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[Cites 29, Cited by 2]

Karnataka High Court

Sri. N. Raghumurthy vs The State By Lokayuktha Police on 9 February, 2018

Author: R.B Budihal

Bench: R.B Budihal

                             1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 9TH DAY OF FEBRUARY 2018

                        BEFORE

       THE HON'BLE MR. JUSTICE BUDIHAL R.B.

            CRIMINAL APPEAL No.750/2017

BETWEEN:

Sri N Raghumurthy
S/o T Ningappa
Aged about 51 years
Sheristedar
Mysuru Taluk Office
Mysuru.

R/at Gadihalli
Tarikere Taluk
Chikkamagaluru District-574 001.          .. APPELLANT

(By Sri Ravi B Naik, Sr. Counsel
 A/w Sri Monesh Kumar K B, Adv.)

AND:

The State by Lokayuktha Police
Mysuru District
Rep. by the State Public Prosecutor
High Court Building
Bengaluru-560 001.                       .. RESPONDENT

(By Sri Venkatesh S Arbatti, Spl.P.P.)

      This criminal appeal is filed under Section 374(2)
CR.P.C. praying to set aside the judgment and order dated
24.04.2017 passed by the III Addl. Sessions and Spl.
Judge, Mysuru in Spl.C.No.106/2012 - convicted the
appellant/accused for the offences punishable under
                                 2


Sections 7 and 13(1)(d) read with Section 13(2) of
Prevention of Corruption Act.

      This appeal coming on for Further Argument this
day, the Court delivered the following:


                         JUDGMENT

This appeal is preferred by the appellant-accused under Section 374(2) of Cr.P.C. being aggrieved by the judgment and order of conviction and sentence dated 24.4.2017 passed by the III Additional Sessions and Special Judge, Mysuru, in Spl. Case No.106/2012 whereby the appellant-accused has been convicted for the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act. The appellant preferred the above appeal challenging the legality and correctness of the judgment and order of conviction on the grounds as mentioned at ground Nos.15 to 24 of the appeal memorandum.

2. Brief facts of the prosecution case as per the averments made in the complaint (Ex.P.2) dated 21.09.2011 is that the complainant one Muniraju R. 3 (P.W.1) has stated that he is working as social worker staying at Satellite town, Kengeri, Bengaluru. The land property bearing Sy. No.17-P measuring 3 acres of Ilavala Hobli, Madagalli village was granted to one Guruvaiah s/o. late Rangaiah. After demise of the said Guruvaiah, his son Ramesh and daughter-in-law Muththamma executed agreement of sale in favour of the complainant on 28.3.2007 and in that connection, the complainant had paid Rs.15.00 lakh to them. The said Ramesh, Muththamma and others also executed general power of attorney in favour of the complainant for mutation of the said landed property and for other purposes. In the year 2007, the complainant gave an application to the office of the Tahsildar, Mysuru, to get the mutation in favour of Ramesh, Muththamma and others. The mutation was not done since 2007 and they were asking repeatedly for the mutation of their names and last one month, the appellant herein - Raghumurthy, who is working as Shirastedar in the office of Tahsildar, Mysuru, has taken the charge of said file. The complainant met the said Raghumurthy through one Venkataramu and enquired 4 about mutation of the property. At that time, they were asked to come on the next day and also told that as they simply come and request to mutate their names, because of that reason, their file is lying since 2007. It is alleged by the complainant that the appellant-accused said that if they are ready to listen to him, within one month, he will get the mutation done and they have to pay Rs.5.00 lakh towards expenses and insisted them to pay the bribe amount. Venkataramu was calling the complainant over phone repeatedly since from one week and informed about the demand of Rs.5.00 lakh bribe amount made by the accused-Raghumurthy. Then it was told to Venkataramu that they cannot pay such amount and asked him to go and lodge a complaint to Lokayuktha police. Venkataramu said the complainant that it is better to lodge a complaint by him. Because of that reason, on 20.9.2011, the complainant came to the office of Lokayuktha along with Venkataramu and he took digital voice recorder from the Lokayuktha office. Venkataramu phoned by his mobile No.9342117826 to the mobile number of appellant-Raghumurthy i.e.9448530055. At 5 that time, the appellant told that he is in meeting of the D.C. office and asked him to call at 7.30 p.m. and he will tell at which place they should meet. On the previous day at 6.15 p.m., the accused himself gave a missed call to Venkataramu, who immediately called the accused over mobile phone. At that time, the accused asked Venkataramu to come to Shanthisagar Hotel, Kuvempunagar at 7.30 p.m. Accordingly, the complainant and Venkataramu went to Shanthi Sagar Hotel and were waiting for the appellant-accused. The appellant-accused told them that within a minute, he will come and accordingly, he came in a car giving an indication asking them to come. The complainant and Venkataramu went nearby the car. The appellant opened the door of the car and took them inside his car. He brought the file belonging to the said landed property and read some of the documents and insisted for the bribe amount of Rs.5.00 lakh. The complainant told that it was not possible to pay the said amount and requested for reducing Rs.50,000/- out of the said amount. Thereafter, it was reduced upto Rs.1.00 lakh and the appellant- 6 accused asked the complainant to give Rs.4.00 lakh. He further insisted the complainant to give Rs.3.50 lakh either on Thursday or Friday and the work will be done within one month and they can give the remaining amount of Rs.50,000/- later. The complainant asked him to agree for the total amount of Rs.3.50 lakh. But the appellant-accused did not agree for the same. The appellant-accused said that the amount which would be given would be paid to Tahsiladar, A.C and then the complainant told that the appellant-accused will start their wok and on the next day, he will give some advance amount. But the accused insisted to bring the entire amount together and if they are prepared to pay Rs.50,000/- on the next day and remaining amount of Rs.3.50 lakh on Saturday, on Monday itself, he will start attending to their work and insisted for payment of money. As the appellant insisted for the sum of Rs.50,000/- within 3.00 p.m., on that day itself, and as the complainant was not having the said amount, he went to Bengaluru and brought the sum of Rs.50,000/- to be payable to the appellant and he went to Lokayuktha 7 office. It is further stated in the complaint that he was not interested to pay the bribe amount and so requested the Lokayuktha office to take appropriate legal action against the appellant-accused for demand of the bribe amount. He also returned digital voice recorder which was received from the Lokayuktha police on the previous day. He has further stated that as he does not know Kannada properly, he has given the oral complaint and the said complaint was registered.

3. After completion of investigation, the investigating officer filed charge sheet in the matter for the said offences. The Special Judge after hearing both sides framed charges for the said offence and when the charges were explained, the accused pleaded guilty and claimed to be tried. Then the matter was posted for conducting trial. The prosecution in support of its case has totally examined seven witnesses as per P.Ws.1 to 7 and got marked the documents Exs.P.1 to P.48 and also M.Os.1 to

7. On the side of the defence, no witnesses were examined but the documents at Exs.D.1 to D.13 were got 8 marked. After hearing the arguments on both sides and considering the materials placed before the Court, ultimately, the learned Special Judge convicted the appellant-accused for the said alleged offences. Being aggrieved by the judgment and order passed by the learned Special Judge, the appellant-accused is before this Court in this appeal.

4. Heard the arguments of learned Senior Counsel for the appellant-accused so also learned Counsel Spl.P.P. appearing for the respondent-Lokayuktha.

5. Learned Senior Counsel for the appellant- accused during the course of arguments drew the attention of this Court to the entire materials and submitted that the complainant in this case has not supported the prosecution case. There is no cogent and satisfactory material placed through the evidence of the complainant (P.W.1) in respect of demand and acceptance of the bribe amount by the appellant-accused herein. It is submitted that looking to the cross examination of P.W.1, 9 he has completely said good-bye to what he has stated in examination-in-chief. Even to the extent of hearing on oath, there is no demand for bribe amount by the appellant-accused. Hence, cross examination of P.W.1 itself is sufficient to disbelieve the entire case of prosecution. The learned Counsel further submitted that another witness Venkataramu (P.W.2) who is said to have accompanied the complainant to the place has turned hostile and he has also not supported the case of prosecution. Even during the course of cross examination by public prosecutor, nothing has been elicited from his mouth to accept the version of the prosecution that there was demand and acceptance of bribe amount by the appellant-accused. Mere recovery of the bribe amount is not sufficient to come to the conclusion that there was demand for bribe amount and it was explained with cogent and satisfactory material. More so, it cannot be held that the demand for bribe amount is concerned. It is submitted that even on 20.09.2011 also, when the complainant approached the Lokayuktha police, he brought to their notice about the 10 demand for bribe amount made by the appellant herein. When that is so, on the very day i.e., on 20th itself, the said case could have been treated as FIR by the Lokayuktha police and could have registered FIR which was not done in this case. Therefore, the learned Counsel made submission that there is no compliance of mandatory provision of Section 154(1) of Cr.P.C. and thereafter, the complaint said to have been received on the next day, it is not a complaint but after registration of FIR and it amounts accordingly Ex.P.2 is hit by Section 162 of Cr.P.C. So far as digital voice recording is concerned, the Court below has discussed that as mandatory requirements of section 65(A) of Evidence Act is not complied with, therefore, such material cannot be relied upon and accordingly, those materials have been eschewed by the learned Special Judge collected during the course of trial. Therefore, Section 65(B) is mandate and conditions are prescribed in the said section as to how to receive such electronic documents. Unless and until, there is certificate by the competent authority for generation of such electronic records, it is not admissible 11 in evidence. Hence, the learned Senior Counsel submitted that rightly the Court below rejected to receive the said material and rightly not considered the said material while appreciating the case of prosecution.

It is also submitted that when CD is excluded from marking as evidence and looking to the oral evidence of P.Ws.1 and 2, absolutely, no material of demand and acceptance of bribe amount in this case. This aspect has not been properly appreciated by the Court below while appreciating the evidence. Apart from that, the learned Counsel drawing the attention of this Court to para 26 of the judgment submitted that there is no material to show regarding demand at pre-trap and this finding of the Court below has not at all challenged by the prosecution. Hence, submitted that even after considering the trap material, there is no acceptable material placed by the prosecution to prove the alleged offence.

Regarding recovery is concerned, the learned Senior Counsel submitted that it is not the case of prosecution that the appellant-accused received money but what he has stated is that the said amount was kept in the dash 12 board of the car. Referring to the evidence portion of the each of the witnesses, the learned Counsel submitted that at the place where P.W.2 and complainant were invited by the appellant-accused, there was darkness and even there was much distance at which the car of the complainant and P.W.2 had been parked. Therefore, no one could see that what was going to be happened inside the car of the complainant. Hence, he submitted that even on that ground also, it cannot be said that the prosecution has established case that the appellant-accused who himself opened the dash board of his car asking the complainant to keep bribe amount into the dash board of the car. Presumption under Section 20 of Evidence Act would arise only if there is material to show that there was demand for the bribe amount. If such prima facie material is placed by the prosecution, then the question of drawing presumption will arise. If there is no evidence or material regarding demand of bribe amount, there would not be such presumption in favour of the prosecution.

The learned Senior Counsel submitted that the appellant-accused has already offered his explanation as 13 per Ex.P.41 narrating the whole thing that has happened. Therefore, even looking to the explanation of the appellant-accused, it goes to show that he has not made any demand for the alleged bribe amount nor accepted the said amount. The appellant has been falsely implicated in the said case. Referring to the evidence of P.W.1, the learned Senior Counsel made submission that during the course of cross examination, P.W.1 accepted that the application given in the year 2007 was rejected and the complainant was asked to give fresh application but such fresh application was not at all given. Therefore, even such work was not pending with the appellant- accused. Therefore, the question of making bribe amount will not arise.

Learned Senior Counsel relied upon the following ten decisions which are filed along with the memo of citations.

1. (2017) 11 SC 195 - Yogesh Singh Vs. Mahabeer Singh and others

2. (2017) 8 SCC 136 - Mukhtiar Singh (Since deceased) through his Legal representative Vs. State of Punjab 14

3. (2015) 10 SCC 152 - P. Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and another

4. (2015) 16 SCC 350 - Khaleel Ahmed Vs. State of Karnataka

5. (2016) 1 SCC 713 - N. Sunkanna Vs. sTate of Andhra Pradesh

6. (2014) 13 SCC 55 - B. Jayaraj Vs. State of Andhra Pradesh

7. (2009) 6 SCC 587 - A. Subaiar Vs. State of Kerala

8. (2016) 3 SCC 108 - Krishan Chander Vs. State of Delhi

9. (2016) 12 SCC 150 - V. Sejappa Vs. State by Police Inspector Lokayuktha, Chitradurga

10. Judgment of the Hon'ble High Court of Karnataka at Bengaluru in Crl. Appeal No.1342/2017 and other connected matters Hence, the learned Senior Counsel submitted that the Court below has not correctly read the evidence adduced in the case and the Court below itself tried to make out case for prosecution and to establish the chain. The entire materials produced will not make out case. The prosecution has utterly failed to make out the case 15 beyond all reasonable doubt. Hence submitted to allow the appeal and to set aside the judgment and order passed in respect of both offences.

6. Learned Spl.P.P. during the course of arguments made submission that so far as the demand of bribe is concerned, there is plenty of material placed by the prosecution. He draws the attention of this Court to the document Ex.P.1 at the time of receiving voice recorder from the Lokayuktha police and the complaint (Ex.P.2). He also refers to the evidence of P.W.1 in the examination in chief and drawing the attention of this Court to page Nos.57 and 58. Referring to this material, learned Spl.P.P. made submission that there is material placed by the prosecution regarding the demand made by the appellant-accused for the bribe amount. Hence, it is his contention that only because during the course of cross examination, some admission were made by P.W.1 that the entire material cannot be rejected by the Court. This aspect has been properly appreciated by the Court below while considering the case. It is also submitted by 16 learned Spl.P.P. that examination in chief was conduced on P.W.1 and the prosecution for the purpose of further examination-in-chief taken one date. But so far as the defence is concerned, learned Spl.P.P. submitted that looking to the deposition of P.W.1 and after examination- in-chief of Venkataramu (P.W.2) was completed, both the witnesses are going to be cross examined on the same day. Therefore, so far as P.W.1 is concerned, there is no date taken by the defence. So far as the evidence of Venkataramu (P.W.2) is concerned, learned Spl.P.P. submitted that though the said witness has not supported the case of prosecution, but during the course of cross examination, suggestions were put to the said witness on behalf of the prosecution. The learned Spl.P.P. also submitted that in spite of Venkataramu (P.W.2) turning hostile, still there is material on the side of prosecution regarding the proof of demand and acceptance of the bribe amount. Apart from the oral evidence of the parties, there was entrustment mahazar so also trap mahazar wherein the facts regarding the demand for bribe amount by the appellant-accused to attend to the work of the 17 complainant have been recited. The complainant has put his signature to entrustment as well as the trap mahazar. When such documentary evidence is also available, the contents of the said document show that there was demand for the bribe amount and through the trap mahazar, it is also established that there was acceptance of bribe amount by the appellant herein. These materials cannot be ignored by the Court, only on the ground that the complainant during cross examination has given some stray admission in favour of the defence. Hence, it is submitted that all these materials were considered by the Court below in order to ascertain as to whether there was demand and acceptance of bribe amount by the appellant herein and rightly held that the prosecution has proved its case regarding demand and acceptance of the bribe amount.

So far as CDs produced before the Court below containing conversation between the complainant and appellant herein, the learned Spl.P.P., referring to the provisions and decisions of the Hon'ble Supreme Court which he has produced along with memo, made 18 submission that in one of the decisions, it has been observed that, mistake can be rectified by giving opportunity to the parties. Referring to the decision of the Division Bench of the Apex Court, which is subsequent to the decision of the Full Bench in Anwar's case, learned Spl.P.P. submitted that Their Lordships have clarified the position and their Lordships have also held that the said condition can be relaxed by the Court in order to do substantial justice to the parties. Therefore, the learned Spl.P.P. submitted that earlier to the judgment of the PV Anwar's case, till 2014, it was the case of Navjot Sandhu, which was of the year 2005, was holding field. Even when the charge sheet was filed along with the materials before the Court, it was the said judgment of the year 2005, was made applicable. Therefore, it is his submission that the Court below ought to have considered those materials and conversation in CD. But it has been wrongly rejected by Court below observing that the provisions of Section 65-B of the Evidence Act are not complied with and wrongly eschewed those materials for consideration. Hence, submitted that the CD material which was not taken into 19 consideration by the Court below may also be taken into consideration in view of the principles laid down in the subsequent decision of the Division Bench of the Hon'ble Supreme Court.

With regard to the oral evidence of the parties is concerned, there is material that when the complainant and Venkataramu (P.W.2) were invited by the appellant- accused person to come to the place nearby Shanthisagar hotel, they went to the said place. There is also evidence to the effect that it was the appellant-accused who opened the car and asked the complainant to put the amount in the dash board of the said car. Hence, learned Spl.P.P. submitted that in view of this evidence placed on record through the mouth of P.W.1 so also through the documents entrustment mahazar so also the trap mahazar, now it cannot be accepted that as per explanation offered by the appellant accused, the amount was kept in the dash board of his car. This aspect has been properly considered by the Court below and it was held that the explanation offered by the appellant-accused cannot be believed and without his knowledge, the 20 amount is kept in his car. Looking to the oral evidence adduced by the other prosecution witnesses, there may be some minor discrepancies in the evidence of the prosecution witnesses, but it will not take away the entire case of prosecution. Regarding the document Ex.P.1 is concerned, learned Spl.P.P. made submission that it will not amount to FIR about cognizable case. Drawing the attention of this Court to the contents of Ex.P.1, learned Spl.P.P. submitted that all the details were not furnished in Ex.P.1 to come to the conclusion by Lokayuktha police that all the details are furnished so far as the commission of cognizable offence by the appellant. Therefore, the document Ex.P.1 cannot be treated as FIR in the case and accordingly, Ex.P.2 which was lodged on 21.9.2011 before the Lokayuktha police furnishing all the details is FIR in the case. No illegality has been committed by the Court below in accepting Ex.P.2 in the case. Hence, the contention of the other side that Ex.P.1 itself is to be treated as FIR and because of that reason, Ex.P.2 is hit by Section 162 of Cr.P.C is not correctly proved. The learned 21 Spl.P.P. has relied upon the following decisions produced along with the memo :

1. Vinod Kumar Vs. State of Punjab - AIR 2015 SC 1206 1a. B Jayaraj Vs. State of Andra Pradesh -

(2014) 13 SCC 55 1b. B V Premkumar Vs. State of Karnataka and Another - 2016 (4) Kar. L.J. 582 -

     Crl.P.6701/2014 dated 26.04.2016


     1c.   Shivaraj     Vs.   State   of    Karnataka   -
     Crl.P.11155/2013 dated 09.08.2017.


     1d.    Sonu alias Amar Vs. State of Haryana -
     AIR 2017 SC 3441 - paras 26, 27, 3, 32, 33,
     34, 35 and 36.


     2.    M Narasing Rao Vs. State of Andhra
     Pradesh - AIR 2001 SC 318.


     3.    Hazari       Lal     Vs.        State   (Delhi

Administration) - AIR 1980 SC 873 (Para 9, 10,

11) 22 Referring to relevant paragraphs of each decision, learned Spl.P.P. submitted that whatever the view taken by the Court below is in accordance with law and no illegality has been committed in coming to such conclusion. Hence, there is no merit in the appeal and submitted to dismiss the appeal by confirming the judgment and order of conviction passed by the Court below.

7. I have perused the grounds in the appeal memorandum, judgment and order of conviction passed by the learned Special Judge, oral evidence of PW-1 to PW-7, documents Ex.P-1 to P-48 and also the documents at Ex.D-1 to D-13, so also perused the decisions relied upon by the learned counsel on both sides cited at the bar and produced along with the memo. I have also considered the oral submissions made by the learned counsel on both sides.

23

8. The appellant-accused was charge sheeted for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. So also charges were framed against him for the said offences. Therefore let me examine the material placed regarding the allegations with regard to demand and acceptance of the bribe amount by the appellant-accused. The complainant is PW-1 and according to the complainant he filed the complaint as Ex.P-2. The details and contents of this complaint has already been referred to above. In view of these materials, let me consider whether there is any material placed by the prosecution which is acceptable, cogent, consistent and worth believable regarding demand for the bribe amount. The prosecution material goes to show that till 21.09.2011 when the complainant and his friend Venkatramu said to have been called by the present appellant herein nearby Shantisagar hotel at Kuvempu Nagar, it is not the case of the complainant that he personally met the accused person for the purpose of enquiring about passing of the mutation entry in the 24 name of Ramesh and daughter in law of Guruvaiah. What is all said in the complaint by the complainant is that his friend Venkataramu approached the appellant- accused and before Venkataramu the accused demanded bribe amount of Rs.5 lakh and after discussing, it was reduced to Rs.4 lakh and the accused person also insisted Venkataramu that they have to pay the amount. For this it is the case of prosecution that they told the accused person they will bring Rs.50,000/- and remaining Rs.3,50,000/- will be paid later. Therefore the evidence of Venkataramu in this regard is most relevant to consider whether his evidence is trust worthy and believable in this regard so also to know whether he has informed the same to the complainant that the accused person made a demand for bribe amount of Rs.5 lakh which was reduced to Rs. 4 lakh. Perusing the oral evidence of PW-2 Venkataramu, wherein he has stated in his evidence in the examination in chief to the effect that he know Muniraju the complainant about three years back and one day the complainant asked PW-2 to go to Ramesh and to enquire about change of khata in the name of said 25 Ramesh with the appellant accused herein. The accused was working as a Sheristedar in Taluq office at Mysore. He has sent the accused there. He also deposed that he met the accused person and as told by PW-1-Muniraju, the complainant, he had brought Ramesh in connection with the change of khata in the name of Ramesh and told the appellant accused to effect the khata. For this the accused told that one Muthamma formed the sites in the said land because of that reason the Tahsildar has already closed this transaction in the year 2007. Hence the accused told that it is not possible to effect the khata and he went to the accused only once. He further deposed that he asked the accused person whether he has to get the money from PW-1 Muniraju. For this the accused told that even if they gave not Rs.5 lakh but even Rs.10 lakh also it is not possible to change the khata. He further deposed that he has not at all told to PW-1 Muniraju that accused is demanding the amount. Hence he himself has to come and settle the matter and he never told like that to PW-1. PW-1 Muniraju has not at all asked him to come to Lokayuktha office and to give the 26 complaint. Thereafter he has not went to office to meet him. He has not given the statement before the Police that he has seen PW-1 Muniraju giving the bribe amount to the accused person. He has not submitted the fresh application through Ramesh for change of Khata. So at this stage and at the request of learned Public Prosecutor this witness was treated hostile and that it was suggested to witness PW-2 that he has given statement before the police marked as Ex.P-3 and 4. He denied the suggestion. Further suggestion was made to the witness that he has seen accused person demanding the bribe amount and receiving the bribe amount in order to help the accused person he has given false evidence and that suggestion came to be denied by the witness. Therefore looking to the evidence of PW-2, it clearly goes to show that the accused never demanded any bribe amount for effecting change of khata. Even his evidence goes to show that accused not demanded bribe amount for attending to the said work but on the contrary the evidence of PW-2 goes to show that the sites were formed by Muthamma and then the sites were sold. Therefore the Tahsildar has 27 closed the transaction in the year 2007 itself so they were informed that it is not possible to effect the change of khata which is as told by the appellant-accused to Venkataramana. So the evidence of PW-2 goes to show and it is not helpful to the prosecution to prove the fact of demand and acceptance of the bribe amount by the appellant accused herein. If the evidence of PW-2 is to be considered, it is not helpful to the prosecution in proving the demand and acceptance of bribe amount, then the only material is the complainant PW-1.

9. Let me examine the oral evidence of PW-1, wherein he has stated in examination in chief that on 20.9.2011 he lodged complaint against the accused in the Lokayuktha office. He further stated in his examination in chief that Ramesh, son of Muthamma, daughter-in-law of Guruvaiah entered into transaction of agreement of sale for sale of the landed property. It was settled for an amount of Rs.37 lakh and he has paid Rs.15 lakh as advance amount. Even he has obtained the GPA from those persons in his name. He further deposed that for 28 change of khata in the name of Ramesh and Muthamma after the death of Guruvaiah, he has filed one application in the taluq office at Mysore. Even though the application was submitted in the year 2007, till 2011 the change of khata was not effected. His further evidence goes to show that one month earlier to lodging the complaint before the Lokayuktha police, himself and Venkataramana went to the accused person and when they enquired the accused about the change of khata at that time the accused told them that if they come like this, it is not possible to effect the change of khata and if they give the amount and if they are prepared to listen to him, then the said work can be attended. Then they told that they will come on 20.9.2011. Two days earlier to 20.9.2011 Venkataramu the friend of the complainant when he met the accused person and talked, at that time the accused demanded Rs.5 lakh to attend to the said work and said Venkataramu informed him about the demand made by the accused. On the same day, ie., on 20.9.2011 he came to the Lokayuktha office and informed about these things and he has given it in writing in his own handwriting that 29 the accused is demanding bribe amount, then Lokayuktha police gave one voice recorder. He gave Rs.50,000/- to the Lokayuktha police and the Lokayuktha police smeared the powder to those notes and gave back those notes to him. Thereafter when they phoned to the accused Ramesh through the mobile of Venkataramu, the accused told that he has meeting in D.C. office and asked them to come at 7.30 p.m. near Shanthisagar hotel at kuvempunagar. His further evidence in examination in chief also goes to show that the Lokayuktha police returned back those Rs.50,000/- to him. Then himself and Venkataramu-PW-2 went to Kuvempunagar near shanthisagar hotel in the car belonging to PW-2 Venkataramu. The accused was not present there. Then they phoned to the accused person and he told them to be there itself and he will be there within 5 minutes. The accused came in a santro car and then they went nearby the said car and both sat in the car of accused person. Accused had brought the file pertaining to them and after showing the file the accused person told that he has to attend to this work and to do the same they have to pay 30 Rs.5 lakh. He also told that he has to pay the Tahsildar and Assistant Commissioner. When the complainant requested to reduce the amount, he told that Rs.50,000/- can be reduced. Again he made a request saying that complainant is a poor person but the accused told it is not possible to reduce further. Then accused took them in the car and then the complainant talked to the accused person and settled the deal for Rs.4 lakh. Then the complainant told that he is having Rs.50,000/- and he wanted to pay the said amount to him. The accused agreed and told them on Thursday or Friday if they pay the remaining amount of Rs.3.5 lakh, he will start the work from Monday and it will be completed within a period of one month. He however deposed that he took out Rs.50,000/- from his pocket and he wanted to give it and he tendered to the accused person. The accused has not received the amount from his hand but he opened the dash board and asked him to keep the money in the dash board. Accordingly he kept Rs.50,000/- in dash board and then he gave the pre-arranged signal to the Lokayuktha Police. Immediately the Lokayuktha Police 31 came nearby the car and asked where is the amount. The police searched for the amount. He told the police it is not with the accused person as accused told to keep it in the dash board. Therefore he has kept the amount in the dash board of the car. Then the police verified the numbers of the currency notes and checked whether powder is there or not on the said currency notes. Two persons whose names did not appear also were present there. Through them the police verified the numbers of currency notes whether they are correct or not. They verified the numbers of the currency notes. Thereafter the Lokayuktha police took the accused person and PW-2 Venkataramu to their office and there his statement was also recorded. He has recorded the conversation between himself and the accused in the voice recorder. In order to know whether it is the voice of the accused, he was called to the Tahsildar office. It was played in the laptop of the Tahsildar and the Tahsildar told it is the voice of the accused. He further deposed one day earlier when he gave the amount to the accused person, he went to the Lokayuktha office at 4.00 p.m. and he told the 32 Lokayuktha police that accused is demanding the bribe amount. At that time the Lokayuktha police gave him the voice recorder and asked him to record the conversation of the accused. He has identified his complaint Ex.P-1. He has stated that he has given the complaint and put his signature and his signature is Ex.P-1(a). When he was shown another document, he told that it is his statement and the same was exhibited as document Ex.P-2 and his signature is marked as Ex.P-2(a). At the time of receiving the voice recorder, he gave the complaint Ex.P-1 in his own handwriting and on the next day he put his signature to the two documents. During the course of cross examination by the defence, he deposed in the year 2007 Ramesh submitted the application for change of khata, but the khata was not changed in the name of Ramesh. It was affected two days before he gave the evidence. He admitted that the application filed by Ramesh in the year 2007 was rejected. He also admitted that in the year 2011, he told Ramesh to give a fresh application for change of khata and in connection with the change of said khata, he has not personally went to the Tahsildar. He 33 further deposed that Ramesh and Venkatramu told that they will get the khata effected and asked him to pay Rs.50,000/- and also got his signature to one application. Ramesh and Venkatramu took him to the Lokayuktha office. He is not recollecting his memory when Ramesh and Venkatramu took him to the Lokayuktha office for taking the application from him. Lokayuktha police gave voice recorder into the hands of Venkatramu. He does not know for what purpose it was given to Venkatramu. Venkatramu and Ramesh went inside the office of the Lokayuktha. He does not know what they have done inside the said office as he was waiting outside. He admitted that because Ramesh and Venkatramu asked him to put signature to Ex.P-1, he has put his signature to Ex.P-1 and he does not know what Venkatramu has done with the tape recorder. He further admitted so far as Ex.P-2, document is concerned as the Lokayuktha police in their office asked him to put his signature, accordingly he signed it. Venkatramu told them they have read the contents of Ex.P-2 and asked the complainant to put his signature and therefore he put his 34 signature on Ex.P-2 document. What has happened in the Lokayuktha office he does not know. The tape recorder which was given to Venkatramu was not played before him. The signature at Ex.P-1 is his signature and he did not know on which date he put his signature. The Lokayuktha police told him to carry the amount and said that one car will come and if the person in the car asks for the amount, he can give it otherwise he can put the amount into the dash board of the said car. He admitted that on 21.9.2011 during night he was waiting for the said car at andolan circle. It was dark at that time and there was no electricity. He admitted that after sitting in the car of the accused person, he has not spoken with the accused person. He further deposed that when he sat in the car of the accused, the accused was not there and nobody was in the car and he went and sat in the car. Immediately after stopping the car the accused went outside in order to answer the call of nature and does not know where he has gone. The accused told him that he will come and asked him to stay in the car. He denied the suggestion that he put the amount in the dash board of 35 the car as told by the Lokayuktha police but Venkatramu told him to put the amount into the dash board. Accordingly he put the same into the dash board. When he put the amount in the dash board at that time, the accused alighted from the said car. He admitted that he alighted from the car and gave pre-arranged signal to the Lokayuktha police. He told to them as told by Venkatramu. He put the amount in the dash board of the car. At that time the Lokayuktha police became angry towards him. Therefore he went back to Bengaluru. He further deposed that Lokayuktha police has not at all played the recording said to have been recorded in the tape recorder in his presence. He admitted that the accused person has not at all demanded any bribe amount from him. He further admitted that the accused person has not at all contacted him in connection with the change of khata. He admitted that as per the say of Venkatramu and Lokayuktha police, he put his signature.

10. Therefore the evidence of PW-1 is totally against the case of the prosecution. He told that there is no 36 demand made by the accused regarding the bribe made. He never contacted him in that connection. The case of the prosecution is that in the car the accused person demanded the bribe amount of Rs.4 lakh and so far as the payment of Rs.50,000/- is concerned, on that day itself the accused told PW-1- complainant to put the amount in the dash board of the car. But looking to the oral evidence of PW-1, it is totally contrary to the case of the prosecution. He has admitted in the cross examination that at that time it was dark and there was no electricity. The accused was not in the car as he had gone to answer natures call and he specifically deposed on oath before the Court as told by Venkatramu he put the amount in the dash board of the car. Regarding evidence of PW-1- complainant is concerned, it remains unchallenged because there is no request made by the prosecution atleast for treating him hostile to that extent and again putting the suggestions of the case of prosecution denying whatever he has stated in the cross examination. 37

11. There is one witness i.e., PW-4. According to me, if we consider the evidence of PW-1, then the evidence of PW-4 Madhava.B.H. is not at all weighable to the prosecution. This is because this PW-4 Madhava.B.H. told in his examination in chief that himself, Venkatramu and the complainant went in the car to the place as told by the accused person. As I have already referred to the evidence in the cross examination of PW-1, it is specifically deposed on oath before the Court that himself and Venkatramu went to the said place. He has not at all spoken that along with him they also took PW-4 Madhava.B.H. another pancha in the said car. Apart from that even if the evidence of PW-4 Madhava.B.H. is taken into consideration, again it is not helpful to the prosecution in putting the demand alleged to have been made by the accused person for the bribe amount. In this connection, let me refer to the further examination in chief of this PW-4 - Madhava.B.H. on page 4 of deposition at paragraph 2. Thereafter the complainant and Venkatramu himself and another person about whom he does not know went in the car and before going 38 Venkatramu phoned to him. Venkatramu told him that the accused is coming nearby Amma's complex and asked them to come there. They went to Amma's complex and behind them the police also followed them. Nobody was there nearby Amma's complex. Then Venkatramu contacted Ramesh the accused over phone. Then accused told to come nearby Andolan circle. Then they went to andolan circle. There also nobody was there and later after 5 minutes accused Ramesh came to the place in the said car. At that time PW-1 Muniraju and PW-2 Venkatramu went nearby the car of the accused. He was sitting in his car only. The complainant sat in the front seat of the said car and Venkatramu sat in the hind seat. After 15 minutes complainant and Venkatramu alighted from the said car and they made the pre-arranged signal. In the cross examination he deposed that he has not at all talked with the complainant in connection with the land which is mentioned in the complaint. He does not know whose voice is recorded in the tape recorder which was played before him. There was a recorded conversation about the demand for the money but whatever 39 conversation it was recorded it was not mentioned in the complaint. He admitted that as told by the police, he put his signature to the mahazar. When he went to andolan circle, it was little dark and he was sitting in the car itself. When the persons alighted from the car and went nearby another car, which was at some distance from their car, the police went nearby that another car and he came to know about keeping the amount in the dash board of the said car. Therefore looking to the evidence of PW-4 Madhava.B.H. another panch witness, firstly his presence in the said place is doubtful in view of the evidence of PW- 1 as he has not stated that along with them this PW-4 also came in the car. Even as per evidence of PW-4, it is accepted that he is not the proper witness to speak about the demand said to have been made by the accused person because admittedly there was little distance in two cars and it was also dark. Hence as I have already observed about the evidence placed on record, there is no consistency to accept the case of prosecution that this PW-4 Madhava.B.H. accompanied PW-1 and 2 in the car to andolan circle on 21.9.2011.

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12. Coming to the evidence of PW-6, he is the Under Secretary in the Protocol branch. His evidence in the examination in chief is that from 2010 to 2012 he worked in the office of the Tahsildar. On 22.9.2011 morning, the Lokayuktha police came to his office and recorded his statement. One R.R.T. Sheristedar of his office informed that on the previous day in the evening Ramesh, the accused person was brought and he was taken to the custody. On that day, they even brought Ramesh to his office. The police have seized one file pertaining to Sy.No.17-P of Madagalli village, Yelwal Hobli, Mysore Taluk. It was seized in presence of panch witnesses and those documents were got Xeroxed and were certified by him and he has given those documents to Lokayuktha police. They are as per Ex.P-30. In the cross examination he deposed that pertaining to this case in Sy.No.17-P, 3 acres of landed property was granted to one Guruvaiah Thereafter in the revenue records, the name of Guruvaiah was entered. As per death extract Ex.D-2, Guruvaiah expired on 10.6.1985. He admitted Ex.D-3 is the 41 geanological tree of the family of Guruvaiah which was issued by the Village Accountant. He admitted that as per Ex.D-4 mutation extract, after expiry of Guruvaiah, the land was entered in the name of one Yellamma. In 1993, the said land came to be entered in the name of said Yellamma. Yellamma and her son together formed sites and they have sold those sites under the unregistered sale deeds as per Ex.D-5 and Ex.D-6. The said land was not converted into non-agricultural land as per Ex.D-7 G.P.A. The said Yellamma and her second son Ramesh and Muthamma all together sold the property to one Krishnamurthy to the extent of 2 acres. For calculation of Ex.D-7 G.P.A., there is no document in the files seized from the almirah of Raghumurthy. Looking to the file which was seized from the almirah of Raghumurthy, there are no correspondence letters by Muniraju with the Revenue Department. Whatever the document he has certified, they goes to show that the persons who have purchased the sites and though paid the tax in the panchayat and there are documents to that effect and those tax paid receipts at Ex.D-10 and D-11. He further 42 deposed that on 03.12.2012 he passed an order as per Ex.D-13 and he admitted as proved that as per the said document Ramesh, Yellamma and Muttamma are not at all having any right in Sy.No.17. The evidence of PW-6 is to be appreciated with the evidence of Investigating Officer PW-7. PW-7-Investigating Officer is one M.Dharmendra, deposed in his examination in chief about the arrival of Muniraju the complainant to the Lokayuktha office on 20.9.2011 and informed that one Government servant is demanding illegal gratification for doing his work. He has also further deposed in detail about he receiving the complaint, conducting the entrustment mahazar proceedings and also about the trap mahazar proceedings during the course of cross examination of this PW-7. He denied the suggestion that he took back the digital voice recorder from the complainant on 20.9.2011 and that is the reason he made the endorsement as per Ex.P-2(b). He denied the suggestion that he has created the complaint as per Ex.P-2 and he admitted as true that the complaint Ex.P-2 was prepared in the Lokayuktha police station. He denied the suggestion that as per the documents collected 43 during investigation, it has come out that said Yellamma formed sites in the said land and sold those sites to third parties and he admitted the next suggestion as true that as per document at page 116 of the charge sheet, the said Yellamma and Ramesh sold site to one Harthika under sale deed dated 5.3.1981, another site to Ramakrishan, another site was sold to Krishnamurthy and another site was sold to Rajevgowda. He denied the next suggestion that the sites formed in the land of 3 acres was allotted by the Government but admitted as true that the said sites were formed in Sy.No.17. He also admitted another suggestion as true that the land allotted to Guruvaiah by Government was in Sy.No.17. He admitted as true that the purchasers of the sites from Yellamma had paid the tax and they were in possession of the said sites. He further admitted the suggestion as true that on 26.07.2011 another application was filed for change of khata by Ramesh s/o Yellamma but he denied the suggestion as per the documents collected during investigation, it is brought out that the averments of complaint are false and also denied further suggestion 44 that the signature of the complaint-Muniraju was obtained by force and coercion on the complaint in the Lokayuktha police station. The fourth question which was put to this witness is that " In your experience can you say whether a sub-ordinate can overlook an order passed by the superior?" To this the witness answered no. The witness narrates in this case that the accused said that he will get the work done and on that ground demanded the bribe amount. He admitted the suggestion as true that the document collected during investigation did not bear the initial or signature of the acc used or showed that they have been put by the accused. The voice conversation as stated in the entrustment mahazar has not been sent to F.S.L. for voice testing. Of course, he denied the suggestion he has not sent the same to F.S.L. and it is concocted voice conversation. Denied the further suggestion that at that time they got information that accused will come near Amma's complex to buy vegetables. The question was again put to this witness by the Court that there was no difficulty for you to send the panch witness to accompany the complainant at the 45 time of trap. The answer by the witness was that there was no difficulty and he has so sent. The evidence of the Investigating Officer goes to show that at the time of entrustment mahazar specific role was assigned to each of the persons participating in the entrustment mahazar. PW-4-B.H.Madhava, the second pancha was asked by the Lokayuktha police that he has to accompany the complainant to the accused and he has to observe what is happening. When such a specific role has been assigned by the Lokayuktha police to this second pancha B.H.Madhava even as per the prosecution he has not accompanied the accused person but it is said that Venkatramu is said to have accompanied PW-1. I have referred to evidence of Venkatramu. It is totally against the case of the prosecution in proving the demand and acceptance of the bribe amount. Even when asked during the course of cross examination by questioning PW-7 that was there any difficulty for sending the panch witness along with the complainant, he told there was no difficulty and he sent the panch witness. Therefore looking to these material, it also creates reasonable doubt in the mind of 46 the Court that this witness PW-4 was accompanied to the complainant but went to the said place. Even though it is claimed by the prosecution referred to the evidence of PW- 4 -B.H.Madhava but I have made a detailed discussion referring the evidence of PW-1-complainant, wherein no reference is made that PW-4 came to the said place and it is only himself and Venkatramu went to the car. Therefore it is very difficult for this Court to accept the contention of the prosecution that PW-4 also went along with the complainant and Venkatramu to the said place.

13. Apart from that, the evidence of PW-6-Under Secretary who also worked in the Tahsildar office and who handed over the documents to the Lokayuktha police from the almirah. So also the evidence PW-7-Investigating Officer clearly goes to show that Yellamma, the wife of Guruvaiah along with her son formed the sites in the said land and sold to number of persons through unregistered sale deeds and even the taxes paid in respect of the same documents are produced in Ex.D-8 to 11. When the land itself has been sold by forming the sites and the evidence 47 of PW-2 is very clear in this regard, it is consistent with what is deposed by PW-6 and PW-7. PW-2 in his examination in chief itself deposed that the accused person told Muttamma to form the sites and to sell and Tahsildar has already closed the transaction in the year 2007 itself and therefore accused told it is not possible to effect the change of khata. Even he deposed that when he asked specifically to the accused person whether he has to get money from Muniraju, for that the witness further deposed that accused told it is not Rs.5 lakh even if they give Rs.10 lakh, it is not possible to do the work. Even he has deposed in his evidence that he never told PW-1-Muniraju that accused demanded any bribe amount with him. When this is the evidence of PW-2 also, there is no material to show that the prosecution has placed material to prove demand made by the accused to attend the said work of effecting khata. If it is appreciated in view of the documentary evidence and the evidence of PW- 6 and PW-7 about the formation of sites and selling those sites, it is also probable of the defence that the question 48 of accused person demanding bribe amount will not arise in the case.

14. Now coming to Ex.P-1 and exactly on which date the complaint is said to be filed by PW-1 Muniraju is concerned, looking to the evidence of PW-1, he claimed that on 20.9.2011 itself he has lodged the complaint Ex- P-1. He now said that is the entrustment issued by the Lokayuktha police and according to him it is the complaint. Apart from that looking to the contention made by the learned Special Public Prosecutor that in the case under Prevention of Corruption Act, preliminary enquiry is permissible. Even according to the judgment of the Apex Court as ruled in Lalitha Kumari case is concerned, it is true that some category of the cases have been recognized as exception to the principle that immediately after receipt of information and as per Section 154(1) of Cr.P.C., the police have to immediately reduce to same to writing, if it is in respect of cognizable offences but in the case on hand, the question that PW-1 approached the Lokayuktha police on 20.9.2011 and told 49 the name of the accused who is a government servant demanding bribe amount. Whether this material was sufficient to treat this as F.I.R. or was it necessary for the Lokayuktha police to make further preliminary investigation in the said case is also another important aspect to be considered by this Court.

15. In this regard the evidence of PW-7 is also most important. If it is his evidence on oath that on 20.9.2011 when PW-1 came and informed about the accused person demanding the bribe amount, according to me this information was sufficient information about committing of cognizable offence. Though he required some more information in the matter, it could have been appreciated that for the purpose of making preliminary enquiry he directed PW-1 to go with the voice recorder. Let me refer to evidence of PW-7-Investigating Officer as to for what purpose he has not treated it as F.I.R. and why he sent this witness PW-1 on 20.9.2011. In the examination in chief of the deposition of PW-7, he deposed that on 20.9.2011 one Sri R.Muniraju came to 50 the Lokayuktha police station and informed that a Government servant is demanding illegal gratification for doing his work. The next sentence is in order to verify the truth of the said allegation, he gave a digital voice recorder to him after taking acknowledgement for the same and told him to record his conversation with the said Government servant regarding the demand. So it is not the case of PW-7 that whatever the information given on the previous date on 20.9.2011, it was not a complete information regarding the committing of cognizable offence by the accused person. On the contrary the purpose of giving the voice recorder and again asking PW- 1 to go and record is in order to verify the truth of the said allegation. It is not the object to verify the allegations are false or true or that the registration of F.I.R. can be delayed. The only requirement as laid down by the Hon'ble Apex Court in Lalith Kumari case is if the information is pertaining to committing of cognizable offence, then immediately without wasting of time, the said information is to be treated as F.I.R. In the case on hand, looking to the evidence of PW-7-Investigating 51 Officer, he wanted to satisfy at that stage itself whether the allegations are true or false. This is not the scope of Section 154(1) Cr.P.C. for the purpose of registering the F.I.R. of any information received which he told on oath in his evidence. According to him when PW-1 came and gave the information, it was not a complete information about the committing of cognizable offence and that was the reason he directed PW-1 by giving voice recorder to go and record conversation. This itself clearly goes to show that it is with some purpose the Investigating Officer has sent back PW-1 on 20.9.2011 by giving voice recorder. Apart from that, I have already made a reference to the cross examination portion of PW-7 Investigating Officer. Even though he was conversant with the documents seized about formation of sites and selling of sites, firstly he was not ready to accept the same. Even he has gone to deny suggestion but subsequently in the cross examination he accepted as true that they goes to show formation of sites and selling of sites to other persons. 52

16. Hence the material goes to show that according to the complainant, he has stated on oath that he gave the complaint on 20.09.2011 as at Ex.P-1. He claims that it is a complaint, but the prosecution is still contending that it is not a complaint. Let me refer to evidence of PW- 1 in the examination in chief itself that panchnama was conducted with regard to voice recording and even with regard to noting of the numbers of the currency notes, for which they were treated as witnesses. Even he has deposed that after giving his complaint he has put his signature on the said complaint at Ex.P-1 and his signature is at Ex.P-1(a). When another document was shown to the witness, he of course admitted the signature on the said document also. It is taken while recording the evidence that it is the statement of the said witness. He further deposed that when he gave the complaint, he received the voice recorder from them and he gave his complaint in his own handwriting as per Ex.P-1. Looking to this evidence, which evidence is not disturbed even in the cross examination also goes to show that Ex.P-1 is claimed by the witness PW-1 as a complaint. In view of 53 this evidence placed on record, I am of the opinion that learned senior counsel is justified in making the submission that Ex.P-1 is the F.I.R. Therefore Ex.P-2 which is lodged on the next day is hit by Section 162 of Cr.P.C.

17. So far as duty of the police officer to register the first information when received in respect of commission of the cognizance offence and as it is observed above that he cannot verify about the truth or otherwise of the said complaint itself is registered FIR. In this connection, I am referring to the decision of the Apex Court in case of Ramesh Kumari Vs. State (NCT of Delhi) and others (AIR 2006 SC 1322). Their Lordships in the said decision have referred to para NOs.31 to 33 of the case of the State of Haryana and others Vs. Bhajan Lal and others reported in 1992(Suppl) SCC (1) 335. Para No.31 of Bhajan Lal's case referred to by Their Lordships in the decision of Ramesh Kumari reads as under:

" 31. At the stage of registration of a crime or a case on the basis of the 54 information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. "

In para No.33 of the Bhajan Lal's Case, which is referred to by Their Lordships in Ramesh Kumari's case reads as under:

" 33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.'' The views expressed by this Court in paragraphs 31, 32 and 33 as quoted above leave no manners of doubt that the provision of Section 154 of the Code is mandatory and the 55 concerned officer is duty bound to register the case on the basis of such an information disclosing cognizable offence."

18. Even in the case of LALITA KUMARI VS GOVERNMENT OF U.P & OTHERS reported in (2014) 2 SCC 1, Their Lordships have observed that the police officer cannot verify the truth or otherwise of FIR. He is under legal duty. However, it discloses the commission of the cognizance offence. Therefore, as I have already observed, referring to the evidence of P.W.7 investigating officer, it is not his evidence on oath that the information furnished by the complainant on 20.9.2011 was not sufficient to know about the commission of the cognizable offence. But the reason given on oath is that he wanted to verify the truth. Therefore, he gave the voice recorder to P.W.1 asking him to go to accused person and to record conversation between himself and accused person. Therefore, in view of my above discussion so also the evidence of P.W.7 investigating officer, it goes to show that the voice recorder was given for the purpose of 56 collection of evidence and it is not amounting to conducting preliminary enquiry to know about whether the cognizable offence has been committed or not.

19. Learned Spl.P.P. during the course of arguments made submission that amount has been recovered from the dash board of the car belonging to the appellant-accused and it is done in the presence of the panch witnesses. Therefore, the prosecution has placed material even during the course of trial. For recovery of amount from dash board of the car, the investigating officer (P.W.7) has spoken about the same in his evidence. Learned Spl.P.P. argued that under section 20(1) of the PC Act, presumption has to be raised by the Court and it is for the defence to rebut the said presumption. In this connection, learned Spl.P.P. has also relied upon the decision in case of B. JAYARAJ VS. STATE OF ANDHRA PRADESH reported in 2014(13) SCC 55. Perusing para No.9 of the said decision, Their Lordships have observed as under:

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" 9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. "

20. There is another decision relied upon by learned Spl.P.P. in case of M. NARASING RAO VS. STATE OF ANDHRA PRADESH reported in AIR 2001 SC 318. I have perused the said decision. Their Lordships have observed in the said decision as follows:

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" The expressions may presume and shall presume are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as factual presumptions or discretionary presumptions and those falling under the latter as legal presumptions or compulsory presumptions. When the expression shall be presumed is employed in Section 20(1) of the Act it must have the same import of compulsion. When the sub-section deals with legal presumption it is to be understood as in terrorum i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the 59 modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. "

21. I have perused the factual aspect involved in the aforesaid case. They go to show that in the said reported decision, the material on record provided that accused's pocket contained phenolphthalein smeared currency notes for Rs.500/- when he was searched by official of the Anti-Corruption Bureau (ACB). It was also proved by the said official of ACB that complainant approached him on the previous day and lodged complaint stating that accused was persistently demanding Rs.500/- from him. The currency notes were actually prepared by said official smearing them with phenolphthalein powder. When accused was caught red handed with those currency notes, they never demurred to said official that those notes were not received by him. In fact, the story that such currency notes were stuffed into his pocket was concocted by the accused only after lapse of a period of four years which the Special Judge 60 took to commence evidence taking for prosecution and that too when the accused faced the trial in the Court. Looking to the proved facts in the said decision, the accused was found with Rs.500/- currency notes which he got with pocket containing phenolphthalein power. So there was material to prove the said aspect. In the case on hand, as I have already discussed in detail, admittedly even according to the prosecution, the appellant has not touched the notes. There is evidence on record. But the contention of the prosecution as he opened the dickey of the car, it was kept in the dickey of the car. Even that I have discussed evidence of P.Ws.1 and 2. There is no consistent evidence on the side of prosecution whether it is P.W.1 or Venkataramu (P.W.2) who kept the amount. The evidence of prosecution witnesses through the mouth of P.Ws.1 and 4 goes to show that it was darkness and even there is material that when the complainant and Venkataramu (P.W.2) sat in the car, the accused person was not in the car, he alighted from the car. When this is so, the decision referred by the Spl.P.P. as it is not factually tallying with case on hand, it will not help the 61 prosecution for raising such presumption in favour of the prosecution under section 20(1) of the PC Act. In this regard, learned Senior Counsel also relied upon recent Full Bench decision of the Apex Court in case of P. Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and another [(2015)10 SCC 152]. In the Head Note, the proposition laid down by Their Lordships reads as under:

"Prevention of Corruption Act, 1988 - Ss. 7, 13(1)(d)(i) and (ii) r/w S.13(2) - Illegal gratification - Trap case -Proof of demand - Necessity of, for conviction - Demand not proved as complainant had died before the trial - Evidence of other witnesses not sufficient to prove demand, though recovery proved - Benefit of doubt extended to appellant
- Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, reiterated, would not be sufficient to bring home the charge under Ss. 7 and 13 of 1988 Act - Conviction reversed."
62

22. Therefore, looking to these decisions of the Apex Court, raising such presumption under Section 20(1) of PC Act, it can be only after the satisfactory proof of demand and acceptance of bribe amount. In view of the factual matrix discussed above regarding the demand and acceptance of bribe amount, as the prosecution has not produced cogent worth believable material regarding the demand made by the appellant accused for the bribe amount of Rs.4.00 lakh and received out of that Rs.50,000/-, the presumption under section 20(1) of the PC Act cannot be raised in favour of the prosecution. Therefore, the contention of the learned Spl.P.P. in this regard cannot be accepted.

23. Coming to the decisions relied upon by the Spl.P.P., in respect of his contention in the first decision, I have carefully gone through the factual matrix involved in the said case. Looking to the facts of the first decision in case of Vinod Kumar Vs. State of Punjab (AIR 2015 SC 1206), the facts involved in the reported decision are not 63 exactly same of the factual matrix involved in the case on hand. Coming to the second decision, it is with regard to raising presumption under Section 20 of PC Act which is already referred and the 3rd decision is dated 26.4.2016 by this Court in Crl.P. No.6701/2014. In this decision, the discussion made is with regard to giving voice recorder to the complainant before the registration of FIR where it amounts to collection of evidence or it is for the purpose of conducting pre enquiry. The decision rendered by this Court is to the effect that itself will not amount to collection of evidence. It is permissible even according to the decision of the Apex Court in Lalitha Kumari case that preliminary enquiry can be conducted before registration of FIR. Category of cases was recognized by way of exception to general rule that immediately after receipt of opinion regarding commission of cognizable offences without delay FIR is to be registered under section 154(1) of Cr.P.C. Looking to other decisions, they are pertaining to receiving of electronic records produced in the case and whether they can be considered by the Court for fulfillment of condition as laid down under Section 65-B 64 of Evidence Act. Learned Spl.P.P. while arguing the case made submission that Court below has wrongly rejected this material CDs containing conversation between the complainant and accused person regarding demand for bribe amount. In this connection, he made submission that this material which was tendered in evidence before the Court below was marked as no objection raised by the other side. Therefore, he made submission that when the material was marked without raising objection during the course of trial, subsequently raising of such objection is not permissible under law. In this connection, the learned Spl.P.P. has relied upon decision of the Hon'ble Supreme court in case of SONU @ AMAR VS. STATE OF HARYANA reported in AIR 2017 SC 3441, wherein Their Lordships have held as under:

"Head Note (A): Evidence Act (1 of 1872), S.65
- B(4) - Electronic records - Admissibility of -
CDRs of mobile phones recovered from accused - Exhibited before Trial Court without objection from defence - Objection that CDRs are unreliable being marked without certificate as required by S.65-B(4) - cannot 65 be raised at belated stage since it relates to mode or method of proof of document."

24. Further, relying upon the decision so also another decision of Apex Court rendered in SHAFHI MOHAMMAD VS. THE STATE OF HIMACHAL PRADESH

- SLP (CRL.) No.2302/2017, the learned Spl.P.P. draws the attention of this Court to para No.12 of the said decision which reads as under:

" Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies. "

25. But as per the observation made by Their Lordships even the observation and the decision relied upon by the Spl.P.P. also will not come to the help of the prosecution in relying upon two CDs produced before the 66 Court below. If the person is not in possession of device, then in that case, the observation that a party who is not in possession of device from which the document is produced, such petition cannot be marked to produce under Section 65(B) of Evidence Act. But, here in the case on hand, the CDs are produced from the possession of prosecution and that in the presence of investigating officer, the electronic equipments used for generating such material. It is all within the knowledge of investigating officer. Therefore, it cannot be said that such material was in possession of the opposite party. Therefore, the prosecution was not able to satisfy the requirement of Section 65-B of the Evidence Act.

26. Apart from that, so far as the conversation of voice said to be of accused person in the said CDs is concerned, the investigating officer during the course of cross examination admitted in his evidence that he has not sent the CDs for the purpose of testing of voice. In the absence of such material before the court firstly to prove 67 that it is the voice of accused person, the proper procedure would have been making requisition by request letter before court recording of voice of the accused person in the presence of such judge, then making request to send that voice recorder along with the said CDs to FSL, getting report and then produce before court would have been the procedure. The court in order to judge not possessing required skill or knowledge to identify the voice of very person. It is technical aspect, person after undergoing training are only competent person to identify the voice of which is allowed in the conversation by way of the voice recorder which is subsequently taken into the CD is a voice of the complainant as well as the accused or other person. But the learned Spl.P.P. also refers that the conversation has also been mentioned in the endorsement as well as trap mahazar. So far as voice is concerned, it is not exactly the transcription that has to be in respect of entrustment mahazar because evidence of investigating officer P.W.7 is very clear on this aspect. In para No.3 of deposition of P.W.7, he has stated that voice 68 of conversation recorded between accused and complainant as stated in the entrustment mahazar has not been sent to FSL for voice testing. It goes to show that pick and chose method has been followed by the investigating officer. Whatever he thought convenient such portion of the alleged conversation has been put in to entrustment as well as trap mahazar and the whole conversation is not put into as it is said to be contained in the CDs. Even according to the evidence of P.W.7 investigating officer, his evidence during the course of cross examination at page No.21, it is true to suggest that at the time of trap, panch witnesses sat in the complainant's car and not in the car of accused. In view of this evidence and admission in the cross examination even the evidence of panch witnesses will not come to the aid and assistance of the prosecution case. On page No.22, P.W.7 has further deposed that it is true to suggest that the voice recording re-produced in the trap mahazar has not been sent to FSL for voice testing. He has further stated that he has not produced any certificate relating to 69 the CDs containing recorded voice conversation. Therefore, in view of the evidence placed through the mouth of investigating officer regarding CDs are concerned, the prosecution has not established satisfactorily that the voice which was said to be of accused person was not properly established during the course of trial. It is no doubt true that one witness P.W.3 has deposed that the conversation is that of voice of the accused person and on 22.9.2011 night at 9.30 p.m., the Tahsildar called him over phone stating that Lokayuktha inspector is calling him and he was told to go there. On the same day, during night, he went to Lokayuktha office and he met inspector in the Lokayuktha office. He was made to hear conversation recorded and after hearing the said conversation, he identified that it is the voice of the accused person. He further deposed that accused person is co-employee. He was having acquaintance of the voice of the accused person. After two months, again he was called to the Lokayuktha office. At that time, another recorded conversation was made to hear and it was put 70 into the computer after hearing the said conversation. He identified that the voice was of Raghumurthy (accused). At that time, mahazar was drawn and he put his signature as per Ex.P.55A. It is no doubt true that P.W.3 has not been examined by the defence because his deposition goes to show the that junior advocate sought time and it was rejected and he has taken time. Simply because it is P.W.3 deposed before the Court that it was voice of the accused person, it was not the sufficient proof but it ought to have been said by some experts. The steps could have been taken by the investigating officer for sending the recorded CDs along with the sample voice recorded in the presence of the Court to the FSL for comparison and give its report in the matter. Therefore, I am of the opinion even ascertainment of the recorded voice that it is of the accused person is not established with cogent and satisfactory material. Looking to the material placed on record, I am of the opinion that relaxation of condition under Section 65(B)(4) of the Evidence Act as observed by 71 the Apex court in the decision relied upon by Spl.P.P. does not arise in this case.

27. The accused person when asked immediately after the alleged trap as to what he would say in the matter, he offered his explanation as per Ex.P.41. In Ex.P.41, he has stated that without his knowledge, the amount was put into the dash board of the car. It is supported by the evidence of very prosecution witnesses i.e. P.Ws.1 and 2 (Venkataramu). The burden is not on the accused person and he need not prove his defence beyond reasonable doubt. Preponderance of probability is that he has to make out case about his defence that it was kept in the dash board without his knowledge. As per the prosecution case itself, it was darkness. He was not in the car. When the complainant and Venkataramu sat into his car, he alighted. Therefore, this also probabilise defence of the accused person and even the panch witnesses also deposed during the course of defence so also the investigating officer that after giving 72 prearranged signal, he went there, asked accused person to hand over the amount, the accused person has not touched the amount which has come on record. Therefore, it goes to show that the defence he has taken by way of explanation Ex.P.41 is established with the prosecution material itself to the satisfaction of the Court. Considering all these aspects of the matter, I am of the opinion that the learned Special Judge has not taken all these aspects into consideration while appreciating the case with oral as well as documentary evidence adduced in the case and wrongly read it and wrongly proceeded to convict the accused holding that the prosecution proved its case beyond reasonable doubt. Perusing the entire materials so also the legal position, the judgment and order of conviction passed by the learned Special Judge is not in accordance with the materials placed on record. The material goes to show that the prosecution has utterly failed to prove its case beyond all reasonable doubt. There are reasonable doubts arise in the mind of 73 the Court. The benefit of reasonable doubt will have to be given to the accused.

28. Hence, the appeal is allowed. The judgment and order of conviction passed by the Court below is hereby set aside. The appellant accused is acquitted of the both charges under section 7 read with Section 13(2) of PC Act. The bail bonds of the accused stands cancelled. The fine amount deposited if any by the appellant accused be refunded.

Sd/-

JUDGE Cs/- Para Nos.1 to 6 and 17 to 28 SNB/ - Para No.7 to 16 Ct-SG/-