charges leveled against the accused are that: in the year 2010-11 the complainant-V. Venkatachalaiah was working as Senior Assistant in Fisheries Department, Mandya District. There was 3 Spl. C.C. No.145/2014 allegation against him stating that, he was not discharging his duties properly and there is dereliction of duty on his part, so departmental enquiry was initiated against him. In that connection, in the month of April 2013 the complainant-V. Venkatachalaiah had visited to the office of this accused wherein he was working as Under Secretary to Government of Karnataka, Vikasa Soudha, Bengaluru, with a request to assist him for dropping the proceedings initiated against him. At that time, this accused has demanded illegal gratification of Rs.5,000- 00 and on that day, he has received a sum of Rs1,000-00 from him. On 02-07-2013 complainant gave a phone call to the mobile number of this accused and enquired about his departmental enquiry proceedings. At that time, this accused asked him to come near Secretariat Club, Bengaluru and to pay the balance illegal gratification amount. Again on 03-07-2013 this complainant gave another phone call to him and enquired about his departmental enquiry. At that time also he has demanded the illegal gratification. Thereafter, this accused approached CW.16-Mohammed Mukaram, Police Inspector, Karnataka Lokayuktha Bengaluru City Division and informed him about the said matter. At that time, he has handed over voice recorder to him with instruction to meet the accused, discussed him about the matter and record his conversation. As per his instruction, on 03-07- 4 Spl. C.C. No.145/2014 2013 at about 1.15 p.m. this complainant gave phone call to the accused and asked about his matter, at that time, he informed him that, on account of ill-health of his relative, he is in hospital, so he asked him to meet him around 5 p.m. On that day, at about 5.30 p.m. the complainant met the accused near Vikasa Soudha, Bengaluru and discussed about his departmental enquiry. At that time, this accused again demanded illegal gratification amount and asked the complainant to drop him at City railway station. Thereafter, when they went there, he told the complainant stating that, tomorrow he has to pay the amount to Section Officer, so he asked him to come soon and collected a sum of Rs.225-00 from the complainant. Thereafter, the complainant went back to Lokayuktha office and filed his complaint. On 04-07-2013 again the complainant came to the working place of the accused along with panch witnesses and Lokayuktha Police. On that day around 5.45 p.m. this accused came out of his office and requested the complainant to drop him at railway station. Around 6.30 p.m. they came near the Bengaluru City railway station and the complainant stopped his two wheeler near Canara Bank ATM situated near Bengaluru City Railway station. At that time, again this accused demanded illegal gratification of Rs.4,000-00 from the complainant. On his demand, this complainant paid that illegal gratification to the 5 Spl. C.C. No.145/2014 accused. Since this accused being a public servant has demanded and accepted illegal gratification from the complainant for doing his official favour by misusing his position as a public servant, so he has committed criminal misconduct which are punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. Hence, the Lokayuktha Police have filed charge sheet against the accused for the above said offences.
3. After registering the case, Lokayuktha Police have investigated the matter and filed 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, 1988.
4. After submitting the charge sheet, presence of accused was secured before the court by issuing summons. Accused appeared before the court through his counsel, copy of the charge sheet was supplied to him under Section 207 of Cr.P.C., and he was enlarged on bail.
5. Heard the arguments of both the sides on hearing before charge. After hearing on HBC, after perusal of the charge sheet and 6 Spl. C.C. No.145/2014 the documents placed before the court, this court held that, there is a prima facie case against the accused for prosecuting him for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
6. The charges against 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 to him in the language known to him, for that, he pleaded not guilty and claims to be tried.
7. In all the prosecution has cited as many as 16-witnesses in the charge sheet. Out of them the prosecution has examined CW.1-B. Venkatachalaiah-the complainant is examined as PW.2, CW.2-K.M. Ramu and CW.3-H.B.Girish-the panch witnesses are examined as PW.5 and PW.3, CW.5-Chandrashekhara-Under Secretary to the Government of Karnataka, who issued the sanction order is examined as PW.1, CW-7-Ahammed A. Mukhthar-Deputy Secretary to the Animal Husbandry and Fisheries Department, Vikasa Soudha, Bengaluru, who identified the voice of the accused recorded in the CD is examined as PW.4, CW.16-Mohammed Mukharam-Police Inspector, Karnataka Lokayuktha, Bengaluru City Division, the Investigating Officer is examined as PW.6 and got marked 21-documents as Ex.P.1 to P.21 7 Spl. C.C. No.145/2014 and got marked 17 material objects as M.O.1 to 17. In the cross- examination of PW.5, counsel for the accused got marked portion of statement of PW.5 as Ex.D.1. Learned Public Prosecutor submitted 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 he denies the incriminating evidence against him. Enquired the accused about defence evidence for that, he got examined himself as DW.1 and no exhibits are marked, closed his side and case was posted for hearing arguments.
9. Heard the arguments of both the sides.
10. After hearing the arguments, after perusal of the charge sheet and evidence of the prosecution witnesses along with the documents marked in their evidence, the following points arise for consideration of this court:-
1. Point No.1: Whether the sanction order issued against the accused for prosecuting him for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act is valid?
2. Point No.2: Whether the prosecution proves its case against the accused beyond all reasonable doubt that, in the month of April 2013, when this complainant met the accused in his office situated 8 Spl. C.C. No.145/2014 at Vikasa Soudha, Bengaluru and requested him to close his departmental proceedings initiated against him in connection with his dereliction of his duty, at that time, this accused has demanded illegal gratification of Rs.5,000-00 and received a sum of Rs.1,000-00 as advance on that day, thereafter on 03-07-2013 he has received a sum of Rs.225-00 and on 04-07-2013 at about 6.30 P.M. he has demanded and accepted illegal gratification of Rs.4,000-00 from the complainant near Canara Bank ATM situated near Bengaluru City railway station for doing official favour to him and 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 beyond all reasonable doubt that, this accused being a public servant by illegal means, abused his position as a public servant demanded and accepted illegal gratification of Rs.4,000-00 from the complainant on 04-07-2013 near Canara Bank ATM situated near Bengaluru City Railway station against the public interest and thereby he has committed the offence punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988?
4. Point No.4: What Order?
11. My findings on the above points are in the following because of my below discussed reasons.
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.
9 Spl. C.C. No.145/2014
REASONS
12. POINT No.1: Here after considering the evidence of PW.1- Chandrashekhar and the document marked at Ex.P.1, i.e., sanction order, the point remain for consideration of this court is, whether the said sanction order is a valid or not. As per Section 19 of the P.C.Act, previous sanction of the concerned Government or the competent authority is must for prosecuting a public servant. Here in this case, as per the allegations made by the complainant in the complaint and the evidence of complainant and PW.1 given before the court, the fact that, on the date of trap and filing of charge sheet, this accused was a public servant and he was working as a Under Secretary in Animal Husbandry and Fisheries Department, Government of Karnataka, Vidhana soudha, Bengaluru, is not in dispute. It is the contention of the counsel for the accused stating that, the sanction order issued by PW.1 is illegal as he was not the competent authority to issue the same and the concerned authority has not applied its mind to consider as to whether there is a prima facie case against the accused or not. Contrary to this, learned Public Prosecutor submitted before the court stating that, by looking into the evidence of PW.1 and the sanction order marked at Ex.P.1, it is clear that, before issuing sanction order, 10 Spl. C.C. No.145/2014 the concerned authority has considered all the material documents placed before it and thereafter it has held that, there is a prima facie case against the accused to prosecute him for the offences alleged against him, so it has issued sanction order. Hence, it is a valid sanction.
13. After considering the submissions of both the sides, I have gone through the sanction order marked at Ex.P.1. In that sanction order, PW.1-Chandrashekhar, Under Secretary to DPAR, Government of Karnataka, Bengaluru, has consider the order of the Government before issuing the sanction order and the fact of perusal of copies of all the documents furnished by ADGP, Lokayuktha Bengaluru along with his requisition letter submitted before the Government for obtaining sanction order. In that sanction order, the concerned authority has specifically mentioned about the documents verified by it for considering the prima facie case. For issuance of sanction order, the Government or the concerned authorities are suppose to verify the records and they have no independent right to hold the pre trial for deciding the guilt or innocence of the public servant. Since the evidence of PW.1 and the averments made in the sanction order marked at Ex.P.1, clearly speaks that, the sanctioning authority has 11 Spl. C.C. No.145/2014 scrutinized all the documents placed before it by applying its judicious mind to decide as to whether there is a prima facie case against the accused to issue sanction order for prosecuting him for the offences or not, so this court held that, the said sanction order is valid. Hence, this court answered point No.1 in the Affirmative.
14. Point No.2 & 3: For giving findings of this court on point No.2 and 3 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 and 3 are necessary, so both the points are taken up for common discussion.
Here after considering the oral and documentary evidence placed by the prosecution before the court along with ratio involved in the decisions relied upon by the counsel for the accused, now the points remains for consideration of this court is, whether this accused being a public servant has demanded illegal gratification for doing official favour to the complainant in his departmental proceedings, demanded and accepted the bribe amount of Rs.5,000-00 from him by misusing his official position as a public servant and committed the criminal misconduct or not are the facts to be considered by the court. Section 7 and 13(1)(d) of P.C. Act specifically states as to what are the 12 Spl. C.C. No.145/2014 facts to be considered by the court for considering the guilt of the accused to prosecute him for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
15. In support of the case of the prosecution, learned Public Prosecutor submitted before the court stating that, by considering the oral and documentary evidence placed by the prosecution before the court along with the evidences of complainant, shadow witness and the I.O., the prosecution has proved the fact of demand and acceptance of illegal gratification of Rs.5,000-00 by the accused from the complainant. Evidence of the prosecution witnesses examined before the court corroborates to each other and even if there are some contradictions in their evidences, such contradictions are not material contradictions to discard the entire case of the prosecution, so he has submitted that, the prosecution has proved its case against the accused beyond all reasonable doubt. Hence, he requested the court to convict the accused by awarding maximum sentence.
16. Contrary to this, learned counsel for the accused submitted before the court stating that, first of all the prosecution has failed to prove the very fact of material ingredients of pendency of work of the 13 Spl. C.C. No.145/2014 complainant with the accused. The accused is not a competent person who was suppose to hold enquiry against the complainant with regard to his departmental enquiry. However, he being a Under Secretary to the Government has obeyed the directions of Government for issuance of show-cause notice to the accused for holding departmental enquiry. Mere issuance of notice by the accused to the complainant do not authorize him to hold the departmental enquiry against the complainant. It is the concerned person to whom such authorization is given to hold enquiry is the competent person to do any official favour to the complainant and not the accused. It is true that the prosecution has much relied on the electronic evidence placed before the court. For acceptance of the said electronic evidence, the prosecution has not fulfill the conditions imposed under Section 65-B of Indian Evidence Act. As per the said Section, electronic evidence placed by the prosecution before the court should be accompanied with its certificate issued by the competent person. Here in this case, no such certificates are produced by the prosecution before the court to show the said electronic evidence are admissible. After discarding the said electronic evidence, the oral evidence of the prosecution witnesses placed before the court remains for consideration of this court. Though, the complainant has supported the prosecution witnesses, his 14 Spl. C.C. No.145/2014 evidence given before the court on oath in examination in chief is not corroborated with the evidence of the independent shadow witness. For considering the evidence of complainant in P.C.Act cases, corroboration of his evidence with the shadow witness is must. Complainant is an interested person and he want to see that, the accused should be convicted for the allegations made against him in the complaint, so with that intention the Legislatures have made it compulsory that, the evidence of the complainant should be corroborated with the evidence of shadow witnesses. In the examination in chief of shadow witness he has specifically stated that, he did not heard the conversation taken place between the accused and the complainant on that day. However the complainant after dropping the accused near railway station, complainant made an attempt to give the demand amount to the accused, at that time, he put his hand-kerchief on the bike seat and asked him to put that amount in that kerchief. But in the cross-examination he has stated that, at the time of that incident, it was almost dark and there was huge public near railway station. In that rush, he was not able to heard the conversation between the complainant and the accused. When he has not heard the conversation between the accused and the complainant, how can you say that, this accused has demanded the 15 Spl. C.C. No.145/2014 bribe amount and collected the same from the complainant. Though, he was intended to receive the bribe amount, there was no necessity for him to receive that amount in his hand kerchief. Though the said kerchief seized, said kerchief is not produced before the court for marking, so it is fatal to the prosecution case. Further, there is no evidence to show that, the said kerchief belongs to the accused. In the absence of all these facts, the evidence of PW.2 and 3 are not admissible for considering the prosecution case about demand and acceptance of bribe amount by the accused from the complainant. Further, by looking into the evidence of PW.3 and 5, it creates doubt in the mind of the court about the procedures followed by the Lokayuktha Police, at the time of pre trial and trap proceedings. Though, the I.O. has supported the prosecution case, there are so many omissions and contradictions in his evidence and violation of the conditions of Section 65-B for admissibility of the electronic evidence. PW.4-Ahmad Abdul Mokhtadar, is examined before the court with regard to voice identification of the complainant. In his cross-examination he has stated that, he is not an expert in voice identification. In view of the present technology, voice of any person may mimicry by other person, so for deciding the said fact, examination of such CDs by the experts is necessary. Such CDs were not sent by the I.O. to the experts' 16 Spl. C.C. No.145/2014 examination and received their opinion. Evidence of all the prosecution witnesses given before the court are denied by the accused by his defence evidence, so it also falsifies that, the allegations made against the accused with regard to offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act are all false. When the very fact of demand and acceptance of illegal gratification by the accused and pendency of work of the complainant with the accused are not fulfilled, then the question of prosecuting this accused for the offences alleged against him do not arises. Hence, the prosecution has failed to prove its case against the accused beyond all reasonable doubt, so he requested the court to acquit the accused. In support of his contention, he relied on the following decisions:
(1) 2017 CriL.J. 3363 Karnataka High Court, between (K. Thimmappa V/s State), (2) 2017 Cri.L.J. 3304 (Patna High Court) between (Deva Nand Jha @ Deonarain Jha V/s The State of Bihar), (3) 2017 Cri.L.J. (NOC) 784 (GUJ.) between (Ashwinbhai Ambalal Vyas V/s State of Gujarat).
17. Here after considering the charge sheet, evidence of the prosecution witnesses, submissions of both the sides and the ratio involved in the decisions relied upon by the counsel for the accused, the fact remains for consideration of this court is, whether the 17 Spl. C.C. No.145/2014 prosecution has proved its case against the accused beyond all reasonable doubt stating that, this accused being a public servant has demanded and accepted illegal gratification from the complainant for doing official favour to him by misusing his power and position as a public servant or not are the facts to be considered by the court. It is true that, by looking into the documents marked at Ex.P.3 to 21 and M.O.1 to 17, the Lokayuktha Police have investigated the matter and submitted the charge sheet against the accused. Whether that evidence is sufficient to prove the guilt of the accused for the offences alleged against him or not is the fact to be considered by the court. It is true that, the prosecution case is based on the oral, documentary and electronic evidence. It is true that, Section 65-B of Indian Evidence Act states about the admissibility of the electronic evidence. However for acceptance of such evidence, it has imposed certain conditions as mentioned in Sub-Section (2) to (5) of the same. In a decision reported in (2015) 1 Supreme Court Cases (Cri) 24 (B) between (Anvar P.V. V/s P.K.Basheer and others). Their Lordships held as follows:
"B. Evidence Act,1872-S.65B(4)-
Secondary evidence of electronic record-
Producing copy of statement pertaining to electronic record in evidence not being the 18 Spl. C.C. No.145/2014 original electronic record-Mandatory pre-
requirement-Held, such statement has to be accompanied by a certificate as specified in S.65-B(4)-Essential ingredients of such certificate, enumerated-Held, 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 that decision, further their Lordships have also specifically stated as to what section 65-B (4) of Indian Evidence Act says and it reads as follows:
"Under Section 65-B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:"
(a) There must be a certificate which should identify the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;19 Spl. C.C. No.145/2014
(c) The certificate must furnish the
particulars of the device involved in the
production of that record;
(d) The certificate must deal with the
applicable conditions mentioned under
Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in relation to the operation of the relevant device".
In that decision, their Lordships have held that, any electronic evidence is placed before the court as an evidence, then the certificate of the competent authority is must. Further under the Evidence Act, it stated as to how the evidence based on the electronic evidence must be proved before the court. If the conditions imposed under Section 65-B of Indian Evidence Act are not fulfilled by the prosecution, then that evidence is inadmissible. In the cross-examination of PW.6- Mohammed Mukaram has stated that, he has not sent the voice recorded in the CD or recorder was sent to the expert's identification and he has not sent sample voice of the accused for its comparison. Further there is no certificate issued by any competent authority with regard to the mode of transmission of the conversation into the CDs marked at M.O.1,4,5 and 14 to 16. Further the original voice recorder 20 Spl. C.C. No.145/2014 and mobile used for recording the said conversations and the instrument used for transmission and transcription of said conversations into the CDs are not produced before the court. The fact that, the I.O. has not heard the voice of the accused earlier to the production of CD by complainant before him and to ascertain the fact as to whether the voice appearing in the said CDs is the voice of this accused or not is to be decided by the I.O. by taking the sample voice of the accused and sent that sample CD with the disputed CD for expert's examination. Since he has not collected the certificate with regard to the said CDs from the competent person who transmitted the same with what device and as he has not obtained the opinion of the experts with regard to the disputed speech of the accused in the said CDs. Under such circumstances, the electronic evidence relied upon by the prosecution are inadmissible.
18. It is true that, now the oral and documentary evidence placed by the prosecution before the court remains for consideration of this court. It is true that, by considering the evidence of PW.2,3 and 5, the prosecution has proved its case about the procedures followed by the I.O. at the time of pre trap mahazar, trap mahazar and after trap. All such facts are appearing in the documents marked at Ex.P.3 21 Spl. C.C. No.145/2014 to 21. For convicting a public servant for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, pendency of the work pertains to the complainant with the accused for doing official favour, demand and acceptance of bribe amount by the accused from the complainant are material facts to be proved by the prosecution. It is well settled principles of Law of Evidence that, in criminal cases, initial burden of proof is on the prosecution to prove its case against the accused beyond all reasonable doubt and after discharging that burden, onus shifts on the accused. In proving the fact of demand and acceptance of illegal gratification by the accused from the complainant, the prosecution has to prove its case with the oral evidence of the complainant and it should be corroborated with the evidence of independent witnesses. Here in this case, PW.3 and 5 are the independent witnesses, out of them, PW.3-H.B.Girish has acted as a shadow witness and PW.5-Ramu K.M. acted as a co-panch. Their evidence are to be corroborated with the evidence of complainant. The complainant is an interested person and his intention is to see that, the accused shall be convicted for the offences alleged against him. In the examination in chief of PW.2, he has admitted about his enmity with the accused and it reads as follows:
22 Spl. C.C. No.145/2014
"............When one Shivaramu was the Principal Secretary of the Fisheries Department, this accused use to harass me by issuing the show cause notices and by issuing the charge sheet against me for silly reasons.......".
When fact of enmity is made out, under such circumstances, evidence of complainant shall be scrutinized cautiously for deciding the guilt or innocence of the accused. Because enmity is a double edged weapon.
19. In a decision reported in 1993 Cri.L.J. 2878 HN-A between (M.G.Thatte Vs. State of Maharashtra). His Lordships 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 para 8 of the said Judgment, his Lordships has specifically stated as to why and how the sole testimony of the complainant is not admissible in corruption cases. In a decision reported in LAWS(KAR)2004 393 between (D. Rajendran V/s State by Police Inspector, B.O.I.). Her Lordship Justice Manjula Chellur held 23 Spl. C.C. No.145/2014 that "unless the evidence of complainant and the shadow witnesses corroborates with each other, it is not safe to convict the accused person".
20. In a decision reported in (2009) 3 Supreme Court Cases 779 HN-A between (C.M. Girish Babu V/s CBI, Cochin, High Court of Kerala). Their Lordships held that "Mere recovery of tainted money from the accused is not sufficient". Similar view is taken by the Hon'ble Supreme Court in another decision reported in AIR 2016 Supreme Court 298 between (Krishan Chander V/s State of Delhi) and same was held by Hon'ble High Court in ILR 2010 KAR 1983 between (State of Karnataka, through Police Inspector, Bureau of Investigation Vs. Anand Gururao Deshpande). When in another decision reported in 2015 Crl.L.J. 4670 Supreme Court (Full Bench) between (P. Satyanarayana Murthy Vs. Dist. Inspector of Police and Another). Their Lordships held as follows:
"Prevention of Corruption Act, (49 of 1988), S.7,S.13-Demand for illegal gratification - proof-Prosecution evidence not sufficient to prove demand of illegal gratification-Accused acquitted".24 Spl. C.C. No.145/2014
Keeping the ratio involved in the above said decisions along with the ratio involved in the decisions relied upon by the counsel for the accused reported in (1) 2017 CriL.J. 3363 Karnataka High Court, between (K. Thimmappa V/s State), (2) 2017 Cri.L.J. 3304 (Patna High Court) between (Deva Nand Jha @ Deonarain Jha V/s The State of Bihar), (3) 2017 Cri.L.J. (NOC) 784 (GUJ.) between (Ashwinbhai Ambalal Vyas V/s State of Gujarat). This court held that, for convicting the accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, the prosecution has to establish the fact of pendency of work, demand and acceptance of illegal gratification by the accused from the complainant. It is true that, on 04-07-2013 the complainant met the accused, taken him from his office to Bengaluru City railway station on his two wheeler, dropped him and the Lokayuktha Police have seized tainted currency notes of Rs.4,000-00 from the accused are proved. Whether there was any demand of bribe amount by the accused from the complainant and same was accepted by him on demand or not are the facts to be considered by the court. As held by Hon'ble Supreme Court in the decisions stated above, the demand and acceptance of illegal gratification by a public servant is Sina-qua-non for constitute the offences under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of 25 Spl. C.C. No.145/2014 Corruption Act, 1988. The fact that, the accused went on two wheeler of the complainant to the railway station and dropped there is not in dispute. Whether the accused has demanded illegal gratification and accepted the same or not is the fact to be considered by the court. In criminal cases conduct of the complainant is also the fact to be considered by the court. In the cross-examination of PW.2 on page 10 he has admitted that, one Mr. Shivaramu had deputed three officials to his office for inspection and after holding enquiry he was transferred to Gadag. Later, he obtained stay order and after filing objections by the Government, his stay order was vacated and he was sent for Gadag for reporting his duty. In the cross-examination of PW.2, on page 11, the said fact is appearing and it reads as follows:
"........... It is true that I was transferred to Gadag. It is true that on that transfer order I obtained stay. It is true that after filing the objections by the Government, my stay order was vacated so I went and reported at Gadag.........."
By considering the evidence appearing in his cross-examination, it indicates that, he was not discharging his duties properly. If he was discharging his duty properly, there was no question for Shivaramu to depute his three officials to the office of the complainant for inspection 26 Spl. C.C. No.145/2014 and there was no necessity for his transfer and vacating the stay order granted to him by the KAT. When the complainant has admitted his enmity with the accused and about initiating departmental enquiry and inspection through his officials, that itself goes to show that, complainant was intending to trap this accused with the assistance of Lokayuktha Police. The prosecution has not produced any evidence before the court to show the official favour of the accused to the complainant was necessary for dropping the enquiry proceedings or the accused was holding the said enquiry. When no work pertains to the complainant was pending with the accused, then the question of demanding the bribe amount by the accused from the complainant does not arise. Mere issuance of show-cause notice does not compel the accused to demand the bribe amount from the complainant. The document Ex.P.15 is the papers pertains to the proceedings initiated against the complainant by the Principal Secretary of Rural Development and Panchayat Raj Department, Government of Karnataka. In the proceedings, it is specifically stated about initiating of departmental enquiry against him. On the basis of the proceedings initiated against the complainant, on 12-11-2010 this accused issued a notice. Ex.P.15(a) is the show-cause notice issued by this accused to the complainant on 26-02-2013. Said show-cause notice goes to show 27 Spl. C.C. No.145/2014 that it is the cause for the complainant to file this complaint. When the said documents produced before the court goes to show that, the official work pertains to the complainant was not pending with the accused and he has not initiated any departmental proceedings independently, under such circumstances, filing of complaint by the complainant against the accused appears to be with malafide intention.
21. For considering the fact of demand and acceptance of bribe amount by the accused from the complainant, considering of the evidence of PW.2 and 3 is must. It is true that, in the examination in chief, he has specifically stated that, he has taken the accused from his office to City railway station, drop him and paid the bribe amount to the accused and gave signal to the Lokayuktha Police. By looking into earlier examination in chief of PW.2 on page 5 it shows that, though there was no any demand from the accused to pay the bribe amount, he went to pay that amount voluntarily, said portion in his examination in chief reads as follows:
"............After his arrival when I made an attempt to pay the demanded amount to the accused, he told me that he don't want to receive the amount in that campus he told 28 Spl. C.C. No.145/2014 me to drop me in the City railway station for payment of that demanded amount........".
This statement is not corroborated with the evidence of shadow witness PW.3-H.B.Girish. Said witness has not stated in his examination in chief about the demand made by the accused to the complainant for payment of the bribe amount in the campus or at the City railway station. However, he has stated that after dropping this accused near City railway station, complainant made an attempt to give the bribe amount to the accused, at that time, he put his handkerchief on the back seat of his bike and asked him to put that demanded amount on the handkerchief. Thereafter, this accused took that bribe amount from his handkerchief and put in his pocket. Though, he has stated so in his examination in chief, it contradicts with his admissions given in the cross-examination. In the cross- examination of PW.3 on page 6 he has stated as follows:
"............... It is true that as the complainant and accused went on a motor cycle, I have not heard the conversation taken place between them. It is true that when we went near railway station, it was around 06-30 to 07-00 PM and it was almost dark and there was huge public near railway station. It is true that in that rush I was not able to hear the 29 Spl. C.C. No.145/2014 conversation between the accused and complainant. Witness voluntaries that, there was no any conversation between accused and complainant near railway station.........".
When the said witness has not heard any conversation taken place between the accused and the complainant and regarding demand and acceptance of bribe amount by the accused from the complainant, under such circumstances, that itself creates doubt in the mind of the court about the prosecution case. Further by looking into the statement of the complainant and shadow witness appearing the trap mahazar marked at Ex.P.8, there is no specific allegations against this accused about demand and acceptance of bribe amount by the accused from the complainant. In that trap mahazar it is mentioned that the accused has received that bribe amount from his right hand and kept it in his right side pant pocket. If it was so, then the right hand wash of the accused in sodium carbonate solution ought to have changed. But in the trap mahazar it is mentioned that hand wash of both the hands of the accused in sodium carbonate solution was changed into "massalu colour". This statement also falsifies the prosecution case about the fare trap conducted by the I.O. 30 Spl. C.C. No.145/2014
22. PW.5 is another independent witness. In his cross- examination on page 7 he has stated as follows:
"............... It is true that a conversation going on between two persons was not possible to hear at the distance place. It is true that on that day I had not heard the conversation between the accused and complainant.............".
When the two independent witnesses available to the prosecution case have not supported the prosecution case with regard to demand and acceptance of bribe amount by the accused from the complainant, under such circumstances, merely because Lokayuktha Police trapped the accused and recovered the tainted currency notes from the possession of the accused will not constitute a presumption under Section 20 of P.C.Act. In a decision reported in 2006 (13) Supreme Court 305 HN-A between (V. Venkata Subramanay V/s State by Inspector of Police A.P.). Their Lordships held as follows:
"A. Prevention of Corruption Act, 1988-
S.20-Presumption under, regarding acceptance of illegal gratification-Raising of-Prerequisite for-Held, the said presumption cannot be raised when demand by accused is not proved-
Prevention of Corruption Act, 1947, S.4".31 Spl. C.C. No.145/2014
It is true that PW.4- Ahmad Abdul Mokhtadar has stated about identification of voice of the accused appearing in the CD, but he has not an expert to give his opinion about the same. It is true that, PW.6-Mohammed Mukaram has supported the prosecution case stating about registering of a case against the accused on the complaint filed by the complainant, conducting of pre trap, trap proceedings and investigation of entire case by him. His evidence is not conclusive proof for convicting the accused as the very fact of demand and acceptance of bribe amount by the accused from the complainant is lacking in the evidence of PW.2,3 and 5 examined before the court. By considering all these facts along with the ratio involved in the decisions stated above and the decisions relied upon by the counsel for the accused, this court held that, the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt about demand and acceptance of illegal gratification by the accused from the complainant. In view of all these reasons, this court answered point No.2 and 3 answered in the Negative. POINT No.4:
23. In view of all the reasons, this court proceeds to pass the following order:
32 Spl. C.C. No.145/2014
ORDER Acting under Sec.235 (1) of Cr.P.C., accused is acquitted for the offences punishable under Sec.7 and 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act,1988.
His bail bond stands cancelled after lapse of appeal period.
M.O.17 i.e., cash of Rs.4,000-00 (Rs. Four thousands only) is confiscated to the State and MO.1 to 16 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 31st day of Jan. 2018.) (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
CCH-78 ()()()()() 33 Spl. C.C. No.145/2014 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Chandra Shekar PW.2: V. Venkatachalaiah PW.3: H.B. Girish PW.4: Ahmad Abdul Mokhtadar PW.5: Ramu K.M. PW.6: Mohammed Mukaram LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Sanction order Ex.P.1(a): Signature of PW.1 Ex.P.2: Complaint Ex.P.2(a & b): Signatures of PW.2 & 6. Ex.P.3: Note sheet containing currency notes details. Ex.P.3(a to c): Signatures of PW.3, PW.5 & PW.6. Ex.P.4: Transcription of phone conversation Ex.P.4(a to d): Signatures of PW.2, PW.3, PW.5 & PW.6. Ex.P.5: Pre trap mahazar Ex.P.5(a to c): Signatures of PW.3, PW.5 & PW.6. Ex.P.6: Digital voice recorder transcription Ex.P.6(a to c): Signatures of PW.2,PW.5 and PW.6 Ex.P.7: Written explanation of accused Ex.P.7(a & b): Signatures of PW.3 & PW.5 Ex.P.7(c): Signature of accused Ex.P.8: Trap mahazar Ex.P.8(a to c & e): Signatures of PW.2, PW.3, PW.5 & PW.6 34 Spl. C.C. No.145/2014 Ex.P.8(d): Signature of accused Ex.P.9: Report given by CW.7/PW.4 Ex.P.9(a & b): Signatures of PW.4 & PW.6. Ex.P.10: FIR Ex.P.10(a): Signatures of PW.6. Ex.P.11: Transcription of conversation Ex.P.11(a): Signatures of PW.6. Ex.P.12: Rough sketch of spot Ex.P.12(a): Signatures of PW.6. Ex.P.13: Acknowledgment of CW.3 Ex.P.14: Letter dt:05-07-2013 of I.O. Ex.P.14(a): Signature of PW.6 Ex.P.15: Seized documents (attested copies) Ex.P.15(a): Copy of notice issued to complainant by accused. Ex.P.16: Letter dt:16-07-2013 of I.O. Ex.P.16(a): Signature of PW.6 Ex.P.17: Phone call details Ex.P.18: Copy of service register Ex.P.19: PWD covering letter. Ex.P.20: PWD sketch map.
Ex.P.21: FSL chemical report.
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: CD MO.2: Sample solution MO.3: Hand wash solution MO.4 & 5: Two CDs 35 Spl. C.C. No.145/2014 MO.6: Sample solution MO.7: Right hand wash solution MO.8: Left hand wash solution MO.9: One white envelope cover MO.10: Sample solution MO.11: Hand kerchief washed solution MO.12: Hand kerchief M.O.13 to 15: Three CDs Ex.P.16: Metal Seal 'AB' Ex.P.17: Currency notes.
LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1 : D.M. Rajanna LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: Portion of statement of PW.5 (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78) 36 Spl. C.C. No.145/2014 "(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information 37 Spl. C.C. No.145/2014 for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or its derived from such information fed into the computer in the ordinary course of the said activities".